United States District Court, N.D. Illinois, Eastern Division
September 9, 2005.
CARLSON RESTAURANTS WORLDWIDE COMPANIES, etc., Plaintiff,
OLYMPIC SIGNS, INC., et al., Defendants.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
Landmark Outdoor Advertising Company, Inc. ("Landmark,"
incorrectly sued as "Landmark Display Sign Company, Inc.") has
just filed a supplemental brief in support of its Fed.R.Civ.P.
("Rule") 12(b)(6) motion to be dismissed from this action brought
against it and Olympic Signs, Inc. ("Olympic") stemming from a
fire at a TGI Friday restaurant in Hoffman Estates, Illinois. For
the reasons briefly stated here, Landmark's motion is denied.
Landmark's supplemental brief points to the Illinois statute of
repose, 735 ILCS 5/13-214 ("Section 13-214") as one of two
predicates for dismissal. Section 13-214(b) bars any action
"based upon tort, contract or otherwise" after ten years has
elapsed from the time of a complained-of act or omission "in the
designing, planning, supervision, observation or management of
construction, or construction of an improvement to real
property." In this instance Landmark designed, manufactured and
installed the neon lights back in 1995, and this action was filed
on June 16, 2005. Where Landmark goes astray in that respect is in asserting that
its claimed "act or omission" necessarily antedated June 16,
1995, based on these assertions in the response to the Rule
On or about May 1995, Carlson and Landmark entered
into an agreement in which Landmark would design,
manufacture, test, install and inspect three neon
signs for a TGI Fridays located in Hoffman Estates,
Illinois. Landmark did in fact design, manufacture
and install the subject neon lights for the TGI
But because nothing is said there as to when the actual
manufacture and installation took place, Landmark cannot prevail
as a matter of law under the statute of repose at this point.
Landmark's other purported string to its bow is also broken
its attempted reliance on the five-year statute of limitations
mischaracterizes the Illinois caselaw that consistently applies a
discovery rule to toll the accrual of a claim such as that
involved here. Indeed, in the very next year after Justice (then
Judge) John Paul Stevens wrote at length about the Illinois law
on that subject (Gates Rubber Co. v. USM Corp., 508 F.2d 603
(7th Cir. 1975)), the Illinois Appellate Court for the First
District expressly applied the discovery rule in a construction
case much like the current one, where plaintiff neither knew nor
could reasonably have known of a construction defect that
resulted in damage only years later (E.J. Korvette Div. v. Esko
Roofing Co., 38 Ill.App.3d 905, 350 N.E.2d 10 (1st Dist.
1976)) a principle that has continued to be applied in numerous cases since then. In sum, Landmark's other basis for
dismissal fails as well.
As stated at the outset, then, Landmark's motion is
denied.*fn1 Landmark is ordered to answer the Complaint on
or before September 21, 2005.
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