Pollock v. Hafner

• Decision Date: 09 August 1982
• Docket Number: No. 17447,17447
• Citation: 64 Ill.Dec. 156,108 Ill.App.3d 410,439 N.E.2d 85
• Parties: , 64 Ill.Dec. 156 Edward Lannan POLLOCK and Roberta Williams, Executors of the Estate of Henry W. Pollock, deceased, and John T. Ennis, Plaintiffs-Appellants, v. J. E. HAFNER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 85

439 N.E.2d 85

108 Ill.App.3d 410, 64 Ill.Dec. 156

Edward Lannan POLLOCK and Roberta Williams, Executors of the Estate of Henry W. Pollock, deceased, and John T Ennis, Plaintiffs-Appellants, v. J. E. HAFNER, Defendant-Appellee.

No. 17447.

Appellate Court of Illinois Fourth District.

Aug. 9, 1982.

R. P. O'Connell, Ltd., Quincy, for plaintiffs-appellants; Chet W. Vahle, Quincy, of counsel.

Delmer R. Mitchell, Jr., Mark A. Drummond, Schmiedeskamp, Robertson, House, Neu & Mitchell, Quincy, for defendant-appellee.

LONDRIGAN, Justice:

The plaintiffs sued the defendant, who is both an architect and an engineer, for his allegedly negligent work in designing a building that has settled and cracked. The defendant moved for summary judgment on the grounds that he had not breached his duty of due care and that the complaint is barred by the applicable statute of limitations, five years. The trial court decided that a factual question existed on duty but granted the motion because of the statute of limitations. We agree that the complaint is untimely and affirm.

According to the plaintiffs' one-count complaint, filed June 22, 1978, the defendant and the plaintiffs' predecessor in interest signed a contract March 17, 1953, for the defendant "to perform preliminary work and prepare working drawings and specifications for a Motor Truck Branch Service Building." The complaint alleges that the defendant's negligence caused the building to subside in August 1976.

In requesting summary judgment the defendant argued that the cause of action accrued in 1957, when subsidence began and structural damage became visible; accompanying the motion were affidavits from five employees in the building who said that various defects, including cracked walls and sunken floors, were apparent as long ago as 1957 and 1962. The plaintiffs moved to dismiss the motion and submitted the affidavit of plaintiff John T. Ennis. According to Ennis, "for some period of time prior to September, 1976," he and Henry W. Pollock--who died in 1979 and whose executors were substituted as plaintiffs--noticed that walls had cracked and that portions of the floor had sunk, and they employed several experts to investigate. Tests done from September 30, 1976, until October 28, 1976, showed that the building was sitting on a pile of rubble consisting of brick and mortar. Tests done by another expert in November and December 1976 confirmed this and concluded that the building was settling because of its location atop rubble. Ennis's affidavit asserts that with that information the plaintiffs knew for the first time the cause of the problem. The defendant responded with another affidavit from one of the five employees. The affiant, who saw the excavation for the building, which was from September 1953 until March 1954, said that the excavation revealed rubble--cinders, ashes, brick, and mortar--under the building site. Plaintiff Ennis then filed another affidavit, saying that the excavation revealed rubble, that the defendant changed some plans and designs as a result of that news, and that the contractor increased his price by $44,000 in response to the changes.

The trial court granted the defendant's motion for summary judgment because as a matter of law the plaintiffs should have known of the defects in the building more than five years before they finally filed suit. Applying the discovery rule, the court measured the plaintiffs' diligence against the undisputed information in the affidavits submitted by the defendant.

The parties agree that the applicable statute of limitations is the five-year period provided by section 15 of "An Act in regard to limitations" (Ill.Rev.Stat.1979, ch. 83, par. 16) for actions "to recover damages for an injury done to property, real or personal." Section 13-214 of the Code of Civil Procedure (Ill.Rev.Stat.1981, ch. 110, par. 13-214), which was formerly section 21.3 of "An Act in regard to limitations" (Ill.Rev.Stat.1980 Supp., ch. 83, par. 22.3), provides a shorter period for bringing actions concerning the design and construction of buildings: suit must be filed within two years of when the plaintiff knew or should have known of the "act or omission" complained of, and no action may be brought more than twelve years after the occurrence of the "act or omission"; these two periods may be tacked, giving a maximum limitations period of fourteen years (Ill.Rev.Stat.1981, ch. 110, par. 13-214(a), (b)). The provision was not in effect when the plaintiffs filed their complaint and therefore does not apply here. (Hupp v. Gray (1978), 73 Ill.2d 78, 22 Ill.Dec. 513, 382 N.E.2d 1211.) Subsection (e) of section 13-214 (Ill.Rev.Stat.1981, ch. 110, par. 13-214(e)), which said, "The limitations of this Section shall apply to all acts or omissions which occur on or after November 29, 1979," has been deleted by revisory legislation, Public Act 82-783, to incorporate in the Code the same deletion that had been made in the provision's earlier incarnation, section 21.3, by Public Act 82-539.

The discovery rule applies to actions of architectural malpractice that are brought under section 15 of "An Act in regard to limitations" (Ill.Rev.Stat.1979, ch. 83, par. 16). (Society of Mt. Carmel v. Fox (1975), 31 Ill.App.3d 1060, 335 N.E.2d 588, appeal after remand, (1980), 90 Ill.App.3d 537, 46 Ill.Dec. 40, 413 N.E.2d 480.) The accrual of a cause of action starts the limitations clock; under the discovery rule a cause of action does not accrue until "a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused" (Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 415, 58 Ill.Dec. 725, 729, 430 N.E.2d 976, 980, paraphrasing Nolan v. Johns-Manville Asbestos (1981) 85 Ill.2d 161, 52 Ill.Dec. 1, 421 N.E.2d 864, and Witherell v. Weimer (1981), 85 Ill.2d 146, 52 Ill.Dec. 6, 421 N.E.2d 869 (unlike the plaintiffs we do not interpret Knox College (leaky roof on a relatively new building) as applying the discovery rule to architectural malpractice, for in that case the supreme court dismissed the only count against the architects because it combined two causes of action, tort and contract; the opinion discusses the rule in the course of analyzing the timeliness of three counts alleging tortious misrepresentation and fraud against the supplier of the roofing materials)). The plaintiffs focus their argument on the second clause of the discovery rule--determining when a party knows or should know that the injury was wrongfully caused--and argue that in this case that is a question of fact rather than law.

Discussing Nolan and Witherell, the court in Knox College cautioned that knowledge of wrongful cause does not mean knowledge that the defendant was negligent or "knowledge that an actionable wrong was committed"; knowledge of wrongful cause falls short of those legal certainties and is instead knowledge that requires a potential plaintiff to investigate and ask whether he has a cause of action, that is, whether the defendant has committed an actionable wrong. (88 Ill.2d 407, 415-16, 58 Ill.Dec. 725, 729, 430 N.E.2d 976, 980.) Knox College also says:

"At some point the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. At that point, under the discovery rule, the running of the limitations period commences. As we...