Laukkanen v. Jewel Tea Co.

• Decision Date: 29 December 1966
• Docket Number: Gen. No. 10678
• Citation: 222 N.E.2d 584,78 Ill.App.2d 153
• Parties: Tahiko LAUKKANEN, Bank of Illinois in Champaign as Conservator of the Estate of Tahiko Laukkanen, Incompetent, Plaintiff-Appellee, v. JEWEL TEA CO., Inc., a Corporation, C. E. Mulliken, Charles N. Debes, Bel-Vue Homes, Inc., a Corporation, Piggly Wiggly Midwest Co., Inc., John M. Giolitto and Harry N. Cordes, Defendants. Appeal of Charles N. DEBES and Harry N. Cordes, Defendants.
• Court: United States Appellate Court of Illinois

Page 584

222 N.E.2d 584

78 Ill.App.2d 153

Tahiko LAUKKANEN, Bank of Illinois in Champaign as Conservator of the Estate of Tahiko Laukkanen Incompetent, Plaintiff-Appellee, v. JEWEL TEA CO., Inc., a Corporation, C. E. Mulliken, Charles N. Debes, Bel-Vue Homes, Inc., a Corporation Piggly Wiggly Midwest Co., Inc., John M Giolitto and Harry N. Cordes Defendants. Appeal of Charles N. DEBES and Harry N. Cordes, Defendants.

Gen. No. 10678.

Appellate Court of Illinois, Fourth District.

Dec. 29, 1966.

T. G. Knappenberger, Jr., Champaign, Yates, Fisk, Haider & Burke, Chicago, Stanley J. Roszkowski, Rockford, (Tom L. Yates, Chicago, of counsel), for appellants.

Wheat, Hatch, Corazza & Baker, Champaign, Harold A. Baker, Champaign, of counsel), for appellee.

CRAVEN, Presiding Justice.

This appeal arises from the denial of defendants' post-trial motion. Plaintiff received a verdict of $250,000 for personal injuries sustained on April 30, 1962. The plaintiff was rendered a paraplegic when a pylon ¹ which was part of a building designed by the defendants, toppled and struck her as she attempted to enter the building in a severe thunderstorm accompanied by hail and high winds. Judgment against the defendants in the amount of $205,000 was entered below after credit of $45,000 was allowed because of payment received by plaintiff from others in exchange for covenants not to sue. The post-trial motion requested judgment n.o.v. upon the theory that there was no liability as a matter of law on the part of these defendants to the plaintiff and, in the alternative, a new trial on grounds that the evidence was insufficient to sustain the verdict, and that there were prejudicial errors in the admission and rejection of the evidence and in instructions given to the jury. There is no issue concerning the amount of the award.

The defendants are licensed mechanical and professional engineers in the State of Illinois. At the time the plans and specifications were drawn defendant Cordes was an employee of defendant Debes.

The complaint alleges that during the year 1958 the defendants prepared architectural drawings and specifications for the construction of a building which they knew was for public use as a retail grocery store, and that subsequent to the furnishing of the design and specification, the building was constructed in Rantoul, Illinois, in substantial conformity with the defendants' plans.

A hollow concrete block pylon with brick facing was designed by the defendants as a part of the south eighteen feet of the west wall of the building. The west end of the adjacent south wall contained the customers entrance and exit doors. This pylon extended thirty-eight feet into the air from the ground level. The top of it was approximately twenty-one feet higher than the parapet of the perimeter walls. The facing of the building also made up the facing of the pylon to the height of the remainder of the walls; from then up the facing was brick. The outer dimensions of the pylon were three feet four inches by eighteen feet.

The complaint further alleges that the defendants knew that the concrete block pylon they designed would be located directly above the entrance to the grocery store and that any defects in the structure would not be capable of discovery by the public. It charges that the defendants failed to exercise the care exercised by a reasonably well qualified engineer designing a similar building, in that the defendants failed to design a pylon that was structurally strong and the defendants knew or should have known that (a) the pylon as designed was not structurally sound; (b) the pylon was incapable of withstanding the windload force reasonably to be expected at the building site; (c) the pylon was of an aerodynamic shape which rendered it eminently dangerous and incapable of withstanding the windload force reasonably to be expected at the building site.

The complaint further alleged that on April 30, 1962, at about 1:30 p.m., Tahiko Laukkanen was entering the store when the pylon collapsed or tumbled over and fell upon her as a direct and proximate result of one of the negligent acts of the defendants.

The defendants' answer denied the allegations of negligence and proximate cause, and affirmatively alleged that the cause of the pylon collapse was an act of God for which the defendants were not responsible; further that the plaintiff's cause of action was barred by the statute of limitations (Ill.Rev.Stat.1963, ch. 83, sec. 24f); and further that the defendants' only duty in the premises was to prepare the plans and specifications or check them for structural adequacy, and they did not supervise the construction of the store designed by them.

At the trial of the case, plaintiff's evidence included photographs taken of the building following the damage of April 30, 1962, weather records for the day in question and wind records for many years prior to the occurrence, the plans and specifications furnished by the defendants for the building, and a copy of the 1955 National Building Code, which was in effect at the time the building was designed.

The contractor who constructed the building and the pylon in question testified that the pylon was erected in the manner and with the materials called for by the plans and specifications furnished by the defendants, with the exception that limestone facing was provided for the lower portion of the exterior wall of the pylon and the limestone was bonded to the concrete block interior walls of the pylon in an approved manner but not according to the scheme of the defendants. There is no evidence tending to prove that these variations in actual construction from the defendants' plans reduced the strength of the pylon below the strength which the defendants believed they had built into the pylon. An expert witness testified to his opinion that the pylon, as built, would not withstand winds in excess of 75 mph because of the use of the light-weight concrete block. He stated that defendants' plans specified such a block. The contractor confirmed his use of light-weight concrete block in the pylon construction and that the light-weight block was what was called for by the plans and specifications as he understood them. An employee of another local contracting firm testified, on rebuttal, that light-weight concrete block was called for by the defendants' plans and specifications.

The weather records for April 30, 1962, showed that at 1:27 p.m. local time, the wind was recorded at 76 knots (87.4 mph) at Chanute Air Force Base, a few miles distant from the building in question. The photographs show that the entire upper portion of the pylon collapsed, leaving standing a few courses of concrete block facing above the roof line of the building in question. The portion of the pylon which formed a part of the exterior walls of the building to a height of approximately thirteen feet remained standing including that portion faced with limestone.

The defendants did not view the building in the process of construction, did not supervise or otherwise participate in the actual construction of the pylon or building in question. They drafted and approved the plans and specifications, and had nothing more to do with the building or pylon in question subsequent to some time in 1958.

The plans introduced into evidence indicate that a revision of the detailed drawings showing the construction of the pylon occurred on September 10, 1958, and that the defendant Cordes approved the plans for structural adequacy on May 5, 1958. Defendant Cordes' seal as a registered structural engineer and defendant Debes' seal as a registered professional engineer both appear on the pages of the plans relating to the method of constructing the pylon in question.

There was testimony from the plaintiff's expert which tended to prove that the wind in question, while of more intensity than any other wind recorded by the Weather Bureau since records were kept at Chanute Air Force Base, was within the range of winds to be expected in Rantoul, Illinois, the location of the building in question.

The defendants contended that usage of the industry prescribed heavy concrete blocks for the pylon would have a 50 per cent safety factor built in. They admitted, however, that if light-weight block were used, the safety factor would be reduced to 10 per cent in a sustained 80 mph wind. Gusts of wind were shown to have a more adverse effect on structures than sustained winds of the same speed.

On this evidence, the jury was justified in finding that the failure of the defendants to specify with particularity that a standard heavy concrete block was to be used in constructing the pylon, instead of lightweight aggregate concrete block specified for use in other portions of the building, resulted in the pylon's being built with inadequate strength to withstand the winds which accompanied this severe storm. This determination is a finding that the defendants did not use the degree of skill ordinarily and customarily used by members of the defendants' profession under similar circumstances.

If the defendants' plans and specifications were not wrong in specifying light-weight concrete block for the pylon, the least that could be said was that they were ambiguous respecting the type of block to be used. The ambiguity, unfortunately, was resolved by the owner and builder by the use of light-weight aggregate concrete block. This light-weight, 38-foot-high pylon was placed by defendants in the immediate vicinity of the entranceway to be used by the general public, where a severe wind sent it toppling down.

The defendants can escape liability for this occurrence as a matter of law only if the duty which they had to furnish adequate plans and specifications for the...