Garcia v. Jiminez

• Decision Date: 09 June 1989
• Docket Number: No. 2-88-0813,2-88-0813
• Citation: 539 N.E.2d 1356,184 Ill.App.3d 107
• Parties: , 132 Ill.Dec. 550 Maria GARCIA, as Mother and Next Friend of Roberto Garcia, a Minor, Plaintiff-Appellant, v. James JIMINEZ, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1356

539 N.E.2d 1356

184 Ill.App.3d 107, 132 Ill.Dec. 550

Maria GARCIA, as Mother and Next Friend of Roberto Garcia, a Minor, Plaintiff-Appellant, v. James JIMINEZ, Defendant-Appellee.

No. 2-88-0813.

Appellate Court of Illinois Second District.

June 9, 1989.

Paul Armstrong, James H. Porn, Ltd., Chicago, for Maria Garcia and Roberto Garcia.

John M. McGuirk, Shearer, Blood, Agrella, Boose, McGuirk & Petersen, St. Charles, for James Jiminez.

Justice INGLIS delivered the opinion of the court:

Maria Garcia, as mother and next friend of plaintiff, Roberto Garcia, a minor, appeals from a trial court judgment entered on a jury verdict in favor of defendant, James Jiminez. Plaintiff's action sought damages for injuries sustained by the minor when he ingested lead-based paint chips from an apartment plaintiff leased from defendant. On appeal, plaintiff argues that (1) the jury verdict was contrary to the manifest weight of the evidence; (2) the trial court erred in denying plaintiff's motion for a directed verdict at the close of the evidence; (3) the trial court erred in denying plaintiff's motion in limine and allowing defendant to defend this action on the basis that he lacked any knowledge that the apartment contained lead-based paint; and (4) the trial court erred in directing a verdict for defendant at the close of plaintiff's case as to count III of the complaint based on defendant's breach of a covenant to repair. We affirm.

In February 1979, defendant purchased a building located in Elgin, Illinois. At the time of purchase, the building was badly in need of repair and was in violation of the Elgin building code. Defendant stated that the building was dirty and required plastering, dry walling, and painting.

In June or July 1979, Maria Garcia contacted defendant about renting the upstairs apartment of the building. Maria inspected the premises and told defendant that it needed some work. Defendant agreed to make repairs, although no particular repairs were specified. Maria moved into the apartment with her husband and three children, including plaintiff, prior to any repairs being made. Within the next few weeks, defendant and Maria's husband made repairs to the ceiling and walls of the hallway, paneled the bathroom, and did miscellaneous painting.

In September 1979, plaintiff became ill and suffered from convulsions and seizures. Plaintiff was hospitalized and diagnosed with acute lead poisoning. An inspection of the premises disclosed high levels of lead in the walls and woodwork, particularly around the windows. Maria stated that she had observed plaintiff eating paint chips from the apartment from the first week they had moved in. Maria further stated that she had told defendant about the paint chips, but defendant denied any such communication. As a result of the lead poisoning, plaintiff has suffered permanent neurological damage.

On September 12, 1981, plaintiff brought the instant action against defendant. After numerous amendments, plaintiff's complaint was submitted for trial on four counts. Counts I and II were based in negligence and negligence arising from the violation of a city ordinance. Count III alleged that defendant breached a covenant to repair, and count IV sounded in nuisance. Prior to trial, plaintiff made a motion in limine to preclude defendant from introducing any evidence or arguing that he did not know that the premises contained lead-based paint. Plaintiff's motion was denied, and the trial proceeded. Defendant moved for a directed verdict at the close of plaintiff's case. The trial court denied defendant's motion as to counts I and II sounding in negligence but granted defendant's motion as to counts III and IV. At the close of defendant's case, plaintiff moved for a directed verdict. The trial court denied that motion. The jury reached a verdict in favor of defendant on counts I and II, and the trial court entered judgment on that verdict. The trial court denied plaintiff's post-trial motion, and plaintiff filed this timely appeal.

Plaintiff's primary argument on appeal is that defendant should not have been permitted to present evidence or argue that he did not know or have reason to know that the premises contained lead-based paint. Plaintiff asserts that defendant's lack of knowledge of the toxic condition of the paint chips was irrelevant to a determination of liability. Thus, plaintiff challenges the jury verdict and the trial court orders denying his motion in limine and motion for directed verdict on that basis.

In support of his argument, plaintiff cites our supreme court's decision in Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836. In Kahn, an 11-year-old child was injured while playing on a lumber pile located on a vacant lot owned by a third party. (5 Ill.2d at 616, 126 N.E.2d 836.) In holding the defendant lumber company liable, the court acknowledged the general rule that a owner or person in possession or control of property is not under a duty to keep the premises safe as against trespassers. (5 Ill.2d at 625, 126 N.E.2d 836.) However, the court created an exception to that rule as applied to minors where the plaintiff shows that (1) the owner or person in possession of the property knows or has reason to know that minors frequent the premises; (2) there is a defective or dangerous condition on the premises; (3) because of their immaturity the minors are incapable of appreciating the risks of the defective or dangerous entity and are likely to be injured by it; and (4) the expense or inconvenience of remedying the condition is slight compared to the risk to the children. (5 Ill.2d at 625, 126 N.E.2d 836.) While Kahn involved a landowner's duty to a trespassing plaintiff, at least one court has given the doctrine equal application to a landlord-tenant relationship. See Rahn v. Beurskens (1966), 66 Ill.App.2d 423, 428-30, 213 N.E.2d 301.

In the instant appeal, defendant does not challenge the application of Kahn or that he owed plaintiff, as his tenant, a duty of care. Rather, at the heart of the controversy between these parties is whether defendant knew or should have known that a defective or dangerous condition existed on the premises. Plaintiff asserts that proof of that fact was satisfied by evidence indicating that defendant knew that paint and plaster chips were peeling from the walls. Plaintiff further asserts that defendant's argument that he did not know that the premises contained lead-based paint was irrelevant to the issue of liability and thus prejudiced his case. We disagree.

The rule set forth in Kahn brought Illinois law into harmony with section 339 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 339 (1965)). (See Corcoran v. Village of Libertyville (1978), 73 Ill.2d 316, 326, 22 Ill.Dec. 701, 383 N.E.2d 177.) Under the Restatement, whether a person has reason to know that a dangerous condition exists depends on whether that person "has information from which a person of reasonable intelligence, or of the superior intelligence of the actor, would infer that the fact in question exists, or would govern his conduct upon the assumption that it does exist." (Restatement (Second) of Torts § 339, comments g, h, at 201 (1965).) A landlord's conduct is to be weighed on the theory that he will not neglect a condition which common experience teaches is dangerous and where the likelihood of injury is reasonably foreseeable. (Rahn, 66 Ill.App.2d at 429, 213 N.E.2d 301.) A dangerous condition is one which is likely to cause injury to the general class of children, who by reason of their immaturity, might be incapable of appreciating the risk involved. (Corcoran, 73 Ill.2d at 326, 22 Ill.Dec. 701, 383 N.E.2d 177; Kahn, 5 Ill.2d at 625, 126 N.E.2d 836.) The Kahn court stated:

"[T]he true basis of liability [is] the foreseeability of harm to the child. Whether the lumber pile was sufficiently attractive to entice children into climbing upon it, whether its condition would involve danger from such activity, and whether the contractor should have anticipated the probability of the accident were matters for determination by the jury." (Emphasis added.) Kahn, 5 Ill.2d at 625, 126 N.E.2d 836.

In Niemann v. Vermilion County Housing Authority (1981), 101 Ill.App.3d 735, 738-39, 57 Ill.Dec. 156, 428 N.E.2d 706 the court engaged in an extensive discussion regarding a defendant's knowledge that a dangerous condition existed on his property. In Niemann, the minor plaintiff was injured when her companion struck her in the eye with a stick while the two were playing on a trash pile on the defendant's property. (101 Ill.App.3d at 736-37, 57 Ill.Dec. 156, 428 N.E.2d 706.) The court distinguished between inherently dangerous objects and ordinarily innocuous objects. (101 Ill.App.3d at 738, 57 Ill.Dec. 156, 428 N.E.2d 706.) The court concluded that a stick was not, as a matter of law, an inherently dangerous object, and thus, the plaintiff was required to show something more in order to raise a duty on the part of the defendant. (101 Ill.App.3d at 738, 57 Ill.Dec. 156, 428 N.E.2d 706.) The court stated:

"[R]ecent cases * * * recognize that an innocuous condition, although not in and of itself dangerous, may become so when joined with other nondangerous situations or instrumentalities. [Citation.] Thus, the rule is not that it is the defectiveness or dangerousness of the agency or condition which makes the injury foreseeable. Rather, it is the knowledge of the presence of children, the type of agency or condition, and the surroundings which make up the dangerousness that makes the injury foreseeable and thereby establishes the duty to remedy." (Emphasis added.) 101 Ill.App.3d at 739, 57 Ill.Dec. 156, 428 N.E.2d 706.

In the instant action, plaintiff alleged that a foreseeable risk of harm was created because defendant knew or should have known that paint and plaster were peeling from the walls of the premises...