A state appeals panel has ruled property owners can’t use a Chicago city ordinance to sue architects, engineers or builders that self-certified building code compliance.
The 1541 North Bosworth Condominium Association sued John Hanna, of Hanna Architects, alleging 2014 wind damage to the building in Chicago's Noble Square neighborhood would’ve been prevented had the city Department of Buildings reviewed plans for building code compliance. Instead, Hanna used the city’s Self-Certification Permit Program, which allows qualified structural engineers and architects to vouch for the plans they submit, bypassing mandatory review.
Cook County Judge Diane Shelley determined the Association had an implied cause of action under that ordinance, awarding more than $1.5 million in damages because the three-unit condo lacked a lateral structural support system, making it unable to sustain high winds.
Illinois First District Appellate Court Justice David W. Ellis
| illinoiscourts.gov
Hanna appealed to the Illinois First District Appellate Court, arguing Shelley was wrong to let the association sue under the ordinance or the permit program itself. Hanna also said the city lacks constitutional authority to enact an ordinance to serve as the basis for an implied cause of action and that implying such a cause eviscerates the economic-loss rule barring tort actions which seek only economic damages.
Justice David Ellis wrote the panel’s opinion, issued Dec. 29. Justices Margaret Stanton-McBride and Eileen Burke concurred.
According to the panel, the building department began implementing the permit program as early as 2008 by requiring professionals complete a “Professional of Record Self-Certification Statement.” Hanna submitted one of those forms before the department first issued administrative rules for the program in October 2009. The windstorm in question occurred on Oct. 31, 2014.
Although the association’s lawsuit targeted several entities involved with design and construction, and although the complaints against Hanna included counts of intentional and negligent misrepresentation and negligence, the only issue remaining on appeal is whether the ordinance and certification program establish a right to sue.
“There is some support for the proposition that a court may imply a cause of action in a municipal ordinance,” Ellis wrote, adding ordinances routinely have explicit provisions for lawsuits to redress violations. “We must first stop and make this fundamental observation, so basic that it should go without saying: the plaintiff must first identify the specific ordinance that was violated. A court cannot imply a cause of action out of thin air; the plaintiff must identify the legislative enactment that the defendant allegedly violated, so that the court can review the language of that enactment, along with the overall statutory scheme in which that enactment is contained, to determine whether that violation should be redressable by a private lawsuit.”
The association, the panel continued, neither cited nor quoted the language of the ordinance it alleged Hanna violated. Although the complaint and appeal reference the building code, permit program and certification statement, “without a violation of a specific ordinance, plaintiff has nothing on which to base an implied cause of action.”
The ordinance delegated authority to the building department, the panel continued, and does not inherently regulate or forbid conduct. That Hanna registered before rules existed is material — in the ordinance alone there is nothing for a firm to violate, “a death knell for a claim of an implied cause of action.” And even overlooking that shortcoming, the panel continued, the association can’t prove it was a member of a class the ordinance was supposed to benefit.
“We could not possibly find that the creation of a deregulatory provision that removes government oversight from the permitting process is aimed at enhancing safety,” Ellis wrote. “Its purpose was obviously to make it quicker and easier for contractors to obtain their permits.”
The panel said there are other avenues for homeowners to seek compensation in such situations, including by suing a developer, as that party must certify an agreement to correct any errors in the permit submission and bring completed construction into code conformity if needed.
A developer may then pursue action against an architect or any other hired firm, but since the city gives permits to developers, those developers may be directly liable for code compliance. But a homeowner cannot sue an entity with which it never had a direct contract.
The panel reversed the circuit court ruling.
Representing Hanna in the action was the Chicago firm of Laurie & Brennan.
The association has been represented by Foran Glennon Palandech Ponzi & Rudolff, of Chicago.