Bubb v. Evans Construction Co.

627 N.E.2d 1160, 255 Ill. App. 3d 673
CourtAppellate Court of Illinois
DecidedDecember 30, 1993
DocketNo. 4—93—0683
StatusPublished

This text of 627 N.E.2d 1160 (Bubb v. Evans Construction Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bubb v. Evans Construction Co., 627 N.E.2d 1160, 255 Ill. App. 3d 673 (Ill. Ct. App. 1993).

Opinion

JUSTICE COOK

delivered the opinion of the court:

Plaintiff Martha Bubb, individually and as mother and natural guardian of Amy M. Pavolko, filed a complaint against defendants Evans Construction Company and Springfield School District 186 seeking damages resulting from an injury Amy suffered while riding her bicycle on school property. Evans, which constructed the sidewalk upon which Amy was riding her bicycle, filed a motion for summary judgment. The trial court granted the motion for summary judgment and plaintiff appeals. We affirm.

On September 14, 1990, Amy, a student at Enos School in Springfield, Illinois, lost control of her bicycle when her front tire left a concrete walk and struck an adjacent grassy area. Amy sustained a fracture through the distal radius and dislocation of the ulna. Plaintiff filed a complaint alleging that Evans was negligent in the manner in which it performed its work in putting in the sidewalk in question for the school district. Specifically, plaintiff alleged Evans:

“a) Failed to properly grade the area between the concrete walkway and the grassy area[,] thereby leaving a 4-inch or more gap in height between the concrete and the grass.
b) Failed to inspect the concrete walkway after completion of the work for proper grading.
c) Failed to employ competent personnel^] resulting in improper laying of the concrete walkway.
d) Failed to warn the Plaintiff or others of the dangerous condition of the walkway[,] although it knew or[,] in the exercise of ordinary care[,] ought to have known of it.
e) Failed to re-inspect [the] area around [the] concrete walkway to check for subsidence when[,] in the exercise of reasonable care[,] they knew or should have known that this area would subside.”

Prior to December 8, 1989, Evans entered into a written agreement with Springfield School District to perform certain construction activities at the Enos School. The project included the construction of sidewalks around the school building. Pursuant to the architectural drawings prepared by the project architect hired by the school district, the newly constructed sidewalk and adjacent dirt were left flush, of equal height, and matching the existing grade. After Evans completed the work, the project architect inspected the completed sidewalks and found that they were as specified in the contract documents. The architect further noted that the adjacent dirt was graded to the level which satisfied the project plan and could not have been more firmly packed down, otherwise reseeding of the lawn could not take place. On September 5, 1989, the project architect signed a certificate of substantial completion, and on December 8, 1989, he signed a certificate of final acceptance.

At the time of Amy’s accident, there was a drop-off between the sidewalk and the adjacent earth of approximately four inches. Evans denied any allegations in the complaint of negligence and raised the affirmative defense that the walkway was constructed in accordance with the specifications of the school district’s architect, the work had been accepted by the architect, and the specifications were not so obviously dangerous that no competent contractor would follow them.

The trial court granted the motion for summary judgment, holding:

“Upon consideration of the affidavits, deposition testimony, and applicable case law, the Motion of Defendant Evans Construction for Summary Judgment is granted. The Court finds that there are no material issues of fact concerning Evans’ performance of the construction work in question in compliance with the contract with School District 186. As a matter of law, Evans had no duty to reinspect the property some 18 months after completion of construction to make certain that the appropriate landscape work was completed.”

The purpose of summary judgment is not to try a question of fact, but to determine whether one exists. (Ray v. City of Chicago (1960), 19 Ill. 2d 593, 599, 169 N.E.2d 73, 76.) Summary judgment is appropriate when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show 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. Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c); Gresham v. Kirby (1992), 229 Ill. App. 3d 952, 954, 595 N.E.2d 201, 203; Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 823, 585 N.E.2d 1164, 1167; Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 240, 494 N.E.2d 830, 833.

In determining whether a genuine issue as to any material fact exists, a court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) A triable issue precluding summary judgment exists where the material facts are disputed (Ray, 19 Ill. 2d at 599, 169 N.E.2d at 76), or where, the material facts being undisputed, reasonable persons might draw different inferences from the undisputed facts (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 543 N.E.2d 1304, 1308). The use of summary judgment is to be encouraged as an aid in the expeditious disposition of a lawsuit. However, it is a drastic means of disposing of litigation and, therefore, should be allowed only when the right of the moving party is clear and free from doubt. (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) In reviewing a trial court’s ruling on a motion for summary judgment, the appellate court should consider anew the facts and law related to the case and determine whether the trial court was correct. Shull, 223 Ill. App. 3d at 824, 585 N.E.2d at 1167.

Plaintiff contends that Evans had a duty to prevent or correct subsidence even after the contract was completed and the work accepted. Plaintiff relies on McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 272 N.E.2d 369, and McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 481 N.E.2d 787. Each of these cases involved a utility that excavated land and dug a trench to lay pipe. Following the completion of the installation of the gas pipe, the utility in each of these cases filled the trench but did not return to inspect the excavation. In each of these cases the utility was found to be negligent and liable to a plaintiff who was injured as a result of contact with a hole that had developed due to subsidence in the area where the utility had laid the pipe. (See McDonald, 1 Ill. App. 3d at 356-57, 272 N.E.2d at 376-77; McMahon, 135 Ill. App.

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Related

McDonald v. Frontier Lanes, Inc.
272 N.E.2d 369 (Appellate Court of Illinois, 1971)
Zale Construction Co. v. Hoffman
494 N.E.2d 830 (Appellate Court of Illinois, 1986)
Shull v. Harristown Township
585 N.E.2d 1164 (Appellate Court of Illinois, 1992)
Ray v. City of Chicago
169 N.E.2d 73 (Illinois Supreme Court, 1960)
Pyne v. Witmer
543 N.E.2d 1304 (Illinois Supreme Court, 1989)
Purtill v. Hess
489 N.E.2d 867 (Illinois Supreme Court, 1986)
McMahon v. Richard Gorazd, Inc.
481 N.E.2d 787 (Appellate Court of Illinois, 1985)
Alm v. Van Nostrand Reinhold Co., Inc.
480 N.E.2d 1263 (Appellate Court of Illinois, 1985)
Benner v. Bell
602 N.E.2d 896 (Appellate Court of Illinois, 1992)
Gresham v. Kirby
595 N.E.2d 201 (Appellate Court of Illinois, 1992)
American Nat. Bank & Trust Co. of Chicago v. NAT. ADVERTISING CO.
594 N.E.2d 313 (Illinois Supreme Court, 1992)
Geever v. O'Shea & Sons Builders, Inc.
600 N.E.2d 21 (Appellate Court of Illinois, 1992)

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Bluebook (online)
627 N.E.2d 1160, 255 Ill. App. 3d 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bubb-v-evans-construction-co-illappct-1993.