Appeal from the Circuit Court of St. Clair County. No. 02-L-250 Honorable Robert P. LeChien, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
JUSTICE WELCH delivered the judgment of the court, with opinion. Presiding Justice Spomer concurred in the judgment and opinion. Justice Chapman dissented, with opinion.
¶ 1 On June 16, 2010, the plaintiffs, Lawrence and Rochella Schott, filed in the circuit court of St. Clair County a second amended complaint directed against the defendants, Halloran Construction Company, Inc. (Halloran Construction), and Mark Halloran (Halloran), seeking damages for personal injuries suffered when Lawrence accidentally stepped or fell off an unguarded retaining wall while patrolling the area in the course of his duties as a Swansea police officer. The complaint alleged that the wall had been originally built, and later reconstructed, by the defendants. The plaintiffs alleged that the defendants had been negligent in failing to build a guardrail or other barrier at the top of the wall to prevent people from falling off. At the point where Lawrence stepped or fell off the retaining wall, the wall was only about two feet high.
¶ 2 The case was tried to a jury, which returned a verdict in favor of Lawrence and against Halloran Construction, but found Lawrence 50% contributorily negligent. The jury found in favor of the individual defendant, Halloran. After a second jury trial on the proper amount of damages to be awarded, the court entered judgment on the jury's verdict.
¶ 3 Throughout these proceedings, the defendants have asserted that the plaintiffs' claims against them are barred by the statute of repose set forth in section 13-214(b) of the Illinois Code of Civil Procedure: "No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission." 735 ILCS 5/13-214(b) (West 2010).
¶ 4 The defendants alleged that construction of the wall was completed in 1990, more than 10 years prior to Lawrence's fall from the wall on April 6, 2001. The defendants acknowledged that in 1994 a portion of the retaining wall collapsed due to a heavy rain and needed to be rebuilt. This repair work was completed in 1994. The defendants argued that this repair of the wall did not constitute "construction of an improvement to real property" within the meaning of the statute of repose.
¶ 5 The defendants have raised the statute of repose as an affirmative defense to all of the plaintiffs' complaints and filed numerous motions for summary judgment on the ground that the plaintiffs' claims are barred by the statute of repose. These motions were all denied on the basis that the reconstruction of a portion of the wall in 1994 constituted "an improvement to real property" within the meaning of the statute of repose, and that the statute began to run anew in 1994. The defendants also raised the statute of repose in motions for a directed verdict at the close of the plaintiffs' case and at the close of all the evidence. These motions were also denied, as were the posttrial motions of Halloran Construction seeking a judgment in its favor notwithstanding the verdict. Halloran Construction filed a timely notice of appeal.
¶ 6 On appeal the defendant raises two arguments: (1) that the circuit court erred as a matter of law in denying the defendants' motions for directed verdict and judgment notwithstanding the verdict where the evidence at trial demonstrated that the plaintiffs' cause of action was barred by the construction statute of repose, and (2) that the circuit court erred in granting the plaintiffs' motion for a new trial on the issue of damages only because the jury's initial verdict was supported by the evidence. Because we reverse the judgment on the basis that the plaintiffs' claims against the defendants are barred by the statute of repose, we need not discuss the second of these issues.
¶ 7 A motion for a judgment notwithstanding the verdict is reviewed in the same manner as a motion for a directed verdict. Townsend v. Fassbinder, 372 Ill. App. 3d 890, 897-98 (2007). This court reviews de novo the circuit court's decision on either motion. Townsend, 372 Ill. App. 3d at 898. The motions should be granted where all the evidence, when viewed most favorably to the opposing party, so overwhelmingly favors the moving party that no contrary verdict based on the evidence could ever stand. Townsend, 372 Ill. App. 3d at 898. The motions present a question of law as to whether, when all of the evidence is considered, together with all reasonable inferences from it in its aspect most favorable to the plaintiffs, there is a total failure or lack of evidence to prove any element of the plaintiffs' case. Townsend, 372 Ill. App. 3d at 898. To the extent this case involves the interpretation of a statute, the statute of repose, the standard of review is also de novo. In re Estate of McInerny, 289 Ill. App. 3d 589, 596 (1997) (the interpretation of statutory provisions is traditionally a question of law to which a deferential standard of review is inapplicable).
¶ 8 The following evidence pertinent to the issue on review was presented at trial.
Mark Halloran testified that he is the owner of Halloran Construction, which has been in existence since 1974. Halloran Construction is in the business of real estate development and developed the property on which Lawrence was injured. Mark Halloran had purchased the property in March 1990, and Halloran ...