Architect Not Liable For Flawed Plans Submitted to Self-Certification Program

A Chicago ordinance that allows developers to bypass the usual plan review by city building officials by submitting self-certification from an architect did not give homeowners a right to take legal action against that architect after design flaws were discovered, an Illinois appellate court ruled.

A panel of the Illinois Appellate Court’s First Judicial District on Wednesday reversed a circuit court decision that awarded $1.5 million to the 1541 North Bosworth Condominium Association because of structural damage suffered during an October 2014 windstorm. The court said the association’s only remedy was to sue the developer of the property, although in this case the developer is no longer in business and the original owner had waived any implied warranty.

“To call this a series of unfortunate events is an understatement,” the appellate panel said in its opinion.

The Chicago City Council created the Self-Certification Permit Program in 2008 as a means of speeding up city review of proposed construction projects. Typically, plans must be stamped by city building officials before any dirt is turned, but the SCCP waives plan review if the developer submits a letter from a licensed architect or engineer that certifies the plans comply with the city’s building code.

Although the city did not implement rules for the SCCP until 2009, city officials started allowing plans to submitted for self-certification the year before. The developer of a three-year condominium building on Bosworth Avenue hired architect John C. Hanna to design the project and submit a self-certification letter to the city in 2008. Permits were issued and the building was finished in 2009. The three units were sold and then resold by 2014, when a Halloween Day windstorm caused the building to sway and caused cracking and structural damage, according to the opinion.

A structural engineer determined that the building was constructed without a lateral structural support system to withstand wind loads. The wind caused severe structural damage that was estimated to cost $500,000 to $1.5 million to repair.

The condo association filed suit against the developer, the general contractor and Hanna and his company, Hanna Architects. Hanna had admitted that he did not structural calculations and went with a “gut feeling,” according to the opinion.

The association won a default judgment against the defunct contractor who built the condo building. It dropped its claims against the developer—also a dissolved corporation—after discovering the original owners of the property had waived any implied warranties.

But the association’s lawsuit against Hanna resulted in a $1.5 million judgment against Hanna after a bench trial. Even though nothing in the city’s ordinances says that property owners can sue if an architect submits faulty plans for self certification, Cook County Circuit Court Judge Diane M. Shelley ruled that the condo owners had an “implied cause of action” against Hanna.

The appellate panel said courts at time will find that plaintiffs have an implied right of action under a statute if they are member of a class that the statute is designed to benefit, suffer an injury that the statute was designed to prevent and an implied right of action is necessary to provide an adequate remedy.

But there has to be an actual statute for an implied right of action to exist, the court said. At the time the Bosworth Avenue developer received building permits through the self-certification permit program in 2008, the city had not yet established any formal rules for the program.

The court said the condo association, in its pleadings, did not point to any specific ordinance that created the implied cause of action. Instead, its lawyers discussed the self-certification program in general, the self-certification letter and the city building code.

“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 opinion says.