                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                Schott v. Halloran Construction Co., 2013 IL App (5th) 110428




Appellate Court            LAWRENCE SCHOTT and ROCHELLA SCHOTT, Plaintiffs-
Caption                    Appellees, v. HALLORAN CONSTRUCTION COMPANY, INC.,
                           Defendant-Appellant (Illinois Municipal League Risk Management
                           Association, Intervenor).



District & No.             Fifth District
                           Docket No. 5-11-0428


Filed                      January 10, 2013
Rehearing denied           February 7, 2013


Held                       An action for the injuries suffered when plaintiff fell off an unguarded
(Note: This syllabus       retaining wall while patrolling in the course of his work as a police
constitutes no part of     officer was barred by the 10-year statute of repose barring actions for an
the opinion of the court   act or omission in the design, planning, or construction of an
but has been prepared      improvement to real property after 10 years have elapsed, since plaintiff
by the Reporter of         fell 11 years after the wall was constructed, and the fact that a portion of
Decisions for the          the wall was rebuilt following a rainstorm 7 years prior to his fall did not
convenience of the         constitute “an improvement to real property” for purposes of negating the
reader.)
                           bar to plaintiff’s action, especially when plaintiff fell from a portion of
                           the original wall.


Decision Under             Appeal from the Circuit Court of St. Clair County, No. 02-L-250; the
Review                     Hon. Robert P. LeChien, Judge, presiding.



Judgment                   Reversed; judgment entered.
Counsel on                  James C. Leritz and Kelly T. Kirkbride, both of Leritz, Plunkert &
Appeal                      Bruning, P.C., of St. Louis, Missouri, for appellant.

                            Kenneth M. Burke, of Brown & James, P.C., and Thomas Q. Keefe, Jr.,
                            of Thomas Q. Keefe, Jr., P.C., both of Belleville, for appellees Lawrence
                            Schott and Rochella Schott.

                            Charles A. Pierce, of Pierce Law Firm, P.C., of Belleville, for intervenor
                            Illinois Municipal League Risk Management Association.


Panel                       JUSTICE WELCH delivered the judgment of the court, with opinion.
                            Presiding Justice Spomer concurred in the judgment and opinion.
                            Justice Chapman dissented, with opinion.



                                               OPINION

¶1          On June 16, 2010, the plaintiffs, Lawrence and Rochella Schott, filed in the circuit court
        of St. Clair County a second amended complaint directed against the defendants, Halloran
        Construction Company, Inc. (Halloran Construction), and Mark Halloran (Halloran), seeking
        damages for personal injuries suffered when Lawrence accidentally stepped or fell off an
        unguarded retaining wall while patrolling the area in the course of his duties as a Swansea
        police officer. The complaint alleged that the wall had been originally built, and later
        reconstructed, by the defendants. The plaintiffs alleged that the defendants had been
        negligent in failing to build a guardrail or other barrier at the top of the wall to prevent people
        from falling off. At the point where Lawrence stepped or fell off the retaining wall, the wall
        was only about two feet high.
¶2          The case was tried to a jury, which returned a verdict in favor of Lawrence and against
        Halloran Construction, but found Lawrence 50% contributorily negligent. The jury found in
        favor of the individual defendant, Halloran. After a second jury trial on the proper amount
        of damages to be awarded, the court entered judgment on the jury’s verdict.
¶3          Throughout these proceedings, the defendants have asserted that the plaintiffs’ claims
        against them are barred by the statute of repose set forth in section 13-214(b) of the Illinois
        Code of Civil Procedure:
            “No action based upon tort, contract or otherwise may be brought 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 after 10
            years have elapsed from the time of such act or omission.” 735 ILCS 5/13-214(b) (West
            2010).

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¶4        The defendants alleged that construction of the wall was completed in 1990, more than
     10 years prior to Lawrence’s fall from the wall on April 6, 2001. The defendants
     acknowledged that in 1994 a portion of the retaining wall collapsed due to a heavy rain and
     needed to be rebuilt. This repair work was completed in 1994. The defendants argued that
     this repair of the wall did not constitute “construction of an improvement to real property”
     within the meaning of the statute of repose.
¶5        The defendants have raised the statute of repose as an affirmative defense to all of the
     plaintiffs’ complaints and filed numerous motions for summary judgment on the ground that
     the plaintiffs’ claims are barred by the statute of repose. These motions were all denied on
     the basis that the reconstruction of a portion of the wall in 1994 constituted “an improvement
     to real property” within the meaning of the statute of repose, and that the statute began to run
     anew in 1994. The defendants also raised the statute of repose in motions for a directed
     verdict at the close of the plaintiffs’ case and at the close of all the evidence. These motions
     were also denied, as were the posttrial motions of Halloran Construction seeking a judgment
     in its favor notwithstanding the verdict. Halloran Construction filed a timely notice of appeal.
¶6        On appeal the defendant raises two arguments: (1) that the circuit court erred as a matter
     of law in denying the defendants’ motions for directed verdict and judgment notwithstanding
     the verdict where the evidence at trial demonstrated that the plaintiffs’ cause of action was
     barred by the construction statute of repose, and (2) that the circuit court erred in granting
     the plaintiffs’ motion for a new trial on the issue of damages only because the jury’s initial
     verdict was supported by the evidence. Because we reverse the judgment on the basis that
     the plaintiffs’ claims against the defendants are barred by the statute of repose, we need not
     discuss the second of these issues.
¶7        A motion for a judgment notwithstanding the verdict is reviewed in the same manner as
     a motion for a directed verdict. Townsend v. Fassbinder, 372 Ill. App. 3d 890, 897-98
     (2007). This court reviews de novo the circuit court’s decision on either motion. Townsend,
     372 Ill. App. 3d at 898. The motions should be granted where all the evidence, when viewed
     most favorably to the opposing party, so overwhelmingly favors the moving party that no
     contrary verdict based on the evidence could ever stand. Townsend, 372 Ill. App. 3d at 898.
     The motions present a question of law as to whether, when all of the evidence is considered,
     together with all reasonable inferences from it in its aspect most favorable to the plaintiffs,
     there is a total failure or lack of evidence to prove any element of the plaintiffs’ case.
     Townsend, 372 Ill. App. 3d at 898. To the extent this case involves the interpretation of a
     statute, the statute of repose, the standard of review is also de novo. In re Estate of McInerny,
     289 Ill. App. 3d 589, 596 (1997) (the interpretation of statutory provisions is traditionally a
     question of law to which a deferential standard of review is inapplicable).
¶8        The following evidence pertinent to the issue on review was presented at trial. Mark
     Halloran testified that he is the owner of Halloran Construction, which has been in existence
     since 1974. Halloran Construction is in the business of real estate development and
     developed the property on which Lawrence was injured. Mark Halloran had purchased the
     property in March 1990, and Halloran Construction was the general contractor which
     developed the property into an office park.


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¶9         Three retaining walls were built on the property, one on the north side of the building and
       two on the south side of the building. The walls are made up of stones which are about 80
       pounds each. The stones are stacked and have plastic pins that go through them. They are
       stacked and then backfilled with dirt. The walls were built by a subcontractor, Howard Lawn
       Care and Landscaping. The total cost to build the three retaining walls was $6,174. The
       retaining walls were completed by the end of 1990.
¶ 10       No guardrail was built at the top of the retaining walls. Although landscaping bushes
       were placed at the top of the north retaining wall, none were placed at the top of the south
       retaining walls.
¶ 11       On or around November 15, 1994, there was a heavy rain and part of the south retaining
       wall fell over. Halloran no longer owned the property at this time, having sold it to the
       Southwest Visiting Nurses Association in 1994 prior to the collapse of the wall. The
       Southwest Visiting Nurses Association is a not-for-profit corporation of whose board of
       directors Halloran was the president.
¶ 12       The Southwest Visiting Nurses Association hired someone, and paid them, to have the
       wall repaired or rebuilt. On May 19, 1995, Halloran Construction sued the subcontractor who
       had originally built the retaining wall in order to recoup some of the money spent by the
       Visiting Nurses Association to rebuild or repair the wall. The suit sought $7,800 in damages
       to have the retaining wall rebuilt and repaired. The actual cost to repair and rebuild the wall
       was $2,700, which was paid by the Visiting Nurses Association. At all times Halloran denied
       that he or Halloran Construction rebuilt the wall after it collapsed in 1994, but never
       identified the person who did the rebuild or to whom the Visiting Nurses Association made
       payment.
¶ 13       The section of the retaining wall which collapsed was at the end of the wall most distant
       from the point where Lawrence fell or stepped off the wall. The location of the wall from
       which Lawrence stepped or fell was not damaged and was not rebuilt in 1994. The original
       blocks were used to repair or rebuild the wall after it collapsed except for eight new blocks
       which had to be purchased because eight of the original ones had broken. After being
       repaired or rebuilt, the wall was identical in every respect to the original wall. The wall was
       exactly the same after it was repaired or rebuilt as it was before it collapsed.
¶ 14       There can be no question that any claims by the plaintiffs related to the original
       construction of the retaining wall are barred by the 10-year statute of repose. The evidence
       is uncontradicted that the retaining wall was originally completed by the end of 1990. The
       plaintiffs’ injuries were incurred on April 6, 2001, more than 10 years after completion of
       construction of the wall. The plaintiffs contend, however, that the construction work done
       on the retaining wall after it partially collapsed in 1994 constituted “construction of an
       improvement to real property” within the meaning of the statute of repose, which restarted
       the 10-year repose period.
¶ 15       We reject the plaintiffs’ argument for two reasons. First, we do not believe that the work
       done to rebuild the retaining wall after it collapsed in 1994 constitutes the “construction of
       an improvement to real property” within the meaning of the statute of repose.
¶ 16       The construction statute of repose was enacted for the express purpose of insulating all

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       participants in the construction process from the onerous task of defending against stale
       claims. Wright v. Board of Education of the City of Chicago, 335 Ill. App. 3d 948, 955
       (2002). In St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill. 2d 1, 3 (1992), our supreme
       court discussed for the first time what constitutes “an improvement to real property” within
       the meaning of the construction statute of repose. The court pointed out that, although the
       answer is grounded in fact, the question is one of law. 153 Ill. 2d at 3.
¶ 17        The court began with the definition of “improvement” as given in Black’s Law
       Dictionary:
                “ ‘A valuable addition made to property (usually real estate) or an amelioration in its
            condition, amounting to more than mere repairs or replacement, costing labor or capital,
            and intended to enhance its value, beauty or utility or to adapt it for new or further
            purposes.’ ” 153 Ill. 2d at 4 (quoting Black’s Law Dictionary 682 (5th ed. 1979)).
¶ 18        The court held that relevant criteria for determining what constitutes “an improvement
       to real property” include: whether the addition was meant to be permanent or temporary,
       whether it became an integral component of the overall system, whether the value of the
       property was increased, and whether the use of the property was enhanced. 153 Ill. 2d at 4-5.
       It is clear that an improvement to real property is an addition to real property amounting to
       more than a mere repair or replacement and which substantially enhances the value of the
       property. Adcock v. Montgomery Elevator Co., 274 Ill. App. 3d 519, 522 (1995).
¶ 19        In Morietta v. Reese Construction Co., 347 Ill. App. 3d 1077, 1081 (2004), this court
       concluded that work on a road which involved removing and replacing an existing road did
       not constitute “an improvement to real property” within the meaning of the construction
       statute of repose. The work did not involve building a new road or even widening the
       existing road. The work involved using the same depth of material as the existing road and
       following the slope of the existing road, and patching the pavement. The work neither
       improved the value of the property nor enhanced its use. The work amounted to mere repair
       and replacement and was not an improvement to real property.
¶ 20        Similarly, in Litchfield Community Unit School District No. 12 v. Specialty Waste
       Services, Inc., 325 Ill. App. 3d 164, 167 (2001), this court concluded that work involving
       removing asbestos-containing material from the ceilings and walls of a school did not
       constitute an improvement to real property within the meaning of the construction statute of
       repose. The work required removing the existing acoustic tile ceiling and the plaster from the
       walls, removing the asbestos, replacing the ceiling tiles and plaster, and repainting the walls.
       The court held that this was nothing more than ordinary repair and maintenance of an
       existing structure. 325 Ill. App. 3d at 167. The work did not result in a substantial addition
       or a substantial change to the property, nor did it substantially enhance the value, beauty, or
       utility of the property. 325 Ill. App. 3d at 168.
¶ 21        In the case at bar, there is no question that the retaining wall, when it was built in 1990,
       was “an improvement to real property” within the meaning of the construction statute of
       repose. It was clearly meant to be permanent, it became an integral component of the
       property, and it increased the value of the property and enhanced its use.
¶ 22        However, it seems just as clear that the work done on the wall after it was washed out by

                                                 -5-
       rain in 1994 was not an improvement to real property but was mere repair of an existing
       structure. The rebuilding of the wall did not add anything to the property; it simply returned
       it to the condition it had been in prior to the heavy rain doing damage. Neither the value nor
       the use of the property was enhanced by the work; the property was simply returned to the
       condition it had been in prior to being damaged by heavy rain. The retaining wall was rebuilt
       in exactly the same configuration it had been in prior to being damaged, and using for the
       most part the same materials. The work did not substantially increase the value of the
       property, enhance its use, or add anything to it. The rebuild of the retaining wall did not
       constitute the “construction of an improvement to real property” within the meaning of the
       statute of repose.
¶ 23        The second reason we reject the plaintiffs’ argument is that the portion of the retaining
       wall from which Lawrence stepped or fell was not damaged by rain and was not repaired or
       rebuilt in 1994. The portion of the wall from which Lawrence stepped or fell was the original
       retaining wall built by Halloran Construction in 1990, more than 10 years prior to the
       accident. We see no reason why an improvement to some portion of the property other than
       that on which the plaintiffs were injured should extend or renew the statute of repose with
       respect to their injuries. Accordingly, the plaintiffs’ claim is barred by the 10-year statute of
       repose.
¶ 24        Because the plaintiffs’ action against the defendant is barred by the 10-year construction
       statute of repose, we reverse the judgment of the circuit court of St. Clair County denying the
       defendant’s posttrial motion for a judgment notwithstanding the verdict. We hereby enter
       judgment in favor of the defendant on the plaintiffs’ cause of action against them.

¶ 25       Reversed; judgment entered.

¶ 26       JUSTICE CHAPMAN, dissenting.
¶ 27       I would affirm the judgment of the circuit court denying the defendant’s posttrial motion
       for judgment notwithstanding the verdict as plaintiffs’ claims were not barred by the statute
       of repose section 13-214(b) of the Illinois Code of Civil Procedure.
¶ 28       I believe that the evidence supported a finding that the reconstruction to the retaining wall
       constituted an “improvement to real property” under the statute of repose and thereby
       satisfied the relevant criteria set out by our supreme court, i.e., “whether the addition was
       meant to be permanent or temporary, whether it became an integral component of the overall
       system, whether the value of the property was increased, and whether the use of the property
       was enhanced.” St. Louis v. Rockwell Graphic Systems, Inc., 153 Ill. 2d 1, 4-5 (1992).
¶ 29       In the postcollapse lawsuit Halloran filed against the subcontractor hired to construct the
       wall originally, Halloran alleged, “On or about November 15, 1994, said retaining wall began
       to crumble, fall apart, became ineffective and cease [sic] to operate for the purpose for which
       it was constructed.” Halloran further alleged that the cost to “have the retaining wall replaced
       and rebuilt, and to repair the structural integrity of the surrounding building and the
       landscaping on the property” would amount to $7,800. Halloran also prepared an invoice in
       that amount. The figure of $7,800 stands in stark contrast to the original cost of $6,174 for

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       building all three retaining walls.
¶ 30       Far from being undisputed as defendant argues, the evidence at trial based on defendant’s
       own admissions and plaintiffs’ expert testimony, when viewed most favorably to plaintiffs,
       did not so overwhelmingly favor the defendant that no contrary verdict could ever stand.
       Townsend v. Fassbinder, 372 Ill. App. 3d 890, 898 (2007).




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