Illinois Appellate Court Finds Road Repair And Replacement Not An Improvement To Real Property Under Four Year Statue Of Limitations In Section 5/13-214(A) Of The Illinois Code Of Civil Procedure
January, 2004
Section 5/13-214(a) of the Illinois Code of Civil Procedure provides: “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 privy, knew or should reasonably have known of such act or omission.” (735 ILCS 5/13-214(a)) Although this special four-year statute of limitations applies to most claims involving improvements to real property, in some instances, a reasonable argument can be made that the general two-year statute of limitations for negligence actions should apply. (735 ILCS 5/13-202) In the recent case of Morietta v. Reese Constr. Co., 808 N.E.2d 1046, 2004 Ill. App. LEXIS 417 (Ill. App. Ct. 2004), an Illinois Appellate Court specifically applied the general two-year limitation period instead of the special four-year limitation period.
On June 3, 1998, the plaintiff in Morietta was driving southbound on Illinois Route 4 when his vehicle hydroplaned on standing water on the road, causing him to lose control of the car, leave the road, enter a ditch, and flip his car over. The plaintiff suffered a back injury as a result of the accident. Three years after the accident, plaintiff filed a negligence action against the defendant alleging that the defendant had done negligent construction work on Illinois Route 4. Specifically, the plaintiff alleged that the defendant “failed to properly design, failed to properly specify the manner and method of construction, failed to supervise the repaving, failed to properly compact the new surface, and failed to build a proper crown during construction of the road, so that water did not drain from the surface during a rain.” The plaintiff also alleged that he did not learn until May 2001 that the accident occurred as a result of negligence.
The defendant filed a motion for summary judgment, claiming that the plaintiff’s complaint was barred by the general two-year statute of limitations for negligence actions set forth in section 735 ILCS 5/13-202 of the Illinois Code of Civil Procedure. In response, the plaintiff argued that his action was not time-barred because it had been filed within the four-year statute of limitations set forth in section 5/13-214(a). The trial court granted the defendant’s motion for summary judgment, finding that section 5/13-214(a) did not apply, and the plaintiff appealed.
On appeal, the plaintiff argued that the four-year statute of limitations in section 5/13-214(a) applied, since the defendant’s removal and repaving of Route 4 was an improvement to real property. The court noted that if the special statute of limitations in section 5/13-214(a) did not apply, the plaintiff’s case would be governed by the general two year statute of limitations in section 5/13-202.
The court in Morietta held that in considering the application of section 5/13-214(a), a court must determine whether the item at issue was an improvement to real property. “The relevant criteria for determining whether an item is an improvement to real property is whether the addition was meant to be permanent or temporary, whether it became an integral component of the overall system, whether the value of the property was increased, and whether the use of the property was enhanced.” Whether an item is an improvement to real property is a question of law.
The court ultimately held that the defendant’s work was not an improvement to real property, and, therefore, section 5/13-214(a) did not apply. The court reasoned that the defendant removed and replaced an existing road and did not build a new road or even widen an existing road. The work performed by the defendant neither improved the value of property nor enhanced the use of the property. The court held that the defendant’s work on the road was merely repair and replacement and not an improvement to real property. Since there was no improvement to real property, the four-year statute of limitations in section 5/13-214(a) did not apply. The court held that the general two-year statute of limitations in section 5/13-202 applied, and, consequently, the plaintiff’s action was time-barred.
Cases Applying Section 5/13-214(a):
Although there are some instances where a court may apply the general two-year limitation period, Illinois courts continue to apply the special four-year statute of limitations in section 5/13-214(a) when there is an improvement to real property. See Continental Ins. Co. v. Walsh Constr. Co. of Illinois, 524 N.E.2d 1131, 1134-35 (Ill. App. Ct. 1988)(holding that the landowner’s claim for damage to its building, which allegedly resulted from negligent services provided by the defendant in the engineering and construction of an underground sewer system, was subject to section 5/13-214(a). The court held that section 5/13-214(a) applied even though the improvement was on adjacent property, and the improvement did not connect to the landowner’s property. The court also noted that the creation and construction of a sophisticated sewer distribution system constitutes an improvement to real property.); Tatara v. Peterson Diving Service, 670 N.E.2d 789, 793 (Ill. Ct. App. 1996)(holding that the four-year limitations period in section 5/13-214(a) applied to construction related activities and took precedence over the more general provisions of section 5/13-202.); Taeb v. Ritchey Constr. Co., 602 N.E.2d 489, 490 (Ill. App. Ct. 1992)(holding that the four-year statute of limitation provided for in section 5/13-214(a) applied to an action that arose out of an injury sustained by the plaintiff when he fell into a hole while participating in the construction of a residential development.); Zimmer v. Village of Willowbrook, 610 N.E.2d 709, 714 (Ill. App. Ct. 1993)(holding that the record contained no evidence as to what extent, if any, a culvert of a larger diameter improves drainage, and, furthermore, the court was unable to determine from the record whether the replacement culverts enhanced the value, beauty, or utility of real estate or otherwise adapted it for new or further purposes. Therefore, the court held the record provided an insufficient basis for determining as a matter of law whether the culverts constituted an improvement to real property under section 5/13-214(a).).
Learning Point:
Generally, the four-year statute of limitations in section 5/13-214(a) applies to claims involving improvements to real property. It takes precedence over the general two-year negligence statute in section 5/13-202. If a case arises out of construction related activities, the facts must be carefully scrutinized in order to determine whether the special four-year limitation period or the general two-year limitation period applies. Specifically, if a case involves an improvement to real property, a court must consider “whether the addition was meant to be permanent or temporary, whether it became an integral component of the overall system, whether the value of the property was increased, and whether the use of the property was enhanced.”
If you would like a copy of the Morietta decision, please contact Kelly at kjorgensen@clausen.com. •
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