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MENARD, INC. v. COUNTRYSIDE INDUSTRIES

June 10, 2004.

MENARD, INC. d/b/a MENARDS Plaintiff,
v.
COUNTRYSIDE INDUSTRIES, INC.; DAVID L. JACOBSON & ASSOCIATES, LTD.; COWHEY GUDMONDSON LEDER, LTD.; and SERVICE KONSTRUCTION SUPPLY, INC., Defendants.



The opinion of the court was delivered by: JOHN W. DARRAH, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Menard, Inc., filed suit against Countryside Industries, Inc. ("Countryside"); David L. Jacobson & Associates, Ltd. ("Jacobson"); Cowhey Gudmondson Leder, Ltd. ("Cowhey"); and Service Konstruction Supply, Inc. ("Service Konstruction"), for problems that arose with a development of real estate. Plaintiff alleges, in Counts VII, IX, and XI of its Third-Amended Complaint, respectively, that Cowhey, Service Konstruction, and Jacobson negligently engineered, designed, or constructed a retaining wall that eventually was replaced. Plaintiff, in Count XIII, also alleges that Jacobson, Cowhey, and Service Konstruction had exclusive control of the retaining wall and should be liable under the theory of res ipsa loquitur for their alleged negligent conduct.

Cowhey, Service Konstruction, and Jacobson move for summary judgment as to Counts VII, IX, and XI, claiming that the "economic loss doctrine" of Moorman Manufacturing Co. v. National Tank Co., 435 N.E.2d 443 (1982), prohibits Plaintiff from recovering loss from negligence; and they had insufficient control of the wall to be liable on Count XIII.

  LEGAL STANDARD

  Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, although the moving party on a motion for summary judgment is responsible for demonstrating to the court why there is no genuine issue of material fact, the non-moving party must go beyond the face of the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to demonstrate, through specific evidence, that a genuine issue of material fact exists and to show that a rational jury could return a verdict in the non-moving party's favor. Celotex, 477 U.S. at 322-27; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994).

  Disputed facts are material when they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for summary judgment, a court must view all inferences to be drawn from the facts in the light most favorable to the opposing party. Anderson, 477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475 U.S. at 586. If the evidence is merely colorable or is not significantly probative or is no more than a scintilla, summary judgment may be granted. Anderson, 477 U.S. at 249-250.

  BACKGROUND

  The undisputed facts, for the purposes of this motion, taken from the parties' Local Rule 56.1(a) & (b) statements of material facts (referred to herein as "Pl.'s 56.1" and "Def's 56.1") and exhibits, are as follows.

  Plaintiff entered into a contract to purchase real property, whereby Plaintiff would build a typical "Menards" retail home-improvement center. Def.'s 56.1 ¶ 1; Third Am. Compl. ¶ 3. Cowhey was hired to perform engineering services such as site design, mass grading, earthwork estimates, storm sewer structures, parking lot design, and grading design on the property in question. Def.'s 56.1 ¶ 23. Cowhey's grading plans provided for a retaining wall on the east side of the site and a flat area for a building and associated parking. Def.'s 56.1 ¶ 26. A retaining wall was required because there was a considerable slope in the grade from west to east on the site. Def.'s 56.1 ¶ 27.

  Plaintiff's intended purpose for the retaining wall was to hold the soil, gravel, and other materials existing on the incline of the site secure enough to support the construction and weight of a Menards home-improvement center, all the improvements, site work, landscaping, and parking lot. Def.'s 56.1 ¶ 87; Def.'s Ex. 9, ¶ 8. Plaintiff required the retaining wall to be built prior to taking possession of the site so that it could have enough flat land to build its store. Def.'s 56.1 ¶ 86. Plaintiff's development of the site included concrete slabs located adjacent to the retaining wall. Def.'s 56.1 ¶ 85. Other contractors were hired by Plaintiff to construct the Menards building and the parking lot and to perform the concrete work at the site. Def.'s 56.1 ¶ 16-17.

  Cowhey contacted Service Konstruction regarding the retaining wall and provided them with the grading plans and soil information. Def.'s 56.1 ¶¶ 30, 31. Service Konstruction then asked Jacobson to prepare the final engineering design for the retaining wall. Def.'s 56.1 ¶ 47. Service Konstruction provided Jacobson with the preliminary sections that Service Konstruction prepared, along with Cowhey's revised grading plans. Def.'s 56.1 ¶¶ 48, 56. The revised grading plans depict a parking set back adjacent to the retaining wall but do not reference a Menards store. Def.'s 56.1 ¶ 58.

  Based upon this and other information received from Service Konstruction, Jacobson completed the structural engineering design for the retaining wall and supplied Service Konstruction with structural plans and calculations of the retaining wall. Pl.'s Resp. to Def.'s 56.1 ¶ 66. Jacobson was not involved in the wall's assembly. Pl.'s Resp. to Def.'s 56.1 ¶ 82.

  After Plaintiff acquired possession of the property, it allowed access to companies who were to design and construct the improvements. Pl.'s Resp. to Def.'s 56.1 ¶ 91. At that time, the retaining wall was constructed and the site was graded for Plaintiff to continue its planned development of the remaining improvements to the site, including the pavement adjacent to the retaining wall. Def.'s 56.1 ¶ 92. Plaintiff then began construction of its store on the site. Def.'s 56.1 ¶ 94. Subsequently, concrete slabs were poured along the retaining wall according to the new concrete configuration. Def.'s 56.1 ¶ 95.

  A year after Plaintiff took possession of the property, it discovered that the concrete slabs located adjacent to the retaining wall were cracking, separating, and settling. Def.'s 56.1 ¶ 98. As more cracks developed in the concrete slab, Cowhey surveyed the wall on multiple occasions and determined that the wall was settling near the dogleg in the wall and exhibited some movement in certain areas. Def.'s 56.1 ¶¶ 101, 102. Plaintiff's personnel also observed the retaining wall and noted that the wall ...


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