Statutes of Repose and a Duty to Maintain
We've previously discussed the Illinois construction statute of repose (735 ILCS 5/13-214). The benefits it conferred to design professionals and others by the statute's ten-year limitation cannot be underestimated.
In Ryan v. Commonwealth Edison Company (Doc. No. 1-06-3309, 1st Dist. Ill. App.) the Illinois first district appellate court has broken with itself and sided with the third district in asserting a "status/activity" distinction for claims that will be barred under the statute of repose.
The court was confronted with the issue of whether Com Ed's duty to maintain a transformer that exploded and injured the plaintiff was separate and apart from its installation work and therefore, not subject to the statute of repose. The court found that Com Ed's status as an installer and any claims that arose from the installation might fall under the statute of repose, but made a determination that since Com Ed had a duty to maintain the equipment (derived from its capacity as the power supplier and not its status as the installer) the statute would not apply.
- Now that we have a definite split, we could see the Illinois Supreme Court address the "status/activity" distinction. More importantly, because the court made the determination regarding Com Ed's duty in this case, we should be alert for more judicial determinations of ongoing duty. Will the decision only apply to utility companies supplying services which necessitate a duty to maintain equipment? Even apart from any undertaking to maintain structures/equipment after installation? Even when the duty has been contracted or left in the hands of some other entity like a municipality?
