Holubek v. City of Chicago

• Decision Date: 07 August 1986
• Docket Number: No. 85-2793,85-2793
• Citation: 497 N.E.2d 348,146 Ill.App.3d 815,100 Ill.Dec. 370
• Parties: , 100 Ill.Dec. 370 Paul HOLUBEK, Plaintiff, v. The CITY OF CHICAGO, a municipal corporation and the Chicago Park District, a municipal corporation, DefendantsThe Chicago Park District, a municipal corporation, Defendant, Third Party Plaintiff-Appellant,Paschen Contractors, Inc., Third Party Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 348

497 N.E.2d 348

146 Ill.App.3d 815, 100 Ill.Dec. 370

Paul HOLUBEK, Plaintiff, v. The CITY OF CHICAGO, a municipal corporation and the Chicago Park District, a municipal corporation, DefendantsThe Chicago Park District, a municipal corporation, Defendant Third Party Plaintiff-Appellant,Paschen Contractors, Inc. Third Party Defendant-Appellee).

No. 85-2793.

Appellate Court of Illinois,

First District, Fourth Division.

Aug. 7, 1986.

Frederick J. Fraterrigo, Francis P. Kasbohm, Chicago, for defendant, third party plaintiff-appellant.

Clausen, Miller, Gorman, Caffrey & Witous, Chicago (James T. Ferrini, James W. Hulbert, of counsel), for third party defendant-appellee.

Justice JOHNSON delivered the opinion of the court:

Third party plaintiff, the Chicago Park District, appeals from the trial court's dismissal, pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-619), of its first amended complaint against third party defendant, Paschen Contractors, Inc. (Paschen).

The sole issue presented for review is whether the Park District alleged sufficient facts to show that Paschen had a duty to maintain safe access to and from the Monroe Street parking garage located on the Park District's property.

We affirm.

Plaintiff, Paul Holubek, not a party to this appeal, sustained injuries when he slipped on ice and snow upon the premises owned, maintained, and controlled by the Park District. In November 1984, the Park District impleaded Paschen, seeking contribution. Paschen had been engaged in construction upon Randolph Street which is situated several hundred feet north of the accident site.

Holubek was injured at a stairway entrance inside the Monroe Street parking garage. That entrance was located east of Michigan Avenue at a point south of Randolph Street. Paschen, pursuant to a contract with Illinois Corporation Center (ICC) was engaged to raise the level of East Randolph Street. Paschen was not involved in any work on the garage or its entrances. The Park District, in its first amended complaint, alleged that Paschen, as a result of its contract with the ICC, had a duty to maintain safe ingress and egress to the building adjacent to the construction area; that as a result of Paschen's breach of its duty, Holubek sustained various injuries. The trial court, pursuant to a section 2-619 motion (Ill.Rev.Stat.1983, ch. 110, par. 2-619), dismissed the Park District's first amended complaint. The Park District appeals from that dismissal.

Opinion

Paschen did not specify in its complaint under what subsection of section 2-619 (Ill.Rev.Stat.1983, ch. 110, par. 2-619) the motion was filed nor did the trial court indicate under what specific subsection of section 2-619 it dismissed the complaint. However, a review of Paschen's motion to dismiss indicates it argued that the cause should be dismissed because it did not have a duty to maintain any area on the Park District's property or to warn of any potential hazards on the Park District's property. This is an affirmative defense and thus is a section 2-619(a)(9) motion. (Ill.Rev.Stat.1983, ch. 110, par. 2-619(a)(9).) See Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill.App.3d 127, 94 Ill.Dec. 624, 488 N.E.2d 623.

Section 2-619(a)(9) provides that a "defendant may move to dismiss an action on the ground that a claim asserted is barred by other affirmative matter avoiding the legal effect of or defeating the claim." (Ill.Rev.Stat.1983, ch. 110, par. 2-619(a)(9).) "Affirmative matter" includes something in the nature of a defense that negates the alleged cause of action completely or refutes a crucial conclusion of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. (Austin View Civic Association v. City of Palos Heights (1980), 85 Ill.App.3d 89, 93-94, 40 Ill.Dec. 164, 169-70, 405 N.E.2d 1256, 1261-62.) A 2-619 motion to dismiss admits all facts well pleaded as well as all reasonable inferences therefrom favorable to plaintiff. However, if an exhibit is attached to the complaint, the exhibit controls and a motion to dismiss does not admit allegations in conflict with facts disclosed in the exhibit. Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill.App.3d 127, 134, 94 Ill.Dec. 624, 628, 488 N.E.2d 623, 628.

The Park District contends that...