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Rojas Concrete, Inc v. Flood Testing Laboratories

December 15, 2010

ROJAS CONCRETE, INC.,
PLAINTIFF-APPELLANT,
v.
FLOOD TESTING LABORATORIES, INC.,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County.

The opinion of the court was delivered by: Honorable Jeffrey Lawrence, Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Plaintiff, Rojas Concrete, Inc., brought an action alleging that defendant, Flood Testing Laboratories, Inc., had been negligent in testing concrete that plaintiff, a subcontractor, poured for a construction project at the University of Illinois at Chicago (UIC). Plaintiff alleged that as a result of defendant's negligence and negligent misrepresentations, plaintiff's concrete did not meet project specifications and plaintiff suffered monetary losses when UIC required plaintiff to remove the concrete. The circuit court subsequently dismissed plaintiff's complaint where the complaint failed to allege any duty owed by defendant to plaintiff. Plaintiff now appeals. For the following reasons, we affirm the order of the circuit court dismissing plaintiff's complaint for failure to allege that defendant owed a duty to plaintiff.

I. BACKGROUND

In 2005, UIC commenced a project to build the "UIC Forum," a mixed-use classroom, office and entertainment facility at its campus in Chicago, Illinois. Plaintiff was hired by Goebel Forming, Inc., one of UIC's contractors, to provide the concrete work for the Forum. Plaintiff's work included providing and installing concrete for the floor decks, grade beams, roofs, stairs and other areas of the Forum. The plans for the project specified that lightweight calcium chloride-free concrete was to be used for portions of the Forum.

Defendant contracted with UIC to monitor and test the concrete poured at the Forum construction site to ensure that the concrete conformed to mix design and the formula specified in the project plans. Defendant's contract with UIC provided, under part 1.2, "Inspection and testing services are required to verify compliance with requirements specified or indicated. These services do not relieve Contractor of responsibility for compliance with Contract Document requirements." Defendant's contract with UIC also provided, under article 25.2, "Nothing contained herein shall create a contractual relationship with, or any rights in favor of, any third party, including any Subcontractor."

Plaintiff did not contract with defendant for the testing and inspection of plaintiff's concrete and plaintiff did not participate in defendant's testing and inspection of the concrete. It is customary in the construction industry for the owner of a project, UIC in this case, to hire an independent entity, such as defendant, to monitor and test the concrete used by contractors. Pursuant to defendant's contract with UIC, defendant inspected and tested each load of concrete delivered by plaintiff to determine whether the concrete matched the mix design and formula specified in the project plans. Defendant then advised plaintiff whether the concrete passed the inspection.

Plaintiff alleged that on several occasions in December 2006 and January 2007, defendant tested and approved concrete that did not conform to the project specifications. Plaintiff alleged that in reliance on defendant's inspection, testing and approval of the concrete formula, plaintiff poured approximately 710 cubic yards of nonconforming concrete. UIC required plaintiff to remove and replace the nonconforming concrete. As a result, plaintiff alleged that it incurred monetary damages in excess of $950,000.

On December 17, 2008, plaintiff filed its two-count complaint, alleging negligence and negligent misrepresentations. Count I alleged that defendant owed plaintiff a duty to use reasonable care to adequately test and inspect the concrete to ensure that it conformed with project specifications and that defendant breached that duty, causing plaintiff to suffer significant damages. Count II alleged that defendant made representations to plaintiff that were false in that certain concrete did not conform to the project specifications and that plaintiff relied on these representations.

On March 13, 2009, defendant filed a motion to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2008)), arguing that it owed no duty to plaintiff and that plaintiff's claims sought only economic losses that were unrecoverable in tort. The circuit court initially denied defendant's motion, finding that defendant had voluntarily undertaken a duty to plaintiff and that defendant was an information provider, an exception to the economic loss doctrine. Defendant filed a motion to reconsider contending that the voluntary undertaking doctrine required plaintiff to suffer personal injury and that the information provider exception to the economic loss doctrine was not applicable in this case. On July 31, 2009, the circuit court granted defendant's motion to reconsider and dismissed plaintiff's complaint with prejudice. In so doing, the circuit court found that defendant owed no duty to plaintiff and that the voluntary undertaking doctrine required physical injury to plaintiff. The circuit court also determined that the information provider exception to the economic loss doctrine was inapplicable where defendant had no duty to plaintiff. Plaintiff now appeals.

II. ANALYSIS

A. Standard of Review A motion to dismiss pursuant to section 2-615 of the Code tests the legal sufficiency of a complaint, whereas a section 2-619 motion admits the legal sufficiency of the complaint, but asserts affirmative matter outside of the complaint which defeats the claim. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 578-79 (2006). Our review of a dismissal under either section of the Code is de novo. King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 12 (2005).

To state a claim for negligence, a plaintiff must plead a duty owed by a defendant to that plaintiff, breach of that duty, and injury proximately caused by that breach of duty. Ford v. Round Barn True Value, Inc., 377 Ill. App. 3d 1109, 1113 (2007). To state a claim for negligent misrepresentation, a plaintiff must plead and prove that the defendant owed a duty to the plaintiff to communicate accurate information. Kopley Group V., L.P. v. Sheridan Edgewater Properties, Ltd., 376 Ill. App. 3d 1006, 1017 (2007).

B. Whether Defendant Owed Plaintiff a Contractual Duty Whether a duty of care exists is a question of law to be decided by the court. Eichengreen v. Rollins, Inc., 325 Ill. App. 3d 517, 525-26 (2001). "An allegation of negligence based upon a contractual obligation, although sounding in tort rather than contract, is nonetheless defined by the contract." Eichengreen, 325 Ill. App. 3d at 525. Thus, the scope of duty is determined by the terms of the contract and a ...


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