Hannon v. Counihan

• Decision Date: 15 November 1977
• Docket Number: No. 77-21,77-21
• Citation: 12 Ill.Dec. 210,54 Ill.App.3d 509,369 N.E.2d 917
• Parties: , 12 Ill.Dec. 210 Thomas F. HANNON and Barbara A. Hannon, Plaintiffs-Appellants, v. Timothy C. COUNIHAN and Thomas Counihan, Sr., Individually and d/b/a Tau Builders, Swan Brothers Construction Inc., an Illinois Corporation, and, Boise Cascade Corp., a Foreign Corporation, Defendants, and Village of Barrington, a Municipal Corporation, and Village of Deer Park, a Municipal Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 917

369 N.E.2d 917

54 Ill.App.3d 509, 12 Ill.Dec. 210

Thomas F. HANNON and Barbara A. Hannon, Plaintiffs-Appellants, v. Timothy C. COUNIHAN and Thomas Counihan, Sr., Individually and d/b/a Tau Builders, Swan Brothers Construction Inc., an

Illinois Corporation, and, Boise Cascade Corp., a Foreign

Corporation, Defendants,

and

Village of Barrington, a Municipal Corporation, and Village

of Deer Park, a Municipal Corporation, Defendants-Appellees.

No. 77-21.

Appellate Court of Illinois, Second District.

Nov. 15, 1977.

Rehearing Denied Dec. 16, 1977.

Epton & Druth, John M. Janewicz and Bernard E. Epton, Chicago, for plaintiffs-appellants.

Diver, Brydges, Bollman, Grach & Riseborough, Waukegan, for Village of Burrington.

Donald Ridge, Waukegan, for Village of Burrington.

NASH, Justice.

Plaintiffs, Thomas F. Hannon and Barbara A. Hannon, appeal from the order of the trial court dismissing their complaint as to defendants Village of Deer Park and Village of Barrington in Lake County.

This is an action for the recovery of damages alleged to have been sustained by plaintiffs in the construction of a house for them in Deer Park. Other defendants in separate counts of the complaint brought for these same damages are Boise Cascade Corporation, the manufacturer of the prefabricated home, Tau Builders, a partnership which was the general contractor for the construction of the home on plaintiffs' lot and Swan Brothers Construction, Incorporated, the concrete subcontractor which performed the footing and foundation work for the house. We are not concerned with these defendants on this appeal and the case apparently is still pending against them in the trial court. After dismissal of the complaint as to the defendant villages, the court found no just reason to delay appeal as to them. Ill.Rev.Stat.1975, ch. 110A, par. 304(a).

The defendant villages were joined in a single count of the complaint which alleged that plaintiffs were the owners of land in Deer Park, had entered into a contract with Tau Builders in January 1975 to construct a home thereon and had paid out approximately $32,000 towards the cost of construction. It was further alleged that the Village of Deer Park had adopted a building code and had contracted with the Village of Barrington for it to provide inspectors to enforce compliance with the code within Deer Park, that a building permit application was submitted to Deer Park by Tau Builders and was approved April 1, 1975, and that Tau Builders commenced construction and continued until the issuance of a "stop work" order by Deer Park and Barrington on September 10, 1975, for lack of a foundation inspection of the building. It was alleged that the roof was on and the house substantially completed when work was stopped and nothing further has been done to complete it.

Plaintiffs alleged they were free from any conduct causing this condition and these defendants are guilty of the following careless or negligent acts or omissions:

"a) Failed to exercise adequate supervision and control over properties under construction within their jurisdiction;

b) Failed to make frequent inspections of homes under construction within their jurisdiction;

c) Allowed Plaintiffs' home to be substantially completed before discovering non-compliance with the applicable building code;

d) Failed to use competent persons as building inspectors;

e) Were otherwise careless and negligent."

Plaintiffs concluded by alleging damage and depreciation to their property as a consequence of defendants' acts and asking for a judgment of $85,000 against these defendants.

Defendants each filed motions to dismiss this count of the complaint alleging, first, that it fails to state a cause of action against them and, second, that each village defendant is immune from this action pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1975, ch. 85, pars. 1-101 through 10-101, hereinafter referred to as the Tort Immunity Act.) After considering briefs and arguments the trial court granted defendants' motion to dismiss predicating its decision on the issue of immunity and noted it found the villages' immunity was not waived by their possession of public liability insurance.

It is apparent, however, that the questions raised, and extensively argued by the parties, regarding governmental immunities and their waiver by the possession of public liability insurance by the villages (see Ill.Rev.Stat.1975, ch. 85, pars. 2-105, 2-201, 2-207, 9-103(b)) would not be reached by this court if we should determine no cause of action against these defendants has been alleged in the complaint. (Corcoran v. Township of Libertyville (1977), 49 Ill.App.3d 818, 821, 7 Ill.Dec. 306, 308, 364 N.E.2d 467, 469.) For this reason we will address ourselves first to that issue.

At the outset we must note that the portions of the building ordinance of the Village of Deer Park relied on by plaintiffs are not cited or reproduced in the disputed complaint or elsewhere in the record of this case but are referred to at some length in plaintiffs' reply brief. It is also in that brief that plaintiffs state concisely that the cause of action relied upon by them is the negligence of these defendants "in making inadequate or negligent inspections, or in failing to make an inspection and not stopping work when the building code was first breached." Plaintiffs further illustrate their understanding of the basis for their action by stating that by submitting his plans and paying the building permit fee, with knowledge the building code provides for periodic inspections to verify code compliance, the homeowner then rests on the knowledge his home will be built in accordance with the code standards. Plaintiffs contend, therefore, that the defendant villages must answer to them in damages because these defendants negligently failed to prevent plaintiffs' contractors or subcontractors from allegedly constructing plaintiffs' house in some manner contrary to the building code and thus requiring that construction be stopped.

Defendants contend, however, that plaintiffs have failed to demonstrate by the allegations of the complaint the existence of any duty owed to them by defendants nor have plaintiffs alleged sufficient facts to demonstrate any breach of such supposed duty. We agree and find that plaintiffs have not stated a cause of action against these municipal defendants. See generally Browning v. Heritage Insurance Co. (1975), 33 Ill.App.3d 943, 947-48, 338 N.E.2d 912, 916; Harper v. Epstein (1974), 16 Ill.App.3d 771, 772-73, 306 N.E.2d 690, 691-92.

In the first instance we direct our attention to a suggestion contained in plaintiffs' argument that their cause of action arises from and is found in the Tort Immunity Act itself. It does not. The 1970 Illinois Constitution abolished the doctrine of sovereign immunity except as the General Assembly might provide by law. (Ill.Const.1970, art. XIII, § 4.) The General Assembly has enacted the Tort Immunity Act which statutorily created certain areas in which a local public entity or public employee may be immune from tort liability and provided circumstances under which such immunities or defenses would be waived. The Tort Immunity Act does not create any new liabilities for negligent acts or omissions which did not previously exist. In this case, sections 2-105 and 2-207 of the Tort Immunity Act, which declare certain immunities for negligent municipal inspections or failure to inspect property not owned by the municipality may not be coupled with section 9-103(b), waiving such immunity if public liability insurance is acquired, so as to create a new liability of these municipalities.

A determination of whether plaintiffs have a cause of action against defendants here must rest on a determination of whether defendants owed a duty to them in the circumstances shown by the allegations of the complaint.

The Illinois courts of review have not directly addressed the question of what duties, if any, are owed to an individual member of the public by a municipality for its negligent failure to enforce compliance with a municipal building ordinance by contractors who build a house for owners such as plaintiffs herein. The analogous cases, however, draw a distinction between ordinances which are designed to benefit the public at large and those designed for the benefit of individual members of that public. The failure to enforce the former will not raise a duty the violation of which could support a cause of action for damages against the municipality.

In Stigler v. City of Chicago (1971), 48 Ill.2d 20, 268 N.E.2d 26, an infant brought an action against the city for injuries resulting from ingestion of lead-based paint on the theory the city negligently failed to enforce a section of its housing code requiring that buildings be in good repair and habitable. While plaintiff also contended the Tort Immunity Act did not protect the city under the circumstances, the court did not reach that issue in determining defendants did not owe a special duty to plaintiff and affirmed the trial court's dismissal of the complaint reasoning that "(t)his ordinance was enacted to benefit the public health and safety of the people of the city. Its enforcement was a governmental function rather than a ministerial or proprietary act. The ordinance did not give rise to any special duty to the plaintiff or to any particular person different from the public at large. (See: Gardner v. Village of Chicago Ridge...