Aharon v. Babu
| Decision Date | 24 February 2023 |
| Docket Number | 22 C 04502 |
| Parties | REFAEL AHARON, as an Individual and as Guardian on Behalf of O.A. and I.A., Minor Children, Plaintiffs, v. SUSANY BABU, SONU ABRAHAM, YVONNE WHEELER, and WILLIAM GILL, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
in this diversity action, pro se Plaintiffs Refael Aharon (“Aharon”) and his minor children, o.A., and i.A (collectively, “Plaintiffs”) sued their landlords, Susany Babu and Sonu Abraham, and their real estate agents, Yvonne Wheeler and William Gill (collectively “Defendants”).[1]The basis of Plaintiffs' nine-count Complaint is that their rental house caused them to suffer problems from undisclosed radon, mold, lead, fungus bacteria, and unclean water. Defendants Wheeler and Gill filed a motion to dismiss (R. 13), as did Defendants Babu and Abraham (R. 26). For the following reasons, the Court grants Wheeler and Gill's motion in full, and denies Babu and Abraham's motion in part and grants it in part.
A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v. Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an unadorned the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).
Defendants Babu and Abraham purchased a house at 28W775 Grommon Road Naperville, Illinois (the “Property”) in 2018. They lived there for two years before attempting to list it for sale or rent. Id. ¶ 9. Babu, who was also a licensed real estate agent, published information online about the Property through Kale Realty and Chicagoland Brokers. Id. ¶¶ 9, 11.
In May 2021, Aharon decided to relocate his two minor children and dog from California to Naperville, Illinois. R. 8 ¶ 16. Aharon's business partner introduced him to Wheeler, a real estate agent with Baird and Warner. Wheeler suggested that Aharon consider the Property, and directed him to review information Babu had posted online. Id. ¶ 17. Wheeler then showed Aharon the property via Zoom, discussed the Property over the phone and via text messages, and introduced Aharon to Babu and Abraham. Id. ¶¶ 9, 18.
“[A]t the request of Defendants, Babu and Abraham[,] and at the insistence of Defendant Wheeler,” Aharon executed a 13.5 month lease for the Property on May 12, 2021. Id. ¶ 21. Aharon agreed to pay rent of $2,800 per month, which included all utilities except water because the Property contained a private well. Id. ¶¶ 10, 23. The lease contained a blank radon disclosure form. Id. ¶ 23; id. Ex. 5. Plaintiffs allege that all Defendants signed the lease, but the copy attached to the Complaint shows that only Babu and Abraham, the landlords, signed the lease. Id. Ex. 4. Plaintiffs could not move in until June 11, 2021. Id. ¶ 24. From the signing of the lease up to that date, Babu and Abraham continued to enter the home to perform maintenance work. Id. Babu and Abraham texted Aharon on June 10, 2021 to inform him that the water at the Property had an odor, was discolored, and contained sedimentation, but that Babu and Abraham had previously lived at the Property and that it was safe for consumption.[2]Id. ¶¶ 26-29. They also allegedly claimed the basement where O.A. was to sleep was safe. Id. ¶ 27. Upon arrival, Plaintiffs discovered the Property “was not ready for move in,” despite the lease officially beginning a month earlier. Id. ¶ 24.
Based on Babu and Abraham's assertions that the water was safe, Plaintiffs and their dog used the indoor and outdoor water taps for normal use, including bathing, drinking, and cooking. Id. ¶¶ 28, 61. They allege that, immediately after moving into the Property, Plaintiffs and their dog began experiencing health problems like bacterial and fungal infections, unexplained skin wounds, fatigue, brain fog, respiratory illnesses, coughing and sneezing, mouth ulcers, and insomnia. Id. ¶¶ 42, 63-65. They also noticed a sewage-like odor throughout the Property and that the water was corroding regular household items. Id.
Aharon began suspecting that the Property's water and air quality was the root of their issues and requested that Babu and Abraham disclose past inspection and lab reports regarding the water and air quality at the Property. Id. ¶¶ 42-43. Babu and Abraham admitted they had past test results but refused to disclose them, assuring Aharon that the water was safe, and Abraham told Aharon to perform his own tests. Id. ¶¶ 43-44. Aharon did so through “certified inspectors and labs.” Id. ¶ 45. The results of the independent tests, attached to the Complaint, revealed that the water had “toxic levels of lead, fungus and bacterial contaminations and had elevated levels of salts,” which is detrimental to short- and long-term health. Id. ¶¶ 46-47, 69 74. Lab results further revealed high levels of radon and mold in the basement at levels that pose a health risk and require mediation under the law. Id. ¶¶ 48-49, 6874.
Plaintiffs visited several doctors for their issues, had blood work done revealing high levels of lead in their blood, and had to take antibiotics and medications. Id. ¶ 50. Plaintiffs' dog suffered from “contaminants,” as confirmed by a veterinarian, and was prescribed antibiotics. Id. Plaintiffs resorted to using bottled water for daily use, “avoided using the bathroom,” and took showers at the local YMCA. Id. ¶¶ 51-52. Aharon sent a letter to Defendants on August 20, 2021 detailing the results of his private tests, and filed a complaint with the Will County Health Department. Id. ¶¶ 53-54. Plaintiffs further allege that Aharon informed Babu and Abraham of the toxic air and water quality multiple times from July to October 2021, which they ignored. Id. ¶ 55. When Plaintiffs informed Wheeler of the issues, she “initially ignored them and acted shocked,” but thereafter suggested they not pay rent and contact a lawyer. Id. ¶ 31. Plaintiffs allege that Defendants knew about the defects and hazards at the Property because: (a) they are “senior scientists, realtors, and environmental educators;” (b) Babu and Abraham previously lived at the Property and moved out because of the issues; (c) they failed to sell the Property presumably because of issues uncovered during inspections; and (d) a prior tenant complained about the issues and terminated the lease early. Id. ¶¶ 14-15, 60-61.
Plaintiffs further allege that Babu and Abraham entered the Property almost every day during the first month Plaintiffs lived at the Property without making repairs and ignored requests to make repairs. Id. ¶ 30. On June 26, 2021, Babu, Abraham, and Babu's sister entered the Property without permission. Id. ¶ 32. On July 2, 2021, “Defendants Babu and Abraham entered the property and advised the Plaintiffs they were prohibited from eating from the vegetable garden as well as the fruit from the trees in the backyard because [they] belonged solely to the Defendants.” Id. ¶ 33. And on September 27, 2021, Abraham allegedly “violently trespassed on [the Property], physically and verbally assaulted the Plaintiffs by pushing the front door to the house and Plaintiff Dr. Aharon himself, spoke violently to Plaintiff O.A. (a minor female) and blocking [sic] the driveway for hours, without notice, consent, or permission of the Plaintiffs.” Id. ¶ 58.
Plaintiffs vacated the Property in October 2021 because they allege they were “constructively evicted” by the risks to their health and safety posed by the lead, contaminants, mold, and radon. Id. ¶¶ 55-56. They left the house vacant, clean, and fully paid, including an additional month of rent. Id. ¶ 66. They allege they are still suffering adverse health effects from their time living in the Property. Id. ¶¶ 63-34.
On August 24, 2022, Plaintiffs, who had since moved to Michigan filed a nine count Complaint in this Court under its diversity jurisdiction against Wheeler, Gill (Wheeler's managing broker at Baird & Warner), Abraham, and Babu. They make the following claims against all Defendants: breach of contract (Count I), negligence and negligence per se (Count II), trespass (Count III), violations of the implied warranty of habitability (Count IV), violations of the Illinois Consumer Protection Act (Count V), failure to warn of latent defects (Count VI), “Damages to Property (Family Dog)” (Count VII), Promissory Estoppel (Count VIII), and Fraudulent Concealment (Count IX). They seek compensatory damages, including out of pocket losses from rent, lab tests, bottled water, relocation expenses, loss of income, past and future pain and...
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