2021 IL App (1st) 200594
Ill. App. Ct.2021Background:
- Chicago authorized a Self-Certification Permit Program (SCPP) allowing qualified architects/engineers to self-certify code compliance so permits could issue without Department plan review.
- Hanna Architects designed a 3-unit condo at 1541 N. Bosworth, signed a Department "Professional of Record Self-Certification Statement," and the Department issued a permit in 2008; the building was completed in 2009.
- A 2014 windstorm revealed the building lacked required lateral wind support; remediation estimates ranged up to ~$1.5 million; Hanna admitted no structural calculations were done.
- The Condominium Association sued multiple parties; tort claims against Hanna (negligence, misrepresentation) were dismissed under the Moorman economic-loss rule, leaving only an implied private right-of-action claim based on the municipal ordinance/SCPP.
- After a bench trial on that sole theory, the circuit court awarded the Association ~$1.5M; on appeal the appellate court reversed, holding no implied private cause of action arose from the ordinance or SCPP.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Chicago ordinance/SCPP (or the self-certification statement) gives rise to an implied private right of action against an architect who falsely self-certified plans | The Association argued homeowners are within the class the Code/SCPP protects, their injuries are the harm the program targets, and existing SCPP remedies are inadequate, so a private right must be implied | Hanna argued the ordinance merely delegated authority to the Department (no substantive duties on architects), no express private right exists, and implying one would conflict with established law (Moorman/economic-loss rule) | Court held no implied private right of action under the municipal self-certification ordinance or the SCPP; reversed judgment |
| Whether the Association satisfied the implied-right four-factor test (class, protected injury) | Association: unit owners are in the protected class and sustained the very injury the program sought to prevent | Hanna: the ordinance's purpose was deregulatory/administrative (streamlining permitting), not to confer individual rights to homeowners | Court: did not find plaintiff is the class the ordinance aimed to protect; the ordinance’s purpose was to delegate/administer SCPP, not to create enforceable duties to third-party homeowners |
| Whether implying a private right is consistent with the scheme and necessary to provide an adequate remedy (and whether it would unsettle common law) | Association: SCPP remedies (expulsion, plan correction) are insufficient post-construction; implied right is necessary to protect homeowners | Hanna: existing enforcement (owner liability, SCPP sanctions, developer obligations, and common-law contract avenues) suffice; an implied right would undermine Moorman and longstanding limits on tort recovery for purely economic loss | Court: implying a right is unnecessary to enforce the ordinance and would unsettle established common-law doctrines (Moorman and related architect-liability rules); thus no implication warranted |
Key Cases Cited
- Metzger v. DaRosa, 209 Ill. 2d 30 (2004) (articulates four-factor test and focuses on whether an implied remedy is necessary to enforce the statutory scheme)
- Abbasi v. Paraskevoulakos, 187 Ill. 2d 386 (1999) (explains that all four factors must be met to imply a private cause of action)
- Moorman Mfg. Co. v. National Tank Co., 91 Ill. 2d 69 (1982) (economic-loss rule bars tort recovery for purely economic losses)
- 2314 Lincoln Park W. Condominium Ass’n v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill. 2d 302 (1990) (applies Moorman to bar tort claims against architects for design defects causing economic loss)
- Fireman’s Fund Ins. Co. v. SEC Donohue, Inc., 176 Ill. 2d 160 (1997) (extends the economic-loss rule to engineers)
- Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455 (1999) (analyzes when courts may imply private rights of action)
- Henderson Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139 (2015) (addresses municipal-code remedies and suggests—dicta—that an ordinance could satisfy implied-right factors)
- Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379 (1982) (discusses implied private causes of action when a statute protects a particular class)
- Redarowicz v. Ohlendorf, 92 Ill. 2d 171 (1982) (describes contract law as the traditional protection for a buyer’s expectation and remedies)
- Fattah v. Bim, 2016 IL 119365 (2016) (addresses implied warranty of habitability running to subsequent purchasers)