Gilley v. Kiddel, 2-06-0505.

• Decision Date: 21 March 2007
• Docket Number: No. 2-06-0505.,2-06-0505.
• Citation: 865 N.E.2d 262
• Parties: Rhonda GILLEY, Plaintiff-Appellant, v. Gerald KIDDEL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

865 N.E.2d 262

Rhonda GILLEY, Plaintiff-Appellant, v. Gerald KIDDEL, Defendant-Appellee.

No. 2-06-0505.

Appellate Court of Illinois, Second District.

March 21, 2007.

Lisa R. Fabiano, Fabiano Law Offices, Rockford, for Rhonda Gilley.

Ellen L. Green, Michael Resis, SmithAmundsen LLC, Chicago, for Gerald Kiddel.

Justice BYRNE delivered the opinion of the court:

Plaintiff, Rhonda Gilley, appeals from the involuntary dismissal (735 ILCS 5/2-619(a)(9) (West 2004)) of her amended complaint for negligence against defendant, Gerald Kiddel. The complaint was based on injuries plaintiff sustained when she fell down the stairs inside an apartment owned by defendant and leased to plaintiff's boyfriend, Roland Shipman. We affirm.

According to the discovery depositions of plaintiff, defendant, and Shipman, the following evidence was adduced. Shipman and two roommates leased the premises from October 2001 until June 2003. The stairs where the fall occurred were within the leased premises. Shipman testified that he inspected the premises before he moved in and did not notice a problem with the carpeting on the stairs. Several weeks after moving in, Shipman stapled the carpeting to the stairs "just for more grip." Shipman testified that both he and others had fallen on the stairs prior to plaintiff's fall. Shipman believed he had told defendant about the prior falls. He stated, "I was trying to infer that I didn't particularly like the quality of the steps. Maybe I did it in a roundabout way just to be nice to my landlord but it was like we had a temporary covering and I was hoping for something more permanent." Shipman further testified that he "implied" that he wanted the carpeting altered in some way but he did not think he "ever came out and said it." Shipman testified, "I wouldn't say it was unsafe but it wasn't suitable for living there for almost 2 years, plus, if he was going to leave it there, he had done no maintenance on it at all." After plaintiff's fall, Shipman hoped defendant would remove the carpeting on the stairs, but, because he never did, Shipman himself removed the carpeting. Also, sometime before plaintiff's fall, the handrail along the stairs had come loose and Shipman repaired it by pushing the rail back into the wall.

On May 11, 2002, plaintiff was at Shipman's apartment and was heading down the stairs. Plaintiff had been up and down the stairs several times before and did not notice anything different on the night that she fell. Plaintiff was looking down the stairs and took about three steps when the "carpeting came loose" and her foot slid out from underneath her. As a result, she fell back and slid down the stairs to the bottom, breaking her ankle. Plaintiff had held onto the handrail, and the handrail did not come loose during her fall. The day after the fall, plaintiff noticed ripples in the carpeting. Shipman observed the stairs after plaintiff's fall and did not notice anything out of the ordinary.

Defendant testified that he owned and managed the premises and was responsible for collecting rent and receiving phone calls for problems. He testified that he did not usually personally perform repairs but rather 80% of the time he would hire a contractor to perform the work. When defendant bought the premises in July 2000, the stairs were in good condition, and defendant never made any repairs or alterations to the carpeting. Between July 2000 and May 2002, he had been up and down the stairs between 25 and 50 times and never noticed any problems with the stairs. He never noticed any ripples in the carpeting. Furthermore, defendant testified that if he had observed any problem with the stairs and felt they needed repairs, he would have repaired them. According to the lease, the tenants were not authorized to make any alterations or repairs to the premises without defendant's authorization. The tenants never requested authorization to make any repairs to the stairs. Prior to May 11, 2002, no one ever complained to him about the condition of the stairs and no one reported any falls or accidents involving the stairs. Shipman called defendant soon after plaintiff's fall and told defendant that plaintiff fell down the stairs. Shipman stated that plaintiff was wearing sandals and lost her footing. Shipman did not report that there were any problems with the stairs.

Plaintiff filed a complaint, and defendant moved for summary judgment on the basis that defendant, as the landlord, was not liable for injuries caused by a defective condition on premises leased to the tenant and under the tenant's control. The motion was granted. Plaintiff subsequently filed a motion to reconsider the grant of summary judgment and a motion for leave to file an amended complaint. The court denied the motion for reconsideration but granted plaintiff leave to file the amended complaint. The amended complaint asserted that defendant "owed plaintiff a duty of care because the lessor contracted by a covenant in the lease or otherwise to keep the land in repair. * * * [T]he lessor failed to exercise reasonable care to perform his contract."

Defendant moved to dismiss the amended complaint. 735 ILCS 5/2-619(a)(9) (West 2004). The trial court granted the motion, finding that "there is no duty on behalf of the defendant landlord." Plaintiff timely appealed.

Plaintiff argues that the trial court erred in granting both summary judgment and the motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2004)). However, the issue of the propriety of the trial court's grant of summary judgment is not properly before this court, for when an amendment is filed that is complete in itself and that does not refer to or adopt by reference the prior pleadings, the earlier pleadings are effectively withdrawn and cease to be a part of the record for most purposes. Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill.2d 150, 154, 70 Ill.Dec. 251 449 N.E.2d 125 (1983), quoting Bowman v. County of Lake, 29 Ill.2d 268, 272, 193 N.E.2d 833 (1963). Thus, the filing of an amended pleading waives any objection to the trial court's ruling on any former complaint. Foxcroft, 96 Ill.2d at 154, 70 Ill. Dec. 251, 449 N.E.2d 125. Here, by filing an amended complaint, plaintiff was precluded from appealing the order on her original complaint, and we restrict our review to the court's dismissal of plaintiff's amended complaint.

The purpose of section 2-619 is to summarily dispose of issues of law or easily proved issues of fact at the outset of a case. Zedella v. Gibson, 165 Ill.2d 181, 185, 209 Ill.Dec. 27, 650 N.E.2d 1000 (1995); Milz v. M.J. Meadows, Inc., 234 Ill.App.3d 281, 286, 175 Ill.Dec. 276, 599 N.E.2d 1290 (1992). The motion "invokes certain defects or defenses that raise the question of whether the defendant is entitled to judgment as a matter of law." Albert Brooks Friedman, Ltd. v. Malevitis, 304 Ill.App.3d 979, 983, 238 Ill.Dec. 46, 710 N.E.2d 843 (1999). Subparagraph (a)(9), in particular, provides for the raising of affirmative matter that avoids or defeats a claim or cause of action. 735 ILCS 5/2-619(a)(9) (West 2004). "Affirmative matter" is defined as a defense that either negates the alleged cause of action completely or refutes a crucial conclusion of law or conclusion of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. Krilich v. American National Bank & Trust Co., 334 Ill.App.3d 563, 570, 268 Ill.Dec. 531, 778 N.E.2d 1153 (2002); Milz, 234 Ill.App.3d at 286-87, 175 Ill.Dec. 276, 599 N.E.2d 1290. It "encompasses any defense other than a negation of the essential allegations of the * * * cause of action." Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 115, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993); see, e.g., Young v. Chicago Housing Authority, 162 Ill.App.3d 53, 54, 113 Ill.Dec. 794, 515 N.E.2d 779 (1987) (the issue of whether the defendant owed the plaintiff a duty of care is a question of law that is properly asserted in a motion to dismiss pursuant to section 2-619). In ruling on a section 2-619 motion to dismiss, a court may consider pleadings, depositions, and affidavits. Zedella, 165 Ill.2d at 185, 209 Ill.Dec. 27, 650 N.E.2d 1000.

The question on appeal is "whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." Kedzie, 156 Ill.2d at 116-17, 189 Ill.Dec. 31, 619 N.E.2d 732. Our review is de novo. Krilich, 334 Ill.App.3d at 569, 268 Ill.Dec. 531, 778 N.E.2d 1153.

It is fundamental that to state a claim for negligence, a plaintiff must establish that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the plaintiff was injured as a proximate result of such breach. Milz, 234 Ill.App.3d at 287, 175 Ill.Dec. 276, 599 N.E.2d 1290. "Whether a duty exists is a question of law to be determined by the court, and depends on whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff." Gouge v. Central Illinois Public Service Co., 144 Ill.2d 535, 542, 163 Ill.Dec. 842, 582 N.E.2d 108 (1991). In the absence of a duty, no recovery by a plaintiff is possible as a matter of law. Rowe v. State Bank of Lombard, 125 Ill.2d 203, 215, 126 Ill.Dec. 519, 531 N.E.2d 1358 (1988).

It is well settled in Illinois that a landlord is not liable for injuries caused by a defective or dangerous condition on premises leased to a tenant and under the tenant's control. Klitzka v. Hellios, 348 Ill.App.3d 594, 597, 284 Ill.Dec. 599, 810 N.E.2d 252 (2004). "Therefore, a lessor who relinquishes control of property to a lessee owes no duty to a third party who is injured while on the leased property." Klitzka, 348 Ill.App.3d at 597, 284 Ill.Dec. 599, 810 N.E.2d 252. "...