Ocasek v. City of Chicago, 1-94-1920

• Citation: 275 Ill.App.3d 628,656 N.E.2d 44
• Decision Date: 22 August 1995
• Docket Number: No. 1-94-1920,1-94-1920
• Parties: , 211 Ill.Dec. 852 Marjorie OCASEK, Administrator of the Estate of Donna Sclafani, deceased, and Hope D. Hughes, Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 44

656 N.E.2d 44

275 Ill.App.3d 628, 211 Ill.Dec. 852

Marjorie OCASEK, Administrator of the Estate of Donna Sclafani, deceased, and Hope D. Hughes Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.

No. 1-94-1920.

Appellate Court of Illinois First District, Second Division.

Aug. 22, 1995.

Rehearing Denied Oct. 19, 1995.

Cooney and Conway, Chicago (James E. Ocasek, of counsel), for appellant Marjorie Ocasek.

Reibman, Hoffman & Baum, Chicago (David M. Baum, of counsel), for appellant Hughes.

Susan S. Sher, Corp. Counsel, Chicago (Lawrence Rosenthal, Benna Ruth Solomon, George J. Yamin, Jr., of counsel), for appellee.

Presiding Justice SCARIANO delivered the opinion of the court:

Plaintiffs appeal from the circuit court's award of summary judgment (735 ILCS 5/2-1005 (West 1992)) in favor of defendant City of Chicago (the "City"), based on the statute of repose contained in section 13-214(b) of the Code of Civil Procedure (735 ILCS 5/13-214(b) (West Supp.1995)). We affirm.

On March 17, 1986, Donna Sclafani ("Sclafani") and Hope D. Hughes ("Hughes") were traveling southbound on North Lake Shore Drive (the "Drive") in the city of Chicago when a private vehicle in the northbound lanes crossed the median and collided with their vehicle, severely injuring both of them. Sclafani's injuries proved fatal. Plaintiffs' complaint alleged that the City had been negligent in the design and maintenance of the Drive at the location of the accident by "[f]ail[ing] to provide an adequate median dividing northbound and southbound traffic." According to plaintiffs, in 1966, the City, together with the Chicago Park District, the County of Cook, and the State of Illinois, entered into an agreement to redesign a section of the Drive (the "redesign agreement"), including the location where the accident occurred. Because city officials at that time recognized that differences in elevation of the opposing streams of traffic of parts of the redesigned section created a dangerous condition and were thus the cause of cross-over accidents, they recommended and approved the installation of a "Steel Plate Beam Guard Rail" to supplement the then existing "relatively narrow sloped median" of the roadway; nevertheless, the redesign project was completed without installing the guardrail.

Plaintiffs' first contention on appeal is that the circuit court erred in granting the City summary judgment based upon the statute of repose since a genuine issue of material fact remained as to the completion date of the redesign project from which date the repose period would have begun to run.

Summary judgment motions (735 ILCS 5/2-1005 (West 1992)) permit the trial court to determine whether any genuine issue of material fact exists in the action, and if not, to provide an expedient means of resolution. (Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) In deciding the motion, the court should construe all the evidence before it strictly against the movant. (Reed v. Bascon (1988), 124 Ill.2d 386, 393, 125 Ill.Dec. 259, 530 N.E.2d 417; Purtill, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) Our supreme court has warned that while summary judgments are to be encouraged in the interest of the prompt disposition of lawsuits, they are a drastic measure; consequently, summary judgment should be granted only where the movant's right to judgment is so clear as to be free from doubt. (Bascon, 124 Ill.2d at 393, 125 Ill.Dec. 259, 530 N.E.2d 417; Purtill, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) This court reviews the grant of summary judgment de novo (Myers v. Health Specialists, S.C. (1992), 225 Ill.App.3d 68, 72, 167 Ill.Dec. 225, 587 N.E.2d 494), and this standard is of particular significance "where the evidence consists mainly of documents" (Polo National Bank v. Lester (1989), 183 Ill.App.3d 411, 414, 132 Ill.Dec. 220, 539 N.E.2d 783), as is the case in the instant action.

Here, in its motion for summary judgment, the City argued that the applicable statute of repose for cases predicated upon design defects (735 ILCS 5/13-214(b) (West Supp.1995)), which provides a maximum period of 14 years after construction of an improvement within which to bring suit, barred plaintiffs' claim. The circuit court denied the motion, stating that the City had failed to present sufficient evidence of the date of completion of the redesign project.

The City filed a timely motion to reconsider, attaching thereto a certified copy of an Illinois Department of Transportation ("IDOT") document (the "document") that "memorialize[d]" the completion date of the project as March 28, 1969, and consequently the date marking the commencement of the running of the statute of repose. Based on this new information, the court granted the City a partial summary judgment, holding that plaintiffs' counts based on negligent design were time barred as a matter of law under the statute of repose, but that those regarding negligent maintenance were not. Thereafter, plaintiffs voluntarily dismissed the maintenance counts of their complaint, thus making the summary judgment order final and appealable.

Plaintiffs contend that the document the City attached to its motion for reconsideration was insufficient to support summary judgment since that document contains a "job" number (C-90-712-67) different from the one on the cover sheet of the City's redesign plans for the Drive (P-90-024-67); therefore, plaintiffs argue, the document could not possibly refer to the redesign project at issue here, but must necessarily refer to some other project. They also maintain that the document does not memorialize an acceptance date for any project.

However, although "Job. No C-90-712-67" appears on the document and "JOB NO P-90-024-67" appears on the cover sheet of the redesign plans, record number "C-90-712-67" appears on the cover sheet of the redesign plans as well. Moreover, the City persuades that record numbers C-90-712-67 and P-90-024-67 both refer to the redesign project. As attested to by Thomas R. Bright ("Bright"), an employee of IDOT, Division of Highways, Bureau of Construction, for record keeping purposes, "C" represents a construction number and "P" represents a planning number; and since construction and planning are separate activities within IDOT, records are kept under separate construction and planning numbers although both refer to the same project, as is evidenced by the fact, as mentioned above, that both record numbers appear on the cover sheet of the City's redesign plans.

We also note that nothing in the record casts the slightest doubt on IDOT's certification that the document truly memorializes that the State accepted the redesign project on March 28, 1969, thus making that the date upon which the redesign project was officially completed and from which the statute of repose began to run. In fact, the document certified provides an inspection date of June 19, 1968, and a final scheduled inspection date of March 24, 1969, as well as an acceptance date of March 28, 1969, all for "Job No. C-90-712-67."

Consequently, we hold that no genuine issue of material fact exists as to whether the State accepted the redesign project on March 28, 1969, nearly 19 years before plaintiffs filed their complaint on March 14, 1988; the trial court was therefore correct in holding that plaintiffs' counts as to negligent design were time-barred as a matter of law.

Plaintiffs next contend that the 14 year period of repose in section 13-214(b) was enlarged in this case by section 13-214(d), which states:

"Subsection (b) shall not prohibit any action against a defendant who has expressly warranted or promised the improvement to real property for a longer period from being brought within that period." 735 ILCS 5/13-214(d) (West Supp.1995).

They assert that the language in the redesign agreement stating that the improvements along the Drive would (1) "be a lasting benefit to the people in the area as well as the motorist" and (2) comply with federally adopted standards, amounted to an express warranty or promise by the City within the meaning of section 13-214(d).

Where, as is the case here, a defendant has produced sufficient evidence which would entitle it to judgment as a matter of law on a statute of repose defense, the plaintiff has the burden of proving that any exception to that law applies. (See Henderson v. Jones Bros. Constr. Corp. (1992), 234 Ill.App.3d 871, 874, 176 Ill.Dec. 709, 602 N.E.2d 16 (burden of establishing exception to statute of limitations rests with party arguing that the exception applies).) "When the party opposing a motion for summary judgment bears the burden of proof on a particular issue, it must affirmatively demonstrate that there is a genuine issue of material fact requiring trial." (Crisman v. Peoria & Pekin Union Ry. (C.D.Ill.1994), 846 F.Supp. 716, 719.) Therefore, in order to successfully invoke the benefits of section 13-214(d), plaintiffs must present evidence demonstrating that a genuine issue of material fact exists concerning whether the City "expressly warranted or promised" the redesign of the Drive. We conclude that they have failed to do so.

The courts' role in interpreting a statute is to ascertain and give effect to legislative intent. (Decatur v. American Federation of State, etc., Local 268 (1988), 122 Ill.2d 353, 364, 119 Ill.Dec. 360, 522 N.E.2d 1219.) In ascertaining that intent this "court must consider the entire statute as well as the evil to be remedied and the object and purpose to be attained." (People ex rel. Daley v. Datacom Sys. Corp. (1991), 146 Ill.2d 1, 14, 165 Ill.Dec. 655, 585 N.E.2d 51.) Our courts have found that statutes of repose are intended to " 'terminate the possibility of liability after a defined period of time.' " (Blazek v. Nicolet, Inc. (1988), 173 Ill.App.3d 324, 329, 123 Ill.Dec. 105, 527 N.E.2d 568; see also ...