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06/08/88 Freeport Memorial Hospital v. Lankton

June 8, 1988

FREEPORT MEMORIAL HOSPITAL, PLAINTIFF-APPELLANT

v.

LANKTON, ZIEGELE, TERRY & ASSOCIATES, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

525 N.E.2d 194, 170 Ill. App. 3d 531, 121 Ill. Dec. 388 1988.IL.902

Appeal from the Circuit Court of Stephenson County; the Hon. Francis X. Mahoney, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, Freeport Memorial Hospital, brought this action for the recovery of damages against defendants, Lankton, Ziegele, Terry and Associates, Inc. (architects), and Cullen & Sons Construction Corporation (Cullen) (general contractor), for the alleged negligent design and construction by them of an addition to its hospital. The trial court granted defendants' motions to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), finding that the action was barred by the statute of limitations. Plaintiff appeals, contending that there were disputed questions of fact precluding dismissal, and that LZT is estopped from raising the statute of limitations as a defense.

Plaintiff's complaint was filed on December 27, 1984, and alleged, inter alia, that defendants LZT and Cullen, respectively, designed and constructed an addition to plaintiff's hospital building which was completed in 1976; that defendants breached their duty to plaintiffs, under the agreement between the parties, by negligently failing to conform to industry standards; failing to accommodate the freeze-thaw cycle weather conditions of Freeport, Illinois; failing to provide adequate control joints to allow for the freeze-thaw cycle; failing to provide for and supervise construction of vertical control joints, horizontal expansion joints, shelf angles and lintels.

The complaint alleged further that plaintiff "did not know or have any reason to know of these defects caused by the negligence of defendants until the defects were discovered on September 18, 1983, during an inspection by Hansen, Lind, Meyer, P.C."

Finally, it was alleged that as a proximate result of the alleged negligence, the brick walls of the building addition have cracked and become subject to efflorescence, to plaintiff's damage.

Defendants each filed similar motions to dismiss in which they alleged that plaintiff's action was barred by reason of the two-year limitation period within which such actions must then have been brought pursuant to section 13-214 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 13-214.) Defendants alleged that plaintiff knew, or reasonably should have known, of its injury more than two years prior to commencing the action, and the motions were each supported by affidavits and other documents thereto attached.

In his affidavit, Roy Colwell, a former assistant administrator for Freeport Memorial Hospital, stated that he was aware of water seeping from the exterior to the interior of the fourth and fifth floors of the addition in 1978 and in 1979-80 learned from the hospital chief of maintenance, and observed, brick cracking of which he advised Ray Wine, who was the hospital administrator. Mark Cullen stated in his affidavit that he was the president of defendant Cullen on November 23, 1982, and met at the hospital with Roy Colwell and Ray Wine, its administrators. They toured the addition which had been completed in 1976 and Colwell mentioned the problem of water leaking through its walls.

The affidavit of Val E. Fuger states that in 1981 he was employed by defendant LZT as project architect and received complaints from plaintiff's administrator, and others, regarding masonry wall cracks in the addition and had discussed it with them in March and April of 1981, and earlier; that Fuger conducted an investigation of the problem and reported on it to plaintiff's administrator by letter dated April 10, 1981, which was attached to his affidavit, and stated that after viewing the cracks and discussing the plans for the addition with personnel who had been involved with its design and construction, he reached the following Conclusions:

"3. The Conclusions as to this matter are as follows:

a. The cracks are caused by abnormally rapid expansion and contraction of the brick panels created between the center line of each column by the control joint designed to ...


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