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08/21/95 MARK ADCOCK v. MONTGOMERY ELEVATOR COMPANY

August 21, 1995

MARK ADCOCK, PLAINTIFF-APPELLANT,
v.
MONTGOMERY ELEVATOR COMPANY, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE WILLIAM J. LASSERS, JUDGE PRESIDING.

As Corrected September 14, 1995. Petition for Leave to Appeal Denied December 6, 1995.

Presiding Justice Campbell delivered the opinion of the court: Buckley, J., and Wolfson, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff, Mark Adcock, appeals an order of the circuit court of Cook County, granting summary judgment in favor of defendant, Montgomery Elevator Company, in an action for negligence. On appeal, plaintiff contends that: (1) the trial court erred in determining that his negligence action is barred by the construction statute of repose (735 ILCS 5/13-214(b) (West 1992)); and (2) the construction statute of repose violates the open courts provision of the Illinois constitution. For the following reasons, we affirm.

The following facts are relevant to this appeal. In 1972, defendant manufactured and installed an escalator at O'Hare International Airport, Chicago (O'Hare). On April 19, 1989, plaintiff was a passenger on the escalator when it stopped abruptly, and plaintiff was thrown forward and down the escalator.

Plaintiff brought an action against defendant in two counts, alleging negligence and strict product liability. *fn1 In his negligence count, plaintiff alleged that the escalator braking system was defectively designed, causing the escalator to stop suddenly, throwing passengers forward.

Defendant filed a motion for summary judgment, arguing that plaintiff's negligence allegation was barred by the construction statute of repose. (735 ILCS 5/13-214 (West 1992).) Following a hearing, the trial court granted defendant's motion. Plaintiff's timely appeal followed.

Plaintiff contends that the statute of repose at section 13-214(b) should not bar his claim because defendant is not within the class of persons the legislature intended to protect. Plaintiff argues alternatively that the escalator is a standardized product, and therefore it does not fall within the scope of section 13-214(b).

Our standard of review of the circuit court's decision to grant summary judgment is de novo. ( Travelers Insurance Co. v. First National Bank (1993), 250 Ill. App. 3d 641, 645, 621 N.E.2d 209, 190 Ill. Dec. 340.) Summary judgment is proper where "the pleadings, depositions, and admissions on file, together with the affidavits, if any show that there is not genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (735 ILCS 5/2-1005(c) (West 1992).) Summary judgment is to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt the movant's right to relief. Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867, 95 Ill. Dec. 305; Prodromos v. Forty East Cedar Condominium Association (1994), 264 Ill. App. 3d 363, 636 N.E.2d 846, 201 Ill. Dec. 414.

Section 13-214(b) provides in pertinent part:

"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 to real property after 10 years have elapsed from the time of such act or omission. * * * " 735 ILCS 5/13-214(b).

Whether a manufacturer is afforded protection under section 13-214 (b) is determined by inquiring: (1) whether the product at issue constitutes an improvement to real property, and if so, (2) whether the manufacturer falls within the activities enumerated in the statute. ( St. Louis v. Rockwell Graphic Systems, Inc. (1992), 153 Ill. 2d 1, 3, 605 N.E.2d 555, 178 Ill. Dec. 761.) An "improvement" "is an addition to real property amounting to more than mere repair or replacement, and which substantially enhances the value of the property. ( Continental Insurance Co. v. Walsh Construction Co. (1988), 171 Ill. App. 3d 135, 524 N.E.2d 1131, 121 Ill. Dec. 83.)

Plaintiff concedes that the escalator is an improvement to real property. However, plaintiff argues that legislative history reveals that defendant is not protected under section 12-314(b) because the statute intends to protect only architects, ...


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