2024 IL App (1st) 230133
No. 1-23-0133
Opinion filed September 27, 2024
FIFTH DIVISION
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
ADRIAN SMITH + GORDON GILL ) Appeal from the ARCHITECTURE LLP, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) No. 18 L 006287 v. ) ) Honorable CHICAGO SHAKESPEARE THEATER, ) James E. Snyder, ) Judge, presiding. Defendant-Appellant. )
JUSTICE MITCHELL delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice Navarro concurred in the judgment and opinion.
OPINION
¶1 Defendant Chicago Shakespeare Theater appeals the circuit court’s order granting plaintiff
Adrian Smith + Gordon Gill Architecture LLP’s motion for summary judgment on defendant’s
counterclaim. The counterclaim alleged that plaintiff breached an owner-architect agreement by
failing to provide architectural services with “professional care” in connection with the installation
of limited use elevators. At issue is whether the circuit court erred in entering judgment as a matter
of law in favor of plaintiff on defendant’s counterclaim because the alleged breach of contract
claim did not require expert testimony and, even if it did, defendant’s expert was competent to
testify on the applicable standard of care. For the following reasons, we affirm. No. 1-23-0133
¶2 I. BACKGROUND
¶3 The following uncontested facts are taken from the pleadings, depositions, admissions, and
supporting affidavits of record. Defendant Chicago Shakespeare Theater is a theater company
located in Chicago, Illinois. In 2013, defendant initiated plans to re-purpose its outdoor Chicago
Skyline Stage at Chicago’s Navy Pier into a flexible indoor theater called The Yard. The Yard
would include nine mobile towers, each containing three levels of seating, that could be rearranged
to meet the needs of each production. To design The Yard, defendant hired CharcoalBlue LLP, a
London-based theater design consultancy company. However, because CharcoalBlue did not have
a license to practice architecture in the United States, defendant also hired plaintiff Adrian Smith
+ Gordon Gill Architecture LLP.
¶4 In April 2014, plaintiff and defendant entered into a sub-consultant agreement under which
plaintiff agreed to provide certain design services for the lobby pavilion and exterior enclosure and
serve as the architect of record for The Yard project. Given the project’s limited budget, in late
2014 the parties explored using limited use / limited application elevators for The Yard. The
limited use elevators would be “Orion” models provided by Savaria Corporation. In December
2014, plaintiff informed CharcoalBlue that plaintiff had met with Savaria’s local representative,
Access Elevator Inc., and had been informed that the maximum capacity of a limited use elevator
is “approximately (5)-(6) persons” and that “[limited use] elevators are not fast,” so “[i]t was
estimated that a round trip for one floor in the lobby would be approximately one (1) minute” or,
if both elevators are running, “approximately fifty (50) persons in about five (5) minutes.”
¶5 In March 2015, the general contractor for The Yard project at that time, James McHugh
Construction Co., expressed concern over the use of the limited use elevators:
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“Our elevator contractors have expressed concern that the [limited use elevators]
as shown on the project may not meet code and may not pass review by the Elevator
Bureau. They are also concerned that the elevators as shown may not be ADA compliant.
The bidders noted that the [limited use] elevators specified are not designed to be in
continuous use as a conventional elevator. *** Given the location and layout of these
elevators, the elevator manufacturer has expressed concern that these elevators would be
used improperly, therefore leading to malfunction and damage to the elevators.”
¶6 In response, plaintiff stated that “[w]e were able to catch up to the [limited use elevator]
representative that we all met with back in December” and that “[h]e was confident that the systems
will perform as they are intended in their current configuration for the theater and lobby.” Savaria
stated that while “50 trips a day” was “heavy use” and “100 trips a day” was “excessive use,”
“[w]e have Orion’s in service with excessive use and running fine because the dealer and owners
understands they need monthly maintenance and will require frequent consumable parts such as
slide guides, ropes etc.”
¶7 On November 1, 2015, plaintiff and defendant entered into a written owner-architect
agreement for plaintiff to provide certain architectural services for The Yard project. The
agreement acknowledged that plaintiff had already provided design services for the project, and
that all services performed before February 25, 2015 were to have been performed with
“professional care”:
“Architect and Architect’s consultants listed in this Agreement provided services
under letters of intent, preliminary agreements and oral agreements for the Conceptual
Design, Schematic Design, Design Development Documents and all other services prior to
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the February 25, 2015 Owner approval of the Design Development Documents. All such
services were to have been performed with professional care and are represented to Owner
as completed and paid for by Owner. All services thereafter are deemed provided under
this Agreement.”
The agreement also stated plaintiff’s standard of care for all services provided after February 25,
2015:
“The Architect shall perform its services consistent with the professional skill and
care ordinarily provided by architects practicing in the same or similar locality under the
same or similar circumstances. The Architect shall perform its services as expeditiously as
is consistent with such professional skill and care and the orderly progress of the Project.”
¶8 Plaintiff ultimately specified two limited use elevators to serve as lobby elevators and two
limited use elevators to operate in the mezzanine. Access Elevator was retained as a subcontractor
for the limited use elevators’ installation. On The Yard’s opening night in 2017, all four limited
use elevators failed to operate correctly, trapping patrons inside the elevators. While some of the
problems were caused by the improper installation of two of the limited use elevators, even after
the installation issues were fixed, all the limited use elevators continued to malfunction. Defendant
hired an elevator consultant and, following the consultant’s recommendations, replaced the limited
use elevators with a hydraulic elevator system.
¶9 In 2018, plaintiff sued defendant for breach of contract, account stated, quantum meruit,
conversion, and fraud, seeking payment on allegedly unpaid invoices related to replacing the
limited use elevators and a 2015 reimbursable expense. Defendant filed a counterclaim for breach
of contract, alleging that plaintiff owed defendant a duty of professional care in its architectural
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services and that plaintiff breached its duty by specifying limited use elevators that could not meet
defendant’s performance requirements.
¶ 10 In discovery, defendant disclosed two expert witnesses: Dennis Olson and Adam
Tymowski. Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2018). Olson would provide testimony on plaintiff’s
performance related to specification of the limited use elevators while Tymowski would provide
testimony regarding damages. Plaintiff disclosed five expert witnesses. Four of them would
provide testimony that plaintiff “met the prevailing standard of care in interfacing with [defendant]
regarding [defendant’s] selection of [limited use elevator] product for this project.” Defendant
disclosed Olson and Elliott Dudnik as rebuttal expert witnesses, with Dudnik expected to provide
testimony that plaintiff failed to meet its standard of care.
¶ 11 Plaintiff moved for summary judgment on defendant’s counterclaim on the ground that
defendant allegedly did not disclose an expert competent to establish that plaintiff breached its
standard of care. The circuit court granted plaintiff’s motion for summary judgment, concluding
that “[t]o the extent that Olson is qualified, he has not offered an opinion which constitutes
competent evidence of a breach of the standard of care.”
¶ 12 In a bench trial on the plaintiff’s claims related to its unpaid invoices, the circuit court ruled
in favor of defendant regarding the unpaid invoices for replacing the limited use elevators but held
that defendant must pay one unrelated 2015 invoice. Defendant filed a motion to reconsider the
circuit court’s order granting summary judgment on defendant’s counterclaim, which the circuit
court denied. This timely appeal followed. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017).
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¶ 13 II. ANALYSIS
¶ 14 Defendant argues that the circuit court erred in granting plaintiff’s motion for summary
judgment because (1) expert testimony was not necessary to support defendant’s counterclaim for
breach of the owner-architect agreement; and (2) if such testimony was necessary, its expert was
competent to testify that plaintiff breached its standard of care under the owner-architect
agreement. A circuit court’s grant of summary judgment is reviewed de novo. JPMorgan Chase
Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 461 (2010). Summary judgment is proper only “if
the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” 735 ILCS 5/2-1005(c) (West 2022).
¶ 15 A.
¶ 16 Here, the owner-architect agreement obligated plaintiff to perform its services with
“professional care.” In cases addressing design professionals, Illinois courts have held that the
scope of the standard of care is determined by the language of the contract. Thompson v. Gordon,
241 Ill. 2d 428, 449 (2011) (“Pursuant to Ferentchak, the scope of defendants’ duty is defined by
the contract between defendants and WDC.”); see also Ferentchak v. Village of Frankfort, 105 Ill.
2d 474, 482 (1985) (“The degree of skill and care required of Hamilton in this situation is
dependent on his contractual obligation to Krusemark.”); Mississippi Meadows, Inc. v. Hodson,
13 Ill. App. 3d 24, 26 (1973) (“The duty of an architect depends upon the particular agreement he
has entered with the person who employs him ***.”).
¶ 17 Under the owner-architect agreement, a duty of “professional care” applies to all services
performed by plaintiff before February 25, 2015. Defendant argues that because the limited use
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elevators were selected and vetted prior to February 25, 2015, this is the relevant duty of care for
its breach of contract counterclaim. The duty of “professional care” required by the owner-
architect agreement is equivalent to the common law professional standard of care. This common
law standard requires “the use of the same degree of knowledge, skill and ability as an ordinarily
careful professional would exercise under similar circumstances.” Advincula v. United Blood
Services, 176 Ill. 2d 1, 23 (1996).
¶ 18 Expert testimony is generally required to “establish both (1) the standard of care expected
of the professional and (2) the professional’s deviation from the standard.” Jones v. Chicago HMO
Ltd. of Illinois, 191 Ill. 2d 278, 295 (2000); Advincula, 176 Ill. 2d at 24. However, expert testimony
is not required “where the professional’s conduct is so grossly negligent, or the procedure so
common, that the jury can readily appraise it without the need for expert testimony.” Studt v.
Sherman Health Systems, 2011 IL 108182, ¶ 20. Indeed, Illinois courts have not always required
expert testimony to establish an architect’s standard of care. In Rosos Litho Supply Corp. v.
Hansen, the appellate court held that an architect’s standard of care was defined by contract: “an
architect’s tort duty can also be defined by reference to his particular employment agreement.”
123 Ill. App. 3d 290, 299 (1984), abrogated on other grounds, 2314 Lincoln Park West
Condominium Ass'n v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill. 2d 302 (1990). There, the architect
had an express contractual obligation to hire and to receive reports from a soil engineer. Id.
Similarly, in Fence Rail Development Corp. v. Nelson & Assoc., the appellate court again reiterated
that expert testimony is not required. 174 Ill. App. 3d 94, 98-99 (1988). There, a builder sued an
architect for alleged negligence in supplying incorrect house foundation plans. Id. at 95. The
contract required “Georgian” style plans, and instead the architect delivered foundation plans for
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a “Brookside” style house. Id. The appellate court held “[i]t does not take a degree in architecture
to determine the error.” Id. at 99.
¶ 19 In contrast, the owner-architect agreement here is silent on the design and specification of
elevators, but it does require the architect to meet a professional standard of care. Defendant’s
counterclaim rests exclusively on an alleged breach of the architect’s duty of “professional care”:
“[Plaintiff] breached the standard of professional care by specifying [limited use] elevators that
could not meet Chicago Shakespeare’s performance requirements, and by failing to include
Chicago Shakespeare’s performance requirements in its design specifications.” Because the
owner-architect agreement does not specify a particular type of elevator, the alleged breach of the
duty of “professional care” in the agreement can only be established with expert testimony.
¶ 20 The fact that the elevators failed, on its own, does not establish a breach of an architect’s
standard of care. Further, a situation where the architect’s standard of care allows (or does not
allow) for specification of “limited use / limited application” elevators is not a matter of common
knowledge. Compare Walski v. Tiesenga, 72 Ill. 2d 249, 257 (1978) (negligence of a medical
practitioner causing x-ray burns or leaving sponges or instruments inside someone’s body after
surgery is within the common knowledge of a lay person), with Wilson v. University of Chicago
Medical Center, 2023 IL App (1st) 230078, ¶ 25 (“[T]he issue of whether the clinic physicians
were negligent is not within a layman's common knowledge and requires expert testimony
regarding the general standards for acquiring transferred patients’ medical records and charts.”),
Mielke v. Condell Memorial Hospital, 124 Ill. App. 3d 42, 49 (1984) (“In a complex situation such
as is present here, involving the pharmacological effects of a drug regimen, a layperson cannot be
expected to determine without the aid of expert testimony what standard should be used to judge
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the hospital’s conduct.”), and Chicago College of Osteopathic Medicine v. George A. Fuller Co.,
719 F.2d 1335, 1346 (7th Cir. 1983) (“The standard of care ordinarily expected of architects in
executing their obligations is generally not a ‘matter of common knowledge’ ” such that “[t]o
properly assess [the architects’] actions, the jury needed a witness with an expertise in the field of
architecture to explain the nature of the judgment calls [the architects] made and the accuracy to
be expected.”) (applying Illinois law). Based on the alleged breach of the contractual duty to
exercise “professional care” in the design and selection of limited use elevators, the circuit court
did not err in concluding that the law required expert testimony to establish the parameters of the
architect’s standard of care.
¶ 21 Defendant argues that this conclusion is contradicted by the circuit court’s findings on
plaintiff’s breach of contract claim, a claim which arises from the same owner-architect agreement
as defendant’s counterclaim for breach of contract. In its judgment after a bench trial, the circuit
court concluded that plaintiff had breached the owner-architect agreement by specifying the
limited use elevators, and that no expert was necessary:
“I believe that the plaintiff breached the contract when it recommended or
proceeded forward with the [limited use elevator] application, limited use, limited
applications solution.
***
By a preponderance of evidence, I find that the elevators were not fit for the
intended purpose, and the recommendation of them constitutes a breach of the performance
criteria of services under the contract. I believe that no expert is required to reach the
finding that they did not meet the basic specification.”
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Significantly, the circuit court reached this conclusion after hearing evidence on a claim on which
plaintiff bore the burden of proof: the action on the unpaid invoices required plaintiff to prove its
own performance under the contract as a condition precedent to recovery. And plainly, the circuit
court’s ruling in this regard rested on a failure in plaintiff’s proof:
“Testimony from the plaintiff’s own architecture’s employees indicated that they
did not know, and, in fact, in the trial today, do not know what constitutes an elevator trip,
and it is not to me a red herring that is to me remarkable to the extent to which that
testimony is worthy of belief, it supports the allegations that the standard of care, the
contract delivered of design and services was breached.
An architecture firm conducting design for a Theater with elevators that do not have
an opinion about what constitutes an elevator trip cannot have delivered the contract design
service.”
Deficiencies in plaintiff’s proof at trial on its unpaid invoice claim do not excuse defendant’s
failure to make a prima facie case on its counterclaim on which defendant bore the burden of proof.
The circuit court explained as much after the trial:
“It was not possible, and I entered summary judgment that it was not possible for
the defendant to prove their counterclaim of professional negligence based on a breach of
the standard of care, based on the type of experts they disclosed at that time, and it was not
possible, therefore, for them to [] “seek affirmative damages” based on a claim of a
proximate cause of that breach, but it is possible to find, without expert testimony, that the
plaintiff did not provide the contracted service.”
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Because defendant did not disclose an expert to opine on the architect’s standard of care in
connection with the breach alleged (an alleged breach not tied to a requirement of the contract
other than the duty to provide “professional care”), the circuit court did not err in entering judgment
as a matter of law in favor of plaintiff on defendant’s counterclaim.
¶ 22 B.
¶ 23 Defendant challenges the circuit court’s conclusion that plaintiff’s expert, Dennis Olson,
had “not offered an opinion which constitutes competent evidence of a breach of the standard of
care.” The admissibility of expert testimony is governed by Illinois Rule of Evidence 702:
“If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.” Ill. R. Evid. 702 (eff. Jan. 1, 2011).
Thus, the rule requires that (1) the proffered expert testimony be helpful to the trier of fact in
understanding a technical or complicated fact; and (2) the expert be qualified to give the testimony
sought. An expert’s opinion assists the factfinder when it offers knowledge and experience that
the average person generally lacks and which is “beyond the ken of the average juror.” (Internal
quotation marks omitted.) Compton v. Ubilluz, 353 Ill. App. 3d 863, 867 (2004). The decision
whether a witness may testify as an expert is entrusted to the trial court’s discretion. People v.
Nelson, 235 Ill. 2d 386, 430-31 (2009) (“It is within the court’s discretion to decide whether an
expert witness is qualified to testify in a particular subject area and whether the proffered testimony
is relevant.”).
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¶ 24 Again, the circuit court’s summary judgment ruling stemmed from its conclusion that “[t]o
the extent Olson is qualified, he has not offered an opinion which constitutes competent evidence
of the breach of the standard of care.” In subsequent proceedings, the circuit court explained that
its earlier summary judgment ruling was based on the “type” of expert disclosed, a lack of
“admissible evidence,” and absence of a “disclosed opinion of breach.”
¶ 25 The parties dispute Olson’s qualification because he is not an architect. There is, however,
no requirement in Illinois law that an expert opining on an architect’s standard of care necessarily
be an architect. Cf. Thompson v. Gordon, 221 Ill. 2d 414, 429-34 (2006) (holding that expert
witness was not required to have civil engineering license to testify as to engineer’s standard of
care). There is no formula for how an expert acquires specialized knowledge or experience. Id. at
428-29. Unlike medical malpractice cases where statute imposes express requirements as to
standard of care experts, 735 ILCS 5/8-2501 (West 2022), in most other cases, an expert need not
be licensed or formally trained. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 459 (1992)
(“Formal academic training or specific degrees are not required to qualify a person as an expert;
practical experience in a field may serve just as well to qualify him.”). Experience alone can serve
as the bases of the expert’s knowledge. People v. Clifton, 342 Ill. App. 3d 696, 707 (2003).
¶ 26 Here, Olson has a wealth of experience working with elevators and many years of
experience working with architects in elevator projects. He has “been retained by architects to
provide consulting services.” He has worked on major construction projects including 1 World
Trade Center. The real issue is not with Olson’s qualifications, but rather with the form and
substance of his disclosed opinions.
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¶ 27 Olson disclosed his opinions related to plaintiff’s performance under the owner-architect
agreement, but never once referenced the architect’s standard of care or explained how the
architect here failed to conform to the standard of care.
“Based upon the evidence provided in this matter, I conclude the following:
• The Limited Use / Limited Application elevators approved by [plaintiff] and
installed by Access were incapable of meeting the stringent operational
requirements provided by [defendant].
• [Plaintiff] knew or should have known that the [limited use] elevator
performance capabilities cited by Savaria / Access were inaccurate and based
upon a repeated pattern of miscommunicated and / or misunderstood
assessments of [defendant’s] [limited use] elevators performance requirements.
• [Plaintiff] failed to take any reasonable measures to assure the [limited use
elevators] as proposed by Access / Savaria were adequate in their inherent
design and known operational limitations were capable of meeting
[defendant’s] stringent operational requirements.
• No evidence has been provided demonstrating that in response to the numerous
issues identified concerning the [limited use] elevators limited operational
capabilities, that [plaintiff] discussed with, or retained the services of a qualified
elevator consultant or consulting firm in determining the [limited use
elevator’s] fitness for The Yard project.”
Olson’s disclosed opinions say nothing about the standard of care. Defendant cannot meet its
burden to establish a standard of care “by merely presenting expert testimony which offers an
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opinion as to correct procedure or which suggests, without more, that the witness would have
conducted himself differently than [plaintiff].” Advincula, 176 Ill. 2d at 24. A standard of care
expert must base his opinion on “recognized standards of competency in his profession.” Id.
¶ 28 Olson’s opinions stand in stark contrast to plaintiff’s expert disclosures in which four
experts expressly and repeatedly tied their opinions to the standard of care. Defendant’s attempt to
rely upon selected testimony from plaintiff’s experts to establish plaintiff’s breach is unavailing
because, when considered in their full context, each of these witnesses was of the undeniable
opinion that plaintiff had not breached the standard of care. Against this backdrop, the circuit court
did not abuse its discretion in concluding that defendant’s expert had offered no opinion on the
breach of the standard of care.
¶ 29 III. CONCLUSION
¶ 30 The judgment of the circuit court of Cook County is affirmed.
¶ 31 Affirmed.
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Adrian Smith v. Chicago Shakespeare Theater, 2024 IL App (1st) 230133
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2018-L- 006287; the Hon. James E. Snyder, Judge, presiding.
Attorneys Michael F. LeFevour, of Kirkland & Ellis LLP, of Chicago, for for appellant. Appellant:
Attorneys Robert T. Boylan, Thomas B. Orlando, Douglas J. Palandech, and for Eric J. Shukis, of Foran Glennon Palandech Ponzi & Rudloff PC, Appellee: of Chicago, for appellees.
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