M&S Industrial Co., Inc. v. Allahverdi

2018 IL App (1st) 172028

Opinion

2018 IL App (1st) 172028

FIRST DISTRICT FOURTH DIVISION August 9, 2018

No. 1-17-2028

M&S INDUSTRIAL CO., INC., ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. )

) No. 15 L 8359

FRED ALLAHVERDI d/b/a Pars Auto Repair, )

)

Defendant-Appellee. ) The Honorable ) John P. Callahan, ) Judge, presiding.

JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McBride and Gordon concurred in the judgment and opinion.

OPINION

¶1 Plaintiff M&S Industrial Co., Inc. (M&S), appeals the dismissal of its complaint against

defendant Fred Allahverdi arising out of injuries sustained when the roof of Allahverdi’s

building uplifted during a wind storm and struck nearby power lines, resulting in an electrical

surge that damaged M&S’s property. The circuit court dismissed the complaint on grounds that

M&S’s claim was barred by the statute of limitations applicable to construction negligence (735

ILCS 5/13-214(a) (West 2012)). Based on our determination that section 13-214(a) of the Code

of Civil Procedure (Code) applies to M&S’s claim and that, as a matter of law, the four-year

limitations period expired before M&S filed suit, we affirm.

¶ 2 I. BACKGROUND 1-17-2028

¶3 M&S filed its initial complaint on August 14, 2015. M&S alleged that Allahverdi

operated an automobile sales and service business on his property and that he or his employees

negligently left a large overhead dock door open during unsafe weather conditions—severely

high winds—in Chicago on October 27, 2010. Due to the high winds, a portion of the roof of

Allahverdi’s building detached and struck nearby power lines that serviced M&S’s building.

M&S alleged that the resulting electrical surge damaged M&S’s property, namely, computer

numerical control machines, which M&S uses to manufacture sophisticated metal components

for the defense industry.

¶4 M&S later filed a second amended complaint that alleged in pertinent part:

“4. On October 27, 2010, ALLAHVERDI was personally aware of a

significant and hazardous structural defect present on the *** location, to wit:

an improperly installed and maintained roof which was not structurally sound,

not constructed in accordance with industry standards and not attached to the

main structure of the building. ALLAHVERDI’s knowledge was based on his

role as a contractor in the construction of the structure at the *** location,

when and where the roof was built.

***

6. On October 27, 2010, in the middle of this windstorm and despite the

dangerous wind conditions, employees of ALLAHVERDI left a large

overhead dock door on the *** location open to the exterior environment.

7. As a result of this opening exposing the interior of the *** location to

the windstorm and the inability of the roof to resist uplift forces because it was

improperly installed and maintained, not constructed in accordance with

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industry standards, and not attached to the main structure, a portion of the

building’s roof detached from the building and struck a nearby power supply

line ***.”

¶5 In addition, the complaint alleged that Allahverdi “owed a duty of care to exercise

ordinary care to avoid injury and damage” and to “mitigate unsafe conditions on the property”

and he breached this duty

“a. By failing to replace the structurally unsound roof, and/or

b. By failing to secure the roof to the main structure of the building; and/or

c. By allowing the roof of the property *** to be installed and maintained

in such dangerous condition.”

¶6 Alternatively, the complaint pled that Allahverdi owed a duty of care under the building

code regulations and breached this duty. The complaint alleged that, as a result of the occurrence,

Allahverdi was issued a citation for building code violations by the City of Chicago on October

28, 2010.

¶7 Allahverdi filed a motion under section 2-619 of the Code (id. § 2-619) to dismiss the

second amended complaint asserting that causation was too attenuated to be foreseeable. The

circuit court granted this motion with prejudice.

¶8 M&S filed a motion to reconsider and vacate the dismissal. The parties submitted

additional briefing and supplemental authority. M&S filed the affidavit and report of Dennis

McCann, an engineering consultant hired by M&S in March 2016 to perform an engineering

analysis of the roof of Allahverdi’s building. McCann averred that he inspected the interior of

Allahverdi’s roof on March 26, 2016. McCann averred that the deck panels of the roof were not

attached to the steel roof joists of the building, in violation of building code requirements, and

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that, had the roof been attached properly, it should have been able to resist the strong winds on

October 27, 2010. Further, McCann averred that the defects he observed were not readily

observable except upon close inspection.

¶9 In Allahverdi’s response, he asserted, inter alia, that plaintiff’s second amended

complaint was barred by the four-year statute of limitations applicable to claims of construction

negligence (id. § 13-214(a)).

¶ 10 In its reply, M&S argued that the motion to dismiss should be denied as it involved

questions of fact and section 13-214(a) did not apply because it was not raising a claim of

construction negligence. Rather, it was suing Allahverdi for maintaining a hazardous condition

on his land of which Allahverdi was aware. Alternatively, M&S argued that the discovery rule

applied to toll the construction statute of limitations because it could not have discovered the

defective roof until it hired McCann in March 2016 to examine Allahverdi’s building using a

scissor lift and high-intensity lights.

¶ 11 Following a hearing April 12, 2017, the circuit court allowed submission of additional

materials and permitted Allahverdi to amend his prior motion to dismiss to add a statute of

limitations argument under 2-619(a)(5) of the Code based on section 13-214(a). Allahverdi

contended that the discovery rule did not apply because the alleged injury was caused by a

sudden, traumatic event—the windstorm that blew the roof onto the power lines—and thus the

claim accrued on October 27, 2010.

¶ 12 After oral arguments on July 19, 2017, the circuit court entered an order granting both

M&S’s motion to reconsider and Allahverdi’s amended motion to dismiss under section 2­

619(a)(5). The court held that M&S’s claim was a construction negligence claim and 13-214(a)

applied. It further held that the injury sustained was a sudden traumatic event placing M&S on

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notice of a cause of action as of October 27, 2010, and the discovery rule did not apply. The

court dismissed the second amended complaint with prejudice. M&S filed a timely notice of

appeal.

¶ 13 II. ANALYSIS

¶ 14 A. Standard of Review

¶ 15 Whether a claim is barred by the statute of limitations “is a matter properly raised by a

section 2-619 motion to dismiss.” Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352

(2008). When reviewing a 2-619 motion to dismiss, we “must interpret all pleadings and

supporting documents in the light most favorable to the nonmoving party” and take as true all

well-pleaded facts and reasonable inferences derived therefrom. Id. “It is well settled that our

review of a section 2-619 dismissal is de novo.” Id. Similarly, “[t]he applicability of a statute of

limitations to a cause of action presents a legal question we review de novo.” Travelers Casualty

& Surety Co. v. Bowman, 229 Ill. 2d 461, 466 (2008).

¶ 16 B. Construction Negligence Statute of Limitations

¶ 17 M&S maintains on appeal that the circuit court erred in holding that section 13-214(a)

applies because its claim sounds in premises liability, not construction negligence. M&S asserts

that its complaint sought to hold Allahverdi liable based on a landowner’s duty to exercise

reasonable care to prevent and mitigate dangerous conditions on his property and alleged that he

was aware of the dangerous condition—the improperly attached roof—because he served as a

contractor in the construction of the roof and he breached his duty by failing to fix the dangerous

condition and/or failed to maintain his property in accordance with the Chicago Building Code.

¶ 18 Allahverdi contends that the trial court correctly applied section 13-214(a) as M&S’s

claims are all based on the initial construction of the roof and his activity as the contractor and

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installer, despite M&S’s attempts to plead around construction negligence. Allahverdi argues

that application of section 13-214(a) depends not on the status of the defendant as property

owner or construction professional but upon the activity of the defendant.

¶ 19 Section 13-214(a) provides:

“(a) Actions based upon tort, contract or otherwise 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 shall be commenced within 4 years from the

time the person bringing an action, or his or her privity, knew or should

reasonably have known of such act or omission.” 735 ILCS 5/13-214(a) (West

2012). 1

¶ 20 “[O]ur supreme court has held that the four-year statute of limitations relating to

construction matters protects only certain enumerated activities, specifically, ‘the design,

planning, supervision, observation or management of construction.’ ” 15th Place Condominium

Ass’n v. South Campus Development Team, LLC, 2014 IL App (1st) 122292, ¶ 48 (quoting

People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc., 114 Ill. 2d 252, 259 (1986)).

¶ 21 Our courts have explained that section 13-214 is meant to “protect activity rather than

status.” Ryan v. Commonwealth Edison Co., 381 Ill. App. 3d 877, 885 (2008) (interpreting

section 13-214(b)). “[O]ne must look to the specific activity in question rather than” the status of

the defendant in determining application of the statute. Id. at 885 (citing Skinner v. Anderson, 38

1 We note that many of the cases cited by the parties and discussed below involve interpretation of section 13-214(b), the construction statute of repose, which contains identical language, i.e., “in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property.” 735 5/13-214(b) (West 2012). “[B]ecause of the identical language in sections 13-214(a) and 13-214(b), the cases concerning section 13-214(b) are pertinent to this issue.” Morietta v. Reese Construction Co., 347 Ill. App. 3d 1077, 1081 (2004). -6­ 1-17-2028

Ill. 2d 459 (1967)). “It is not enough that the party seeking the protection of the statute is a

landowner. [Citation.] A landowner is only protected by the statute if he or she engages in the

enumerated activities.” Trtanj v. City of Granite City, 379 Ill. App. 3d 795, 801 (2008).

¶ 22 In Ryan, the plaintiff challenged the grant of summary judgment for the defendant

electrical utility company, contending that section 13-214(b) was inapplicable to his claim. Ryan,

381 Ill. App. 3d at 882. The plaintiff alleged that the defendant negligently failed to perform its

ongoing maintenance duties, which increased the severity of an explosion that injured the

plaintiff while he was performing maintenance work on a circuit breaker. Id. at 878-79. The

defendant had installed and set up the electrical system over 10 years before the accident. Id. at

882. The plaintiff contended that section 13-214(b) did not apply because the defendant’s

ongoing maintenance duties as a supplier of power were at issue, and not the “design, planning,

supervision, observation, or management” of the electrical system. (Internal quotation marks

omitted.) Id. This court held that

“even though a design professional receives the protection of the statute of repose for

design and installation-related activities, it does not receive protection for other activities

that are not within the purview of the statute. Such other activities include manufacturing

and sales, as well as breach of duty by one who undertakes inspection and maintenance

duties ***.” Id. at 887.

The Ryan court held that the defendant electric company “had a specific duty to maintain its

equipment,” which derived “from its capacity as the power supplier and not from its status as

installer of the system.” Id. at 888. Although the defendant electric company installed the system,

the court recognized that the theory of recovery was predicated upon its alleged failure to

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discover and repair defects in its power system as the supplier, and these maintenance-related

claims did not fall within the scope of the construction statute of repose. Id. at 889.

¶ 23 In support, the Ryan court cited with approval the Third District case MBA Enterprises,

Inc. v. Northern Illinois Gas Co., 307 Ill. App. 3d 285 (1999). There, the plaintiff alleged that a

defect in the original design and construction of a gas pipe led to an explosion and the pipe

system had been constructed more than 10 years prior; the plaintiff alleged that the defendant gas

company negligently inspected, operated, and maintained the defective pipe system, which it

used on a daily basis to sell and supply gas to the hotel, where the explosion occurred. Id. at 286­

87. The court concluded that the gas company, as a supplier that operated the system daily in

order to provide a utility service involving a dangerous commodity to the plaintiff, was under an

“ongoing duty of care to operate and maintain the gas system in a safe manner.” Id. at 288 (citing

Metz v. Central Illinois Electric & Gas Co., 32 Ill. 2d 446 (1965) (gas is a dangerous commodity

and those who handle it must exercise a commensurate level of care)). The court found the

construction-related claims were barred by section 13-214(b), but the plaintiff’s negligent

maintenance claims survived as the plaintiff alleged that the gas company violated an ongoing

duty to operate the gas system in a safe manner. Id. at 287-90.

¶ 24 On appeal, M&S relies on Ryan and MBA Enterprises and attempts to distinguish two

First District cases that Allahverdi cites on appeal and which the Ryan court criticized: O’Brien

v. City of Chicago, 285 Ill. App. 3d 864 (1996), and CITGO Petroleum Corp. v. McDermott

International, Inc., 368 Ill. App. 3d 603 (2006). In O’Brien, a fatal accident occurred involving a

median. The court found that the defendant city engineered and designed the reconstruction of

the roadway, and this qualified as an “improvement” within the meaning of section 13-214(b).

O’Brien, 285 Ill. App. 3d at 869. The plaintiff argued that section 13-214(b) did not apply

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because it was not claiming defective design, but, rather, that the defendant negligently operated,

maintained, repaired, and altered the median and failed to alleviate the dangerous condition in

negligently maintaining the “ ‘existing barrierless median.’ ” Id. at 870. This court held that the

claim was, in essence, a design defect claim that the defendant “created and maintained a

dangerous condition,” i.e., the existing median. Id. The plaintiff did not allege that the defendant

had taken any recent affirmative action that increased the dangerousness of the roadway but that

it failed to correct a dangerous condition it created in the reconstruction project, which had

occurred more than 10 years prior. Id. Thus, the claim was barred by the construction statute of

repose. Id.

¶ 25 In CITGO, 368 Ill. App. 3d at 604, the third-party pipefitting manufacturer plaintiff

brought a claim for negligent maintenance, inspection, and operation of an oil refinery where a

fire occurred against the former owner of the refinery. The defendant had installed the pipes at

issue more than 10 years before, when the refinery was constructed. Id. The court held that

because the plaintiff’s allegations of negligent maintenance of the piping system were based on

defective pipefitting that was allegedly installed when the refinery was constructed, the claim

was barred by section 13-214(b). Id. at 609. The court in CITGO criticized MBA Enterprises on

grounds that it carved “out an exception that was not intended when the legislature enacted the

statute” and, although the plaintiff’s claims in MBA Enterprises were fashioned as “failure to

maintain” claims, they were essentially based on a defective product installed at the time the gas

system was constructed. Id.

¶ 26 The Ryan court criticized O’Brien and CITGO on grounds that they protected “an

installer regardless of the fact that the installer has an independent duty to inspect and maintain

the property at issue, if its breach of duty consists of the failure to discover and correct a design

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defect.” Ryan, 381 Ill. App. 3d at 883-84. In relying on Ryan and MBA Enterprises on appeal,

M&S contends that a landowner can be independently liable for negligent maintenance of a

dangerous condition even if the landowner participated in construction of defective

improvements to property. We conclude that the present case is distinguishable from MBA

Enterprises and Ryan. Both cases involved utility suppliers of hazardous substances that, in

addition to their duties as installers, also had heightened and ongoing duties to inspect and

maintain the equipment through which they sold and transmitted their utilities daily. As the Ryan

court specifically observed, “[i]t is well established that power suppliers have an ongoing duty to

inspect and maintain the equipment through which that power is transmitted.” Id. at 888. The

duty of care to safely inspect and maintain their equipment imposed on the utilities stemmed

from their role as a utility supplier using equipment to deliver the product, and not from its status

as the original installer of the piping system.

¶ 27 Here, in contrast, M&S’s claim involves a defectively constructed roof, a single event

that does not entail the daily provision of a dangerous utility to a customer. Much like in O’Brien

and CITGO, M&S’s claim is, at its core, a claim of defect in design and construction, regardless

of how M&S characterizes Allahverdi’s acts and omissions. A review of M&S’s amended

complaint, supporting documents, and arguments before the circuit court demonstrates that M&S

focuses on Allahverdi’s acts in construction of the roof. M&S’s amended complaint alleged that

Allahverdi was aware of the “improperly installed and maintained roof which was not

structurally sound, not constructed in accordance with industry standards and not attached to the

main structure of the building. Allahverdi’s knowledge was based on his role as a contractor in

the construction of the structure ***.” M&S alleged that, as a result of the “improperly installed

and maintained” roof, which was “not constructed in accordance with industry standards, and not

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attached to the main structure,” the roof detached during the wind storm. M&S alleged that

Allahverdi failed to replace the unsound roof, secure it to the structure, and allowed the roof to

be installed and maintained in a dangerous condition.

¶ 28 The report and affidavit of plaintiff’s expert McCann echoes these allegations. M&S

argued before the circuit court that the cause “was what I just read in [McCann’s] report *** that

the negligence was the failure to attach and maintain that roof properly in violation of the

building code and in violation of the building standards.” M&S observed that the report also

identified differences between Allahverdi’s roof “as-constructed” and the architectural drawings,

observing that there was

“no record of design changes approved by the architect in the permit file

suggesting that these chang[es] were made during construction. The

combination of unapproved design changes, building permit file which

contained a building violation notice requiring the owner to post the name of

the general contractor, and leftover building materials at the site suggests that

the owner may have acted as general contractor for construction of the subject

building. It is likely that many of the observed deficiencies are a result of an

inexperienced owner acting as a general contractor or self performing work.”

¶ 29 M&S argued before the circuit court that “the negligence was the failure to properly

maintain a roof that the defendant knew was not attached. If he had corrected the failure to attach

the roof at any time prior to this accident, again, we wouldn’t be here.” M&S asserted that the

opening of the dock door was “the precipitating event, but it was not the cause. The cause was

what I just read in the report *** that the negligence was the failure to attach and maintain that

roof properly in violation of the building code and in violation of the building standards.” M&S

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reiterated that opening the dock door “was not the negligent act that’s been alleged in the

complaint” and that Allahverdi “has never responded to the assertion that it was the failure to

attach the roof that was the negligent act.”

¶ 30 M&S’s various assertions that Allahverdi failed to “maintain” the roof amount to

different permutations of the same fundamental claim: that Allahverdi initially improperly

constructed the roof. M&S’s bare allegation that Allahverdi failed to “maintain” the roof is

unsupported by further fact allegations. The amended complaint does not indicate that Allahverdi

subsequently made attempts to maintain or repair the roof after its initial construction. M&S’s

amended complaint clearly alleged that Allahverdi actually participated in the construction of the

improvement (the roof) and that this faulty construction was to blame for the roof uplifting in the

wind. As such, M&S’s claim encompasses the activities set forth in section 13-214(a).

¶ 31 In determining that section 13-214(a) applies to M&S’s claim, we note that Allahverdi

cites Wright v. Board of Education of the City of Chicago, 335 Ill. App. 3d 948 (2002), on

appeal. In Wright, 335 Ill. App. 3d at 949-50, the plaintiff sued after tripping on a step at a school

that was built decades before and that had remained unchanged. The court found the plaintiff’s

negligence action was barred by the construction statute of repose as the school did not have any

ongoing duties to maintain or repair the step by redesigning or reconstructing it to comply with

current code and it was not in disrepair. Id. at 957. Imposing a duty to improve on the defendant

“would defeat the stated purpose of the construction statute of repose, that being the insulation of

participants in the construction process from defending against stale claims.” Id. at 958. The

Wright court distinguished MBA Enterprises on grounds that the latter case involved an “ongoing

duty of care related to the presence of explosive gasses in the instrumentality at the heart of that

case.” Id. at 957.

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¶ 32 M&S asserts that its cause of action is distinct from Wright because the roof presented an

innately dangerous condition or instrumentality, like the gas pipes in MBA Enterprises.

However, similar to the plaintiff in Wright, M&S is merely attempting to plead around the defect

in the initial construction of the roof, a claim that is subject to section 13-214(a).

¶ 33 M&S further argues that The Lombard Co. v. Chicago Housing Authority, 221 Ill. App.

3d 730 (1991), upon which the circuit court relied, is distinguishable from the present case. In

Lombard, the plaintiff sued the defendant landowner for breach of contract. Id. at 731-32. The

court found that section 13-214 was applicable because the plaintiff alleged that the defendant

failed to approve or reject shop drawings, thereby becoming involved in the “planning,

supervision and management of the construction project.” Id. at 735. The court held that “section

13-214 applies by its terms to all persons engaged in construction-related activities.” Id. M&S

contends that Lombard is inapplicable here because Allahverdi is independently liable for

maintaining a hazardous condition on his property. As the Lombard court observed, in reviewing

a motion to dismiss, “the court must look to the allegations of fact contained in the complaint to

determine whether the particular activities the landowner has purportedly engaged in or failed to

engage in, as the case may be, fall within the purview of the statute.” Id. at 735. Here, as stated,

the activities set forth in the complaint fell within the purview of section 13-214(a).

¶ 34 C. Discovery Rule

¶ 35 M&S next contends that even if the construction negligence limitation period in section

13-214(a) applies, dismissal was improper under the discovery rule because the date the claim

accrued was a question of fact. According to M&S, it could not have known that the damage was

“wrongfully caused” until M&S hired an engineer to inspect the roof in March 2016 and

discovered that the roof was not attached to the structure of Allahverdi’s building.

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¶ 36 Allahverdi responds that M&S had sufficient information for a reasonable person to be

put on notice as of the date of the occurrence on October 27, 2010, that the damage may have

been wrongfully caused and further inquiry was necessary.

¶ 37 As stated, section 13-214(a) provides that the four-year limitation period on construction

negligence claims is triggered when the party “knew or should reasonably have known of such

act or omission.” 735 ILCS 5/13-214(a) (West 2012). This “discovery rule” “tolls the statute of

limitations until the plaintiff knows or reasonably should know it has been injured and that this

injury was wrongfully caused.” Swann & Weiskopf, Ltd. v. Meed Associates, Inc., 304 Ill. App.

3d 970, 975 (1999) (citing Knox College v. Celotex Corp., 88 Ill. 2d 407, 415 (1981); County of

Du Page v. Graham, Anderson, Probst & White, Inc., 109 Ill. 2d 143, 153-54 (1985)). “At that

point, the plaintiff has an obligation to conduct further inquiries to determine whether it has an

actionable claim.” Id. (citing Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 171 (1981)). The

purpose of the discovery rule is to “ameliorate the potentially harsh effect of a mechanical

application of the statute of limitations that would result in it expiring before a plaintiff even

knows of his cause of action.” Henderson Square Condominium Ass’n v. LAB Townhomes, LLC,

2015 IL 118139, ¶ 52.

¶ 38 “While the time at which a party knows or should reasonably know of both an injury and

that it was wrongfully caused is generally a question of fact for the fact finder [citation], where it

is apparent from the undisputed facts that only one conclusion can be drawn, the question

becomes one of law for the court [citation].” Freeport Memorial Hospital v. Lankton, Ziegele,

Terry & Associates, Inc., 170 Ill. App. 3d 531, 535 (1988) (affirming dismissal of the plaintiff’s

negligent design and construction action under section 2-619 as untimely filed (citing Knox, 88

Ill. 2d at 416, and Witherell v. Weimer, 85 Ill. 2d 146, 156 (1981))).

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¶ 39 Here, the facts known to M&S are not disputed. Based on M&S allegations, it learned

that its property had been damaged and what caused that damage on October 27, 2010. That is,

part of Allahverdi’s roof uplifted in high winds and landed on nearby power lines, causing a

power surge that damaged M&S’s machines. The president of M&S went to the site of the

electrical lines shortly after and took photographs of the roofing materials near the electrical

lines. Allahverdi was also present and he pointed at the roofing materials and informed the

president of M&S that it happened when his employee opened the dock door. At that point, M&S

undoubtedly knew that it sustained damage caused by Allahverdi’s roof detaching and crashing

into the power lines.

¶ 40 M&S contends, however, that it did not know the damage was “wrongfully caused” at

that point and it did not discover the wrongful cause until almost six years later, in March 2016,

when it hired McCann to investigate. M&S argues that the fact that the roof decking was not

properly attached to the building structure was only discoverable upon close inspection.

¶ 41 As our supreme court has made clear, “the term ‘wrongfully caused’ does not require

knowledge of negligent conduct or the existence of a cause of action.” Id. (citing Knox, 88 Ill. 2d

at 416). A plaintiff need not have “ ‘knowledge of a specific defendant’s negligent conduct or

knowledge of the existence of a cause of action’ ” before the limitations statute is triggered.

(Emphasis omitted.) Castello v. Kalis, 352 Ill. App. 3d 736, 744 (2004) (quoting Young v.

McKiegue, 303 Ill. App. 3d 380, 388 (1999)). As such, “[t]he law is well settled that once a party

knows or reasonably should know both of his injury and that it was wrongfully caused, ‘the

burden is upon the injured person to inquire further as to the existence of a cause of action.’ ” Id.

(quoting Witherell, 85 Ill. 2d at 156). See Nolan, 85 Ill. 2d at 171 (“[O]nce it reasonably appears

that an injury was wrongfully caused, the party may not slumber on his rights.”).

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¶ 42 Here, M&S reasonably should have suspected possible wrongful causation and, at a

minimum, should have been compelled to inquire further when its neighbor’s roof uplifted in the

wind and hit the power lines, causing damage to its property. In that regard, two cases in

particular assist us in determining that the limitations period began to run on the date

Allahverdi’s roof detached and caused the damage.

¶ 43 In AXIA, Inc. v. I.C. Harbour Construction Co., 150 Ill. App. 3d 645, 648 (1986), an

office building began to leak shortly after construction was completed in 1978, and the building

owner notified the architect and general contractor of the leaks within a year. Four years later,

the building owner hired a consultant to determine the cause of the leaks, and the consultant

concluded that design and construction deficiencies were to blame. Id. at 648-49. The building

owner instituted suit in 1984, but it was dismissed as being time-barred. Id. at 649-50. On appeal,

the building owner argued, similar to M&S’s argument here, that its action did not accrue until

the consultant issued its report, as it had no knowledge of the real cause of the problem until

then. Id. at 650. However, the court rejected this argument and found that the limitations period

was triggered when the building owner notified the contractor of the water leakage issue within

one year of completion of the building. Id. at 651. This “indicate[d] that it possessed the requisite

amount of information necessary to further inquire whether the problem was actionable.” Id.

¶ 44 Also helpful to our analysis is Swann & Weiskopf, Ltd., 304 Ill. App. 3d 970. There, the

plaintiff was hired for design services and the plaintiff retained the defendant subcontractor to

design a storm water removal system, which experienced flooding problems shortly after the

project was completed. Id. at 972. The plaintiff contended on appeal that its complaint was not

time-barred because it did not discover its claim against the subcontractor until the subcontractor

acknowledged the defective design approximately five years after the project’s completion. Id. at

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974. This court held that the plaintiff “possessed enough information ‘to inquire further’ about”

the allegedly defective design when the plaintiff was notified of the flooding problems and sent

its project manager and the subcontractor to investigate. Id. at 976.

¶ 45 In a similar fashion, M&S had an obligation to conduct further inquiries when its

president discovered that the damage was caused when part of Allahverdi’s roof blew off and hit

the power lines during the windstorm and Allahverdi informed her that the roof uplifted when

the dock doors were opened. At the least, M&S was placed on notice that further inquiry was

necessary. See Castello, 352 Ill. App. 3d at 745. That M&S was placed under a burden as of

October 27, 2010, to further investigate rings especially true considering that it filed suit months

before it received the engineering report. M&S filed its lawsuit against Allahverdi on August 14,

2015. The report of its engineering expert was issued on March 26, 2016. Thus, M&S filed its

complaint seven months before it claims it was capable of knowing that the damage was

wrongfully caused. This demonstrates that while it may not have known exactly why the roof

detached before McCann issued his report, it nevertheless knew the damage had been wrongfully

caused. See McCormick v. Uppuluri, 250 Ill. App. 3d 386, 391-92 (1993) (holding that, as a

matter of law, the statute of limitations on the plaintiff’s medical malpractice claim began

running on the date he filed his first lawsuit because the plaintiff “must have had sufficient

information concerning his injury and its cause for plaintiff to have instituted suit. Even if

plaintiff did not, we must impute it to plaintiff. To hold otherwise in this case would make a

mockery of the court system.”); see also 155 Harbor Drive Condominium Ass’n v. Harbor Point

Inc., 209 Ill. App. 3d 631, 644 (1991) (upholding the trial court’s ruling that, as a matter of law,

the plaintiff knew of its injury and that it was wrongfully caused when it filed its initial lawsuit,

with respect to other defendants subsequently added to the litigation).

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¶ 46 We find that the cases cited by M&S on appeal entail circumstances distinguishable from

the present case. In Henderson Square, 2015 IL 118139, ¶ 54, the plaintiffs experienced minor

water leakage in their condominium units in 2007 and 2008, and had repairs done, but the leaks

persisted. The plaintiffs eventually engaged an engineer and contractor to investigate and

undertake invasive testing in 2009, and they learned once the walls were opened up that the units

had been so poorly constructed that they would have to be reconstructed. Id. The plaintiffs also

learned in 2009 that the defendants had made false representations concerning the construction.

Id. The defendants argued that the limitations period began running when the plaintiffs first

knew there was water leaking into the units. Id. ¶ 55. Our supreme court held that the date of

discovery was a question of fact precluding dismissal under section 2-619. Id. The court

observed that “it is possible that the minor repairs in the present case, coupled with the limited

nature of the water infiltration experienced, was enough to reasonably delay plaintiffs’ hiring of

professional contractors to open up the wall and to discover the latent defects.” Id. ¶ 59.

¶ 47 Next, in Graham, 109 Ill. 2d at 153-54, our supreme court held that a question of fact

existed as to when the plaintiff county had the requisite knowledge to trigger the limitations

period where the county became aware of moisture problems on the exterior walls of a county

building constructed in 1974 but did not file suit until 1982. The county informed the architect of

the moisture problems in 1974 and also of cracks in masonry walls and foundation that occurred

over time, and the architect suggested certain causes (which were not actionable) and repairs,

which were attempted over the years. Id. at 148-49. The court held that the county was aware of

the moisture problem in 1974, but “it is impossible to state, as a matter of law, that this

knowledge was sufficient to trigger the running of the limitations period. It is possible that the

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suggestions of the architect and the resulting repairs were adequate to keep a reasonable person

from investigating further.” Id. at 154.

¶ 48 Lastly, in Society of Mount Carmel v. Fox, 31 Ill. App. 3d 1060, 1060-61 (1975), the

plaintiffs sued their architect for the faulty design of a school. The plaintiffs noticed cracks and

defects in the building more than five years before filing their complaint, but the defendant

architects assured the plaintiffs that the defects were merely “maintenance problems.” Id. at

1060. The plaintiffs argued that the limitations period did not begin to run until they obtained a

contractor’s report sometime later, which concluded that the cracks were the result of a design

defect. Id. at 1061. Based on (1) the plaintiffs’ assertion that they neither knew nor had any way

of knowing of the design defect and they did not discover it until the contractor’s report, (2) the

defendants’ assurances that the cracks were merely maintenance issues, and (3) that there was no

evidence in the record that would show that plaintiffs knew of the alleged defective design of the

building as the cause of the defects prior to 1969, the court reversed the summary judgment

holding in favor of defendant and held the discovery date was the date the plaintiffs received the

report informing them of the design defects, and not when they first observed the cracks in the

building. Id. at 1061-63.

¶ 49 There are crucial differences between the above cases and the present circumstances.

Henderson Square, Graham, and Fox all involve damage that occurred incrementally over time.

They also entailed repairs that were made over time that initially appeared to remedy the

problems. In contrast, the damage in the present case occurred suddenly during high winds. The

present case does not involve any minor repairs performed over time that seemed to fix the issue.

Additionally, M&S’s cases involved circumstances where the defendants made certain

representations that hindered or delayed discovery of the cause of the damage and their

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responsibility for it. Here, in contrast, there was no evidence of any representations by

Allahverdi after the incident on October 27, 2010, which could have deterred M&S from

investigating further into the cause of the damage. There are no allegations that Allahverdi

attempted to hide the cause of the accident or made false representations. Indeed, shortly after

the incident, he informed M&S’s president that his roof detached during the windstorm after the

dock door of his building was opened.

¶ 50 We note that M&S contends that the circuit court erred in applying the “sudden traumatic

event” rule to this case as its application is limited to personal injury actions. We need not

address whether to apply this rule here, however, because we have concluded that the application

of the discovery rule here involves a question of law given the undisputed facts. That is,

regardless of the application the “sudden traumatic event” rule, only one conclusion can be

drawn from the undisputed facts in the present case—that the limitations period was triggered at

the time the roof of Allahverdi’s building detached and caused damage to M&S’s property. In

any event, Allahverdi’s point is well taken under the circumstances of this case. Allahverdi cites

this rule in arguing that the limitations period began running on the date the damage occurred

because the injury here was sudden and traumatic and not hidden, insidious, or chronic like a

slow water leak or a cracking foundation, as in the cases relied upon by M&S.

¶ 51 III. CONCLUSION

¶ 52 For the reasons stated above, we affirm the circuit court’s decision to grant Allahverdi’s

motion to dismiss pursuant to section 2-619(a)(5) of the Code. The parties’ briefs adequately

relay their respective contentions and adequately respond thereto, indicating that oral argument

would not further our consideration of this appeal.

¶ 53 Affirmed.

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