Abbasi ex rel. Abbasi v. Paraskevoulakos

• Decision Date: 01 July 1999
• Docket Number: No. 85835.,85835.
• Citation: 187 Ill.2d 386,718 N.E.2d 181,240 Ill.Dec. 700
• Parties: Sana Jamil ABBASI, a Minor, by and Through Her Father and Next Friend, Jamil ABBASI, Appellee, v. Panagiotis PARASKEVOULAKOS et al., Appellants.
• Court: Illinois Supreme Court

718 N.E.2d 181

187 Ill.2d 386

240 Ill.Dec. 700

Sana Jamil ABBASI, a Minor, by and Through Her Father and Next Friend, Jamil ABBASI, Appellee, v. Panagiotis PARASKEVOULAKOS et al., Appellants.

No. 85835.

Supreme Court of Illinois.

July 1, 1999.

Rehearing Denied October 4, 1999.

William R. Quinlan, John F. Kennedy, James A. Niewiara, Jean M. Prendergast, Quinlan & Crisham, Ltd., Michael Resis, O'Hagan, Smith & Amundsen, Chicago, for Panagiotis Paraskevoulakos.

Anthony C. Valiulis, Wendy B. Kahn, Deborah S. Bussert, Much, Shelist, Freed, Denenberg, Ament & Rubenstein, P.C., Chicago, for Sana Jamil Abbasi.

Stephen J. Bochenek, Charles J. Northrup, Sorling, Northrup, Hanna, Cullen and Cochran, Ltd., Springfield, for Amicus Curiae, Illinois Association of Realtors.

Frank Timons, Bruce R. Pfaff & Associates, Ltd. (Timothy W. Heath, Hegarty & Heath, of counsel), Chicago, for Amicus Curiae, Illinois Trial Lawyers Association.

Chief Justice FREEMAN delivered the opinion of the court:

Plaintiff, Sana Abbasi, through her father, Jamil Abbasi, brought an action in the circuit court of Cook County against defendants, Panagiotis Paraskevoulakos and Katina Paraskevoulakos. Plaintiff sought damages for injuries that she received from ingesting lead-based paint.

The circuit court struck those counts of the complaint that alleged private causes of action based on defendants' violations of the Lead Poisoning Prevention Act (Act) (410 ILCS 45/1 et seq. (West 1996)) and several chapters of the Chicago Municipal Code (City Code) (Chicago Municipal Code, chs. 5-4, 5-12, 7-4, 13-196 (1990)). The appellate court reversed the dismissal. 296 Ill.App.3d 278, 230 Ill.Dec. 786, 694 N.E.2d 1064.

We allowed defendants' petition for leave to appeal. 177 Ill.2d R. 315(a). We hold that neither the Act nor the City Code supports a private cause of action. We reverse the appellate court and remand the cause to the circuit court for further proceedings.

BACKGROUND

In determining whether to allow a motion to dismiss, a court must take as true all well-pled allegations of fact contained in the complaint and construe all reasonable inferences therefrom in favor of the plaintiff. Vernon v. Schuster, 179 Ill.2d 338, 341, 228 Ill.Dec. 195, 688 N.E.2d 1172 (1997).

Plaintiff's first-amended complaint alleged as follows. From May 1990 through January 1996, plaintiff was approximately two through six years old. During that time, plaintiff and her family were tenants in an apartment in Chicago; defendants owned and managed the building. Surfaces in the apartment were covered with deteriorated paint containing a dangerously high level of lead. Plaintiff ingested the lead-based paint in the form of dust, flakes, or chips, and was thereby injured.

Counts I through IV of the eight-count complaint were directed against Panagiotis, and counts V through VIII repeated those claims against Katina. Plaintiff pled three general theories of recovery: common law negligence evidenced by violations of the Act and of the City Code, a private cause of action under the Act, and a private cause of action under various chapters of the City Code.

Counts I and V stated a cause of action for negligence. Those counts alleged that defendants owed duties to plaintiff, which defendants breached. Defendants owed plaintiff a duty to maintain the building in a habitable and safe condition, and to exercise reasonable care in owning, managing, and maintaining it. Further, defendants owed plaintiff a duty based on defendants' actual or constructive knowledge that: (1) the building's surfaces were covered with lead-based paint; and (2) plaintiff may ingest the paint in the form of dust, flakes, or chips, thereby rendering the paint dangerous to children. See Garcia v. Jiminez, 184 Ill.App.3d 107, 109-12, 132 Ill.Dec. 550, 539 N.E.2d 1356 (1989).

Defendants knew or should have known about the presence of lead-based paint in the building because, inter alia, in 1992, with defendants' knowledge, the Chicago Department of Health inspected the building for lead-based paint, and notified defendants that the building contained such paint; the City of Chicago sued defendants for lead-based paint violations; and plaintiff's family complained to defendants about the condition of the building and, after plaintiff was diagnosed as being lead-poisoned, complained to defendants about the presence of lead paint.

Defendants breached these duties, i.e., were negligent, by violating several provisions of the Act and of the City Code. As a proximate result of this breach, plaintiff was injured. Plaintiff sought, inter alia, damages and injunctive relief.

Counts III and VII alleged a private cause of action under the Act. Those counts contained the identical allegations as to duty, and allegations that defendants breached their duty to plaintiff. However, instead of characterizing defendants' violations of the Act as negligence, those counts simply stated that defendants violated the Act.

Counts II and VI alleged a private cause of action for nuisance under section 5-4-090 of the City Code (Chicago Municipal Code § 5-4-090 (1990)). Counts IV and VIII alleged a private cause of action under titles 5, 7, and 13 of the City Code. Similar to counts III and VII, these counts all state that defendants violated various sections of the City Code, without characterizing those violations as negligence.

Defendants answered the negligence counts and moved to dismiss the remaining counts that alleged private causes of action under the Act and the City Code. The circuit court granted defendants' motion to dismiss. The court found that the Act and the City Code did not give rise to private causes of action, but that their violation could serve as evidence of negligence. The circuit court also found no just reason to delay an appeal of the decision. See 155 Ill.2d R. 304(a).

The appellate court reversed the dismissal. With one justice dissenting, the appellate court recognized a private cause of action for violation of the Act. 296 Ill. App.3d at 283-85, 230 Ill.Dec. 786, 694 N.E.2d 1064. The court unanimously recognized a private cause of action for violation of the City Code. 296 Ill.App.3d at 281-83, 230 Ill.Dec. 786, 694 N.E.2d 1064.

Defendants appeal. We granted the Illinois Trial Lawyers Association leave to file an amicus curiae brief in support of plaintiff; we also granted the Illinois Association of Realtors leave to file an amicus curiae brief in support of defendants. 155 Ill.2d R. 345.

DISCUSSION

This case is before us following the dismissal of plaintiff's claims pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)). A section 2-615 motion attacks the legal sufficiency of a complaint. The question presented by a section 2-615 motion to dismiss is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. Review is de novo. Vernon, 179 Ill.2d at 344,

228 Ill.Dec. 195,

688 N.E.2d 1172.

I. Private Right of Action Under the Act

Defendants contend that the appellate court erred in recognizing a private right of action for violation of the Act. The Act restricts the sale and use of lead-bearing products, specifically providing in pertinent part:

"§ 3. Lead bearing substance use. No person shall use or apply lead bearing substances:

(a) In or upon any exposed surface of a dwelling or dwelling unit;

* * *

(c) In or upon any fixtures or other objects used, installed, or located in or upon any exposed surface of a dwelling or residential building, or child care facility, or intended to be so used, installed, or located and that, in the ordinary course of use, are accessible to and chewable by children;

* * *

(e) Within or upon a residential building or dwelling, child care facility, school, playground, park, or recreational area, or other areas regularly frequented by children." 410 ILCS 45/3 (West 1996).

The Act requires that health care providers or officers report verified cases of lead poisoning to the Illinois Department of Public Health (Department). 410 ILCS 45/7 (West 1996). The Act establishes the responsibilities of the Department in investigating buildings occupied by persons who screen positive for lead poisoning. 410 ILCS 45/8 through 8.2 (West 1996). If the inspection report identifies a lead hazard, the Act requires the building owner to remove, cover, or otherwise deny children access to the leaded surface. 410 ILCS 45/9 (West 1996). Further, the Act specifically requires that all mitigation of lead hazards "shall be accomplished in a manner which will not endanger the health or well-being of residential building or dwelling unit occupants, and will result in the safe removal from the premises, and the safe disposition, of flakes, chips, debris, dust, and other potentially harmful materials." 410 ILCS 45/11 (West 1996).

The Act provides that its violation, except for the reporting obligation of health care providers, is punishable as a Class A misdemeanor. 410 ILCS 45/12 (West 1996). The Act also provides in pertinent part:

"§ 15. Other relief. Nothing in this Act shall be interpreted or applied in any manner to defeat or impair the right of any person * * * to maintain an action or suit for damages sustained or for equitable relief, or for violation of an ordinance by reason of or in connection with any violation of this Act. The failure to remove lead based substances within the time prescribed by this Act shall be prima facie evidence of negligence in any action brought to recover damages for injuries incurred after the expiration of that period. This Act shall not prohibit any city * * * or other political subdivision from enacting and enforcing ordinances

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