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.
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.
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 ...