Dial v. Mihalic

• Decision Date: 29 June 1982
• Docket Number: No. 81-1530,81-1530
• Citation: 438 N.E.2d 546,107 Ill.App.3d 855,63 Ill.Dec. 615
• Parties: , 63 Ill.Dec. 615 Lola DIAL, Plaintiff-Appellant, v. Mario MIHALIC, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 546

438 N.E.2d 546

107 Ill.App.3d 855, 63 Ill.Dec. 615

Lola DIAL, Plaintiff-Appellant, v. Mario MIHALIC, Defendant-Appellee.

No. 81-1530.

Appellate Court of Illinois First District, Second Division.

June 29, 1982.

Henslee, Monek & Henslee, Chicago, for plaintiff-appellant; John J. Naughton and Daniel J. Downes, Chicago, of counsel.

Rooks, Pitts, Fullagar & Poust, Chicago, for defendant-appellee; John G. Poust and Christine M. Wheelock, Chicago, of counsel.

PERLIN, Justice:

Plaintiff, Lola Dial, appeals the trial court's order dismissing with prejudice her third amended complaint filed against defendant, Mario Mihalic. The issue presented for review is whether plaintiff's complaint states a cause of action. For the reasons which follow, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

Plaintiff's lawsuit arose out of an accident which occurred on the evening of March 1, 1977. At the time of the accident plaintiff was the tenant of apartment 501 in a building owned by defendant and was visiting another tenant in apartment 504 of the same building. Plaintiff's third amended complaint alleged that plaintiff was standing in the kitchen preparing food in the oven of an electric stove supplied for the apartment by defendant when the oven door suddenly and unexpectedly fell open from a closed vertical position to an open horizontal position due to a failure of the oven door securing mechanisms to hold the door in a closed position. The opening of the door startled plaintiff who tripped and fell backwards onto the hot surface of the opened door causing her to suffer severe and permanently disfiguring burns. Plaintiff brought a tort action against defendant, landlord and lessor of the apartment in which plaintiff was injured, alleging that defendant had breached his duties under the terms of a lease which defendant had entered into with the tenant in whose apartment the accident had taken place. In an affidavit attached to her complaint plaintiff averred that she was not able to secure a copy of the lease for apartment 504 and therefore submitted her own lease (for apartment 501) which, except for certain details not relevant here, contained the same provisions. Paragraph 6 of the lease (Exhibit I) states in part:

"C. Lessor covenants that at all times during the Term hereof, the Lessor shall maintain the Apartment and the Building to the following minimum standards:

* * *

* * *

(5) Gas and/or electrical appliances which are supplied by Lessor in good working order, appropriate gas piping and electrical wiring system to the extent existing in the Building maintained in good working order and safe condition."

Plaintiff claimed that by virtue of this covenant, "defendant expressly assumed the duty to maintain the aforesaid stove, which defendant as Lessor had supplied, in good working order and safe condition" and that defendant breached this duty, which breach resulted in serious injuries to plaintiff. Paragraph 10 of the complaint alleged that "prior to said occurrence, defendant had been notified that said stove was not in good working order and was not in safe condition, but notwithstanding said notice, defendant had failed and refused to repair and maintain said stove in violation of said express covenant to do so." Paragraph 11 asserted that defendant was guilty of one or more of the following "careless and negligent acts and/or omissions:"

"(a) Failed to properly and adequately maintain the appliances provided in the apartment;

(b) Failed to advise plaintiff or post any notice of the defective condition of the stove;

(c) Failed to heed complaints that said stove was not in good working order and was not in safe condition, and failed and refused to repair and maintain said stove in violation of express covenant to do so."

In subparagraph (d) plaintiff advanced a res ipsa loquitur theory of recovery. Paragraph 12 claimed that plaintiff's injuries were directly and proximately caused by defendant's acts and/or omissions. Plaintiff sought more than $15,000 in damages.

Defendant filed a motion to dismiss the third amended complaint alleging that (1) the lease agreement imposed no duty of repair which would give rise to an action for damages arising out of personal injuries; (2) plaintiff lacked standing to pursue an action for breach of an alleged covenant in the lease; (3) the complaint failed to allege compliance with the written notice requirements of the lease; ¹ (4) the lease imposed no duty to maintain the stove in a safe condition; and (5) defendant did not owe plaintiff any common law duty of ordinary care with respect to the appliance in question.

On February 25, 1981 a hearing was held on defendant's motion to dismiss the third amended complaint. The trial court asked the parties to brief the issue of the requirement of written notice. After a final hearing, plaintiff's complaint was dismissed with prejudice in an order entered May 29, 1981.

Under paragraph 6 C (5) of the lease, defendant covenanted to maintain the electrical appliances in good working order "at all times during the Term" of the lease. Plaintiff's first argument on appeal is that damages for personal injuries are recoverable for breach of this covenant. Plaintiff relies principally upon the decision in Looger v. Reynolds (1975), 25 Ill.App.3d 1042, 324 N.E.2d 238, where the court adopted section 357 of the Restatement (Second) of Torts (1965). Section 357 states:

"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 disrepair 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 to persons upon the land which the performance of the lessor's agreement would have prevented, and

(c) the lessor fails to exercise reasonable care to perform his contract." 2 Restatement (Second) of Torts (1965), section 357.

As set forth in Looger, three rationales have been advanced in support of acceptance for the Restatement rule:

"(1) The landlord, by the agreement to repair, reserved a privilege to entry and supervision of the premises by virtue of which he retained 'control' of the premises and ought to be liable as an occupier of the land; (2) the lessor by his promises, induced the tenant to forego repairs of his own, and so by his misleading undertaking has made himself responsible for the consequences; and (3) the landlord stands in a special relation to the tenant and, by entering into the covenant to repair, undertakes an additional responsibility which extends the relationship." Looger at 1043, 324 N.E.2d 238. See also Dean v. Hershowitz (1935), 119 Conn. 398, 117 A. 262; Prosser, Law of Torts (4th Ed. 1971), section 63.

Defendant questions the precedential value of Looger on a number of grounds none of which has merit. Defendant first states that "despite the fact that [Looger ] purported to adopt what was a radical change in Illinois law, defendant has not been able to find any other decisions in which another Illinois court actually applied Section 357 of the Restatement." We note, however, that subsequent to Looger, two other decisions apparently have accepted section 357 as a valid statement of Illinois law. (See Hurt v. Pershing Mobile Home Sales, Inc. (1980), 83 Ill.App.3d 724, 726, 39 Ill.Dec. 251, 404 N.E.2d 842; Dapkunas v. Cagle (1976), 42 Ill.App.3d 644, 647, 1 Ill.Dec. 387, 356 N.E.2d 575.) Although neither opinion found section 357 applicable to the facts of the particular case, both acknowledged that a cause of action for personal injuries may be based on section 357.

Moreover, we cannot agree with defendant that Looger effected "a radical change in Illinois law." In adopting section 357 of the Restatement, the Looger court relied in part on Moldenhauer v. Krynski (1965), 62 Ill.App.2d 382, 210 N.E.2d 809, where a tenant was allowed to recover damages in tort for personal injuries proximately caused by the landlord's failure to perform a promise to repair and Lulay v. Southside Trust & Savings Bank (1972), 4 Ill.App.3d 483, 280 N.E.2d 802, 803, where a tenant's daughter was permitted to recover damages in tort occasioned by the landlord's failure to abide by a covenant to repair given in his lease. In Lulay the court stated, "A growing number of courts adhere to the rule that a landlord who has covenanted to keep premises in repair is liable for injuries received by the tenant, his family, servants, invitees or sub-tenants, because of his failure to do so. [Citations.]" Lulay at 485, 280 N.E.2d 802.

Defendant next argues that Looger is distinguishable on its facts because the complaint in Looger indicated that the landlord "specifically undertook" with his tenant an obligation to repair the defective porchway on which the plaintiff, the tenant's guest, was ultimately injured. Thus, the alleged defect appeared to have been present at the time the lease was entered into. While defendant's observation regarding the facts in Looger may be correct, section 357 provides that liability may exist for "a condition of disrepair existing before or arising after the lessee has taken possession * * *." Emphasis added.

Defendant also purports to distinguish Looger on the ground that in Looger there was an undertaking by the lessor to make a specific repair, as opposed to a general covenant to repair. Section 357, however, does not limit liability to agreements to make specific repairs but extends to "a covenant in the lease or otherwise to keep the land in repair, * * *." (Section 357(a).) In Moldenhauer v. Krynski (1965), 62 Ill.App.2d 382, 388, 210 N.E.2d 809, a case decided before section 357 of the Restatement was adopted, the court rejected "a distinction between...