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02/07/89 Ronald Zielinski, v. A. Epstein & Sons

February 7, 1989

RONALD ZIELINSKI, PLAINTIFF-APPELLANT

v.

A. EPSTEIN & SONS INTERNATIONAL, INC., ET AL., DEFENDANTS-APPELLEES

THE APPLICABLE STATUTE OF LIMITATIONS IS CONTAINED IN SECTION 13-214(B) OF THE CODE OF CIVIL PROCEDURE (ILL. RE

v.

STAT. 1983, CH. 110, PAR. 13-214(B)), THE RELEVANT PORTION OF WHICH PROVIDES:



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

534 N.E.2d 644, 179 Ill. App. 3d 340, 128 Ill. Dec. 462 1989.IL.144

Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Rakowski, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Plaintiff seeks recovery of damages for injuries sustained when he fell through an access door in the suspended ceiling of a room at a manufacturing plant owned by his employer, the Jewel Food Company (Jewel). Defendants on appeal are A. Epstein & Sons International, Inc. (Epstein), and Chell and Anderson, Inc. (Chell), the architect and the general contractor, respectively, of the structure in which plaintiff was working. The trial court granted the defendants' motion for summary judgment on the ground that plaintiff's action was time barred by the applicable statute of limitations (Ill. Rev. Stat. 1983, ch. 110, par. 13-214(b)), inasmuch as the ceiling and access doors were installed more than 12 years prior to plaintiff's accident. The issue here is whether summary judgment lies where a dispute exists between the parties as to when the statute of repose begins to run.

On December 5, 1983, plaintiff was severely injured as he worked on Jewel's refrigeration systems at its Hillfarm Dairy plant in Melrose Park, Illinois, where he was working as a refrigeration maintenance specialist. Plaintiff had entered the ceiling above the refrigeration units through an access panel located immediately above a permanent ladder attached to the wall. After he had repaired a valve located above the refrigeration units, he walked back to the access panel from which he had entered the ceiling. As he made his way back to that panel, he stepped on a second one, which swung open, causing plaintiff to fall approximately 20 feet to the floor below.

All work on the project was completed during the week ending June 11, 1971, and the building inspector of Franklin Park *fn1 granted Jewel an occupancy permit on August 9, 1971. According to Epstein's records, as of December 1971 the only item not completed on the project was entitled "Approve final payout, job closed."

On November 8, 1984, plaintiff filed his complaint against Epstein and Chell, and on May 1, 1987, Epstein filed a motion for summary judgment, in which Chell joined. With its motion Epstein submitted the deposition testimony of Edward A. Whalen of the subcontracting firm of Dewey and Whalen, in which he stated that all work performed by his firm was completed by December 5, 1971; Jewel's answers to interrogatories, and its response to Epstein's request to admit, including a letter regarding the occupancy permit issued to Jewel by the Village of Franklin Park on August 9, 1971. The trial Judge granted the defendants summary judgment and later denied the plaintiff's motion for reconsideration, from which he now appeals.

"(b) No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement of real property after 12 years have elapsed from the time of such act or omission."

Both plaintiff and defendants agree that the plaintiff's accident occurred on December 5, 1983; thus, the critical date insofar as the statute of repose is concerned is December 5, 1971, 12 years prior to the date of the accident.

Plaintiff advances the thesis that the very last act associated with the construction of the ceiling was the final exchange of paperwork, which occurred on June 5, 1972, and that, therefore, the applicable statute of limitations would not commence to run until that date. Plaintiff adds that the statute of limitations does not begin to run when a contract is executed, but when it terminates, citing Hanover Shoe v. United Shoe Machinery Corp. (1968), 392 U.S. 481, 20 L. Ed. 2d 1231, 88 S. Ct. 2224; consequently, the contract for the construction project at the Hillfarm Dairy plant did not terminate until June 5, 1972. Plaintiff further adds that according to Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 176 N.E.2d 761, a tort action accrues when the last act creating liability occurs, which in the instant case would be the final closing of the contract, i.e., June 5, 1972.

Plaintiff maintains that since defendants' motion for summary judgment is not supported by affidavit, deposition, or other testimony as to when their duties under the contract were completed, summary judgment should have been denied. (Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239.) He also points out that the defendants admitted that they conducted activities after December 5, 1971, but sought to explain them as a mere exchange of paper work; thus, he asserts, these facts go to prove that the general contractor had a presence on the jobsite and maintained control over the project until its completion, which was after December 5, 1971; therefore, he is entitled to judgment. Finally, plaintiff posits that "[the] continuation of a special relationship offering the possibility of correction of the injury may postpone [the critical] date further" (Cooper v. United States (7th Cir. 1971), 442 F.2d 908, 912); accordingly, since defendants were under a duty to correct any problems until the closing date, June 5, 1972, that should be the critical date.

Epstein argues that in its deposition, the subcontractor stated that the design and construction of the suspended ceiling was completed by May 10, 1971, well before the critical date of December 5, 1971. Therefore, Epstein reasons, any design or construction defect related to the suspended ceiling must have occurred earlier; hence, any claim regarding such a defect would be barred by the statute of repose. Epstein also refers to the occupancy permit issued for the building by the Village of Franklin Park on August 9, 1971, contending that this proves ...


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