Thompson v. Gordon

• Decision Date: 28 March 2011
• Docket Number: No. 110066.,110066.
• Parties: Corinne THOMPSON, Appellee,v.Christie GORDON et al., Appellants.
• Court: Illinois Supreme Court

241 Ill.2d 428
948 N.E.2d 39
349 Ill.Dec. 936

Corinne THOMPSON, Appellee,
v.
Christie GORDON et al., Appellants.

No. 110066.

Supreme Court of Illinois.

Jan. 21, 2011.Rehearing Denied March 28, 2011.

[948 N.E.2d 41]

Steven L. Larson, Linda E. Spring and John A. Terselic, of Swanson, Martin & Bell, LLP, of Libertyville, for appellants Jack E. Leisch & Associates, Inc., and CH2M Hill, Inc.Patrick A. Salvi, Patrick A. Salvi II, Kevin Mocogni and Matthew L. Williams, of Salvi, Schostok & Pritchard, P.C., of Waukegan, for appellee.Kevin R. Sido and Stephen R. Swofford, of Hinshaw & Culbertson LLP, of Chicago, for amici curiae The American Council of Engineering Companies of Illinois et al.Jeffrey T. Kubes, Jean M. Prendergast and Michael J. Faley, of Schuyler, Roche & Crisham, P.C., of Chicago, for amici curiae The Illinois Section of the American Society of Civil Engineers and The Association of Licensed Architects.Beth A. Bauer and Matthew B. Champlin, of Hepler–Broom, LLC, of Edwardsville, for amicus curiae Illinois Association of Defense Trial Counsel.Kirsten M. Dunne, of Goldberg Weisman Cairo, of Chicago, for amicus curiae Illinois Trial Lawyers' Association.

[349 Ill.Dec. 938 , 241 Ill.2d 431] OPINION Justice THOMAS delivered the judgment of the court, with opinion.

Plaintiff, Corinne Thompson, individually and as administrator of the estates of her husband, Trevor Thompson, and daughter, Amber Thompson, sued defendants, Jack E. Leisch and Associates, Inc., and CH2M Hill, Inc., along with others not parties to this appeal, for negligence. The circuit court of Lake County granted summary judgment in favor of defendants. The appellate court reversed the trial court and remanded for further proceedings. 398 Ill.App.3d 538, 337 Ill.Dec. 957, 923 N.E.2d 808.

[241 Ill.2d 432] This court granted defendants' petition for leave to appeal. Ill. S.Ct. R. 315(a) (eff. Feb. 26, 2010). In addition, pursuant to Illinois Supreme Court Rule 345 (Ill. S.Ct. R. 345 (eff. Sept.20, 2010)), we allowed the Illinois Trial Lawyers Association to file a brief amicus curiae on behalf of plaintiff. We also permitted the American Council of Engineering Companies of Illinois, the Illinois Society of Professional Engineers, the American Institute of Architects–Illinois Council, the Structural Engineers Association of Illinois, and the Illinois Professional Land Surveyors Association, as well as the Illinois Section of the

[349 Ill.Dec. 939 , 948 N.E.2d 42]

American Society of Civil Engineers and the Association of Licensed Architects, and the Illinois Association of Defense Trial Counsel, to file briefs amici curiae on behalf of defendants.

BACKGROUND

On January 16, 1991, defendants entered into a contract with Western Development Corporation (WDC) to provide engineering services in connection with WDC's development of the Gurnee Mills shopping mall in Gurnee, Illinois. ¹ In order to accommodate the anticipated increased traffic as a result of the shopping mall, WDC was required to improve Grand Avenue, also known as State Route 132, as part of the development. Initial studies indicated that the cloverleaf ramp from northbound I–94 to westbound Route 132 did not have sufficient capacity to handle the additional traffic that the mall would generate. Accordingly, WDC's contract with defendants required defendants to design two ramps west of I–94, as well as a replacement bridge deck surface over [241 Ill.2d 433] I–94. The original bridge deck had a concrete median approximately six inches high and four feet wide that divided the eastbound and westbound lanes of traffic. The replacement bridge deck designed by defendants had a median that was approximately seven inches high and four feet wide.

The Illinois State Highway Toll Authority, which owned I–94, and the Illinois Department of Transportation (IDOT), which operated and maintained Grand Avenue on behalf of the State of Illinois, reviewed all plans because IDOT had to approve any change to Grand Avenue. IDOT approved the plans and issued a permit for work to commence. The work was completed sometime in 1991 or 1992.

Thereafter, on November 27, 1998, Trevor Thompson was driving westbound on Route 132/Grand Avenue, with plaintiff and Amber Thompson as passengers. Christie Gordon was driving eastbound on Route 132/Grand Avenue when she swerved to avoid another vehicle. Gordon lost control of her vehicle and hit the median separating the eastbound and westbound traffic. Gordon's vehicle then vaulted into the air and landed on top of the Thompson's vehicle, killing Trevor and Amber Thompson, and seriously injuring plaintiff.

The gravamen of plaintiff's case against defendants is that defendants should have designed and constructed a “Jersey barrier,” on the road, including the bridge deck and the areas encompassing the interchange and weave lanes. Plaintiff asserts that had a Jersey barrier been constructed, Gordon's vehicle would not have vaulted into the air and onto the Thompson's vehicle when she lost control and struck the median.

Specifically, in her ninth amended complaint, plaintiff alleged, inter alia, that defendants were negligent in that they: failed to provide a median barrier warrant analysis in their design proposal for improvements to the Grand [241 Ill.2d 434] Avenue/I–94 interchange; failed to consider the necessity of crossover protection on the bridge deck, including a Jersey barrier; failed to design a barrier median to separate roadway traffic at the Grand Avenue/I–94 interchange; and failed to consider any traffic impact studies when designing the interchange improvements.

[948 N.E.2d 43 , 349 Ill.Dec. 940]

Defendants filed a motion for summary judgment. Defendants argued that they owed no duty to plaintiff because the work that they contracted to perform for WDC did not require median barrier analysis or design, and the design work performed by defendants did not encompass the area of the accident.

In response, plaintiff filed the affidavit of Andrew Ramisch, her Illinois Supreme Court Rule 213 (Ill. S.Ct. R. 213 (eff. July 1, 2002)) expert witness.² Ramisch testified in his affidavit that defendants failed to meet the ordinary standard of care. Specifically, Ramisch opined that: defendants failed to properly consider and analyze all available data provided by their consultants; failed to consider crossover protection and failed to perform an analysis of crossover protection on the bridge deck; failed to submit to WDC and IDOT for consideration the necessity of crossover protection in the form of a Jersey barrier on the bridge deck at the interchange; and failed to design a Jersey barrier over the bridge of the Grand Avenue interchange. Ramisch testified that crossover accidents were likely to occur, and that the purpose of a Jersey barrier is to prevent vehicles from crossing over the barrier into oncoming lanes of traffic. Had defendants performed the engineering work within the standard of care, it is more probable than not that a Jersey barrier would have been designed and constructed which would have prevented Christie Gordon's vehicle from crossing [241 Ill.2d 435] into the westbound lanes of Grand Avenue and colliding with the Thompson's vehicle.

The trial court granted defendants' motion for summary judgment. The trial court stated that defendants' duty to plaintiff was circumscribed by the terms of the contract that they entered into with WDC and the scope of their work was determined by their contractual undertaking. The trial court observed that the contract did not call for an assessment of the sufficiency of the median barrier specifically. Rather, the contract simply required defendants to reconstruct the raised median and road surface. The trial court concluded that to impose an obligation on defendants to perform a median analysis, as if the contract called for a redesign of the roadway or a raised median, would impose an obligation on defendants that was not specified in their contract.

In so holding, the trial court relied on this court's decision in Ferentchak v. Village of Frankfort, 105 Ill.2d 474, 86 Ill.Dec. 443, 475 N.E.2d 822 (1985). In Ferentchak, the court held that a civil engineer was not required to establish minimum foundation grade levels “absent a specific contractual commitment.” Id. at 482–83, 86 Ill.Dec. 443, 475 N.E.2d 822. Based upon Ferentchak, the trial court found that there was no agreement in which defendants undertook the duties and obligations which Ramisch testified were breached by defendants.

The appellate court, with one justice dissenting, reversed the trial court and remanded for further proceedings. 398 Ill.App.3d 538, 337 Ill.Dec. 957, 923 N.E.2d 808. The appellate court subsequently denied defendants' petition for rehearing, but issued a supplemental opinion upon denial of rehearing.

In the appellate court, plaintiff argued that, pursuant to the contract, defendants had a duty to consider and then design an improved median barrier. Defendants responded that the plain language of the

[349 Ill.Dec. 941 , 948 N.E.2d 44]

contract, which required them to submit design plans for a bridge deck [241 Ill.2d 436] “ replacement,” indicated that defendants' role was limited to submitting designs to recreate the bridge deck exactly as it had existed, rather than submitting designs for an improved or altered bridge deck.

The appellate court noted that, looking at the word in isolation, there was authority in case law and in dictionary definitions to both support and contradict defendants' definition of the word “replacement.” Id. at 543, 337 Ill.Dec. 957, 923 N.E.2d 808. However, the appellate court further noted that, viewing the contract as a whole, the contract provided additional context to clarify the use of the word “replacement.” Id. In the “Scope of Services” section of the contract, in the paragraph immediately preceding the bridge deck replacement paragraph, the contract provided that defendants would prepare...