Dapkunas v. Cagle

• Decision Date: 20 September 1976
• Docket Number: No. 75--351,75--351
• Citation: 42 Ill.App.3d 644,356 N.E.2d 575,1 Ill.Dec. 387
• Parties: , 1 Ill.Dec. 387 Vemba DAPKUNAS, Plaintiff-Appellant, v. Bonnie CAGLE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 575

356 N.E.2d 575

42 Ill.App.3d 644, 1 Ill.Dec. 387

Vemba DAPKUNAS, Plaintiff-Appellant, v.Bonnie CAGLE, Defendant-Appellee.

No. 75--351.

Appellate Court of Illinois, Fifth District.

Sept. 20, 1976.

Harris & Lambert, Marion, for plaintiff-appellant.

James B. Bleyer, Marion, for defendant-appellee.

JONES, Justice.

Plaintiff brought suit for personal injuries which allegedly occurred when she fell from the back steps of a home she had rented from defendant.Plaintiff's fifth amended complaint was dismissed for failure to state a cause of action, and judgment was entered in favor of defendant.Plaintiff appeals.

Plaintiff's fifth amended complaint contained two counts.The first count alleged that defendant owned a frame house in Johnston City, Illinois; that prior to August 13, 1969, plaintiff and defendant entered into a 'verbal lease' of the house on a month to month basis; that plaintiff rented the house to use it as a dwelling; that in the back yard of the house were clothesline posts and clotheslines; that the back steps were made of concrete blocks and bricks which were not fastened together and which were laid loosely and were narrow and unstable; that the back entranceway was the only entranceway in close proximity to the clothesline; that at the time plaintiff rented the hosue defendant knew or should have known that plaintiff would use the clothesline and that plaintiff would use the back steps to carry clothes to the clothesline; that defendant had a duty to make necessary repairs to the house including the rear entranceway and steps; that defendant was negligent in that she failed to repair the loose and unsecure back steps and to install proper steps; that on August 13, 1969, plaintiff fell and sustained injuries when the back steps tumbled as she was carrying a basket of clothes over them; that immediately thereafter defendant purchased and installed pre-cast concrete steps at the back entrance of the house; and that prior to August 13, 1969, plaintiff had attempted to find other available and suitable housing but was unable to do so because of the unavailability of such housing and because of her inability to pay an amount of rent greater than the $50 per month which she paid defendant.

The second count of plaintiff's fifth amended complaint alleged the same facts but in place of negligence substituted as the grounds for liability 'that the defendant impliedly warranted to the habitability and fitness for its intended use of the furnished dwelling at the time she rented it to the plaintiff.'

Two questions are presented for review: (1) whether plaintiff's fifth amended complaint alleges sufficient facts to state a cause of action for recovery under established tort law for injuries sustained during the fall from the steps; and (2) whether the fifth amended complaint states a cause of action for recovery for personal injuries under a theory of an implied warranty of habitability and fitness for intended purpose of the leased residential house.We answer both questions in the negative and accordingly affirm.

In Thorson v. Aronson, 122 Ill.App.2d 156, 258 N.E.2d 33, the court noted that as a general rule of law, subject to a few exceptions, a landlord is not liable for injuries occurring on premises leased to a tenant and under the tenant's control.The court pointed out that the exceptions are:

'(1) where a latent defect exists at the time of the leasing, which defect is known or should have been known to the landlord in the exercise of reasonable care and which could not have been discovered upon a reasonable examination of the premises by the tenant; (2) where the landlord fraudulently conceals from the tenant a known, dangerous condition; (3) where the defect causing the harm, in the law, amounts to a nuisance; and (4) where the landlord promises the tenant to repair the premises at the time of the leasing.'122 Ill.App.2d at 160, 258 N.E.2d at 34--35.

In accord with this statement of the law is Looger v. Reynolds, 25 Ill.App.3d 1042, 324 N.E.2d 238, which, in expanding on the fourth exception noted above, adopted the following rule from the Restatement (Second) of Torts:

'A lessor (of land) is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of (dis)repair existing before or arising after the lessee has taken possession if

(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair and

(b) the disrepair creates an unreasonable risk and

(c) the lessor fails to exercise reasonable care to perform his contract.'2 Restatement of Torts 2d, sec. 357.

We note that the court in Mangan v. F. C. Pilgrim & Co., 32 Ill.App.3d 563, 336 N.E.2d 374, recognized that an additional exception to the general rule may exist in cases where an injury to a tenant results from a violation of a statute or ordinance by the landlord.The court stated:

'The violation of a statute or ordinance prescribing a duty for the protection and safety of persons or property may constitute negligence such as gives rise to a cause of action on behalf of a person who suffers injury or damage by reason thereof * * *.

But it is generally required (for recovery) that the plaintiff be within the class of persons intended to be protected by the particular statute or ordinance, and that the plaintiff's harm be of the kind which the statute or ordinance was intended in general, to prevent.'32 Ill.App.3d at 569 and 572, 336 N.E.2d at 379 and 381.

In the instant case the allegations of the fifth amended complaint do not bring plaintiff under any of the exceptions to the general rule noted above.The complaint alleged only a defect that could have been easily discovered by plaintiff upon a reasonable inspection.Furthermore, the complaint contained no allegation of a fraudulent concealment by the landlord; a defect amounting to a nuisance; a promise by the landlord to repair; or a violation of a statute or ordinance.Therefore, since the leased premises were under the exclusive control of plaintiff, the general rule stated above should apply.

Plaintiff, however, states that courts in other jurisdictions have adopted a rule of law different from the established law in this State.Specifically, plaintiff refers to Sargent v. Ross, 113 N.H. 388, 308 A.2d 528, 64 A.L.R.3d 329, andBrennan v. Cockrell Investments, Inc., 35 Cal.App.3d 796, 111 Cal.Rptr. 122, in which the courts held that a standard of reasonable care should apply in all landlord and tenant cases, without concern over which party had control over the area where the injury occurred.Plaintiff has not drawn our attention to any Illinois cases that have adopted this or a similar standard, and we are not convinced that the case before us is one requiring a departure from the well established law of this State.Accordingly, we find no error with respect to the dismissal of the first count of plaintiff's fifth amended complaint.

In the second count of plaintiff's fifth amended complaint, plaintiff sought to recover under a theory that defendant had breached an implied warranty of habitability and fitness for intended use of a dwelling.In support of her argument that a cause of action was stated in this count of the complaint, plaintiff cites Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208, and other cases which have held an implied warranty of habitability applicable in certain landlord and tenant situations.We feel, however, that for a number of reasons neither Jack Spring nor any of the other cases cited by plaintiff are authority for allowing plaintiff to recover under an implied warranty theory for the personal injuries she allegedly sustained.

First of all, Jack Spring, unlike the instant case, involved multiple unit dwelling situations, and the applicability of the court's ruling was expressly limited to such situations.As the court stated in Jack Spring, '(This case) is applicable only to the factual situations here presented, the occupancy of multiple dwelling units.'280 N.E.2d at 218.Although the opinion of the court did not elaborate on this statement or express the reasons underlying the strict limitation, at least two reasons for the limitation are apparent.First, in a single unit dwelling the tenant has exclusive possession of the building, or housing unit.However, in a multiple unit dwelling, the tenant has exclusive possession only of the space occupied by his individual apartment.He does not have exclusive possession of the entire building, of the common passageways, or of the space occupied by the other apartments.This distinction is of particular significance especially with respect to condition in the housing unit needing repair which, without the maintenance or repair, would seriously threaten personal health or safety.If the burden of maintenance and repair is placed upon the tenant in a single unit dwelling and he fails to perform the necessary maintenance or repair in such situations, most likely only the health and safety of the tenant or those in his dwelling will be threatened.In contrast, however, if the same burden is placed upon the tenant in a multiple unit dwelling and he fails to perform the necessary maintenance or repair, most likely the health and sefety of persons in other apartments or other areas of the building will also be threatened.Therefore, rather than placing the burden of maintenance and repair on each individual tenant in a multiple unit dwelling, it is more expedient for the protection of others in the building to place the burden on the landlord.

A second reason for the limitation of the ruling in Jack Spring to multiple unit dwellings and one closely related to the first reason stated above, is apparent from a statement first made in Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, 1078, and quoted in Jack...