*1 COMPANY,Plaintiff-Appellant NORTHERN ILLINOIS GAS and Counter al., defendant-Appellee, et Defend v. VINCENT DiVITO CONSTRUCTION ants-Appellees Counterplaintiffs-Appellants.
Second District No. 2 — 90—1050 24, 1991. May filed
Opinion REINHARD, P.J., dissenting part. concurring part *2 Major, & Jr., Leszcynski, both of Fennell As- Major, W.H. and Laurence sociates, Ltd., Wheaton, appellant. of for Kincaid, Wheaton, Kincaid, appellee. of
John of Mirabella & B. of the court: opinion INGLIS delivered JUSTICE Plaintiff, (Northern Illinois), Gas filed Company Northern Illinois defendants, Vincent DiVito Construc- complaint against a six-count trespass and individually, alleging negligence tion and DiVito Vincent damaged in which DiVito arising separate of three incidents out against filed Illinois’ lines. DiVito a counterclaim Northern service incidents, Illinois, that, as Northern alleging to one Northern protect- maintaining, constructing, burying, in negligent Illinois was gas main of the close of warning proximity and others ing finding for granted The trial court a directed surface of the street. against judgment and entered complaint Northern Illinois’ DiVito on the sum of counterclaim in $470.21. Northern Illinois on DiVito’s (1) issues: raising following timely Illinois appeals Northern to consider exhibits trial failed properly whether the court granting directed find- 1 2 as of when Nos. evidence the testi- DiVito; striking erred in the trial court ing (2) whether witnesses; trial whether the (3) of Illinois’ of one Northern mony to refresh a wit- attempts in Northern Illinois’ denying court erred Northern denying erred in (4) the trial court memory; ness’ whether counterclaim; (5) on DiVito’s finding Illinois’ motion for a directed DiVito’s sustaining in trial abused its discretion whether the court clause in the contract between damage of a objection inquiry contractor; the trial court (6) whether general and its DiVito in amount of DiVito in favor of granting judgment erred in in part. affirm in and reverse part We $470.21. engaged corporation an Illinois Company
Northern Illinois Gas is natural gas commercial residential and providing in the of business in- engaged in business service. DiVito Construction Vincent Northern complaint, backhoeing. its mains and stalling sewers and that on First, it alleged negligence. incidents of alleged Illinois three in 12, 1988, line at 3602 installing DiVito was sewer Walters April Northbrook, Illinois, damaged it a Northern Illinois negligently when Second, 13, 1988, en- it that on gas alleged July line. DiVito was in in backhoeing Ogden its business Western gaged Illinois, gas it a Northern Springs, negligently damaged when Illinois Third, Illinois 8, 1988, alleged September line. Northern main engaged DiVito was in its business of water installation at Main, Illinois, N. Glen when it a North- Ellyn, negligently damaged gas alleged ern Illinois line. Illinois also trespass Northern each sought $9,198.32 incidents and a total of in damages. three In its complaint, negli- answer to the DiVito admitted that damaged 12, 1988; line in how- gently gas April Northbrook ever, it denied its as to the other two incidents. DiVito alleged, counterclaim, further that Northern Illinois was way Glen negligent regard Ellyn gas line. DiVito alleged main only base, inches lying existing below the concrete to regulations contrary promulgated the Interstate Commerce Commission, Glen Village and the State of Illinois. Ellyn, alleged that, DiVito direct as a and proximate result of the careless and negligent Illinois, conduct of Northern DiVito was to ex- caused perience considerable while delay main was repaired, result- ing monetary loss damage the payment DiVito of labor *3 $1,406.53. and equipment totalling costs
A trial bench was subsequently Hugo held. Danoto first was the to testify witness on of behalf Northern Illinois. Danoto that he systems is a protection supervisor Northern for Illinois. Danoto stated that he is familiar with the incident occurred at 3602 in Northbrook, Illinois, Walters 12, 1988. April Danoto explained that a five-eighths-inch gas line plastic DiVito, was struck by where- upon a crew was Danoto met dispatched scene. the crew at the scene. Danoto responsible testified that he was for completing the accident report, which was made in usual the course of business. Danoto stated that the accident contains the the report names of contractors and incident, the who were in the people involved the names of the service and went people street who department people out to make the repairs there, and the time they spent amount of and the name of the supervisor report. the completing
Danoto stated that the a three-man from street department, crew one along with customer service was sent technician, to the North- brook site. Danoto testified that the crew of spent three-man a total 4.5 man-hours repairing gas charge the line at a hour. per $40.80 The customer service technician .7 hours at hour. spent per $37
Thus, for the charge making repairs, the total labor was $209.50. $1.75, at five-eighths-inch plastic, the five feet of a cost of crew used normacs, at Danoto recalled that four vehicles were and two $12.28. backhoe, line, the a a street including used that day repairing not truck, a the tools. Danoto could remem- carry and truck to When to permitted for the he was refresh charges transportation, ber the he the prepared concerning his recollection with the accident report the amount time each vehicle was incident. Danoto testified to classification, rate. The cost for the used, hourly its the total Thus, for charge was total transportation equipment $32.48. to to was report the Northbrook site accident $256.01. as referred his was admitted throughout testimony which Danoto 1, objection No. over the DiVito. plaintiffs exhibit cross-examination, he did not how Danoto stated that know On paid technician for North- much the crewmen or the service on the acci- call. Danoto testified that labor rate indicated brook Illinois situa- charges emergency dent rate Northern report chosen, he know rate nor did Danoto did not how that tions. chosen; ex- rates the vehicles were Danoto how the hourly know office. probably general that the rates were set plained Illinois, was Schoenbeck, of Northern employee another Lyndall he got that on testify. April He stated next witness in Northbrook at 3602 Walters gas a call about service broken scene, he he arrived at Schoenbeck stated when responded. cap at the house and installed a dust main off at shut mainte- that he then called the line. Schoenbeck stated break a sent out the site. nance have crew department the incident witness, Haley, Jack testified about The next supervisor a and maintenance construction Springs. Haley, Western 13, 1988, he was alerted Illinois, July for Northern stated that line at had hit a service radio that a contractor a call on his ar- When he causing leak. in Western Ogden Springs, Avenue out gas coming odor of site, strong smelled Haley at the rived work- a machine that DiVito’s He saw Ogden Avenue. ground and a box Avenue Ogden on the north side ers were digging dug by hole Haley explained protect workers. used *4 the box was deep 15 20 feet approximately workers was that had gas line portion the hole underneath located inside running side of the box The line the west gas kinked. long, feet high, feet The itself was ground. approximately box northwest arrived the that when he testified Haley and 8 feet wide. corner of the box was in contact with the line where kinked.
Haley testified that initially a three-man crew was called to lo- and, later, cate the source of the leak an additional crew two-man was called. Haley in order to find the source of the leak, shovel, it was necessary to use a and a physically spade, backhoe. It was discovered that line was at a pulled apart compression sleeve, they so at that crimped pipe point to slow gas. the flow of They then went other side of the street and put a on the stopper pipe. testified that he Haley spoke Angelo DiVito, who acknowledged the damage gas line and stated the construction company coming would be close to or damaging the line in completing installation the sewer. Ha- Consequently, ley decided to run a temporary line for service until the sewer was laid. The completely line temporary consisted 700 feet of five- eighths-inch plastic sleeve, pipe, lVi-inch and a drill T.
Haley testified that he keeps track of the hours and the costs repairs. Haley testified that he an prepared accident on the report July 1988, incident at Western The Springs. report was admitted into evidence as plaintiff’s exhibit No. 2. The report indicated that there were five crewmen at the site and a total of 56 man-hours were expended at a rate hour, per $2,284.80 for a total of $40.80 in labor costs. Haley indicated that there were five vehicles at site for a total of 56 hours. He noted the differing rates and ex- plained that the rate depended upon of vehicle. The type total charge transportation and equipment was Haley noted $354.20. the charges for the materials included for the stopper, $26.75 $19.78 for the sleeve, and for 21 feet of Thus, $38.43 cast iron the to- pipe. tal emergency charges labor, for the transportation and materials $2,723.96. equalled Haley noted that there no assessed charges for the 700-foot line, temporary or for the two subsequent visits that resulted when DiVito’s machine ran over line temporary and cut it, or for the subsequent installation permanent 700-foot line. Haley testified that he took pictures 13, 1988, of the site on July two pictures were admitted as plaintiff’s exhibits 2 and 3. Nos. pictures depicted the ditch sewer, made by DiVito for the the North- ern line, Illinois gas the kink in the gas line, and the used by box DiVito’s workers.
On cross-examination, Haley explained emergency charges did not include the line; cost of the 700-foot how- temporary ever, it did include the time installing involved in the line. Haley was then questioned about the labor He charges. admitted that he did not *5 was charge
know how the man-hour set and that per $40.80 did not know by Haley was set someone the office. how probably per the were hour. He stated that based paid upon much crewmen recollection, three the five men were paid his and best experience charged to hour. admitted that the rates per Haley between $12 $15 also set someone in transportation equipment by for the were office. the line have possible that it was that the could been
Haley admitted 1988, if the contractor would have repaired July permanently thus, line down; the would have been temporary to shut willing been taken ap- To install the would have permanently pipe unnecessary. the conceded that he could have Haley half time. further proximately He plastic probably less than 700 feet of testified that pipe. used total of 12 feet of steel could have been used. pipe the were made repairs that he was when
Haley present testified minute of the He then ad- though every day. he was not there even gas the line was made safe mitted that he left the site after but repairs being when the were by during day probably stopped he Haley deposition made. then confronted Defense counsel was all Haley present that he not given had earlier wherein stated Haley made In stated gas deposition the time until the was safe. that, safe, things he had other to do gas probably once the made was in- line was during present temporary and was not when day stalled. counsel, admitted, of Northern Illinois’
Haley objection over time. far materials and The reports he testified from as as had all events occur- Haley’s testimony regarding trial then struck judge that Ha- explained The judge after the line was made safe. ring the events to point in time to observe was not after ley present he which testified. examination, that some of infor- Haley
On redirect ob- personal made from report mation contained the accident was and how he what do servation. He stated that told crews do it. engi- resident Gidley, Steven testify
The next witness to The of Western Village neer of James J. Bennis Associates. for the 500 project his the construction Springs company awarded of a design involved the sewer The Ogden project Avenue. block preparing blue- construction. inspection field tes- Gidley utilized. Northern Illinois were supplied atlases prints, the atlases main indicated on of the as tified that the location followed were to be exactly blueprints, not correct. DiVito, admitted into as plaintiff’s group evidence exhibit engineering drawings notes at the front of the in- general No. 5. The dicated that the location of the utilities shown on the are plans ap- and the contractor the exact loca- proximate responsible verify tion of the utilities. testified that there was a JULIE meet to the con-
Gidley prior meeting struction of the defined the meet as a project. Gidley joint of all the utility companies underground who have facilities typically so that digging locations utilities can be verified before starts. from Representatives DiVito and Northern Illinois were present Northern meeting. Illinois made no indication DiVito that there be a might problem coming with DiVito’s workers *6 contact with the lines. company testified that in order for
Gidley change DiVito to direction of its line, sewer it would have to first come to or his for Gidley company to do so. permission testified that he did not the Gidley give DiVito right to deviate from the plans, complied and DiVito with reasonably the plans.
Joseph the Brunory was next witness to is a testify. Brunory dis- tribution technician for Northern Illinois. He testified that he was part of the second crew to at the Springs arrive Western site on July 13, 1988. Brunory testified that there were five crewmen at the site for a total of 56 man-hours. There were five vehicles including two trucks, street two backhoes and one dump equipment truck. The was on the site for a total of 56 Brunory hours also. stated that he was at the jobsite time, the entire and he listed the materials used to ef- fectuate the repairs. Brunory testified that laid a 700-foot tem- they porary line and that they showed a worker the DiVito where line Nonetheless, was. the line was subsequently damaged twice DiVito in the two weeks that followed. cross-examination,
On stated Brunory that he did not make the the report incident; however, about Western Springs he re- probably corded it in diary. his He he admitted that looked at the accident re- port prepared on the incident to stated prior testifying. Brunory that, given the amount of time he there his spent past experi- and ence, 56 hours was probably figure. an accurate witness,
The next Starks, Charles testified about the incident oc- curring at 501 North Main Street in Glen Ellyn September 1988. Starks is a distribution technician Northern Illinois. He was called to Glen Ellyn a service that repair was hit. Starks stated that, when he scene, arrived at the 26 inches of the ex- gas line were He that to make the had to necessary repairs, they stop said
posed. 45 feet of two-inch pipe. the replace along that crewmen the site Starks five were the gas company. other from Starks testified representatives various as to man-hours that his was exhausted the number of ex- memory making report prepared accident pended repairs. incident introduced -exhibit No. 6. plaintiff’s Starks as his memory. Starks testified that did not refresh Starks report that not fill the back of the where the part report stated he did out man-hours, and labor costs are listed. transportation, Illinois, was
Phillip employee another for Northern also Jungles, arrived, he site. He stated that when he ob- Ellyn called Glen of its and the pulled up pipe served that the service was out ditch that the marks shape. Jungles indicating kinked in a U noted making repairs, the location correct. pipes the road from the main replaced service had to be under line. proper that did not the exact number man-
Jungles testified he know make or the that was used. required repairs equipment hours report bills Jungles stated accident Illinois at- refresh his counsel for Northern memory. would When had been Jungles report, previously tempted show on the objected as No. counsel marked exhibit DiVito’s Jungles re- had not the document. Jungles prepared basis contained on with the information compares he bills sponded report accuracy. Spe- to check for the front back accident involved, depart- Jungles man-hours different cifically, checks the ments, Jungles that he does this and the vehicles utilized. stated *7 that he Jungles of his testified the normal and usual course business. depth report of the and indicated initialed front accident cut, and the contractor’s cut, depth the facilities before The bills for pavement facilities curb. depth below Northbrook, Western Illinois’ facilities at damages to Northern 7, Nos. marked as exhibits Ellyn plaintiff’s Glen Springs, 9, respectively. to Jungles’ then refresh attempted Northern Illinois Counsel for objected, expended. Defense counsel as to the man-hours memory finding Jungles did objection, and the trial court sustained allowed, his and, if expended man-hours were many not know how hearsay. double testimony upon would be based Illinois, at Palmatier, of claims Northern supervisor Kenneth three inci- in all damages sent to DiVito as to the bills dents. Plaintiff’s No. 7 was the sent for the damages exhibit bill oc- curring 12, 1988, April at Northbrook. Plaintiff’s exhibit No. 8 was 13, for the damages 1988, on Springs July Western No. 9 9, exhibit was at Glen Ellyn September judge 1988. The trial would not Palmatier permit as to the testify bill, total amount of each or to the of charges. breakdown The trial court denied the of Northern request Illinois’ counsel to admit plaintiff’s exhibit No. which was accident report pre- on the pared Ellyn Glen incident. The judge noted that there was no testimony indicating the source of the figures contained in the docu- ment. The judge explained Starks, that Mr. the preparer of the docu- ment, testified that it did not refresh his and Mr. memory Jungles could not testify as to the rather, accuracy figures; he could only state that the figures were consistent with the bills.
Northern rested, Illinois then and DiVito made a motion for a di- rected finding. trial judge granted a directed finding favor of DiVito as to all counts in the complaint. The judge found that North- ern Illinois failed show the fair and reasonable costs of the dam- ages sustained.
DiVito then proceeded with testimony its regarding counterclaim. The first witness called Madden, was Robert who is the project man- ager and field coordinator for Thomas Madden Construction Com- pany. Madden testified that in the summer of Madden Con- struction was the Company general contractor for a project on Hill Avenue in Glen Ellyn. DiVito was the subcontractor who handled all the sewer work west of Main construction, Street. Prior to Madden and DiVito attended a meeting, at which Jungles Mr. present was behalf of Northern Illinois. A discussion was had as potential con- flicts with the main. Madden that the explained plans indicated mains, location of the but not the services. It agreed that, if the services were in construction, conflict with the the services would be moved. Madden explained that a potential conflict would be vertical such that if the gas line high enough be the new pavement or the subgrade, it would be moved. Madden testified that in order to put in, the street there was a minimum depth inches, plus four inches of addition, stone subbase. could they be required to go another two or three feet depending ground. on the Madden testified that a line located immediately beneath the pavement would have to be removed because would in conflict with the pavement of the subgrade where they had to excavate.
On cross-examination, Northern Illinois’ counsel asked Madden whether the contract between Madden as general contractor and
212 for downtime that provided any damages
DiVito as subcontractor being objected, from utilities struck. counsel and resulted DiVito’s that, the was sustained. The trial court held unless North- objection contract, rights ern Elinois was to the created the party any by by contract not be enforceable Northern Elinois. would DiVito, Jr., next testify. was the witness to Vincent is Vincent DiVito, the Inc. He that general superintendent Vincent testified work, construction, the main DiVito did sewer the water sanitary and sewer for Hill Avenue in Glen Vincent ex Ellyn. the storm work Hill Avenue runs east and stated that plained that west. Vincent line, a em prior gas to the time contact was made with the DiVito Avenue, ployee dug approximately hand the south side of Hill actually working. explained feet from where crew was Vincent locate and location of the dig depth that hand order to they they gas lines. that located Northern Illinois’ utility Vincent testified 2 to 21k feet line, was Vincent did not approximately deep. gas their and the line any contact between backhoe be contemplate line depth going cause he that would be the same presumed it parkway. across the road as was on the proceed dig- were then instructed to with their operators dug eight pave- the backhoe seven inches beneath the ging. When ment, gas line, it struck the which was inches into approximately immediately that machines were ground. Vincent testified re- danger. operation shut down to avoid Vincent testified that four hours. mained shut down three to determining caused Vincent recorded by delay, the cost idle. that there were hours the workers were Vincent testified and delayed five and each worker made between workers $17 $21 wages a un- per explained by hour. that are established Vincent wages, they ion. In addition Vincent testified were hourly taxes undetermined amount. required pay and insurance an in the also welfare benefits required pay pension They testified per hour for each Vincent employee. amount $2 $6 the operation ap- cost of the hourly backhoe used figure He this based per explained hour. proximately $100 Eli- rate and the State of by rental book standard rates established that a CAT end- testified Department Transportation. nois Vincent down, the rate approximately loader was also shut for was $85 resulting cost of the that he calculated the per hour. Vincent in the delay the number hours involved by multiplying shut down rates, rates, and welfare by pension the hourly employee that the rates. Vincent’s calculations indicated total equipment $1,500. cost of the delay cross-examination,
On Vincent testified that line was struck at 9 or 9:30 a.m. and the did not approximately go workers *9 approximately p.m. back work until the Vincent testified a.m., gas stopped blowing at 11 or 11:30 time which there was no longer danger to their any equipment. examination,
On redirect testified that the Vincent elevation of from one pipe side the street to the other changed approxi- feet. The mately change elbows, V-k in elevation was caused two which Northern Illinois did not warn had been placed DiVito there.
Ben DiVito was the last to testify witness on behalf of DiVito. DiVito, Ben is president of Inc. He testified that at the preconstruc- tion meeting, Bob Madden noted the possible problem gas with lines and asked Northern Illinois whether wanted to they go ahead of construction and relocate the lines whether wanted to they do it during construction. Northern Illinois to do it opted during construc- tion. Ben testified that there was no one could way tell the precisely depth any gas line pavement. underneath the Counsel for DiVito introduced counterplaintiff’s exhibit No. which was the bill sent to Northern Illinois for delay caused to DiVito as a of the gas result line being struck. Ben testified that his brother bill, Vincent prepared which noted the hours of the delay, rate each hourly earned, worker the hourly rate for the equip- ment, and the amount of and pension welfare benefits. The trial judge admitted the document for the purpose showing that the bill was sent and the However, amount of the damages. above it could not be admitted for the purpose showing the amount of the taxes insurance, although it could be admitted to show that those fac- tors were included in the bill.
Counsel for rested, DiVito and Northern Illinois made a motion for a directed finding the counterclaim. The motion was denied on the issue of liability. The motion was also denied as to damages in- curred as a result of the labor costs and pension and welfare bene- However, fits. the trial court granted finding a directed as to the cost of the equipment, stating that DiVito had not established the hourly rates charged were fair and reasonable. DiVito withdrew the request for insurance and taxes.
Northern Illinois then argued that Illinois law precludes recovery
of economic
actions,
losses
tort
citing
Manufacturing
Moorman
Co. v. National Tank Co. (1982),
that Moorman actions and ordered applies only product liability the defense of the counterclaim. proceed counsel the defense as an was recalled adverse witness. Ben DiVito paid he did not know the exact amounts that were Ben testified that that, if He stated the laborers had been pensions. into welfare and , line would not gas damaged, company home when the sent day. them for the rest of the obligated pay have been an He testi- was next recalled as adverse witness. Vincent DiVito curb, dug they proba- if the workers had hand closer fied that in the caused the pipe the elbow would have discovered bly change in elevation. He also called as an adverse witness.
Bob Madden was concrete, removed it. Ac- up that his broke DiVito company Madden, broken, could have after the concrete was DiVito cording to lines. and hand located the up concrete safely pried that, from He testified Phillip Jungles. the defense called Finally, line 26 to 28 observation, original depth his no or elevation between stated that there was elbow Jungles inches. where the dug point had hand where workers point *10 site, at the testified that while he was damaged. Jungles line was that everyone appeared not idle. He stated the DiVito workers were working. to be the trial court found in fa- given,
After were closing arguments damages it the natural and reasonable vor of DiVito and awarded amount from the The court found that that flowed shutdown. for $470.21, pension included labor and which $387.61 $82.60 timely appeals. Northern Illinois welfare benefits. failing in first the trial court erred argues
Northern Illinois damages 2 of Nos. 1 and as evidence to consider exhibits Nos. 1 in of DiVito. Exhibits finding a directed favor granting when in the Northbrook reports prepared 2 the accident were man-hours the number of incidents. indicated Springs They Western for the la- charged rates making repairs, hourly in involved involved, equip- rates for hourly bor, equipment of type of the materials. ment, and the cost the trial court finding, motion for a directed
In granting the fair and reasonable Illinois failed to show that Northern stated Illinois contends Northern damages appeal, sustained. On costs to take consideration any the trial court failed that, ruling, in so the exhibits. dam awarding compensatory note that the purpose
We the defendant whole, punish not to injured party to make the ages is Parcel v. Ser (Netzel a United upon plaintiff. or bestow windfall 808, for the as vice, 818.) Ill. 3d The standard (1989), App. Inc. if it is property, repair damages injury personal sessment of required the trial court is not able, repairs; is the reasonable cost of cost amount of at the but highest possible to calculate the 92 Ill. (1981), at cost.” v. Amoco Oil Co. only (Wall a “reasonable that there was no App. 924.) agree 3d We with the trial court the dam evidence as to the fair and reasonable costs of presented the amount North ages sustained. evidence was only presented ern Illinois for the and there was no ex charged repairs, testimony how the those plaining hourly calculating charges rates used Thus, set. there no indicating evidence that Northern Illinois’ charges reflected cost of the See repairs. Chicago reasonable v. City Ry. (1900), Co. Wall 93 Ill. 416. App.
Next, Northern Illinois contends that the trial court erred in striking portion Jack Northern Il- Haley’s testimony. support, first, linois makes two arguments: argues it that the witness’ testi- mony second, was not it improper; contends that the witness was not properly impeached.
In striking portion of Haley’s the trial court held testimony, to events testimony did not observe was Haley improper. Haley left the site admittedly safe, and, after the line was made thus, the trial court struck all do not find subsequent testimony. We this ruling be in error. It is well settled that admissible testimony is limited to matters of which the personal knowledge witness has through Graham, his own senses. M. Cleary & Graham’s Handbook §602, Illinois Evidence (5th 1990). ed.
Northern Illinois apparently argues Haley’s testimony was, proper because based part, upon report, accident which was him prepared by and admitted into evidence as a business record. noteWe Northern Illinois cites no authority support of its proposition. The business records rule exception hearsay (134 Ill. 2d 236) R. makes it apparent that it is record only business admissible, itself which is and not the testimony a witness who makes reference record. v. (Bass Washington-Kinney Co.
(1983), 119 Ill. App. 727.) Thus, 3d conclude that we the trial court excluded properly Haley’s as to the events he did testimony not issue, witness. Given our resolution of this we need not consider Northern Illinois’ claim that could Haley’s testimony not be stricken on the basis of impeachment.
Next, Northern Illinois argues deny- that the trial court erred ing the Jungles’ to refresh company’s attempt Phillip witness the Glen inci- Ellyn accident report prepared with the
recollection not the exact number testified that he did know Jungles dent. the equipment at the site or repairs to make the required man-hours for dam- however, the accident bills used; report that was he not did Jungles admitted memory. refresh his ages would with the bills, compare he did bills or the but report prepare The trial accuracy. to check for report on the information contained ei- to refreshed "with memory allow the witness’ be court would not ther document. of facts recollection independent a witness has no
When to refresh his permitted may the witness be knowledge, his within is not though writing pre writing, the use of a even memory by can, witness, inspecting the witness after provided pared by v. (Dexheimer recollection. the facts from his own to writing, speak 437, 440; v. Cross People Ill. 3d (1990), App. Industrial Comm'n recalled Here, sought the facts 88.) Ill. 3d App. (1981), Rather, he knowledge. personal the witness’ never within documents. hearsay two through comparing facts learned of these inspect allowed to if the witness had been even Consequently, the facts from his to state documents, been unable he would have Thus, properly the trial court we find that knowledge. personal own testimony. excluded his court trial Northern Illinois’ contention next consider
We following DiVito’s finding direct a in its favor refusing erred Il Northern Specifically, counterclaim. of evidence on its presentation dam that economic finding trial court erred that the argues linois Illinois contends in a case. Northern are recoverable ages Man in Moorman holding limited the that in so the trial court ruling cases. liability Tank to strict Co. v. National Co. ufacturing finding, directed motion for a In Northern Illinois’ denying stating: Moorman distinguished trial court Illinois the case that [Moorman], “I has] believe [Northern misrepresentation liability a based strictly product cited is [s-ic],just terms and for lack of better qualities as to the product.” quality trial court did argues, Illinois Northern
Thus, what contrary was limited holding that its Moorman on basis distinguish not on the fact that it cases; rather, distinguished based liability strict action. liability a products it involved Moorman, incorrect. ruling was that the trial court’s
We find defendant tank from the grain-storage had plaintiff purchased later, years in the tank some developed A crack manufacturer.
217 of for the cost manufacturer, seeking sued the plaintiff court supreme The of its use. the loss and for the tank repairing economic solely recover cannot liability plaintiff products that a held and inno liability, negligence, theories of strict tort losses under loss” “Economic 91.) Ill. 2d at (Moorman, misrepresentation. cent value, costs inadequate damages sought as those was defined loss consequent or product, the defective repair replacement to other damage or injury of personal claim any without profits court determined 82.) The 91 Ill. 2d at property. (Moorman, from its disap solely resulted sought to recover the plaintiff losses lie must remedy plaintiff’s and thus expectations commercial pointed Code. Commercial of the Uniform warranty provisions under was not However, ruling the court’s 91-92.) 91 Ill. 2d at (Moorman, available, as fact warranty remedy on whether conditioned war express claim breach that the plaintiff’s the court held Moorman, 91 Ill. 2d limitations. the statute of ranty by was barred Electric, Corp. v. Ledbetter Erection Inc. 94; at see also Anderson 146, 115 Ill. 2d 153. (1986), beyond extended subsequently has been holding in Moorman malpractice. of professional cases to include cases
product liability
Gin,
Mann,
v.
Association
Lincoln Park West Condominium
(2314
Frazier,
302, 316-17;
Rey
v.
136 Ill. 2d
Collins
(1990),
Ebel &
Ltd.
the Moorman
Additionally,
1072.)
nard
195 Ill.
3d
(1990),
App.
to the case at
case
facts similar
holding
applied
has been
Laboratories,
Cir.
(7th
Inc.
bar. In Dundee Cement Co. v. Chemical
the defendant overturned
712 F.2d
a truck owned
1983),
Lemont,
The truck carried a flam
83 in
Illinois.
United States Route
Al
the accident.
onto the road as a result of
spilled
mable
liquid
officials closed
ignite,
highway
did not
State
though
liquid
owned a business whose
plaintiff
road for more than five hours. The
Route 83 that was closed
part
with the
sole access road connected
suit that
alleged
negligence
in a
after the accident. The plaintiff
of customers who could
$29,595.02
lost at least
in business because
the liquid
was closed. None of
not reach its
while
road
premises
it. Dundee
damaged
property
physically
onto the
spilled
plaintiff’s
Cement,
Relying action. in a economic losses are not recoverable purely less meritorious The court noted that the claim was even not Cement did even than Moorman Dundee plaintiff because Moorman, road, unlike an interest in the ownership public have tank. grain-storage the defective plaintiff where the least owned plaintiff’s argu Cement, 1170.) rejecting F.2d at (Dundee where the losses profits for lost recovery Illinois permits ment that caused the defendant’s proximately and shown proved are of lost is al profits stated that the award conduct, the court tortious the defendant circumstances, when specifically: in limited lowed only or his plaintiff or when plaintiff harmed the intentionally has Cement, at 1170. 712 F.2d harmed. Dundee physically property on its damages are recoverable that economic argues DiVito to Moor- exception claim falls within an counterclaim because result of a damage is the argues, where DiVito Specifically, man. not occurrence, of exclusion does the doctrine dangerous sudden *13 Electric Design v. Equipment Co. relies on Schuster DiVito apply. Services, Equipment, 566. In App. 197 Ill. 3d Schuster (1990), Inc. the that alleging the defendant complaint against filed a the plaintiff ser installed an electric constructed and negligently had defendant that the alleged complaint office. The line to the plaintiff’s vice per the plaintiff’s in a fire inside resulted defendant’s motion The filed a defendant destroyed. which was computer, sonal sus plaintiff arguing that complaint to dismiss the under the au losses, are not recoverable tained were economic that the destruction argued The plaintiff of Moorman. thority and that and violent occurrence” to a “sudden was due computer economic loss. not an damage, property to the damage computer dismiss, plaintiff ap and the the motion to granted The trial court pealed. trial court’s dismissal reversed the
The court appellate noted that the so, court appellate In doing complaint. its com damage property, other that there was alleged complaint danger of a sudden was the damage that the result puter, plaintiff held that the the court occurrence, fire. Consequently, ous a Schuster, Moorman. under recovery alleged grounds sufficiently 3d at 570. App. 197 Ill. that the find we position, than DiVito’s supporting
Rather oc dangerous the “sudden and in demonstrates holding Schuster a rather is to Moorman but exception not an argument is currence” in Moorman stated court supreme holding. of its part property or injury personal suited for theory appropriately “[t]ort (Moor occurrence.” dangerous or from a sudden resulting damage Ill. App. (1987), 86; Oldenburg Hagemann v. man, 91 Ill. 2d at dam property that the Schuster, alleged 631, 642.) plaintiff 3d Here, DiVito occurrence. dangerous or from a sudden age resulted damage. or injury property personal that it suffered alleged has not from a sudden damages resulted Thus, appeal that the claim its is insufficient. occurrence dangerous the trial court controlling and hold that We find Moorman Illinois. in of Northern Con- finding direct favor failing erred in the motion. denying trial court’s order reverse the we sequently, remaining issues raised address holding, we need not Given our appeal. of the circuit court of reasons, judgment For the above-stated in part. and reversed part Du is affirmed Page County part. Affirmed in reversed in part;
UNVERZAGT,J., concurs. REINHARD, concurring part and dis- JUSTICE PRESIDING senting in part: prove I failed to agree (Northern Illinois)
Because plaintiff of the work at repair reasonableness rates ascribed is sue, I judgment concur in affirmance favor of majority’s I (collectively DiVito) complaint. defendants on Northern Illinois’ dis agree, however, analysis majority’s applicability (1982), Moorman v. National Tank Co. Ill. 2d Manufacturing Co. case, I in the instant so dissent from the reversal of the award in of DiVito on their favor counterclaim. and under struggled question
Moorman with the whether what a tort foreclosed in favor of limiting circumstances action should be *14 plaintiff’s recourse to contractual remedies. Moorman estab solely action, not that, may lished in a be had in product liability recovery tort for economic of the action is solely regardless losses whether or brought liability (Moorman, of theory negligence. under strict 81, 88.) excepted Ill. 2d at The court of only two varieties supreme holding: tort actions from the this intentional sweep (1) misrepre of sentation; one is in the (2) negligent misrepresentation by who in guidance for the of others their supplying business information Moorman, 91 Ill. 2d at business transactions. 88-89. notes,
As the majority applied Moorman has been out correctly believe, however, side I product setting. of the do not liability the case law in this of Moorman out supports application area side sphere product negligent where the liability allegedly defendant to a pursuant actions of the were not undertaken contrac tual agreement supreme Close examination of the relationship. in Park court’s recent decision Lincoln West Condominium As- Mann, Gin, Frazier, (1990), sociation v. Ebel & Ltd. 136 Ill. 2d makes clear that Moorman’s economic loss rule is rooted in the ques as contractual in duty tion of whether a defendant’s will be defined in tort. nature or based in
The
Lincoln Park West was a condominium owners
plaintiff
association
an action to
for defects in the con
brought
which
recover
alia,
struction of the condominium
inter
the archi
complex against,
tectural firm
to a contract with
designed
complex pursuant
West,
304-06.)
Park
136 Ill. 2d at
The
original
(Lincoln
owner.
defendants,
Moorman,
citing
filed a motion to dismiss the
as it
economic
complaint
sought
solely
insofar
recover
losses based
granted
on a
The trial court
the motion in
negligence theory.
part
count directed
archi
against
but refused
strike
question
tect. The trial court certified the
of whether there should be
permit
“an
to the rule set forth Moorman which would
exception
economic losses due to defeated
seeking
purely
Plaintiffs
recover
of a
to recover from an architect or
expectations
bargain
commercial
West,
in tort.” Lincoln Park
Thus, the determined that the association could not recover court of its merely tort because it was to obtain benefit attempting bargain.
The notes that court has held majority correctly supreme rule is not de- that the of the Moorman economic loss applicability there contract pendent remedy whether is a available upon on this pronouncement court’s most plaintiff. supreme specific however, suggest applies does not that Moorman even where point, conduct not the context purportedly negligent performed The court has stated: relationship. a contractual due to
“A
economic losses
plaintiff seeking
purely
recover
*15
recover
bargain
cannot
expectations
commercial
defeated
under
to recover
inability
the plaintiff’s
tort, regardless
in
Electric,
added.) (Anderson
(Emphasis
in contract.”
an action
146, 153.)
115 Ill. 2d
(1986),
Corp.
Erection
Ledbetter
Inc. v.
has no direct
the plaintiff
where
may apply
Thus,
Moorman
while
Ill. 2d at
(Anderson,
the defendant
relationship with
contractual
the stat
by
is barred
claim
contractual
plaintiff’s
148) where
court
92-94),
supreme
2d at
91 Ill.
(Moorman,
of limitations
ute
where,
rule to
situation
economic loss
Moorman’s
applied
has not
in the
was not undertaken
negligence
act of
here, the purported
like
any party.
relationship
of a contractual
context
conclusion
of its
support
three cases in
cites
majority
The
case,
tort action. The first
in any
application
Moorman has blanket
arises in a contractual
above, clearly
West, as discussed
Lincoln Park
3d
App.
195 Ill.
case,
(1990),
v. Reynard
Collins
The second
setting.
a result
legal malpractice,
to an action
Moorman
applied
eliminate le
virtually
because would
facially unacceptable
granted
court has
supreme
of action.
as a cause
gal malpractice
Finally, Laboratories, (7th Inc. Cir. Dundee Cement Co. v. Chemical jority, tort every applies holds that Moorman 712 F.2d 1983), involved, I duties are also action, of whether contractual regardless Illinois Su case is not in accord with feel the analysis underlying regarding pronouncements Court’s most recent preme rationale for Moorman’s economic loss rule. As Federal decisions con binding Illinois are not on this court struing (People Lig law ex rel. *16 I City Chicago (1977), 484), noul v. 67 Ill. 2d would not follow Dundee Cement. conclusion, I view Moorman doctrine as an simply applica that, general
tion of the rule of tort law where a defendant’s actions are undertaken to contract and cause economic pursuant only losses to the the defendant’s duties are defined the contract plaintiff, Keeton, (W. are not tort law. Prosser & Keeton on Torts imposed by §92, at 655-67 ed. (5th 1984); Bertschy, Negligent see also Perform Doctrine, ance and the Economic Loss 17 J. Mar Service Contracts (1984) (“the shall L. Rev. economic loss doctrine should be performing held who is applicable any party expectation”).) in which the has a contractual Accord duty plaintiff negli I dissent from the of Moorman to a ingly, majority’s application gence action where no contractual duties are involved. General, Petitioner, HARTIGAN, Attorney
THE PEOPLE ex rel. NEIL F. al., Respondents.—THE et PEO v. ILLINOIS COMMERCE COMMISSION al., Petitioners, ILLI PLE ex rel. OF PUBLIC COUNSEL et v. OFFICE al., Respondents.—ILLINOIS NOIS COMMERCE COMMISSION et COMPANY, Petitioner, ILLINOIS COMMERCE COMMISSION POWER v. al., Respondents.
et 3—90—0492, 3—90—0500, 501 cons. Third District Nos. 3— 9 0—0 12, 1991. Opinion filed June