Construction Law

Constuction worker died after falling through an unprotected window opening at condominium construction project, after bundle of bricks broke and he lost his balance on scaffold. Estate filed suit for construction negligence against several entities involved in project. Jury verdict against general contractor for $3.286 million, finding Decedent 1% contributorily negligent. Plaintiff was mistaken as to the correct identity of the general contractor, which should have known it was not named as a Defendant in original complaint only due to misunderstanding of which company was the general contractor. Thus, relation back doctrine applies, and amended complaint naming actual general contractor was timely filed. Contract shows that parties intended general contractor to be responsible for general right of control, including responsibility for site safety. Thus, evidence was sufficient to find Defendant vicariously liable. (SALONE and STERBA, concurring.)

(Court opinion modified upon denial of rehearing 5/20/11.) Plaintiff sued construction manager corporation for injuries he suffered at construction worksite. As Plaintiff does not allege that construction manager actually selected the contractors or subcontractors, manager cannot be said to have entrusted them with the work, absent which Section 414 of Restatement (Second) of Torts is inapplicable. Whether construction manager exercised control at construction site is irrelevant, as control alone does not trigger liability under Section 414. Manager is not liable under Section 434(a) of Restatement, as no evidence that it possessed the land at issue. (J. GORDON and HOWSE, concurring.)

Conrete subcontractor company sued concrete testing company for negligently testing concrete it had poured at UIC construction site, claiming monetary losses for subcontractor being required to remove concrete by UIC. Court properly dismissed complaint, as Plaintiff failed to allege a duty owed it by Defendant, and the voluntary undertaking doctrine, which generally requires a showing of bodily harm, does not extend to purely economic losses. (NEVILLE and MURPHY, concurring.)

Plaintiff bank filed foreclosure action as to construction mortgage and sale of underlying real estate (40-unit commercial condominium project). Electrical subcontractor filed counterclaim asserting priority of its mechanic's lien. Court did not err in denying motion to approve late filing of brief in response to motion for judgment on the pleadings, and in denying party participation in oral argument, as no reason for lateness was provided, and motion was unsupported by affidavit. Electrical work was done by subcontractor, rather than by contractor, as it contracted with and performed work for a contractor rather than for the property owner; thus, it was required to provide notice of its lien to the known mortage lender. Subcontractor's lien was invalid as to that lender as it failed to provide it with notice as required by Section 24 of Mechanics Lien Act. (CUNNINGHAM and CONNORS, concurring.)

Plaintiff was injured at construction site on Loyola University building project, and sued general contractor, which filed third-party complaint for contribution against Plaintiff's employer, a steel subcontractor. Plaintiff settled with general contractor for $2.67 million and assignment of counterclaim against steel subcontractor. Jury apportioned liability of steel subcontractor at 35%, and entered judgment for it for 35% of $2.67 million. Court properly denied motion to dismiss where Plaintiff presented evidence to obviate defects in assignment of third-party claim for contribution, that insurers agreed to assign to Plaintiff any subrogated right of contribution. Plaintiff has right to assignment of contribution for amount of subcontractor's actual loss, which is amount not covered by its insurer. Subcontractor did not forfeit its affirmative defense by not raising it until six weeks before trial on contribution claim. (KARNEZIS and CUNNINGHAM, concurring.)

Section 7 of the Illinois Mechanics Lien Act does not require the inclusion of a statement of the contract completion date on a lien claim in order to be enforceable. Mechanics Lien Act must be strictly construed, as mechanics' liens were not recognized at common law or in equity but exist only by virtue of statutes. (HUTCHINSON and JORGENSEN, concurring.)

Plaintiff realty company sued Defendant company five years after Defendant completed construction of 50-story high rise building on its property, which was across the street from Plaintiff's building, for breach of agreement to indemnify Plaintiff for losses suffered due to the construction. Plaintiff claimed that Defendant used its property, during construction, such that it was impossible for Plaintiff to lease commercial space in its building. Indemnity agreement is broad enough to encompass both first-party and third-party claims. Ten-year limitations period for actions on written contracts governs, rather than four-year period for construction suits, as Defendant's potential liability emanates from its obligation under the written indemnification agreement, and is not related to Defendant's capacity as supervisor or manager of the construction. (QUINN and STEELE, concurring.)