M&S Industrial Co., Inc. v. Allahverdi
M&S Industrial Co., Inc. v. Allahverdi
Opinion
*92 ¶ 1 Plaintiff M & S Industrial Co., Inc. (M & S), appeals the dismissal of its complaint against defendant Fred Allahverdi arising out of injuries sustained when the roof of Allahverdi's building uplifted during a wind storm and struck nearby power lines, resulting in an electrical surge that damaged M & S's property. The circuit court dismissed the complaint on grounds that M & S's claim was barred by the statute of limitations applicable to construction negligence ( 735 ILCS 5/13-214(a) (West 2012) ). Based on our determination that section 13-214(a) of the Code of Civil Procedure (Code) applies to M & S's claim and that, as a matter of law, the four-year limitations period expired before M & S filed suit, we affirm.
¶ 2 I. BACKGROUND
¶ 3 M & S filed its initial complaint on August 14, 2015. M & S alleged that Allahverdi operated an automobile sales and service business on his property and that he or his employees negligently left a large overhead dock door open during unsafe weather conditions-severely high winds-in Chicago on October 27, 2010. Due to the high winds, a portion of the roof of Allahverdi's building detached and struck nearby power lines that serviced M & S's building. M & S alleged that the resulting electrical surge damaged M & S's property, namely, computer numerical control machines, which M & S uses to manufacture sophisticated metal components for the defense industry.
¶ 4 M & S later filed a second amended complaint that alleged in pertinent part:
"4. On October 27, 2010, ALLAHVERDI was personally aware of a significant and hazardous structural defect present on the * * * location, to wit: an improperly installed and maintained roof which was not structurally sound, not constructed in accordance with industry standards and not attached to the main structure of the building. ALLAHVERDI's knowledge was based on his role as a contractor in the construction of the structure at the * * * location, when and where the roof was built.
* * *
6. On October 27, 2010, in the middle of this windstorm and despite the dangerous wind conditions, employees of ALLAHVERDI left a large overhead dock door on the * * * location open to the exterior environment.
7. As a result of this opening exposing the interior of the * * * location to the windstorm and the inability of the roof to resist uplift forces because it was *478 *93 improperly installed and maintained, not constructed in accordance with industry standards, and not attached to the main structure, a portion of the building's roof detached from the building and struck a nearby power supply line * * *."
¶ 5 In addition, the complaint alleged that Allahverdi "owed a duty of care to exercise ordinary care to avoid injury and damage" and to "mitigate unsafe conditions on the property" and he breached this duty
"a. By failing to replace the structurally unsound roof, and/or
b. By failing to secure the roof to the main structure of the building; and/or
c. By allowing the roof of the property * * * to be installed and maintained in such dangerous condition."
¶ 6 Alternatively, the complaint pled that Allahverdi owed a duty of care under the building code regulations and breached this duty. The complaint alleged that, as a result of the occurrence, Allahverdi was issued a citation for building code violations by the City of Chicago on October 28, 2010.
¶ 7 Allahverdi filed a motion under section 2-619 of the Code ( id. § 2-619) to dismiss the second amended complaint asserting that causation was too attenuated to be foreseeable. The circuit court granted this motion with prejudice.
¶ 8 M & S filed a motion to reconsider and vacate the dismissal. The parties submitted additional briefing and supplemental authority. M & S filed the affidavit and report of Dennis McCann, an engineering consultant hired by M & S in March 2016 to perform an engineering analysis of the roof of Allahverdi's building. McCann averred that he inspected the interior of Allahverdi's roof on March 26, 2016. McCann averred that the deck panels of the roof were not attached to the steel roof joists of the building, in violation of building code requirements, and that, had the roof been attached properly, it should have been able to resist the strong winds on October 27, 2010. Further, McCann averred that the defects he observed were not readily observable except upon close inspection.
¶ 9 In Allahverdi's response, he asserted, inter alia , that plaintiff's second amended complaint was barred by the four-year statute of limitations applicable to claims of construction negligence ( id. § 13-214(a) ).
¶ 10 In its reply, M & S argued that the motion to dismiss should be denied as it involved questions of fact and section 13-214(a) did not apply because it was not raising a claim of construction negligence. Rather, it was suing Allahverdi for maintaining a hazardous condition on his land of which Allahverdi was aware. Alternatively, M & S argued that the discovery rule applied to toll the construction statute of limitations because it could not have discovered the defective roof until it hired McCann in March 2016 to examine Allahverdi's building using a scissor lift and high-intensity lights.
¶ 11 Following a hearing April 12, 2017, the circuit court allowed submission of additional materials and permitted Allahverdi to amend his prior motion to dismiss to add a statute of limitations argument under 2-619(a)(5) of the Code based on section 13-214(a). Allahverdi contended that the discovery rule did not apply because the alleged injury was caused by a sudden, traumatic event-the windstorm that blew the roof onto the power lines-and thus the claim accrued on October 27, 2010.
¶ 12 After oral arguments on July 19, 2017, the circuit court entered an order granting both M & S's motion to reconsider and Allahverdi's amended motion to dismiss under section 2619(a)(5). The court *479 *94 held that M & S's claim was a construction negligence claim and 13-214(a) applied. It further held that the injury sustained was a sudden traumatic event placing M & S on notice of a cause of action as of October 27, 2010, and the discovery rule did not apply. The court dismissed the second amended complaint with prejudice. M & S filed a timely notice of appeal.
¶ 13 II. ANALYSIS
¶ 14 A. Standard of Review
¶ 15 Whether a claim is barred by the statute of limitations "is a matter properly raised by a section 2-619 motion to dismiss."
Porter v. Decatur Memorial Hospital
,
¶ 16 B. Construction Negligence Statute of Limitations
¶ 17 M & S maintains on appeal that the circuit court erred in holding that section 13-214(a) applies because its claim sounds in premises liability, not construction negligence. M & S asserts that its complaint sought to hold Allahverdi liable based on a landowner's duty to exercise reasonable care to prevent and mitigate dangerous conditions on his property and alleged that he was aware of the dangerous condition-the improperly attached roof-because he served as a contractor in the construction of the roof and he breached his duty by failing to fix the dangerous condition and/or failed to maintain his property in accordance with the Chicago Building Code.
¶ 18 Allahverdi contends that the trial court correctly applied section 13-214(a) as M & S's claims are all based on the initial construction of the roof and his activity as the contractor and installer, despite M & S's attempts to plead around construction negligence. Allahverdi argues that application of section 13-214(a) depends not on the status of the defendant as property owner or construction professional but upon the activity of the defendant.
¶ 19 Section 13-214(a) provides:
"(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 4 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission." 735 ILCS 5/13-214(a) (West 2012). 1
¶ 20 "[O]ur supreme court has held that the four-year statute of limitations relating to construction matters protects only certain
*480
*95
enumerated activities, specifically, 'the design, planning, supervision, observation or management of construction.' "
15th Place Condominium Ass'n v. South Campus Development Team, LLC
,
¶ 21 Our courts have explained that section 13-214 is meant to "protect activity rather than status."
Ryan v. Commonwealth Edison Co.
,
¶ 22 In
Ryan
, the plaintiff challenged the grant of summary judgment for the defendant electrical utility company, contending that section 13-214(b) was inapplicable to his claim.
Ryan
,
"even though a design professional receives the protection of the statute of repose for design and installation-related activities, it does not receive protection for other activities that are not within the purview of the statute. Such other activities include manufacturing and sales, as well as breach of duty by one who undertakes inspection and maintenance duties * * *." Id. at 887,319 Ill.Dec. 273 ,885 N.E.2d 544 .
The
Ryan
court held that the defendant electric company "had a specific duty to maintain its equipment," which derived "from its capacity as the power supplier and not from its status as installer of the system."
Id. at 888,
¶ 23 In support, the
Ryan
court cited with approval the Third District case
MBA Enterprises, Inc. v. Northern Illinois Gas Co.
,
¶ 24 On appeal, M & S relies on
Ryan
and
MBA Enterprises
and attempts to distinguish two First District cases that Allahverdi cites on appeal and which the
Ryan
court criticized:
O'Brien v. City of Chicago
,
¶ 25 In
CITGO
,
¶ 26 The
Ryan
court criticized
O'Brien
and
CITGO
on grounds that they protected "an installer regardless of the fact that the installer has an independent duty to inspect and maintain the property at issue, if its breach of duty consists of the failure
*482
*97
to discover and correct a design defect."
Ryan
,
¶ 27 Here, in contrast, M & S's claim involves a defectively constructed roof, a single event that does not entail the daily provision of a dangerous utility to a customer. Much like in O'Brien and CITGO , M & S's claim is, at its core, a claim of defect in design and construction, regardless of how M & S characterizes Allahverdi's acts and omissions. A review of M & S's amended complaint, supporting documents, and arguments before the circuit court demonstrates that M & S focuses on Allahverdi's acts in construction of the roof. M & S's amended complaint alleged that Allahverdi was aware of the "improperly installed and maintained roof which was not structurally sound, not constructed in accordance with industry standards and not attached to the main structure of the building. Allahverdi's knowledge was based on his role as a contractor in the construction of the structure * * *." M & S alleged that, as a result of the "improperly installed and maintained" roof, which was "not constructed in accordance with industry standards, and not attached to the main structure," the roof detached during the wind storm. M & S alleged that Allahverdi failed to replace the unsound roof, secure it to the structure, and allowed the roof to be installed and maintained in a dangerous condition.
¶ 28 The report and affidavit of plaintiff's expert McCann echoes these allegations. M & S argued before the circuit court that the cause "was what I just read in [McCann's] report * * * that the negligence was the failure to attach and maintain that roof properly in violation of the building code and in violation of the building standards." M & S observed that the report also identified differences between Allahverdi's roof "as-constructed" and the architectural drawings, observing that there was
"no record of design changes approved by the architect in the permit file suggesting that these chang[es] were made during construction. The combination of unapproved design changes, building permit file which contained a building violation notice requiring the owner to post the name of the general contractor, and leftover building materials at the site suggests that the owner may have acted as general contractor for construction of the subject building. It is likely that many of the observed deficiencies are a result of an inexperienced owner acting as a general contractor or self performing work."
¶ 29 M & S argued before the circuit court that "the negligence was the failure *483 *98 to properly maintain a roof that the defendant knew was not attached. If he had corrected the failure to attach the roof at any time prior to this accident, again, we wouldn't be here." M & S asserted that the opening of the dock door was "the precipitating event, but it was not the cause. The cause was what I just read in the report * * * that the negligence was the failure to attach and maintain that roof properly in violation of the building code and in violation of the building standards." M & S reiterated that opening the dock door "was not the negligent act that's been alleged in the complaint" and that Allahverdi "has never responded to the assertion that it was the failure to attach the roof that was the negligent act."
¶ 30 M & S's various assertions that Allahverdi failed to "maintain" the roof amount to different permutations of the same fundamental claim: that Allahverdi initially improperly constructed the roof. M & S's bare allegation that Allahverdi failed to "maintain" the roof is unsupported by further fact allegations. The amended complaint does not indicate that Allahverdi subsequently made attempts to maintain or repair the roof after its initial construction. M & S's amended complaint clearly alleged that Allahverdi actually participated in the construction of the improvement (the roof) and that this faulty construction was to blame for the roof uplifting in the wind. As such, M & S's claim encompasses the activities set forth in section 13-214(a).
¶ 31 In determining that section 13-214(a) applies to M & S's claim, we note that Allahverdi cites
Wright v. Board of Education of the City of Chicago
,
¶ 32 M & S asserts that its cause of action is distinct from Wright because the roof presented an innately dangerous condition or instrumentality, like the gas pipes in MBA Enterprises. However, similar to the plaintiff in Wright , M & S is merely attempting to plead around the defect in the initial construction of the roof, a claim that is subject to section 13-214(a).
¶ 33 M & S further argues that
The Lombard Co. v. Chicago Housing Authority
,
*484
*99
Id. at 735,
¶ 34 C. Discovery Rule
¶ 35 M & S next contends that even if the construction negligence limitation period in section 13-214(a) applies, dismissal was improper under the discovery rule because the date the claim accrued was a question of fact. According to M & S, it could not have known that the damage was "wrongfully caused" until M & S hired an engineer to inspect the roof in March 2016 and discovered that the roof was not attached to the structure of Allahverdi's building.
¶ 36 Allahverdi responds that M & S had sufficient information for a reasonable person to be put on notice as of the date of the occurrence on October 27, 2010, that the damage may have been wrongfully caused and further inquiry was necessary.
¶ 37 As stated, section 13-214(a) provides that the four-year limitation period on construction negligence claims is triggered when the party "knew or should reasonably have known of such act or omission." 735 ILCS 5/13-214(a) (West 2012). This "discovery rule" "tolls the statute of limitations until the plaintiff knows or reasonably should know it has been injured and that this injury was wrongfully caused."
Swann & Weiskopf, Ltd. v. Meed Associates, Inc.
,
¶ 38 "While the time at which a party knows or should reasonably know of both an injury and that it was wrongfully caused is generally a question of fact for the fact finder [citation], where it is apparent from the undisputed facts that only one conclusion can be drawn, the question becomes one of law for the court [citation]."
Freeport Memorial Hospital v. Lankton, Ziegele, Terry & Associates, Inc.
,
¶ 39 Here, the facts known to M & S are not disputed. Based on M & S allegations, it learned that its property had *485 *100 been damaged and what caused that damage on October 27, 2010. That is, part of Allahverdi's roof uplifted in high winds and landed on nearby power lines, causing a power surge that damaged M & S's machines. The president of M & S went to the site of the electrical lines shortly after and took photographs of the roofing materials near the electrical lines. Allahverdi was also present and he pointed at the roofing materials and informed the president of M & S that it happened when his employee opened the dock door. At that point, M & S undoubtedly knew that it sustained damage caused by Allahverdi's roof detaching and crashing into the power lines.
¶ 40 M & S contends, however, that it did not know the damage was "wrongfully caused" at that point and it did not discover the wrongful cause until almost six years later, in March 2016, when it hired McCann to investigate. M & S argues that the fact that the roof decking was not properly attached to the building structure was only discoverable upon close inspection.
¶ 41 As our supreme court has made clear, "the term 'wrongfully caused' does not require knowledge of negligent conduct or the existence of a cause of action."
¶ 42 Here, M & S reasonably should have suspected possible wrongful causation and, at a minimum, should have been compelled to inquire further when its neighbor's roof uplifted in the wind and hit the power lines, causing damage to its property. In that regard, two cases in particular assist us in determining that the limitations period began to run on the date Allahverdi's roof detached and caused the damage.
¶ 43 In
AXIA, Inc. v. I.C. Harbour Construction Co.
,
¶ 44 Also helpful to our analysis is
Swann & Weiskopf, Ltd.
,
¶ 45 In a similar fashion, M & S had an obligation to conduct further inquiries when its president discovered that the damage was caused when part of Allahverdi's roof blew off and hit the power lines during the windstorm and Allahverdi informed her that the roof uplifted when the dock doors were opened. At the least, M & S was placed on notice that further inquiry was necessary. See
Castello
,
¶ 46 We find that the cases cited by M & S on appeal entail circumstances distinguishable from the present case. In
Henderson Square
,
¶ 47 Next, in
Graham
,
¶ 48 Lastly, in
Society of Mount Carmel v. Fox
,
¶ 49 There are crucial differences between the above cases and the present circumstances. Henderson Square , Graham , and Fox all involve damage that occurred incrementally over time. They also entailed repairs that were made over time that initially appeared to remedy the problems. In contrast, the damage in the present case occurred suddenly during high winds. The present case does not involve any minor repairs performed over time that seemed to fix the issue. Additionally, M & S's cases involved circumstances where the defendants made certain representations that hindered or delayed discovery of the cause of the damage and their responsibility for it. Here, in contrast, there was no evidence of any representations by Allahverdi after the incident on October 27, 2010, which could have deterred M & S from investigating further into the cause of the damage. There are no allegations that Allahverdi attempted to hide the cause of the accident or made false representations. Indeed, shortly after the incident, he informed M & S's president that his roof detached during the *488 *103 windstorm after the dock door of his building was opened.
¶ 50 We note that M & S contends that the circuit court erred in applying the "sudden traumatic event" rule to this case as its application is limited to personal injury actions. We need not address whether to apply this rule here, however, because we have concluded that the application of the discovery rule here involves a question of law given the undisputed facts. That is, regardless of the application the "sudden traumatic event" rule, only one conclusion can be drawn from the undisputed facts in the present case-that the limitations period was triggered at the time the roof of Allahverdi's building detached and caused damage to M & S's property. In any event, Allahverdi's point is well taken under the circumstances of this case. Allahverdi cites this rule in arguing that the limitations period began running on the date the damage occurred because the injury here was sudden and traumatic and not hidden, insidious, or chronic like a slow water leak or a cracking foundation, as in the cases relied upon by M & S.
¶ 51 III. CONCLUSION
¶ 52 For the reasons stated above, we affirm the circuit court's decision to grant Allahverdi's motion to dismiss pursuant to section 2-619(a)(5) of the Code. The parties' briefs adequately relay their respective contentions and adequately respond thereto, indicating that oral argument would not further our consideration of this appeal.
¶ 53 Affirmed.
Justices McBride and Gordon concurred in the judgment and opinion.
We note that many of the cases cited by the parties and discussed below involve interpretation of section 13-214(b), the construction statute of repose, which contains identical language,
i.e.
, "in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property." 735 5/13-214(b) (West 2012). "[B]ecause of the identical language in sections 13-214(a) and 13-214(b), the cases concerning section 13-214(b) are pertinent to this issue."
Morietta v. Reese Construction Co.
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.