Case Studies: The Illinois Vendor/Builder Exception To Premises Liability

On July 17, 2012, Elizabeth Fitzpatrick was lawfully present on the premises commonly known as 1965 Dewes Street in Glenview, Illinois. While descending the stairs of the front porch, Ms. Fitzpatrick tripped and fell, suffering personal injury. The Complaint pleaded that a height differential between the front porch stairs (in violation of the residential code of the village) was a dangerous condition causing Ms. Fitzpatrick's trip and fall. The homeowner, general contractor, and the mason subcontractors were named as defendants for the alleged negligent construction of the front porch stairs. The homeowner counter-claimed for contribution against the general contractor and the named mason subcontractors as well. The residence was constructed and sold to the homeowner, after the homeowner inspected it, in 2004. We represented Ventura's Brick Paving, Inc., the masonry company that layered brick on a portion of the front porch stairs.

All defendants involved in the construction of the front porch stairs moved to dismiss the Complaint on the basis of the vendor/builder exception to premises liability arising from the alleged construction negligence. The case was litigated before Judge Ehrlich of the Circuit Court of Cook County, Illinois. The motion was granted.

Law

Illinois has adopted Sections 352 and 353 of the Restatement (second) of Torts. See Anderson v. Cosmopolitan Nat'l Bank, 54 Ill. 2d 504 (1973); See also Tindle v. Pulte Home Corp., 607 F.3d 494 (7th Cir. 2010). Section 352 provides that vendor home builders are not liable for physical injuries which occur after the vendor transfers possession to the vendee. Restat 2d of Torts, § 352. Section 353 carves out a limited exception for dangerous concealed conditions. In the case of dangerous concealed conditions, the vendor is liable until the vendee has a reasonable opportunity to discover and correct the dangerous condition. See Restat 2d of Torts, § 353; See also Anderson 54 Ill. 2d 504.

Moreover, the reach of the Restatement (Second) of Torts extends beyond vendors to contractor and subcontractor builders. In Kordig v. Grovedale Oleander Homes, Inc., the Illinois Appellate Court held that:

[W]here an independent contractor is employed to construct and install any given work and has done the same and it has been accepted and the contractor discharged, he is no longer liable to third persons for injuries received as a result of defective construction or installation.

18 Ill. App. 2d 48...