Evans v. United Bank of Illinois, N.A., Trust No. 1233, 2-91-0704

• Decision Date: 18 March 1992
• Docket Number: No. 2-91-0704,2-91-0704
• Citation: 168 Ill.Dec. 533,589 N.E.2d 933,226 Ill.App.3d 526
• Parties: , 168 Ill.Dec. 533 Doris J. EVANS, Plaintiff-Appellant, v. UNITED BANK OF ILLINOIS, N.A., TRUST NO. 1233 Defendant (Barb Atwood, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 933

589 N.E.2d 933

226 Ill.App.3d 526, 168 Ill.Dec. 533

Doris J. EVANS, Plaintiff-Appellant, v. UNITED BANK OF ILLINOIS, N.A., TRUST NO. 1233 Defendant (Barb Atwood, Defendant-Appellee).

No. 2-91-0704.

Appellate Court of Illinois Second District.

March 18, 1992.

William T. Cacciatore, on the brief, Bruscato & Cacciatore, Rockford, for Doris J. Evans. Mateer & Associates, Donald M. Mateer, Teresa R. Maher, on the brief, Rockford, for United Bank Illinois N.A. and Barb Atwood.

Justice BOWMAN delivered the opinion of the court:

Plaintiff, Doris J. Evans, appeals from an order of the circuit court which denied her motion to reconsider the entry of summary judgment in favor of defendant, Barb Atwood. Plaintiff raises on appeal two issues: whether there is a question of material fact regarding whether a landlord is absolved of a duty to a third party who slipped on an unnatural accumulation of snow and ice when the leases provided that the lessees had the duty to remove snow and ice; and whether the trial court erred in denying plaintiff leave to amend her complaint following the entry of summary judgment in favor of defendant.

On September 19, 1989, plaintiff filed a two-count complaint for personal injuries. In count I, plaintiff alleged that United Bank of Illinois (bank), as record owner under a trust of the property at 7817 Second Street, Loves Park, Illinois, was negligent by allowing or causing an unnatural accumulation of snow and ice on its property, or by failing to warn plaintiff of the hazardous condition or to exercise ordinary care. Plaintiff further alleged that, as a proximate result of the bank's negligence, plaintiff slipped and fell on the ice and snow, injuring her leg and ankle. In count II, plaintiff alleged the same acts of negligence by defendant Atwood as owner of the property. On June 29, 1990, plaintiff voluntarily dismissed count I of the complaint, and the bank is not a party to this appeal.

Defendant filed a motion for summary judgment regarding the remaining count of the complaint. According to defendant, she was not liable as a matter of law because the premises were wholly demised to Shirley Mitchell, Ross and Roberta Anderson, and Mr. Haney. In her affidavit, defendant stated that she did not retain control over the walks, driveways and parking spaces according to the terms of the leases. In each of the leases, the premises leased to each tenant are described as an area of square feet (all less than 800 square feet) "located upon premises commonly known as 7817 North Second Street." Each of the leases also provided:

"MAINTENANCE AND REPAIRS

Lessor shall pay the cost of maintaining and repairing the heating, plumbing, and electrical systems and the exterior of the leased premises except for the removal of snow and the repair or replacement of broken windows. Lessee shall pay the cost of all other interior repair and maintenance and shall be responsible for snow removal from walks, driveways, and parking spaces * * *."

According to defendant, the leases established that she did not retain control of the leased premises and, therefore, lessor immunity applied. Plaintiff responded that merely because the lessee agreed in a lease to assume responsibility for the removal of snow and ice, such agreement did not relieve the lessor of liability to third parties for areas under the control of the lessor, such as common areas. Without explanation, the trial court granted the motion for summary judgment.

Within 30 days, plaintiff filed a motion to reconsider the entry of summary judgment for defendant. While that motion was pending, plaintiff also filed a motion for leave to amend count II of the complaint. On May 24, 1991, the court denied the motion to reconsider.

Plaintiff then filed a motion for clarification alerting the court to the fact that the motion to amend was still pending. According to the record sheet, the court denied the motion for clarification on June 7, 1991. However, the court heard arguments regarding the motion to amend and permitted plaintiff to include a proposed amended complaint in the record. The court denied the motion to amend on June 18, 1991. Plaintiff's timely appeal followed.

Plaintiff first contends that the trial court erred in denying her motion to reconsider the entry of summary judgment. The decision whether to grant a motion to reconsider is a matter of the trial court's discretion. (Chandler v. Jet Air Freight, Inc. (1977), 54 Ill.App.3d 1005, 1007, 12 Ill.Dec. 472, 370 N.E.2d 95.) However, the review of such a determination necessarily entails a consideration of the propriety of the entry of summary judgment in favor of defendant.

Summary judgment is proper when the pleadings, depositions, affidavits and admissions show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Ill.Rev.Stat.1989, ch. 110, par. 2-1005(c); Farm Credit Bank v. Whitlock (1991), 144 Ill.2d 440, 446-47, 163 Ill.Dec. 510, 581 N.E.2d 664.) Summary judgment is a drastic remedy, and it should be granted only when the right of the moving party is free from doubt. Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.

The central question is whether defendant, as landlord, owed any duty to plaintiff, a third party, when the premises were demised to tenants. For guidance, we turn to the supreme court's discussion of the issue in Wright v. Mr. Quick, Inc. (1985), 109 Ill.2d 236, 93 Ill.Dec. 375, 486 N.E.2d 908:

"Generally, the tenant who is in possession, not the landlord, is liable for injuries sustained by third persons because of a failure to keep the property in repair. [Citations.] 'The basic rationale for lessor immunity has been that the lease is a conveyance of property which ends the lessor's control over the premises, a prerequisite to the imposition of tort liability.' [Citation.] Thus, under the general rule, only * * * the party in possession and control of the entire premises[ ] could be held liable for injuries to persons on the property." Wright, 109 Ill.2d at 238-39, 93 Ill.Dec. 375, 486 N.E.2d 908.

Plaintiff argues that summary judgment was improper because there remained a question regarding whether defendant maintained controlled over the parking lot and sidewalks outside of the stores. Plaintiff relies on the rule that, if a lessor retains control of a portion of the leased premises, it has the duty to use ordinary care in maintaining the retained portion in a reasonably safe condition. Rowe v. State Bank (1988), 125 Ill.2d 203, 220, 126 Ill.Dec. 519, 531 N.E.2d 1358.

Defendant argues that summary judgment properly was entered in her favor because plaintiff failed to present any evidence that the source of the ice on which she fell was an unnatural accumulation. Defendant sought summary judgment on the ground that she had no duty to plaintiff to remove the ice and snow, and she raises the natural accumulation argument for the first time on appeal.

"The rule that a defense not raised in the trial court is regarded as waived and may not be raised for the first time in a reviewing court is a rule only insofar as an appellant is concerned; an appellee may urge any point in support of judgment on appeal, so long as a factual basis for such point was before the trial court." (Jackson v. Chicago Board of Education (1989), 192 Ill.App.3d 1093, 1099, 140 Ill.Dec. 178, 549 N.E.2d 829.) However, "[w]hile the issue raised on appeal need not have been previously ruled upon, it must at least be commensurate with the issues presented at trial." (Greer v. Illinois Housing Development Authority (1988), 122 Ill.2d 462, 509, 120 Ill.Dec. 531, 524 N.E.2d 561.) "[T]o permit a change of theory on review 'would not only greatly prejudice the opposing party but would also weaken our system of appellate jurisdiction.' " (Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 148, 324 N.E.2d 417, quoting In re Estate of Leichtenberg (1956), 7 Ill.2d 545, 548-49, 131 N.E.2d 487.) Employing the waiver rule against an appellee is particularly apt "if the opposing party could have introduced evidence to contest or refute the assertions made on appeal, had he an opportunity to do so in the trial court" (In re Marriage of Rodriguez (1989), 131 Ill.2d 273, 279, 137 Ill.Dec. 78, 545 N.E.2d 731).

In the present cause the trial court was never presented with the question of the nature of the accumulation. No depositions were included in the record, nor was any evidence regarding the nature of the accumulation. Had defendant raised this issue in the trial court, plaintiff could have come forward with evidence regarding the accumulation. We conclude that plaintiff would be prejudiced if we were to consider this argument; therefore, it is waived. Moreover, plaintiff was not required to prove her case at the summary judgment stage. Knief v. Sotos (1989), 181 Ill.App.3d 959, 963, 130 Ill.Dec. 503, 537 N.E.2d 832.

The basis of defendant's summary judgment motion was that because of the leases defendant did not have a duty to remove any snow and ice. Plaintiff responded that defendant still had the duty to keep the premises under her control in a reasonably safe condition. Defendant has not addressed on appeal plaintiff's argument that the tenants controlled only the stores themselves and that, despite the tenants' agreements to assume the duty to remove ice and snow, defendant retained control of the premises outside of the individual stores.

The interpretation of a lease as a matter of law is proper when the terms are clear and definite. (Douglas Theater Corp. v. Chicago Title & Trust Co. (1991), 210 Ill.App.3d 301, 309, 155 Ill.Dec. 88, 569 N.E.2d 88.) If the terms are ambiguous, extrinsic evidence may be necessary to interpret the lease in accordance with the parties' intention. (Harris Trust & Savings Bank v. La Salle National Bank (1990), 208 Ill.App.3d 447, 453, 153 Ill.Dec. 450, ...