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                                    Appellate Court                         Date: 2017.10.26
                                                                            11:25:50 -05'00'




           State Farm Fire & Casualty Co. v. Welbourne, 2017 IL App (3d) 160231



Appellate Court        STATE FARM FIRE AND CASUALTY COMPANY, as Subrogee
Caption                of Timothy W. Schreiber, Plaintiff-Appellee, v. WILLIAM
                       WELBOURNE, d/b/a Welbourne Builders, Inc., Defendant-
                       Appellant.



District & No.         Third District
                       Docket No. 3-16-0231



Filed                  August 15, 2017



Decision Under         Appeal from the Circuit Court of Tazewell County, No. 15-SC-86; the
Review                 Hon. Michael Risinger, Judge, presiding.



Judgment               Affirmed.


Counsel on             Burt L. Dancey, of Elliff Dancey & Bosich P.C., of Pekin, for
Appeal                 appellant.

                       No brief filed for appellee.
     Panel                    JUSTICE CARTER delivered the judgment of the court, with opinion.
                              Presiding Justice Holdridge concurred in the judgment and opinion.
                              Justice McDade dissented, with opinion.


                                               OPINION

¶1         Plaintiff, State Farm Fire and Casualty Company (State Farm), as subrogee of Timothy W.
       Schreiber, brought a small claims case in Tazewell County circuit court against defendant,
       William Welbourne, doing business as Welbourne Builders, Inc., for negligent roof repair.
       After a bench trial, the trial court ruled in favor of State Farm on its negligence claim.
       Welbourne filed a motion to reconsider, which the trial court denied. Welbourne appeals. We
       affirm the trial court’s judgment.

¶2                                                FACTS
¶3          In April 2009, Schreiber hired Welbourne to repair a leaky roof on Schreiber’s home in
       Groveland, Illinois. As part of the roof-repair work, Welbourne replaced the top layer of
       shingles and four roof vents. The work was completed later that same month and was paid for
       by Schreiber in full. Pursuant to the parties’ agreement, Welbourne guaranteed the
       “workmanship” on the “top roof” to Schreiber for a period of two years.
¶4          About a year and a half later, in December 2010, Schreiber discovered that the roof was
       leaking in a different area than before and that the inside of his house had suffered some water
       damage from the leak. Schreiber called Welbourne and reported the problem. Welbourne went
       to the home on December 27, 2010, to inspect the roof but was unable to do so because the roof
       was covered with snow and ice. Welbourne returned to the home on January 2, 2011. When
       Welbourne inspected the home at that time, he saw snow and ice buildup around one or more
       of the four roof vents, which he determined was the cause of the leak. On January 3, 2011,
       Welbourne replaced the four vents at his own cost and installed ice guards around the vents.
       Since that time, Schreiber has not had any further rooftop leaks to his home.
¶5          Schreiber asked Welbourne to pay for the damage that the leak had caused to the inside of
       the home, but Welbourne refused. Schreiber later filed a claim with his insurance company,
       State Farm, for the damage. State Farm paid $4650.01 to have the water damage to the inside
       of the home repaired. In addition, Schreiber paid a $500 deductible on the work that was done
       to repair the inside of the home.
¶6          In January 2015, State Farm, as the subrogee of Schreiber, filed a small claims case in the
       trial court against Welbourne. In the complaint, State Farm alleged that Welbourne’s
       negligence in repairing the roof led to the water damage. Welbourne denied that he was
       negligent and claimed or stated that the leak was caused by an unnatural accumulation of snow
       and ice, which had accumulated around the roof vents because of the heat coming out of the
       attic and the lack of ice guards on the house around the vents.
¶7          At some point prior to the trial in this case, the trial court distributed to the parties’
       attorneys a document titled “[s]mall [c]laims bench trial procedure.” The document stated as
       follows:


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                   “The Court conducts all small claims bench trials under IL Supreme Court Rule
               286b [(Ill. S. Ct. R. 286(b) (eff. Aug. 1, 1992) (allowing the trial court in a small claims
               case to adjudicate the dispute in an informal hearing with the rules of evidence and
               rules of procedure relaxed))]. That means the rules of evidence are relaxed and the
               Court does all the questioning. I like pictures; I like documents. If a picture or
               document applies to your case, bring 3 copies (one for me, one for you, one for your
               opponent). You further are instructed to write (type) out your evidence (similar to a
               term paper or lawyer’s brief). Again bring 3 copies of your written statement of
               evidence (one for me, one for you, one for your opponent). If within your written
               statement of evidence you refer to something a person said, that person will need to be
               present on the trial date to be sworn-in and agree to what you said he/she said. At trial,
               I will read both statements of evidence and ask any questions that I have, then render a
               decision.
                   If you get your written statement of evidence done a few days before the trial,
               please email it to my clerk (or drop it off) at [the court’s email address]. Be sure to send
               your opponent a copy at the same time.”
¶8         In December 2015, an informal bench trial was held pursuant to the directions that the trial
       court had previously given the attorneys. As the trial court had requested, both sides submitted
       written statements of the evidence/facts to the court, along with any photographs or
       documentation that they had. The trial court questioned each of the attorneys as to what the
       evidence in the case would show, including what the testimony of each of their respective
       clients/witnesses would be. After the questioning of the attorneys had concluded, the two main
       witnesses—Schreiber and Welbourne—acknowledged in court that they were adopting the
       representations of their attorneys as their testimony in the case. The trial court also listened to
       the closing arguments of the attorneys. During closing argument, Welbourne’s attorney
       argued, among other things, that State Farm was trying to “bootstrap a contractual economic
       damage claim into a negligence claim and grab consequential damages which [were] not
       available in that type of action.”
¶9         After listening to the arguments of the attorneys, the trial court took the case under
       advisement. The trial court later issued a written decision, ruled in favor of State Farm on its
       claim of negligence, and entered judgment in favor of State Farm for $5150.01 plus costs. In
       making its ruling, the trial court stated:
                   “*** No evidence has been presented to show what was the unnatural accumulation
               nor does the Court recall from its own experience a recent situation that could be
               considered an unnatural accumulation. This is Central Illinois. We get snow every
               winter—sometimes several inches on the same day, sometimes only a few inches. Res
               Ipsa Loquitur.
                   *** It is agreed that replacing the roof vents with roof-vents-with-ice-guards has
               stopped the leaks. Welbourne installed the roof vents and the roofing around the roof
               vents that leaked.”
¶ 10       Welbourne filed a motion to reconsider but did not re-raise his economic loss doctrine
       argument in that motion. A hearing was held on the motion to reconsider in April 2016. At the
       conclusion of the hearing, the trial court denied the motion. In so doing, the trial court
       explained its reasoning as follows:


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                “Homeowner hired Mr. Welbourne to replace the roof because he had a leak. Let’s
            just say on the left side of the house. Mr. Welbourne replaced the roof. As part of
            replacing the roof, Mr. Welbourne replaced also four vents in the roof, and then a
            year-and-a-half later, in 2011, during the winter, another leak was discovered, this time
            in the right side of the house, the opposite side of the house where the leak originally
            had occurred for which the homeowner hired Mr. Welbourne.
                After the homeowner contacted Mr. Welbourne, Mr. Welbourne came out and
            looked at things and determined that the reason there was a leak was because of a leak
            coming through one of the roof vents that he had replaced a year-and-a-half or two
            before.
                I don’t know how I can characterize that in any other way. That was the evidence.
            That was both given to me in written form and also in oral form on that day. I don’t
            know how I can characterize it any different, so now the—apparently the fix was easy.
            Apparently the fix for this was to put ice guards or roof guards or, I’m not sure what I’ll
            call them, ice guards on these four roof vents, and whether or not that was contracted
            for, I can’t tell you.
                I do know this. Four roof vents were replaced at the time Mr. Welbourne did this
            job. He frankly, in this Court’s view, had a choice to make whether to put in whatever
            type of roof vent he wanted to include as part of his roof repair. He chose one that
            didn’t have, I guess, ice guards in it, so he later installs them, and apparently that takes
            care of everything, so I’m just sitting here thinking, as the finder of fact, if he had just
            put roof vents in with ice guards, we wouldn’t be sitting here today.
                He’s the one that decided how to fix this roof, and as to the unusual or unnatural, I
            can’t remember exactly what word was used, but the great accumulation of snow, this
            is Central Illinois. Snow falls. It gets on roofs all the time, and since I live here, I can
            have a recollection of whether or not there’s such a serious amount of snow in the
            past—well, for my entire lifetime, and I know that in 2011, that winter, there wasn’t.
                                                   ***
                When I’m given a set of facts where we’ve got a leak on the left side and that gets
            fixed, but as part of the repair, these roof vents got replaced, and then a year, year and a
            half later, there is a leak that comes through one of those roof vents, I don’t know how
            I’m to characterize that other than a lack of workmanship quality has caused a leak on
            the right side of the house.”
¶ 11      Welbourne appealed.

¶ 12                                             ANALYSIS
¶ 13        On appeal, Welbourne argues that the trial court erred in ruling in State Farm’s favor after
       a bench trial on State Farm’s complaint for negligent roof repair. Welbourne asserts that the
       trial court’s finding after bench trial—that Welbourne had breached the duty or standard of
       care—was against the manifest weight of the evidence. Welbourne asks, therefore, that we
       reverse the trial court’s judgment and enter a judgment in favor of Welbourne instead.
¶ 14        Initially, we note that State Farm has not filed an appellee’s brief in this appeal. Generally,
       a reviewing court will not act as an advocate for an appellee who fails to file a brief. First
       National Bank of Ottawa v. Dillinger, 386 Ill. App. 3d 393, 395 (2008). However, when the

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       record is simple and the claimed error can easily be decided without the aid of an appellee’s
       brief, such as in the instant case, an appellate court should decide the appeal on the merits. First
       Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976); First
       National Bank of Ottawa, 386 Ill. App. 3d at 395. Therefore, we will proceed to decide the
       merits of this appeal, even though State Farm has not filed an appellee’s brief in this case. See
       First Capitol Mortgage Corp., 63 Ill. 2d at 133; First National Bank of Ottawa, 386 Ill. App.
       3d at 395.
¶ 15        Turning to the merits, we note that to sustain a cause of action for negligence, a plaintiff
       must plead and prove by a preponderance of the evidence the following three elements: (1) that
       the defendant owed a duty of care to the plaintiff, (2) that the defendant breached that duty, and
       (3) that the breach was the proximate cause of the plaintiff’s injuries. Jones v. Chicago HMO
       Ltd. of Illinois, 191 Ill. 2d 278, 294 (2000); Bier v. Leanna Lakeside Property Ass’n, 305 Ill.
       App. 3d 45, 51 (1999); Hanna v. Creative Designers, Inc., 2016 IL App (1st) 143727, ¶ 19. In
       this particular case, the only element of State Farm’s negligence claim that is in dispute on
       appeal is the second element, that Welbourne breached his duty of care in performing the
       roofing repair work.
¶ 16        Under negligence law, the standard of care required of a defendant in an ordinary
       negligence case is to act as an ordinarily careful person or reasonably prudent person would act
       under similar circumstances. Jones, 191 Ill. 2d at 295; Illinois Pattern Jury Instructions, Civil,
       Nos. 10.01, 10.02, 10.04 (approved Dec. 8, 2011). The determination of whether a person
       breached the duty of care is normally a question of fact for the trier of fact to decide (Bier, 305
       Ill. App. 3d at 51) and is dependent upon the unique facts and circumstances that were present
       when the incident in question occurred (Sims v. Chicago Transit Authority, 4 Ill. 2d 60, 66
       (1954)).
¶ 17        A trial court’s factual determination made after a bench trial—that a defendant breached
       the duty of care—will not be reversed on appeal unless that determination is against the
       manifest weight of the evidence. See Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002) (a trial
       court’s factual findings made after a bench trial will not be reversed on appeal unless they are
       against the manifest weight of the evidence); Meyers v. Woods, 374 Ill. App. 3d 440, 449
       (2007) (same). A factual finding is against the manifest weight of the evidence only if it is
       clearly apparent from the record that the trial court should have reached the opposite
       conclusion or if the finding itself is unreasonable, arbitrary, or not based upon the evidence
       presented. Best v. Best, 223 Ill. 2d 342, 350 (2006); Meyers, 374 Ill. App. 3d at 449.
¶ 18        After having reviewed the record in the present case, we find that the trial court’s ruling
       was well supported by the evidence. The evidence presented at the bench trial established that
       Welbourne was hired in 2009 to fix Schreiber’s leaky roof, that as part of the roof-repair work,
       Welbourne replaced the four roof vents, that Welbourne guaranteed his workmanship on the
       project for a period of two years, that about 18 months later, the roof started leaking again in a
       different spot, that the new leak was caused by the lack of ice shields around the roof vents that
       Welbourne had installed, and that when Welbourne installed different vents with ice shields
       around them, the problem was immediately resolved. Under those circumstances, we must
       conclude that the trial court’s finding—that Welbourne breached the duty of care—was not
       against the manifest weight of the evidence. See Best, 223 Ill. 2d at 350; Meyers, 374 Ill. App.
       3d at 449. There was nothing arbitrary or unreasonable about the trial court’s determination in
       that regard, and we will not substitute our judgment on that issue for that of the trial court. See

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       Best, 223 Ill. 2d at 350-51 (a court of review will not substitute its judgment for that of the trial
       court regarding the credibility of witnesses, the weight to be given to the evidence, or the
       inferences to be drawn from the evidence).
¶ 19        Although Welbourne complains about the truncated procedure in the trial court, this was a
       small claims case, and the trial court was authorized under Illinois Supreme Court Rule 286 to
       use an informal procedure. See Ill. S. Ct. R. 286(b) (eff. Aug. 1, 1992). Both parties were
       advised in advance of the informal procedure that the trial court intended to use, and neither
       party posed an objection to that procedure or sought permission from the trial court to deviate
       from that procedure. In addition, to the extent that Welbourne complains about the trial court’s
       consideration of its own knowledge of winter conditions in central Illinois, we find no error in
       the trial court doing so. It is well established that the trier of fact may consider the evidence in
       light of his or her common knowledge and life experiences. See People v. Schaffner, 382 Ill.
       266, 279 (1943); Illinois Pattern Jury Instructions, Civil, No. 1.01 (approved June 21, 2012).
¶ 20        In reaching the conclusion that we have reached in this case—that the trial court’s finding
       that Welbourne breached his duty of care was not against the manifest weight of the
       evidence—we must take a moment to comment upon the possible application of the economic
       loss doctrine (commonly known in Illinois as the Moorman doctrine) in this case. See
       Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 85-92 (1982) (stating that a
       plaintiff may not recover damages under a tort theory, such as strict liability, negligence, or
       innocent misrepresentation, for solely economic loss caused by the failure of a defective
       product to perform as expected; rather, any recovery by the plaintiff for such loss must come
       under a contract theory); Restatement (Third) of Torts: Liability for Economic Harm § 2
       (Tentative Draft No. 1, 2012) (defining economic loss); Restatement (Third) of Torts: Liability
       for Economic Harm § 3 (Tentative Draft No. 1, 2012) (stating that except as provided
       elsewhere in the restatement, there is no liability in tort for economic loss caused by negligence
       in the performance or negotiation of a contract between the parties). Although the economic
       loss doctrine could potentially apply in this case (see Anderson Electric, Inc. v. Ledbetter
       Erection Corp., 115 Ill. 2d 146, 153 (1986) (applying the economic loss doctrine to a contract
       for services); Restatement (Third) of Torts: Liability for Economic Harm § 6 (Tentative Draft
       No. 2, 2014)), it appears from the facts that State Farm’s negligence claim would fall under an
       exception to the economic loss doctrine, one that applies when the plaintiff has sustained
       personal injury or property damage to other property not part of the contract. See Moorman
       Manufacturing Co., 91 Ill. 2d at 86; Trans States Airlines v. Pratt & Whitney Canada, Inc., 177
       Ill. 2d 21, 26-27, 41-42 (1997); Gunkel v. Renovations, Inc., 822 N.E.2d 150, 156-57 (Ind.
       2005) (although the economic loss rule precluded tort recovery for damage to a home facade
       that was purchased separately from the home itself, it did not preclude tort recovery for
       damage to the home and its parts caused by the allegedly negligent installation of the facade);
       Restatement (Third) of Torts: Liability for Economic Harm § 2 cmt. b, illus. 2 (Tentative Draft
       No. 1, 2012); see also Restatement (Third) of Torts: Products Liability § 21 (1998) (discussing
       the other property doctrine as it relates to defective products).

¶ 21                                        CONCLUSION
¶ 22       For the foregoing reasons, we affirm the judgment of the circuit court of Tazewell County.




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¶ 23       Affirmed.

¶ 24       JUSTICE McDADE, dissenting.
¶ 25       The majority has affirmed the decision of the circuit court of Tazewell County ordering a
       monetary judgment against the defendant, William Welbourne d/b/a Welbourne Builders, Inc.,
       for negligent roof repair. Because I believe the trial court’s decision is against the manifest
       weight of the evidence, I respectfully dissent from the judgment.
¶ 26       Timothy Schreiber and William Welbourne entered into a written contract for the repair of
       Schreiber’s roof, which had sustained hail damage and had begun to leak in one area. The
       contract included replacement of four vents in the roof. There is nothing in the contract
       regarding the installation of ice guards around the vents. There is also no evidence in the record
       that the original vents had ice guards such that “replacement” should reasonably have included
       them. There is similarly no evidence in the record that the inclusion of ice guards would be
       dictated by statute or ordinance or by any industry standard in the area. Nor is there any
       evidence of whether Schreiber and Welbourne discussed adding ice guards and decided to
       forgo them for some reason. The contract included a two-year warranty, with which
       Welbourne fully complied when a leak appeared in a different area of the new roof within the
       warranty period. There is no evidence that Welbourne did not comply with all of the terms of
       the contract in a workmanlike manner.
¶ 27       At issue in this appeal is a challenge to a finding of a duty neither created nor supported in
       the record by express contract terms, a legal requirement, or a demonstrable prevailing
       standard of the roofing business. What the trial court found and the majority affirms is that
       because Welbourne did not do something outside the contract, he had not done a workmanlike
       job in discharging its actual terms. There is no evidence in the record that supports that
       conclusion.
¶ 28       And then there is the snow. Although no person sworn to tell the truth ever actually
       testified, the parties, under oath, ratified representations made to the court by their attorneys. In
       this format prescribed by the court, there was evidence from Welbourne—uncontroverted by
       any other evidence of record—of severe weather that winter, of very heavy accumulations of
       snow (12 inches) and ice on the roof, and of the failure of the homeowner to clear his roof of
       the accumulated snow and ice, which neglect Welbourne alleged actually caused the new leak.
       The record further shows that Schreiber’s inspector signed off on the work and neither the
       Better Business Bureau nor the Attorney General’s consumer fraud division—both of which
       Schreiber had complained to—found faulty work by Welbourne.
¶ 29       In the face of this evidence, we have no actual evidence such as, for example, judicial
       notice of weather records but rather the trial court’s musings. Off the top of his head, the trial
       judge could not remember an occurrence of what he subjectively considered particularly heavy
       accumulations of snow or ice in the preceding two winters and decided that, because he could
       not remember such, they had not happened. The court stated: “This is Central Illinois. We get
       snow every winter—sometimes several inches on the same day, sometimes only a few inches.
       Res ipsa loquitur.”
¶ 30       There is no evidence of any duty owed by Welbourne to Schreiber to install ice guards and
       consequently no evidence that any duty was breached. The decision is against the manifest
       weight of the evidence of record, and it should be reversed.


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