Cooper v. Dr. Martin Luther King Jr. Boys & Girls Club of Chi.

2021 IL App (1st) 192618

193 N.E.3d 197

456 Ill.Dec. 229

Clifton COOPER, Plaintiff-Appellant,

v.DR. MARTIN LUTHER KING JR. BOYS AND GIRLS CLUB OF CHICAGO, an Illinois Not-for-Profit Corporation; and Ridgeworth Roofing Company, Inc., Defendants,

(Dr. Martin Luther King Jr. Boys and Girls Club of Chicago, Defendant-Appellee)

No. 1-19-2618

Appellate Court of Illinois, First District, THIRD DIVISION.

Filed September 30, 2021

Calvita J. Frederick, of Chicago, for appellant.

Daniel R. Campbell and Timothy J. Farina, of McDermott Will & Emery LLP, of Chicago, for appellee.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Clifton Cooper, sued his neighbor and the neighbor's roofing contractor over damage to Cooper's roof. In short, the contractor was attempting to place a new roof on top of the neighbor's existing roof and secure it to Cooper's roof, without Cooper's consent or even knowledge. The contractor drilled holes in and otherwise damaged Cooper's roof in the process. The circuit court dismissed the claims against the neighbor under section 2-615 of the Code of Civil Procedure ( 735 ILCS 5/2-615 (West 2018) ) for failure to state a claim. Cooper claims he sufficiently pleaded vicarious and in-concert liability against the neighbor, based on the roofing contractor's actions. We agree. We reverse the circuit court's judgment on those claims and remand for further proceedings.

¶ 2 BACKGROUND

¶ 3 As we are at the pleading stage, we draw our facts from the well-pleaded allegations of the amended complaint, which we accept as true. Marshall v. Burger King Corp. , 222 Ill. 2d 422, 429, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006). The complaint alleges that Cooper owns a 3-story masonry brick home in Chicago that carries a "City of Chicago Historical Designation," which "limits what can be done to the exterior of the building." The building next to him is owned by defendant, Dr. Martin Luther King Jr. Boys and Girls Club of Chicago (the Club). The two buildings are very close to one another, separated by "at least 6-8 inches."

¶ 4 At some point in March 2018, the Club hired defendant, Ridgeworth Roofing Company, Inc. (Ridgeworth), to repair the roof of its building. The building permit authorized a "total roof tear off and installation of a new roof." On March 19, Cooper was inside his home when he "heard the sounds of drilling coming from the roof and plaster falling between the buildings." He went outside and saw that a bracket had been drilled into the side of his house. Cooper was unable to get the attention of the workers on the roof, so he called the Club's corporate office.

¶ 5 A few days later, Cooper spoke with Thomas Krueger, an employee of the Club who "was in charge of the roofing project." Krueger told Cooper that he was recovering from hip replacement surgery but "would have someone from [Ridgeworth] come to Plaintiff's house." The same day, Cooper spoke with Ridgeworth's foreman. When asked why the roofers had attached the bracket to the side of Cooper's roof, the "foreman indicated that he thought he was doing [Cooper] a favor by attaching [the Club's roof] to [Cooper's] roof to keep water from coming into [Cooper's] basement." Cooper claims the foreman "then said, ‘I grant you we should have asked you first before attaching it.’ "

¶ 6 Cooper asked to have the attached roofing materials removed from his building. To try sating Cooper, the foreman offered to show him the work they had done. They went on the roof and "observed that Ridgeworth had wrapped the rubber roofing around the back portion of his house and they had wrapped white material on his house which had been tuck pointed in red." After viewing the work, Cooper still wanted the materials removed.

¶ 7 At the beginning of April, Krueger called Cooper to discuss the matter. Krueger "attempted to apologize on behalf of the Club and the [sic ] Ridgeworth and to reach an agreement between Ridgeworth and [Cooper], which [Cooper] refused to do."

¶ 8 Cooper had his roofing company look at Ridgeworth's work. Upon inspection, Cooper's roofers said that the Club "has a problem, in that they cannot go up and over the existing gravel roof with a rubber roof, but must instead perform a total tear off of the existing roof." They also informed him that "for Ridgeworth to take that off your roof ... will require [Cooper] to tuck point again, remove the bricks because they have holes in them, but the stone portion (decorative portion) cannot be replaced so [Cooper] will have to live with holes being drilled into his building which holes are visible from the ground."

¶ 9 Due to the damage to his home, Cooper filed a complaint with the Chicago Building Department. The Chicago Building Department determined that Ridgeworth was required to remove the work done on Cooper's building and refrain from further work without his consent.

¶ 10 Cooper filed this suit to recover for the damage caused to his home, asserting various tort theories against both the Club and Ridgeworth. The only claims relevant here are those against the Club for negligence (based on its vicarious liability for Ridgeworth's tortious acts) and "in-concert" liability (for the Club acting "in concert" with Ridgeworth in its tortious acts).

¶ 11 The Club moved to dismiss, arguing that Cooper's allegations showed that Ridgeworth was an independent contractor for whom the Club could not be vicariously liable, and there were no facts pleaded to show an agency relationship or that the Club and Ridgeworth acted "in concert." It is unclear whether the court granted these initial motions, as Cooper sought leave to amend in lieu of responding. Ultimately, the court granted Cooper leave to amend his complaint.

¶ 12 The amended complaint added a few paragraphs regarding agency, including more specificity as to Krueger, the Club's employee:

"40. The Club and Ridgeworth entered into a principal/agency relationship.

41. A principal/agency relationship existed between the Club and Ridgeworth.

42. The Club controlled or had the right to control the conduct of Ridgeworth.

43. The conduct described above as related to the installation of roofing material, drilling holes into Plaintiff Premises and attaching retention stripes to [Cooper's building] is conduct on the part of Ridgeworth that fell within the scope of agency.

44. Krueger was or is an agent, servant and or employee of the Club.

45. Krueger had the right and/or authority to direct the activities of Ridgeworth.

* * *

48. The Club retained the right to approve the work done on the roof ... through its agent, servant and or employee Krueger, and others.

49. The Club retained the right to supervise and or otherwise control the manner in which Ridgeworth performed the professional roofing services on the Club's building."

¶ 13 Once again, the Club moved to dismiss, arguing that, "[a]lthough [Cooper] recites the legal elements of a principal-agent relationship, [he] fails to plead facts showing that Ridgeworth acted as the Club's agent." It further argued there were no facts giving rise to "in-concert" liability.

¶ 14 Cooper responded that whether Ridgeworth was an independent contractor or an agent of the Club was a question of fact. He also claimed that it "is unrealistic to think that Ridgeworth decided to do an up and over rubber roof, instead of a total tear off and did not discuss and obtain the approval of the Club to make this drastic alteration to the plans for the roof of the Club's building." He thus concluded that the Club must have had control over the roofing project. Cooper also leaned heavily on the fact that the complaint alleged Krueger was "in charge" of the roofing project and attempted to help resolve Cooper's issue with Ridgeworth.

¶ 15 The court determined that the allegations of a principal-agent relationship between the Club and Ridgeworth were "conclusory statements of fact. They are not factual allegations regarding or supporting the relationship." Further, the court noted that "Plaintiff did in their response argue the inference between the relationship; however, the factual inferences are not contained in the complaint, and because they're not in the complaint, but they are in the motion, I'm disregarding the motion allegations because they need to be in the complaint." The court concluded by saying that "all" of the allegations of damage were attributable to Ridgeworth and did not support the conclusion of a principal-agent relationship. The court likewise found insufficient allegations to support "in-concert" liability against the Club.

¶ 16 Within the time allowed by the court, Cooper sought leave to file a second amended complaint. The Club objected, claiming that Cooper failed to cure the defects and it would be "futile" to allow the amendment.

¶ 17 On November 20, 2019, the court entered an order denying Cooper's motion to amend and dismissing the Club as a party-defendant "with prejudice." The order denying leave to amend and dismissing the Club contained the finding, pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), that "there is no just reason to delay appeal of this order." (The claims against Ridgeworth remain pending in the circuit court, thus the Rule 304(a) language.)

¶ 18 Within 30 days of the dismissal "with prejudice" of the Club from the lawsuit and the 304(a) finding, Cooper filed his notice of appeal.

¶ 19 ANALYSIS

¶ 20 Cooper argues that the court erred in granting the Club's section 2-615 motion to dismiss the vicarious liability and "in-concert" claims against the Club or, alternatively, erred by refusing to allow his second amended complaint.

¶ 21 A section 2-615 motion challenges the sufficiency of a complaint on its face. Chandler v. Illinois Central R.R. Co. , 207 Ill. 2d 331, 348, 278 Ill.Dec. 340, 798 N.E.2d 724 (2003). Like the trial court, we accept as true all well-pleaded facts and the inferences from those facts. Marshall , 222 Ill. 2d at 429, 305 Ill.Dec. 897, 856 N.E.2d 1048. The...