                                                                                  THIRD DIVISION
                                                                                  December 15, 2010




No. 1-09-2300


ROJAS CONCRETE, INC.,                                  )       Appeal from the
                                                       )       Circuit Court of
        Plaintiff-Appellant,                           )       Cook County.
                                                       )
   v.                                                  )
                                                       )
FLOOD TESTING LABORATORIES, INC.,                      )       Honorable
                                                       )       Jeffrey Lawrence,
        Defendant-Appellee.                            )       Judge Presiding.



        PRESIDING JUSTICE QUINN delivered the opinion of the court:

        Plaintiff, Rojas Concrete, Inc., brought an action alleging that defendant, Flood Testing

Laboratories, Inc., had been negligent in testing concrete that plaintiff, a subcontractor, poured

for a construction project at the University of Illinois at Chicago (UIC). Plaintiff alleged that as a

result of defendant’s negligence and negligent misrepresentations, plaintiff’s concrete did not meet

project specifications and plaintiff suffered monetary losses when UIC required plaintiff to remove

the concrete. The circuit court subsequently dismissed plaintiff’s complaint where the complaint

failed to allege any duty owed by defendant to plaintiff. Plaintiff now appeals. For the following

reasons, we affirm the order of the circuit court dismissing plaintiff’s complaint for failure to

allege that defendant owed a duty to plaintiff.
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                                        I. BACKGROUND

       In 2005, UIC commenced a project to build the “UIC Forum,” a mixed-use classroom,

office and entertainment facility at its campus in Chicago, Illinois. Plaintiff was hired by Goebel

Forming, Inc., one of UIC’s contractors, to provide the concrete work for the Forum. Plaintiff’s

work included providing and installing concrete for the floor decks, grade beams, roofs, stairs and

other areas of the Forum. The plans for the project specified that lightweight calcium chloride-

free concrete was to be used for portions of the Forum.

       Defendant contracted with UIC to monitor and test the concrete poured at the Forum

construction site to ensure that the concrete conformed to mix design and the formula specified in

the project plans. Defendant’s contract with UIC provided, under part 1.2, “Inspection and

testing services are required to verify compliance with requirements specified or indicated. These

services do not relieve Contractor of responsibility for compliance with Contract Document

requirements.” Defendant’s contract with UIC also provided, under article 25.2, “Nothing

contained herein shall create a contractual relationship with, or any rights in favor of, any third

party, including any Subcontractor.”

       Plaintiff did not contract with defendant for the testing and inspection of plaintiff’s

concrete and plaintiff did not participate in defendant’s testing and inspection of the concrete. It

is customary in the construction industry for the owner of a project, UIC in this case, to hire an

independent entity, such as defendant, to monitor and test the concrete used by contractors.

Pursuant to defendant’s contract with UIC, defendant inspected and tested each load of concrete

delivered by plaintiff to determine whether the concrete matched the mix design and formula


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specified in the project plans. Defendant then advised plaintiff whether the concrete passed the

inspection.

       Plaintiff alleged that on several occasions in December 2006 and January 2007, defendant

tested and approved concrete that did not conform to the project specifications. Plaintiff alleged

that in reliance on defendant’s inspection, testing and approval of the concrete formula, plaintiff

poured approximately 710 cubic yards of nonconforming concrete. UIC required plaintiff to

remove and replace the nonconforming concrete. As a result, plaintiff alleged that it incurred

monetary damages in excess of $950,000.

       On December 17, 2008, plaintiff filed its two-count complaint, alleging negligence and

negligent misrepresentations. Count I alleged that defendant owed plaintiff a duty to use

reasonable care to adequately test and inspect the concrete to ensure that it conformed with

project specifications and that defendant breached that duty, causing plaintiff to suffer significant

damages. Count II alleged that defendant made representations to plaintiff that were false in that

certain concrete did not conform to the project specifications and that plaintiff relied on these

representations.

       On March 13, 2009, defendant filed a motion to dismiss pursuant to sections 2-615 and 2-

619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2008)), arguing that

it owed no duty to plaintiff and that plaintiff’s claims sought only economic losses that were

unrecoverable in tort. The circuit court initially denied defendant’s motion, finding that defendant

had voluntarily undertaken a duty to plaintiff and that defendant was an information provider, an

exception to the economic loss doctrine. Defendant filed a motion to reconsider contending that


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the voluntary undertaking doctrine required plaintiff to suffer personal injury and that the

information provider exception to the economic loss doctrine was not applicable in this case. On

July 31, 2009, the circuit court granted defendant’s motion to reconsider and dismissed plaintiff’s

complaint with prejudice. In so doing, the circuit court found that defendant owed no duty to

plaintiff and that the voluntary undertaking doctrine required physical injury to plaintiff. The

circuit court also determined that the information provider exception to the economic loss

doctrine was inapplicable where defendant had no duty to plaintiff. Plaintiff now appeals.

                                          II. ANALYSIS

                                      A. Standard of Review

       A motion to dismiss pursuant to section 2-615 of the Code tests the legal sufficiency of a

complaint, whereas a section 2-619 motion admits the legal sufficiency of the complaint, but

asserts affirmative matter outside of the complaint which defeats the claim. Solaia Technology,

LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 578-79 (2006). Our review of a dismissal under

either section of the Code is de novo. King v. First Capital Financial Services Corp., 215 Ill. 2d 1,

12 (2005).

       To state a claim for negligence, a plaintiff must plead a duty owed by a defendant to that

plaintiff, breach of that duty, and injury proximately caused by that breach of duty. Ford v. Round

Barn True Value, Inc., 377 Ill. App. 3d 1109, 1113 (2007). To state a claim for negligent

misrepresentation, a plaintiff must plead and prove that the defendant owed a duty to the plaintiff

to communicate accurate information. Kopley Group V., L.P. v. Sheridan Edgewater Properties,

Ltd., 376 Ill. App. 3d 1006, 1017 (2007).


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                     B. Whether Defendant Owed Plaintiff a Contractual Duty

        Whether a duty of care exists is a question of law to be decided by the court. Eichengreen

v. Rollins, Inc., 325 Ill. App. 3d 517, 525-26 (2001). “An allegation of negligence based upon a

contractual obligation, although sounding in tort rather than contract, is nonetheless defined by

the contract.” Eichengreen, 325 Ill. App. 3d at 525. Thus, the scope of duty is determined by the

terms of the contract and a defendant’s duties will not be expanded beyond the scope of duties

required by the contract. Eichengreen, 325 Ill. App. 3d at 525.

        In this case, defendant owed no duty to plaintiff under defendant’s contract with UIC.

First, article 25.2 of the contract specifically stated, “Nothing contained herein shall create a

contractual relationship with, or any rights in favor of, any third party, including any

Subcontractor.” Therefore, defendant’s contract with UIC clearly provided that defendant’s

duties did not extend to third parties, such as plaintiff.

        Second, part 1.2 of the contract stated, “Inspection and testing services are required to

verify compliance with requirements specified or indicated. These services do not relieve

Contractor of responsibility for compliance with Contract Document requirements.” Thus,

defendant’s contract with UIC did not relieve any contractor at the construction site of its duty to

comply with the terms of its own separate contract. Plaintiff contracted with Goebel, the

contractor for UIC, to provide concrete that complied with project specifications. Defendant’s

contract to provide monitoring and testing services for UIC did not create a contractual

relationship with plaintiff. Therefore, plaintiff has not shown that defendant owed it a duty to

inspect, test, or approve plaintiff’s concrete before it was poured.


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         C. Whether Defendant Owed Plaintiff a Duty Based on the Parties’ Relationship

       Plaintiff next asserts that defendant’s duty of due care does not depend on privity of

contract. Rather, plaintiff maintains that a construction professional can be held liable for

negligently causing another contractor to incur additional expenses to complete a project

regardless of whether a contractual relationship exists between the parties. In support of this

argument, plaintiff relies on Normoyle-Berg & Associates, Inc. v. Village of Deer Creek, 39 Ill.

App. 3d 744 (1976), and W.H. Lyman Construction Co. v. Village of Gurnee, 84 Ill. App. 3d 28

(1980). However, we find those cases distinguishable.

       In Normoyle-Berg, the plaintiff contracted with the Village of Deer Creek to act as a

general contractor on a sewer construction project. The defendant agreed to serve as the

engineer on the project with the duty of supervising the construction. There was no contract

between the plaintiff and the defendant. The plaintiff general contractor brought an action against

the defendant engineer as supervisor of construction alleging that the engineer had acted

negligently in failing to have the project properly staked, failing to complete the details of the

plans and similar acts which resulted in extra expenses for the plaintiff general contractor. This

court reversed the circuit court’s dismissal of the complaint, finding that “a supervising engineer

owes a duty to a general contractor to avoid negligently causing extra expenses for the contractor

in the completion of a construction project.” Normoyle-Berg, 39 Ill. App. 3d at 746. This court

explained that a supervising engineer owes a duty to a general contractor despite the absence of a

contractual relationship between the parties:

               “A supervising engineer must be held to know that a general contractor will be

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               involved in a project and will be directly affected by the conduct of the engineer.

               This relationship of supervising engineer and general contractor gives rise to a duty

               of care on the part of each party to the other. Such a duty exists even in the

               absence of a direct contractual relationship.” Normoyle-Berg, 39 Ill. App. 3d at

               746.

       In W.H. Lyman, this court, relying on Normoyle-Berg, reached a similar result. In W.H.

Lyman, the contractor for the Village of Gurnee’s sanitary sewer project brought suit against the

supervising engineer for the project for the amount the contractor expended over and above the

stated amount of his contract with the village. The contractor did not have a contract with the

supervising engineer. This court, relying on the holding in Normoyle-Berg, concluded that the

relationship between the contractor and supervising engineer gave rise to a duty of care in the

engineer’s design and administration of the project and that the breach of that duty caused the

contractor to incur economic injury. W.H. Lyman, 84 Ill. App. 3d at 39-40.

       Here, unlike Normoyle-Berg and W.H. Lyman, there was no supervising engineer and

general contractor relationship to give rise to a duty of care. Rather, defendant contracted to

provide monitoring and testing services for UIC. Plaintiff contracted with Goebel, UIC’s

contractor, to provide concrete that complied with project specifications. Plaintiff has not shown

that defendant owed it a duty of care within the context of the particular relationship and

circumstances of this case. Plaintiff argues on appeal that this court should find that defendant

owed plaintiff a duty to exercise due care because it was foreseeable that plaintiff would be

affected by defendant’s faulty inspection, testing and approval of the concrete and false

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representations as to the concrete’s conformance with project specifications. However, as

defendant notes, plaintiff is raising this argument for the first time on appeal and thus has forfeited

the issue. See Vine Street Clinic v. Healthlink, Inc., 222 Ill. 2d 276, 301 (2006) (issues not

presented before the trial court are considered forfeited and may not be raised for the first time on

appeal).

       Plaintiff also argues that defendant’s contract with UIC does not negate the existence of a

duty owed to plaintiff, where plaintiff was not a party to the contract and plaintiff relied on

defendant’s testing and approval of its concrete. In support of this argument, plaintiff relies on

Scott & Fetzer Co. v. Montgomery Ward & Co., 129 Ill. App. 3d 1011 (1984), which we find

distinguishable from the present case.

       In Scott & Fetzer, a fire broke out in the Montgomery Ward & Co. (Wards) warehouse,

and Wards’ fire alarm and sprinkler system allegedly malfunctioned, causing the fire to spread to

the adjoining premises of the warehouse. Extensive property damage resulted. The tenants of the

adjoining premises brought an action in tort against Burns Electronic Security Services, Inc.

(Burns), which supplied, installed and maintained the alarm system. This court held that, whether

or not the tenants were a party to the contract between Wards and Burns, the tenants sufficiently

established the existence of a duty owed by Burns under the circumstances presented in that case.

Scott & Fetzer, 129 Ill. App. 3d at 1019. This court explained that Burns should have recognized

that the undertaking of its contractual obligations was necessary for the protection of the third

party, the adjacent tenants, where the parties shared a common facility and Wards was storing

flammable materials on its premises. This court held, “It was highly foreseeable that a fire on

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Wards’ premises, if not timely detected, would destroy the entire warehouse and not merely

Wards’ portion.” Scott & Fetzer, 129 Ill. App. 3d at 1019. This court further explained that

“courts have repeatedly recognized the reasonable foreseeability of harm to other persons present

at or sharing a single facility with one to whom a contractual duty is owed.” Scott & Fetzer, 129

Ill. App. 3d at 1019.

        Unlike Scott & Fetzer, the parties in this case were not adjacent tenants. The issue in this

case did not involve the reasonable foreseeability of harm to other persons sharing a single facility

with one to whom a contractual duty was owed. Rather, as previously noted, plaintiff did not

raise the issue of foreseeability before the circuit court and, therefore, the issue is forfeited. See

Vine Street Clinic, 222 Ill. 2d at 301.

    D. Whether Defendant Owed Plaintiff a Duty Under the Voluntary Undertaking Doctrine

        Plaintiff further argues that defendant’s contract with UIC did not limit defendant’s

liability to plaintiff, as a noncontracting party, where defendant owed plaintiff a duty based on the

services defendant rendered to plaintiff.

        If a person voluntarily agrees to perform a service necessary for the protection of another

person or his or her property, a duty may be imposed on the party undertaking the service under

the voluntary undertaking doctrine. Bourgonje v. Machev, 362 Ill. App. 3d 984, 995-96 (2005).

The voluntary undertaking doctrine is outlined in section 324A of Restatement (Second) of Torts,

which provides:

                        “One who undertakes, gratuitously or for consideration, to render services


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       to another which he should recognize as necessary for the protection of a third person or

       his things, is subject to liability to the third person for physical harm resulting from his

       failure to exercise reasonable care to protect his undertaking, if

                               (a) his failure to exercise reasonable care increases the risk of such

                               harm, or

                               (b) he has undertaken to perform a duty owed by the other to the

                               third person, or

                               (c) the harm is suffered because of reliance of the other or the third

                               person upon the undertaking.” (Emphasis Added.) Restatement

                               (Second) of Torts §324A (1965).

The Illinois Supreme Court has adopted the Restatement. Frye v. Medicare-Glaser Corp., 153 Ill.

2d 26, 32 (1992). The court has narrowly construed the voluntary undertaking doctrine. Frye,

153 Ill. 2d at 33. Under the doctrine, “one who gratuitously or for consideration renders services

to another is subject to liability for bodily harm caused to the other by one's failure to exercise

due care or ‘ “such competence and skill as [one] possesses.” ’ ” (Emphasis added.) Frye, 153 Ill.

2d at 32, quoting Cross v. Wells Fargo Alarm Services, 82 Ill. 2d 313, 317 (1980), quoting

Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86 (1964).

       Here, plaintiff did not allege that any bodily harm occurred as a result of defendant’s

alleged negligent testing of plaintiff’s concrete. Plaintiff has not argued any reason for extending

the voluntary undertaking doctrine to what is a purely economic loss. Accordingly, we cannot


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find that defendant owed a duty to plaintiff under the voluntary undertaking doctrine. See Fox

Associates, Inc. v. Robert Half International, Inc., 334 Ill. App. 3d 90, 98 (2002) (voluntary

undertaking doctrine did not apply to subject temporary employment agency to liability for

economic loss caused by employee supplied by the agency to the plaintiff, where the plaintiff did

not allege that bodily injury occurred).

       For the above reasons, we affirm the order of the circuit court dismissing plaintiff’s

complaint with prejudice.

       Affirmed.

       NEVILLE and MURPHY, JJ., concur.




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