Abbasi v. Paraskevoulakos
| Decision Date | 07 May 1998 |
| Docket Number | No. 1-97-1965,1-97-1965 |
| Citation | 296 Ill.App.3d 278,694 N.E.2d 1064 |
| Parties | , 230 Ill.Dec. 786 Sana Jamil ABBASI, a Minor, By and Through Her Mother and Next Friend, Jamil ABBASI, Plaintiff-Appellant, v. Panagiotis PARASKEVOULAKOS and Katina Paraskevoulakos, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Rehearing Denied June 8, 1998.
Anthony C. Valiulis; Wendy B. Kahn, Much Shelist Freed Denenberg, Chicago, for Plaintiff-Appellant.
Ellen S. Martin; Michael Resis, Querrey & Harrow, Ltd., Chicago, for Defendants-Appellees.
Plaintiff, Sana Jamil Abbasi, a minor, by and through her mother and next friend, Jamil Abbasi, filed an eight-count first amended complaint alleging that the minor tenant ingested lead while living in a dwelling unit owned and/or managed by defendants, Panagiotis Paraskevoulakos and Katina Paraskevoulakos. Counts I and V were directed against Panagiotis and Katina Paraskevoulakos, respectively, sounding in negligence and alleging as proof of negligence violations of the Illinois Lead Poisoning Prevention Act (the Act) (410 ILCS 45/1 et seq. (West 1997)) and the Chicago Municipal Code, chapters 5-4, 5-12, 7-4 and 13-196 (Chicago Municipal Code, ch. 5-4, 5-12, 7-4, 13-196 (1990)). In the remaining counts, plaintiff asserted private rights of action under the Chicago Municipal Code (counts II, IV, VI and VIII) and under the Act (counts III and VII). This appeal arises out of the dismissal of counts II, III, IV, VI, VII and VIII of plaintiff's first amended complaint.
Plaintiff filed a five-count complaint on April 16, 1996, claiming that the minor plaintiff suffered from lead poisoning ingested while residing in a rental property owned or managed by defendants from May 1990 until January 1996.
Defendants moved to dismiss this complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)). Instead of responding to the motion to dismiss, plaintiff filed a first amended complaint. This complaint contained eight counts; counts I through IV were directed against Panagiotis, and counts V through VIII were directed against Katina. Counts I and V sounded in negligence, claiming that each defendant was the owner and/or managing agent of the apartment where the minor plaintiff had lived between 1990 and 1996 and breached duties to the plaintiff evidenced by violations of the Act and the Chicago Municipal Code, titles 5, 7 and 13.
Counts II and VI stated a private cause of action for nuisance under section 5-4-090 of the Chicago Municipal Code. Chicago Municipal Code § 5-4-090 (1992). Counts III and VII stated a private cause of action under the Act. Counts IV and VIII stated a private cause of action under the Chicago Municipal Code, titles 5, 7 and 13.
Defendants answered counts I and V, the two negligence counts, and moved to dismiss the nuisance, the Act and Chicago Municipal Code counts pursuant to section 2-615. Plaintiff filed a memorandum of law in opposition to the motion to dismiss, and defendants replied.
On January 6, 1997, the trial court dismissed counts II and VI of plaintiff's first amended complaint. Defendants moved to reconsider the denial of their motion to dismiss the remaining counts on February 21, 1997. Plaintiff responded and defendants replied.
On April 16, 1997, the trial court granted defendants' motion to reconsider and dismissed counts II, III, IV, VI, VII and VIII.
The trial court's order specifically found that the Act recognizes a negligence cause of action and that, therefore, it was not necessary to imply a private cause of action in order to remedy a violation of the Act and the Chicago Municipal Code. The trial court further found that the Act and sections of the Chicago Municipal Code, chapters 5-4, 7-4, 5-12 and 13-196, did not give rise to a private cause of action but that their provisions could be the basis for a negligence cause of action as was pled in this case. Plaintiff filed a notice of appeal.
A motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615(b) (West 1994)) challenges the legal sufficiency of the complaint. Zekman v. Direct American Marketers, Inc., 286 Ill.App.3d 462, 469, 221 Ill.Dec. 570, 574, 675 N.E.2d 994, 998 (1997). A trial court should grant a motion to dismiss a cause of action only when it is clearly apparent that no set of facts can be proven that will entitle a plaintiff to recover. Doe v. Surgicare of Joliet, Inc., 268 Ill.App.3d 793, 795, 205 Ill.Dec. 593, 595, 643 N.E.2d 1200, 1202 (1994). Upon review of an order granting a section 2-615 motion, all well-pleaded facts are taken as true. Boyd v. Travelers Insurance Co., 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995). This court reviews de novo the trial court's order of dismissal under section 2-615. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.2d 110, 214 Ill.Dec. 156, 660 N.E.2d 863 (1995); Zekman, 286 Ill.App.3d at 469-70, 221 Ill.Dec. at 575, 675 N.E.2d at 999.
Plaintiff argues that section 5-12-110(e) of the Residential Landlord and Tenant Ordinance (Chicago Municipal Code § 5-12-110(e) (amended November 6, 1991)) expressly gives injured tenants a private right of action for damages against landlords who violate the ordinance. Plaintiff also asserts that she has an implied right to sue under the lead-bearing substances ordinance as well as section 13-196(d) of the Chicago Municipal Code, because the remedies specified in these ordinances do not afford sufficient relief to those injured by violation of the ordinances. Defendants contend that a private right of action is not necessary to achieve the aim of the statute or ordinances.
Implication of a private right of action on the basis of a statute or ordinance is appropriate only if: (1) plaintiff is a member of the class for whose benefit the statute was enacted; (2) it is consistent with the underlying purpose of the statute; (3) plaintiff's injury is one the statute was designed to prevent; and (4) it is necessary to provide an adequate remedy for violations of the statute. Corgan v. Muehling, 143 Ill.2d 296, 312-13, 158 Ill.Dec. 489, 496, 574 N.E.2d 602, 609 (1991). When a statute is enacted to protect a particular class of individuals, courts may imply a private cause of action for violation of that statute although no express remedy had been provided. Sawyer Realty Group, Inc. v. Jarvis Corp. 89 Ill.2d 379, 59 Ill.Dec. 905, 432 N.E.2d 849 (1982); Galinski v. Kessler, 134 Ill.App.3d 602, 89 Ill.Dec. 433, 480 N.E.2d 1176 (1985). Where the legislature had as its purpose in enacting a statute protection of a substantial segment of the public, it is proper to inquire in such circumstances whether the statute is a remedial one and whether certain private remedies are provided for within the statutory framework in order to determine whether a private right of action was intended. Rhodes v. Mill Race Inn, Inc., 126 Ill.App.3d 1024, 81 Ill.Dec. 793, 467 N.E.2d 915 (1984). Consideration of these factors supports implication of a private right of action in this case.
Section 5-12-110(e) of the Residential Landlord and Tenant Ordinance states the following:
Chicago Municipal Code § 5-12-110(e) (amended November 6, 1991).
Section 5-12-070 states:
"The landlord shall maintain the premises in compliance with all applicable provisions of the municipal code and shall promptly make any and all repairs necessary to fulfill this obligation." Chicago Municipal Code § 5-12-070 (amended November 6, 1991).
It would appear from a plain reading of section 5-12-110(e) that an injured tenant has an independent right to sue the landlord for damages for a material violation of section 5-12-070. Here, where plaintiff alleges that there were multiple violations of the ordinance that led to the premises not being in a habitable condition, plaintiff as a lawful tenant has a private right of action against the landlord.
Defendants' argument that the landlord/tenant ordinance does not apply in this instance because plaintiff failed to allege that the premises comprised more than six units and were not owner-occupied has been waived for failure to raise this argument in the lower court.
Analysis of this case in terms of the four factors the court has used to determine whether a private right of action exists leads to the following results. In the case of the Residential Landlord and Tenant Ordinance, the purpose is "to protect and promote the public health, safety and welfare" of tenants by requiring landlords "to maintain and improve the quality of housing." Chicago Municipal Code § 5-12-010 (1992). While criminal penalties exist to compel landlords to maintain their property, these penalties fall short of addressing the injuries to tenants. More importantly, such penalties do not impel landlords to fulfill their obligations under the ordinance. In order to do so, a civil right of action would be needed in order for tenants to enforce their rights.
The lead-bearing substances ordinance not only bars landlords from using lead-bearing substances or maintaining lead hazards in residential property, but also obligates them to maintain property so as to prevent and safely abate such hazards. Chicago Municipal Code §§ 7-4-020, 7-4-030, 7-4-110 (1994). The goal of chapter 13-196 is to ensure that landlords keep leased premises in compliance with Code requirements and "free of flaking, peeling, chipped or loose paint, plaster or structural material." Chicago Municipal Code §§ 13-196-010, 13-196-540(d) (1990)....
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Abbasi ex rel. Abbasi v. Paraskevoulakos
...(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 C......
- Abbasi v. Paraskevoulakos