concurring in part and dissenting in part:
While I agree with the majority opinion that the complaint against Schlutz was properly dismissed, I must disagree with the part of the opinion which holds that the trial court’s dismissal of the complaint against Snodgrass was improper. I believe the majority has incorrectly interpreted and applied the test for liability of independent contractors as stated in Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28, 139 N.E.2d 275. The rule states that where an independent contractor has completed the work and it has been accepted by the employer and the contractor has been discharged, the contractor is no longer liable to third persons for injuries received as the result of defective construction unless the work falls within one of three exceptions.
The exception with which the instant case is concerned holds the contractor liable “where the thing is rendered dangerous by a defect of which the constructor knows but deceitfully conceals, and which causes an accident when the thing is used for the particular purpose for which it was constructed.” (Paul Harris, 10 Ill. 2d 28, 40,139 N.E.2d 275,282.) It is important to note that the exception specifically states that the concealment must be deceitful for the contractor to be liable. Black’s Law Dictionary 493 (4th ed. 1951) defines deceit as:
“A fraudulent and cheating misrepresentation, artifice, or device, used by one or more persons to deceive and trick another, who is ignorant of the true facts, to the prejudice and damage of the party imposed upon.”
It is clear from the above definition that simple negligence is not encompassed as part of deceit. Therefore, since the exception to contractor liability speaks of deceitful concealment it is obvious that merely negligent concealment, without some type of fraud or intent to deceive, is not enough to make the contractor liable.
The rule set forth in Paul Harris was first promulgated in Healey v. Heidel (1918), 210 Ill. App. 387, on which the majority relies heavily in holding that simple negligence is actionable. In Healey the court held the defendants-independent contractors not liable for a window sill which they constructed. In its analysis, the court found the work was not defective and that, regarding the contractors, “there was no concealment or deception practiced by them.” (210 Ill. App. 387, 392.) The majority claims that the use of the disjunctive means that the court meant that both deceptive and negligent concealment were actionable. I am convinced this interpretation is erroneous. Taken within the context of the case as a whole, it is clear that the phrase “concealment or deception” was an instance of using the two words as synonyms and not with the intent of creating two separate categories of liability, fraud and negligence. To read the passage as creating a separate category of negligence is to wreak havoc with the language of the rest of the opinion in which the rule was stated. The rule specifically speaks of deceitful concealment, and makes no mention of liability for negligent concealment. Had the Healey court intended to make negligent concealment a basis for liability, it must be assumed the court would have expressly stated it as part of the rule. Since it was not so mentioned, it makes no sense to assume that the court intended to make negligence a basis for liability in a part of the opinion away from the statement of the rule. Therefore, Healey cannot serve as authority for the proposition that negligent concealment is a basis for liability.
What the majority has done is to state the rule requiring deceitful concealment and then hold that deceit is not required. As shown above, Healey is not authority for this proposition. Nor has the majority cited any other authority for this theory. The rule is that some kind of deceit or fraud is necessary for an independent contractor to be liable. Plaintiff in the instant case has failed to make any allegation that defendant Snodgrass engaged in deceit. Therefore, as a matter of law, defendant Snodgrass cannot be held liable, and the trial court was correct in dismissing plaintiff’s complaint.