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Bailey v. Allstate Development Corporation

September 29, 2000

EARL D. BAILEY, PLAINTIFF- APPELLANT,
v.
ALLSTATE DEVELOPMENT CORPORATION AND ALLSTATE INSURANCE COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 95 L 7773 Honorable Sophia H. Hall, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen

Plaintiff, Earl Bailey, filed a first amended complaint against defendants Allstate Development Corporation and Allstate Insurance Company (hereinafter referred to collectively as Allstate or defendants) seeking damages for injuries sustained when plaintiff fell from a ledge while washing windows at Allstate's corporate office building in Northbrook, Illinois. The trial court granted summary judgment in favor of defendants on the grounds that plaintiff's original complaint was filed more than two years after the occurrence and thus outside the statute of limitations period generally applicable to personal injury claims. 735 ILCS 5/13-202 (West 1998). The trial court rejected plaintiff's argument that his cause of action was governed by the extended four-year statute of limitations period set forth in the construction section of the Limitations Act (Act) (735 ILCS 5/13-214(a) (West 1998)). In ruling, the trial court did not address plaintiff's argument that a prior judge's denial of defendants' motion to dismiss precluded a subsequent grant of summary judgment on the same issue. We affirm the circuit court and find that: (1) a successor judge's grant of summary judgment is proper, absent a change in facts or circumstances, when a prior judge's order denying a defendant's motion to dismiss was not a ruling on the merits, and (2) plaintiff's cause of action is governed by the two-year statute of limitations generally applicable to personal injury claims because, as a matter of law, the performance of window washing services does not constitute the "construction of an improvement to real property" within the meaning of the Limitations Act (735 ILCS 5/13-214(a) (West 1998)).

I. BACKGROUND

On July 11, 1991, Earl Bailey sustained severe injuries when he fell from the window ledge of an Allstate corporate office building. At the time of the accident, plaintiff was employed by Standard Window Cleaning Company/Millard Maintenance Service (Millard), which had contracted with defendants to perform window washing services on certain buildings owned and operated by defendants in Northbrook, Illinois. In order to perform his work, plaintiff was required to wet down windows while standing on an outdoor ledge. After the window was wet, plaintiff's co-worker squeegeed the window to remove the water. Neither plaintiff nor his co-worker was wearing a safety belt at the time of the accident. Defendants specifically required safety belts to be worn by all persons performing window washing work on outdoor ledges.

Plaintiff's original complaint was filed in 1995, almost four years after plaintiff was injured. On May 4, 1995, plaintiff filed a first amended complaint against defendants which alleged a violation of the Structural Work Act (740 ILCS 150/0.01 et seq. (West 1994)) in Count I and negligence in count II. Specifically, plaintiff alleged that safety belts, owned by defendants, were available on the Allstate premises but that defendants failed to provide workers with adequate access to them. Plaintiff further alleged that defendants knowingly allowed workers to stand on outdoor ledges while washing building windows without using any safety equipment.

On July 10, 1995, defendants filed a motion to dismiss count II of plaintiff's first amended complaint on the pleadings. In their motion, defendants argued that plaintiff's negligence action was time-barred pursuant to section 13-202 of the Limitations Act because it was filed after the two-year statute of limitations had expired. 735 ILCS 5/13-202 (West 1998). In response, plaintiff asserted that his first amended complaint alleged a cause of action arising out of a construction-related activity and was therefore governed by the four-year statute of limitations set forth in the construction section of the Act (735 ILCS 5/13-214(a) (West 1998)). Defendants replied that the four-year statute of limitations did not apply to plaintiff's cause of action because the construction-related activities outlined in section 13-214(a) do not encompass the performance of window washing services. 735 ILCS 5/13-214 (a) (West 1998). Neither party cited any case law or relied on affidavits or other evidentiary material in support of its arguments.

On September 15, 1995, the assigned motion judge denied defendants' motion to dismiss and directed defendants to file an answer to plaintiff's first amended complaint within 28 days.

On January 26, 1996, the motion judge granted defendants' motion for leave to file an answer to plaintiff's first amended complaint and affirmative defenses instanter. Defendants' first affirmative defense asserted, "[p]laintiff's complaint is barred by the statute of limitations." On February 6, 1996, plaintiff filed a answer which denied, generally, the allegations contained in defendants' first affirmative defense. On September 13, 1999, defendants filed an amended motion for summary judgment in which they argued that the activities governed by section 13-214(a) of the Limitations Act do not include the performance of window washing services under Illinois case law.

Plaintiff filed a response to defendants' motion for summary judgment asserting that the phrase "construction of improvement to real property" has been liberally construed under Illinois case law and that this statutory provision should be read broadly to include plaintiff's window washing activities. Plaintiff also filed a surreply alleging that the motion judge's order denying defendants' motion to dismiss could not be reversed by the successor judge granting a motion for summary judgment, absent a change in facts or circumstances that would warrant a reversal of the court's prior position.

On December 15, 1999, the successor judge hearing the summary judgment motion entered a written decision and order granting defendants' motion on the grounds that the applicable two-year statute of limitations was expired at the time plaintiff filed his original complaint. The successor judge found, as a matter of law, that window washing is not within the realm of construction-related activities contemplated by section 13-214(a) of the Limitations Act. 735 ILCS 13-214(a) (West 1998). The successor judge's decision did not address plaintiff's argument that the motion judge's order denying defendants' motion to dismiss precluded a successor judge from granting summary judgment on the same issue, absent a change in facts or circumstances. This appeal followed.

II. ANALYSIS

The issue on appeal is whether the successor judge erred in granting summary judgment in favor of Allstate. Although summary judgment is considered a drastic remedy, it is a proper method of disposing of a cause if the pleadings, depositions, admissions on file and any affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Smith v. Allstate Insurance Co., 312 Ill. App. 3d 246, 251 (1999); 735 ILCS 5/2-1005(c) (West 1998). A triable issue of fact exists only where there is a dispute as to a material fact or where, although the facts are not in dispute, reasonable minds might differ in drawing inferences from those facts. Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31 (1999). In determining whether a genuine issue of fact exists or whether the trial court erred in its application of the law, all evidence is construed strictly against the movant and liberally in favor of the respondent. Barnett v. Zion Park District, 171 Ill. 2d 378, 385 (1996). Because the propriety of the trial court's order granting summary judgment involves a question of law, the standard of review is de novo. Barnett, 171 Ill. 2d at 385.

A. MOTION JUDGE'S DENIAL OF DEFENDANTS' MOTION TO DISMISS

Plaintiff's first argument on appeal is that the successor judge erred in granting defendants' summary judgment motion because she did not take into consideration the fact that the motion judge had previously denied defendants' motion to dismiss, although both motions raised the statute of limitations as a defense. Plaintiff concedes that the successor judge was not required to follow the original motion judge's ruling.

However, plaintiff argues that the successor judge was not at liberty to ignore the motion judge's order because this ruling had already disposed of the statute of limitations issue. In support of this argument, plaintiff cites several cases which hold that a successor judge should not reverse the discretionary ruling of a prior judge unless there is a change of circumstances or additional facts which warrant such action. W.R. Grace & Co. v. Beker Industries, Inc., 128 Ill. App. 3d 215, 222 (1984), citing Balciunas v. Duff, 94 Ill. 2d. 176, 188 (1983); People ex rel. Phillips Petroleum Co. v. Gitchoff, 65 Ill. 2d 249, 257 (1976). Accordingly, plaintiff argues that the successor judge's ruling should be reversed because ...


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