Cerniglia v. Farris, 4-87-0095

• Decision Date: 17 September 1987
• Docket Number: No. 4-87-0095,4-87-0095
• Citation: 160 Ill.App.3d 568,113 Ill.Dec. 10,514 N.E.2d 792
• Parties: , 113 Ill.Dec. 10 Mary CERNIGLIA, Plaintiff-Appellant, v. Kenneth H. FARRIS, Evelyn J. Farris and Georgianna Cooper, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 792

514 N.E.2d 792

160 Ill.App.3d 568, 113 Ill.Dec. 10

Mary CERNIGLIA, Plaintiff-Appellant, v. Kenneth H. FARRIS, Evelyn J. Farris and Georgianna Cooper Defendants-Appellees.

No. 4-87-0095.

Appellate Court of Illinois Fourth District.

Sept. 17, 1987.

Brian T. Otwell, Presney, Kelly & Appleton, Springfield, for plaintiff-appellant.

Robert J. Eggers, Holley, Keith & Huntley, Springfield, for Cooper.

Heyl, Royster, Voelker & Allen, Springfield, for Farris; John A. Ess, Michael C. Upperman, of counsel.

Justice KNECHT delivered the opinion of the court:

Plaintiff, Mary Cerniglia, brought this action in the circuit court of Sangamon County January 7, 1986. She sought to recover for injuries sustained in a fall January 10, 1984, at the residence of her daughter, Georgianna Cooper (Cooper). Named as defendants were Kenneth Farris and Evelyn Farris (Farrises), alleged lessors of the premises, and Cooper. The circuit court granted the Farrises' motion for summary judgment and allowed Cooper's motion to dismiss count III. Plaintiff appeals, contending a genuine issue of material fact exists precluding summary judgment. She also claims the trial court erred in granting Cooper's motion to dismiss. We affirm.

On January 7, 1986, plaintiff filed a three-count complaint in the circuit court of Sangamon County. She sought recovery for injuries sustained January 10, 1984, when she fell down a stairway at Cooper's leased residence in Springfield. On September 19, 1986, the court granted the Farrises' motion for summary judgment on counts I and II filed pursuant to section 2-1005 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1985, ch. 110, par. 2-1005). Cooper's supplemental motion to dismiss count III was allowed December 17, 1986. Plaintiff filed her notice of appeal January 15, 1987.

Count I of the verified complaint, directed to Kenneth Farris (Kenneth), alleged Kenneth owned the premises in question and leased it to Cooper. Plaintiff stated she "had an occasion" to visit Cooper on January 10, 1984. Two doors, separated by a stairway and a breezeway, provided egress from the residence. While exiting the inner door, plaintiff fell down the stairway, and was injured.

Plaintiff alleged Kenneth owed her a duty to maintain the leased premises in a reasonably safe manner. She alleged he failed to provide adequate lighting and safety railings on the stairway, failed to maintain the exit in a reasonably safe manner, allowed the carpeting on the stairs and approach to reach a state of disrepair creating an unreasonably dangerous condition, and failed to warn plaintiff and others of the alleged dangerous and latent condition. Count II was directed to Evelyn Farris (Evelyn) and repeated the allegations of count I.

Plaintiff's third count, directed toward Cooper, alleged Cooper owed a duty to plaintiff "to maintain her leasehold in a reasonably safe manner." She alleged Cooper allowed inadequate stairway lighting, failed to maintain the exit in a reasonably safe manner, allowed the carpeting on the stairs and approach to reach a state of disrepair creating an unreasonably dangerous condition, and failed to warn plaintiff and others of the dangerous latent condition.

In the Farrises' answer filed February 7, 1986, and amended July 29, 1986, Kenneth denied he owned or leased the property. Evelyn admitted she was owner and lessor. The Farrises denied all other allegations of the complaint and filed an affirmative defense alleging plaintiff's comparative fault.

Cooper's "Supplemental Motion to Dismiss," filed pursuant to section 2-615 of the Code (Ill.Rev.Stat.1985, ch. 110, par. 2-615) asserted count III failed to state a cause of action. Cooper stated that as a social visitor, plaintiff was a licensee, to whom Cooper's only duty was to refrain from wilful and wanton conduct. Since plaintiff failed to allege such conduct, no duty existed as a matter of law.

On September 2, 1986, the Farrises filed a motion for summary judgment pursuant to section 2-1005(b) of the Code (Ill.Rev.Stat.1985, ch. 110, par. 2-1005(b)). The Farrises alleged they owed no duty to plaintiff, and attached affidavits in support of their motion. Kenneth's affidavit stated he did not own the premises or lease it to Cooper. He also stated he had no knowledge of any defects in the carpeting, handrails, and light fixtures, which had been installed prior to September 15, 1980, the effective date of Cooper's lease. He stated the premises consisted of a single-family dwelling and he retained no care, custody or control of the premises. Evelyn's affidavit contained the same statements as Kenneth's, though she did not deny ownership of the premises or that she was Cooper's lessor.

Plaintiff filed no response to the motion for summary judgment. Cooper's response opposing summary judgment was filed September 9, 1986. In support of her contention the landlord retained control over the premises, she attached a photocopy of her lease dated September 11, 1980. Cooper based her position on paragraph 3, which states in pertinent part:

"[T]hat no changes or alterations of the premises shall be made or partitions erected, nor walls papered without the consent in writing of said lessor; that said second party [lessee] will make all repairs required to the walls, ceilings, paint, plastering, plumbing work, pipes, and fixtures belonging to said premises, whenever damage or injury to the same shall have resulted from misuse or neglect; and second party agrees to pay for any and all repairs that shall be necessary to put said premises in the same condition as when he entered therein, reasonable wear and loss by fire excepted, and that the expense of such repairs shall be included within the terms of this lease and judgment by confession entered therefor."

Cooper asserted this paragraph showed lessor was to make all repairs required other than those caused by misuse and neglect, and that lessor expressly retained control over alterations. The trial court granted the Farrises' motion for summary judgment.

Summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact, and that the movant is entitled to judgment as a matter of law. (Clifford-Jacobs Forging Co. v. Capital Engineering & Manufacturing Co. (1982), 107 Ill.App.3d 29, 33, 62 Ill.Dec. 785, 788, 437 N.E.2d 22, 25.) If the facts admit of more than one conclusion or inference, including one unfavorable to the moving party, the motion should be denied. (Smith v. Rengel (1981), 97 Ill.App.3d 204, 206, 52 Ill.Dec. 937, 939, 422 N.E.2d 1146, 1148.) The court has a duty to construe the evidence strongly against the movant and liberally in favor of opponent. (Stringer v. Zacheis (1982), 105 Ill.App.3d 521, 522, 61 Ill.Dec. 113, 115, 434 N.E.2d 50, 52.) A reviewing court will reverse the order granting summary judgment if it determines a genuine issue of material fact does exist. Casteel v. Smith (1982), 109 Ill.App.3d 1094, 1098-99, 65 Ill.Dec. 545, 548, 441 N.E.2d 860, 863.

Plaintiff argues summary judgment is precluded by three factual issues. Those issues are (1) whether the alleged defective conditions were latent or whether the Farrises had constructive knowledge of the defects at the time of leasing; (2) whether the lease implies a duty by lessor to make structural repairs, and whether lessors negligently performed their duties thereunder; and (3) the character of Cooper's tenancy following the expiration of the lease on September 14, 1981. The Farrises argue summary judgment was proper. They contend the lease is not properly in evidence and cannot be employed in review by this court.

A lessor is not generally liable for injuries resulting from defective conditions where the premises are wholly demised. (Gilbreath v. Greenwalt (1980), 88 Ill.App.3d 308, 309, 43 Ill.Dec. 539, 541, 410 N.E.2d 539, 541.) Plaintiff claims this case falls within two of the five exceptions to the general rule of nonliability articulated in Gilbreath. One exception applies when a latent defect exists at the time of leasing, which defect is known or should have been known to the lessor in the exercise of reasonable care, and which could not have been discovered upon reasonable examination of the premises by the lessee. The second exception applies where the lessor promises the lessee to maintain the premises in good repair at the time of leasing. (88 Ill.App.3d 308, 309-10, 43 Ill.Dec. 539, 541-42, 410 N.E.2d 539, 541-42.) Plaintiff contends a genuine issue of material fact exists as to whether a latent defective condition was present. Plaintiff asserts the landlord's responsibility for structural repairs under paragraph 3 operates as a promise to maintain sufficient to come within the second exception.

We turn first to count II. While it is true Evelyn's affidavit does not address whether she should have known about any alleged defects in the premises, plaintiff argues only half the proposition. The Gilbreath exception also requires the defect to be of the kind that could not have been discovered by the lessee upon a reasonable examination of the premises. (88 Ill.App.3d 308, 309, 43 Ill.Dec. 539, 541, 410 N.E.2d 539, 541.) Plaintiff failed to allege Cooper could not have discovered the conditions upon reasonable examination. This exception does not apply.

The second exception relied upon by plaintiff involves situations in which lessor promises lessee to maintain the premises in good repair at the time of leasing. There is no affirmative covenant to repair in the lease. The plaintiff claims no oral promise on the part of the lessor as alleged in Gilbreath. She relies on a lease provision which she asserts creates an implied duty by the lessor to make structural repairs. There is no implied duty to make structural repairs here. The lease provision simply states lessee cannot make certain changes without...