Illinois Appellate Court Finds No Duty Owed By Concrete Testing Company To Subcontractor Responsible For Pouring Concrete
April, 2011
In Rojas Concrete, Inc. v. Flood Testing Laboratories, Inc., 2010 Ill. App. LEXIS 1338 (Ill. App. Ct. 1st Dist. Dec. 15, 2010), the Illinois Appellate Court found that a concrete testing company hired directly by the project owner did not owe a duty to a concrete subcontractor hired through one of the owner’s contractors. The court examined the possibility of a contractual duty, a duty based upon the parties’ relationship, or a duty under the voluntary undertaking doctrine.
Facts
The University of Illinois at Chicago (UIC) commenced a project to build the “UIC Forum” at its Chicago campus. Rojas Concrete (“Rojas”) was hired by one of UIC’s contractors to provide the concrete work for the project. UIC hired Flood Testing Laboratories (“FTL”) to monitor and test the concrete poured on the project to ensure that it conformed to mix design and the formula specified in the project plans.
FTL inspected and tested each load of concrete delivered by Rojas and then advised Rojas whether it passed the inspection. Rojas alleged that in reliance on FTL’s inspection, testing and approval of the concrete, Rojas poured approximately 710 cubic yards of nonconforming concrete. UIC required Rojas to remove and replace the nonconforming concrete, resulting in monetary damages in excess of $950,000.
Rojas filed suit against FTL asserting the following causes of action: (1) Negligence – alleging that FTL owed Rojas a duty to use reasonable care to adequately test and inspect the concrete to ensure that it conformed with project specifications, and FTL breached that duty; and (2) Negligent Misrepresentations – alleging that FTL made representations to Rojas that were false in that certain concrete did not conform to the project specifications, and Rojas relied on those representations. The circuit court dismissed Rojas’ complaint with prejudice on the basis that FTL owed no duty to Rojas.
The Illinois Appellate Court explained that both causes of action asserted by Rojas require a duty owed by FTL to Rojas. The court then considered whether FTL owed any such duties to Rojas.
Contractual Duty
The court first looked at whether FTL owed a contractual duty to Rojas. The court pointed to language in the contract between FTL and UIC which states: “Nothing contained herein shall create a contractual relationship with, or any rights in favor of, any third party, including any Subcontractor.” The court stated that the FTL contract with UIC clearly provided that FTL’s duties did not extend to third parties, such as Rojas. The court then pointed to language in the FTL/UIC contract which states: “Inspection and testing services are required to verify compliance with requirements specified or indicated. These services do not relieve Contractor of responsibility for compliance with Contract Document requirements.” The court stated that the FTL/UIC contract did not relieve any contractor at the construction site of its duty to comply with the terms of its own separate contract. The court concluded that the FTL/UIC contract did not create a contractual relationship between FTL and Rojas, and that Rojas has not shown that FTL owed Rojas a duty to inspect, test, or approve Rojas’ concrete before it was poured.
Duty Based Upon The Parties’ Relationship
Rojas maintained that a construction professional can be held liable for negligently causing another contractor to incur additional expenses to complete a project regardless of whether a contractual relationship exists between the parties. Rojas argued that FTL owed Rojas a duty of due care because it was reasonably foreseeable that Rojas would be affected by FTL’s faulty inspection, testing and approval of the concrete and false representations as to the concrete’s conformance with project specifications. In support of this argument, Rojas relied on two Illinois cases where a supervising engineer was found to owe a duty to a general contractor, even in the absence of a contractual relationship, to avoid negligently causing extra expenses for the contractor in the completion of a construction project (by failing to have the project properly staked, for example). See Normoyle-Berg & Assoc., Inc. v. Village of Deer Creek, 39 Ill. App. 3d 744, 350 N.E.2d 599 (1976), and W.H. Lyman Construction Co. v. Village of Gurnee, 84 Ill. App. 3d 28, 403 N.E.2d 1235 (1980). Rojas also relied on an Illinois case where, after a warehouse fire occurred, a fire alarm supplier was found to owe a duty to a tenant that shared the warehouse space with the owner of the warehouse who had contracted with the fire alarm supplier. The court held that it was highly foreseeable that a fire at the owner’s warehouse would destroy the entire warehouse and not merely the owner’s portion. See Scott & Fetzer Co. v. Montgomery Ward & Co., 129 Ill. App. 3d 1011, 473 N.E.2d 421 (1984).
The court found the cases relied on by Rojas to be factually distinguishable because Rojas and FTL did not share a supervising engineer/general contractor relationship and they were not adjacent tenants. The court refused to address the foreseeability argument beyond the factual contexts of the specific cases cited, because Rojas forfeited the foreseeability argument by raising it for the first time on appeal.
Duty Under Voluntary Undertaking Doctrine Illinois recognizes the voluntary undertaking doctrine from the Restatement (Second) of Torts to the extent that it provides that one who gratuitously or for consideration renders services to another is subject to liability for bodily harm caused to the other by one’s failure to exercise due care. Because Rojas did not allege that bodily harm occurred as a result of FTL’s negligence and has not argued any reason for extending the doctrine to what is a purely economic loss, the court did not find a duty owed by FTL to Rojas under the voluntary undertaking doctrine.
Learning Point
It is important to carefully draft contract terms and conditions which make it clear that the contract and the services performed do not give rise to a duty to anyone other than the parties to the contract. It is also important to be aware, however, that in some circumstances a court could possibly look for or find a duty of care owed to someone that is not a party to the contract. The question that remains is whether Illinois courts will expand beyond the specific factual circumstances at issue in the cases cited above, a duty based upon foreseeability of injury to someone not a party to the contract.
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