Products Liability Law Daily Wrap Up, DAMAGES—BUILDING AND CONSTRUCTION—Ill. App.: Judgment in favor of consumer upheld in driveway deterioration action, (Feb 21, 2025)

By Pankhuri Bhatnagar, B.A. LL.B.

A consumer’s claims were not barred by the economic loss doctrine as they were purportedly based on strict products liability, and the contractor failed to provide a record of the trial proceedings.

In an action brought against a contractor by a woman whose driveway deteriorated within a year of replacement, an Illinois appellate court affirmed a circuit court’s judgment in favor of the consumer. The appellate court found that the woman established proximate causation by presenting photographs of the damage and testifying that she was not informed that the driveway needed to be sealed. In addition, the contractor’s theory of damage was unsupported by witness testimonies, and the spreading of the damage entitled the consumer to an award of the entire amount she had paid for the new driveway plus court costs (Zinkan v. Krones Concrete, No. 5-23-0471 (Ill. App. Feb. 18, 2025)).

Background. An 86-year-old woman sought to replace her residence’s original driveway laid in 1957 for cosmetic reasons and in case she wanted to sell her house. Her son hired Krones Concrete (contractor) to replace the driveway for $6,000 and the work was completed in March 2021. By February 2022, the concrete’s top layer began to crumble and flaked off if touched, making the driveway unsightly and diminishing the residence’s property value. The contractor allegedly blamed the concrete supplier for the deterioration and did not offer to repair the driveway or refund her money. The consumer believed that the workers improperly laid and inadequately prepared the fresh cement for the driveway. Accordingly, she filed a small claims action against the contractor, seeking the amount she paid for the work. She could not recall if her son informed her that the driveway needed to be sealed but stated that she would have gotten it done if she was told it was needed.

Contractor’s testimony. Krones Concrete’s owner testified that (1) he had been in the concrete business for 22 years and had completed thousands of driveways; (2) the subject damage was consistent with damage from ice melt, chemicals, or salt; (3) even if the homeowner did not use any salt, chemicals, or ice melt, the city used harsh chemicals on the streets and a vehicle could track those chemicals on a driveway in the winter months, which is why the woman did not face any issues with the driveway until the winter months; (4) the concentration of damage at the bottom was consistent with damage caused by the harsh chemicals that salt trucks spray as they drive by; (5) an issue with the concrete would have been visible in all concrete layers rather than the top layers; (6) the contractor always stressed the importance of sealing driveways to customers but the son declined that service; (7) when contacted about the damage, he offered to power wash the driveway and seal it but the woman refused; and (8) the driveway was usable since there was no structural damage, only cosmetic damage that could have been prevented by sealing.

Prior proceedings. A trial court entered judgment in favor of the woman, awarding her damages of $6,000 plus court costs. The court noted that the driveway started crumbling within eight months of installation as evidenced by the photographs on record and that although the owner speculated that the woman must have used de-icer or that municipal snow removal trucks sprayed chemicals on her driveway, neither party’s testimony supported those theories. The contractor moved to reconsider or for rehearing and to vacate this judgment. It argued that there was no evidence of proximate cause, that the concentration of deterioration at the bottom supported its theory, that there was no proof of the cost of the alleged damage or the reduction in the value of the home, and that the woman’s claimed losses (repair and replacement costs, and diminution in value of the product) were purely economic and thus not recoverable in a negligence case. The court declined the reconsideration motion, and the contractor appealed.

Economic loss rule. The consumer claimed that she did not seek to recover pure economic loss under a negligence theory and instead sought damages based on strict products liability since the contractor manufactured a product (the driveway) which was defective. The contractor did not file a reply brief and, thus, any issue that could have been raised to the woman’s claim was forfeited. Further, Krones Concrete did not raise its economic loss argument until filing its reconsideration motion. It was unclear whether the consumer argued, at the trial court level, that her complaint alleged strict products liability; and, if so, how the court responded to that argument. The appellant has the burden to present a sufficiently complete record of the trial proceedings to support a claim of error. In the absence of such a record, it is presumed that the trial court’s order was in conformity with the law and had a sufficient factual basis.

Causation. Proximate cause is established if it is reasonably certain that the defendant's acts caused the plaintiff's injury. Here, the woman presented evidence of her driveway deteriorating eight months after being replaced by Krones Concrete and testified that she had never used de-icer, salt, and other chemicals on the driveway, nor was she informed that the driveway needed to be sealed. The lower court found her testimony credible and noted that the city’s testimony did not support the contractor’s damage theory either. As held in Vician v. Vician, 2016 IL App (2d) 160022, ¶29, a trial court is in the best position to evaluate the conduct and demeanor of the witnesses, and a reviewing court gives great deference to its determinations. Accordingly, the trial court’s decision was not against the manifest weight of the evidence.

Damages. Krones Concrete also challenged the amount of damages claimed, pointing out that the woman sought the entire amount she paid for the new driveway when the damage was merely cosmetic, some concrete could be salvaged, and there was no proof of the property value’s reduction. However, the woman explained that the damage began at one point and then spread until most of the driveway was crumbling and flaking. Accordingly, the trial court awarded her the entire amount that she had paid for the new driveway plus court costs, and this decision was not against the manifest weight of the evidence.

Motion denial. Finally, the contractor contended that there were several issues brought to the trial court’s attention regarding the defective judgment, but the court ignored those issues and denied its right to fundamental justice. However, the contractor failed to identify which issues were ignored by the trial court. The issues raised in its brief had already been addressed and found to be meritless. To the extent it was referencing issues not raised in its brief, this court found those issues to be forfeited. Therefore, the lower court’s judgment was affirmed.

The case is No. 5-23-0471.

Judge: Welch, T.

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