Ferentchak v. Village of Frankfort

Decision Date23 January 1985
Docket NumberNos. 59817,59819,s. 59817
Parties, 86 Ill.Dec. 443 Philip J. FERENTCHAK et al., Appellees and Appellants, v. The VILLAGE OF FRANKFORT et al., Appellees (Robert Hamilton, Appellant).
CourtIllinois Supreme Court

Thomas, Wallace, Feehan, Baron & Kaplan, Ltd., Joliet, for Robert E. Hamilton; Robert J. Baron, Richard W. Froelich, Joliet, of counsel.

Dunn, Leinenweber & Dunn, Ltd., Joliet, for plaintiffs/appellees; Harry D. Leinenweber, Joliet, of counsel.

McKenna, Storer, Rowe, White & Farrug, Wheaton, for Village of Frankfort; Mark D. Pheanis and John C. Bartler, Wheaton, of counsel.

O'Brien, O'Rourke, Hogan & McNulty, LaDonna M. Loitz, Donald V. O'Brien, Chicago, Anne E. Schless, Senior Law Student, for Associated General Contractors of Illinois, The Builders Association of Chicago, Inc. and The Underground Contractors Association, amicus curiae.

Fohrman, Lurie, Sklar & Simon, Ltd., Steven G.M. Stein, Mark C. Friedlander, Paul M. Lurie, Chicago, for The American Institute of Architects and Illinois Council of Architects, amicus curiae.

Kirkland & Ellis, Philip F. Purcell, James N. Nowacki, Mark A. Orloff, Chicago, for Skidmore, Owings & Merrill, amicus curiae.

SIMON, Justice:

This appeal raises two questions: (i) whether a civil engineer can be held liable for failure to establish minimum foundation grade levels for the plaintiffs' home when the engineer drew up surface water drainage plans for a custom home subdivision at the request, not of the plaintiffs, but of the subdivision developer; and (ii) whether a village can be held accountable for damage to the plaintiffs' home when its general rules and regulations for construction were relied upon at the time the home was built.

The plaintiffs, Philip and Caroline Ferentchak, sought recovery against the defendants, Robert Hamilton (Hamilton) and the village of Frankfort (the village) in the circuit court of Will County for damage to their home caused by flooding. The cause of the water entering their home was that the foundation grade level was too low to prevent this from happening. Although the foundation grade level was too low to prevent water seepage, it was not in violation of the village's minimum height regulation.

Hamilton first became involved with the subdivision in which the plaintiffs' property is located in 1971 when Albert Krusemark (Krusemark), a land developer, engaged Hamilton, a licensed Illinois civil engineer, to design and observe the construction of the subdivision's surface water drainage system. The record indicates that this contract did not require Hamilton to set the foundation grade levels for each lot. Hamilton completed the design of the system, and the plans were accepted by Krusemark and submitted by him to the village for approval. They received village approval, and the subdivision plat was recorded in 1973 after Hamilton, acting as the village engineer, informed the village that the plans he drafted and which were submitted by Krusemark complied in all respects with the village's building and zoning codes. No claim is made that Hamilton's plans did not meet the village requirements.

The plans developed by Hamilton for surface water drainage in the subdivision included a 20-foot-wide channel easement located between the southern boundary of lot 81, the plaintiffs' property, and the northern boundary of lot 82. The plans did not include any specifications as to the shape or depth of the proposed channel, and the approved plat was merely marked in the appropriate place with the designation "channel easement." Neither Hamilton's contract with Krusemark nor the village's ordinances required that such specifications be included in the plat.

Several lots of the subdivision, including lot 81 of the subdivision, were sold by Krusemark to Lidio Filippo (Filippo) in 1975. Filippo applied for and received a building permit to construct a single-family residence on lot 81. At that time, Filippo was informed of the village's requirements for home building by William Knippel (Knippel), the code administrator for the village. These included minimum levels for the foundation grade. Knippel testified that Filippo was also told that this was only a minimum and that the final decision as to the foundation grade level was left to the discretion of the builder. Prior to the pouring of the footings, Knippel visited the construction site, directed that the foundation be raised as much as possible, and approved construction. The home was built, and it received the village's approval.

After completing the home in August of 1976, Filippo sold it to the plaintiffs. The plaintiffs were unable to occupy it immediately because of the village's refusal to issue an occupancy permit based on Filippo's failure to create a drainage swale as indicated on the filed and approved plat. Filippo complied with the village's request and received assistance with its design from Bruce Hamilton, a son and employee of Robert Hamilton. After completion of the swale, the village issued the occupancy permit and the plaintiffs moved into the home.

In January 1977 the plaintiffs first noticed the problem that gave rise to this proceeding. Water was accumulating in their back yard and eventually entered their basement. Attempts to solve the problem, including basement water-proofing and modifications to the swale during the following summer, were unsuccessful.

The plaintiffs brought a negligence action against the village, Hamilton, Krusemark, and Filippo. The jury concluded that the village and Hamilton were liable, but that Filippo was not. Krusemark had been granted summary judgment at the close of the plaintiffs' case. Hamilton and the village appealed the jury findings, but the plaintiffs did not appeal the jury verdict in favor of Filippo or the summary judgment in favor of Krusemark. The appellate court affirmed the judgment against Hamilton, but reversed as to the village. (121 Ill.App.3d 599, 76 Ill.Dec. 950, 459 N.E.2d 1085.) Both Hamilton and the plaintiffs filed petitions for leave to appeal, which we granted (94 Ill.2d R. 315(a)) and consolidated.

Hamilton's plans for the drainage system did not set a foundation grade elevation for any of the lots in the subdivision. At trial a civil engineer called by the plaintiff as an expert testified that it was Hamilton's professional obligation to incorporate this information on the plat. Hamilton testified, however, that the omission was intentional because (i) the planned individual development of each lot in the subdivision would require customizing the channel to take account of the runoff pattern created by the homes, (ii) his contract with Krusemark did not require him to set the foundation levels, and (iii) the foundation levels would vary according to the placement, type and size of the custom-built homes placed on the individual lots.

Hamilton first argues that his responsibility to the plaintiff is limited to his duty under his contract with Krusemark. He points to their oral arrangement which, he contends, did not require him to set foundation levels for the individual lots in the Krusemark subdivision. Hamilton concludes that because his contract did not require him to establish the foundation levels on the individual lots, he cannot be held liable in tort.

Relying on our decisions in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443; Redarowicz v. Ohlendorf (1982), 92 Ill.2d 171, 65 Ill.Dec. 411, 441 N.E.2d 324, and Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill.2d 150, 70 Ill.Dec. 251, 449 N.E.2d 125. Hamilton also argues that the plaintiffs can recover only in a contract action for damage to their home. Hamilton contends that those cases bar the plaintiffs' action in tort because they seek damages for "economic loss." Because of our resolution of the duty requirement, however, it is unnecessary to review the appellate court's resolution of this contention.

Hamilton relies on this court's decision in Hunt v. Blasius (1978), 74 Ill.2d 203, 23 Ill.Dec. 574, 384 N.E.2d 368, which held that an independent contractor who "merely * * * carries out the specifications provided him * * * owes no duty to third persons" to pass on the appropriateness of the plans unless "they were so obviously dangerous that no competent contractor would follow them." (Hunt v. Blasius (1978), 74 Ill.2d 203, 209, 23 Ill.Dec. 574, 384 N.E.2d 368.) Hamilton concludes that he is not responsible to the plaintiffs because they were third persons and he merely followed Krusemark's instructions. Hunt, though, is different from this case, for Hamilton was not following the design of Krusemark, but instead was creating one. Therefore, Hunt does not support Hamilton's position in this case.

As in any action for negligent conduct, the plaintiffs must establish that Hamilton had a duty to conform to a certain standard of conduct, that he failed to meet that standard, and that his failure was the proximate or legal cause of the plaintiffs' damage. (See, e.g., Town of Thornton v. Winterhoff (1950), 406 Ill. 113, 119, 92 N.E.2d 163; Prosser, Torts sec. 30, at 143 (4th ed. 1971).) The first question to be addressed, therefore, is whether Hamilton had a legal duty to set the foundation grade levels. Whether there was a legal duty in this case is a question of law that must be determined by this court. (Barnes v. Washington (1973), 56 Ill.2d 22, 26, 305 N.E.2d 535.) " 'The duty issue, being one of law, is broad in its implication; the negligence issue is confined to the particular case and has no implications for other cases. There are many factors other than foreseeability that may condition a judge's imposing or not imposing a duty in the particular case * * *.' " (Cunis v. Brennan (1974), 56 Ill.2d 372, 375, 308 N.E.2d 617, citing Green, Forseeability in Negligence Law, 61...

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