On July 17, 2012, Elizabeth Fitzpatrick was lawfully present on the premises commonly known as 1965 Dewes Street in Glenview, Illinois. While descending the stairs of the front porch, Ms. Fitzpatrick tripped and fell, suffering personal injury. The Complaint pleaded that a height differential between the front porch stairs (in violation of the residential code of the village) was a dangerous condition causing Ms. Fitzpatrick's trip and fall. The homeowner, general contractor, and the mason subcontractors were named as defendants for the alleged negligent construction of the front porch stairs. The homeowner counter-claimed for contribution against the general contractor and the named mason subcontractors as well. The residence was constructed and sold to the homeowner, after the homeowner inspected it, in 2004. We represented Ventura's Brick Paving, Inc., the masonry company that layered brick on a portion of the front porch stairs.
All defendants involved in the construction of the front porch stairs moved to dismiss the Complaint on the basis of the vendor/builder exception to premises liability arising from the alleged construction negligence. The case was litigated before Judge Ehrlich of the Circuit Court of Cook County, Illinois. The motion was granted.
Law
Illinois has adopted Sections 352 and 353 of the Restatement (second) of Torts. See Anderson v. Cosmopolitan Nat'l Bank, 54 Ill. 2d 504 (1973); See also Tindle v. Pulte Home Corp., 607 F.3d 494 (7th Cir. 2010). Section 352 provides that vendor home builders are not liable for physical injuries which occur after the vendor transfers possession to the vendee. Restat 2d of Torts, § 352. Section 353 carves out a limited exception for dangerous concealed conditions. In the case of dangerous concealed conditions, the vendor is liable until the vendee has a reasonable opportunity to discover and correct the dangerous condition. See Restat 2d of Torts, § 353; See also Anderson 54 Ill. 2d 504.
Moreover, the reach of the Restatement (Second) of Torts extends beyond vendors to contractor and subcontractor builders. In Kordig v. Grovedale Oleander Homes, Inc., the Illinois Appellate Court held that:
[W]here an independent contractor is employed to construct and install any given work and has done the same and it has been accepted and the contractor discharged, he is no longer liable to third persons for injuries received as a result of defective construction or installation.
18 Ill. App. 2d 48, 54-55 (1958). Similarly to vendors, limitation on liability for contracted builders is precluded where the defected thing dealt with is: (1) intrinsically dangerous; (2) for the protection of life; (3) or has a defect that was deceitfully concealed. Chapman v. Lily Cache Builders, Inc., 48 Ill. App. 3d 919, 923-34 (3rd Dist. 1977) following Paul Harris Furniture Co. v. Morse, 10 Ill. 2d 28 (1956). While the Court in Polak v. Person, 232 Ill. App. 3d 505 (1st Dist. 1992), questioned the possible abrogation of Morse, it did so within the context of chattels rather than the structural components of a home.
The Court in Chapman extended the vendor/builder limited liability exception to structural defects in stairs. 48 Ill. App. 3d at 920 (No liability found where the width of the stair treads was shorter than required by law).
Outcome
Ultimately, Judge Ehrlich looked to the Restatement (Second) of Torts, which was adopted in Illinois, and its corresponding Illinois case law. He determined that Illinois places a limitation on the liability of vendors and builders of homes for dangerous conditions existing on the premises once the work is discharged and the vendee takes possession. In this case, Judge Ehrlich ruled that the height differential on the front porch stairs was conspicuous and not of a concealed nature as a matter of law. He specifically noted that the homeowner had the opportunity to inspect the premises and demand modifications and repairs to any defects in the home prior to taking possession of it. Accordingly, the vendor and builders were all discharged from liability to the homeowner and persons lawfully on the premises for any personal injuries arising from negligent construction of the front porch stairs at the time the homeowner took possession.
Judge Ehrlich noted that liability could attach indefinitely to vendors and builders for construction work that occurred many years prior to an injury and resulting lawsuit were the limit of repose prescribed by the Restatement (Second) of Torts not followed. Had Judge Ehrlich ruled to the contrary, liability would have attached to our client for construction work that had been completed nearly a decade prior.
While these cases are specific to Illinois, this exception may apply in other jurisdictions that have adopted the Restatement (Second) of Torts. This preclusion to liability has a wide reach and is a useful tool when representing clients in premises liability cases resulting from construction negligence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
