Kapka v. Urbaszewski

Decision Date26 March 1964
Docket NumberGen. No. 49154
Citation47 Ill.App.2d 321,198 N.E.2d 569
PartiesAlice KAPKA, Plaintiff-Appellant, v. Joseph URBASZEWSKI and Jane Urbaszewski, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Morris, Liss, Arnold & Hennessy, Chicago, for appellant.

Heineke, Conklin & Schrader, Chicago, for appellees.

DEMPSEY, Justice.

The plaintiff injured her ankle when she fell on a concrete stairway which was adjacent to the building of the defendants and which descended from the public sidewalk into the defendants' side yard. After pleadings and affidavits were filed, the defendants moved for summary judgment. Their motion was sustained and the plaintiff has appealed from the summary judgment entered in favor of the defendants.

The plaintiff's two-count complaint charged the defendants with negligence and with willful and wanton misconduct in carelessly and negligently constructing and maintaining the stairway and the cement landing leading from the sidewalk to the steps, and in failing to provide handrails and railings as required by ordinances. The defendants denied the allegations, filed a request for the admission of facts, an affidavit of a court reporter who had recorded an interview with the plaintiff, two affidavits of their own and an exhibit, a picture of the stairway. The plaintiff answered the request for the admission of facts and filed her own counter-affidavit.

These pleadings and documents revealed the following facts: along the public sidewalk, next to the defendants' house, there is a picket fence with a gate entering into their side yard. Inside the gate there is a long slab of cement which is level with the sidewalk and even with the ground, which the plaintiff calls the 'platform' or the 'landing.' At the end of the landing the ground slopes downward into the yard. There are two steps from the landing to the yard. At the bottom of the steps the cement walk continues through the yard and leads to a side or rear entrance to the defendants' home.

The plaintiff, Alice Kapka, is related to the defendant Mrs. Jane Urbaszewski; she had visited the Urbaszewskis at different times and had used the stairway before. On this occasion, early on a Sunday evening, she telephoned the Urbaszewski home to say that she was coming over and was bringing some clothing for their daughters which her own daughter had outgrown. After parking her car, she noticed the defendants' son in the side yard and she went down the stairs to the yard. After talking to him and handing him the clothes, she started back up the stairs. As she placed her right foot on the bottom step and her left foot on the second step, she lost her balance and fell, injuring her ankle. What caused her to lose her balance is not revealed. She alleged no fact and offered no proof that her fall was caused by a concealed defect in the steps, by a foreign object on them, or because they were slippery.

It is clear from the recital of these simple facts that there was nothing before the court which corroborated the plaintiff's allegations of willful and wanton misconduct. Willful and wanton misconduct means a course of action which shows either deliberate intention to harm or utter indifference to, or conscious disregard for, the safety of others. Allen v. Colaw, 27 Ill.App.2d 304, 169 N.E.2d 670; Martin v. Cline, 15 Ill.App.2d 269, 145 N.E.2d 505. The violation of a safety ordinance is only prima facie evidence of negligence and creates a cause of action only if it is the proximate cause of the injury. Jeneary v. Chicago & I. Traction Co., 306 Ill. 392, 138 N.E. 203; United States Brewing Co. v. Stoltenberg, 211 Ill. 531, 71 N.E. 1081; Tuttle v. Checker Taxi Co., 274 Ill.App. 525. Although the failure to provide handrails or railings may have constituted negligence as a violation of an ordinance, it did not amount to willful and wanton misconduct.

The primary question upon a motion for summary judgment is whether there is a genuine issue as to any material fact. Ill.Rev.Stat.1961, ch. 110, sec. 57(3). In the present case the answer to the primary question depends upon the answer to a secondary question: was the plaintiff a licensee or an invitee? If the plaintiff was a licensee she was entitled only to the standard of care appropriate to a licensee and it was necessary for her to prove that the defendants willfully and wantonly maintained the stairway in a defective or dangerous condition. As we have seen the proof fell far short of being sufficient to support her allegations in this respect, and if she was a licensee the court properly entered summary judgment for the defendants. On the other hand, if the plaintiff was an invitee it was necessary to prove only that the defendants failed to use ordinary care in avoiding injury to those who came upon their premises. In the latter case the pleadings plus the documents made out an issue upon which the plaintiff was entitled to a trial: whether the lack of handrails was the proximate cause of the plaintiff's injury.

In a literal sense an invitee is one who has received an invitation to enter upon the premises, but this literal meaning has no application in respect to the legal liability of an owner for injuries occurring to those upon his property. An invitee is...

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31 cases
  • Newby by Newby v. Lake Zurich Community Unit Dist. 95, 2-84-0527
    • United States
    • United States Appellate Court of Illinois
    • August 27, 1985
    ...N.E.2d 1133, citing Gregor v. Kleiser (1982), 111 Ill.App.3d 333, 336, 67 Ill.Dec. 38, 443 N.E.2d 1162, and Kapka v. Urbaszewski (1964), 47 Ill.App.2d 321, 324, 198 N.E.2d 569. As we perceive the thrust of plaintiff's argument she contends that because wilful and wanton misconduct is "an in......
  • Walton v. Norphlett, 77-77
    • United States
    • United States Appellate Court of Illinois
    • December 22, 1977
    ...protection of the invitee category. (Compare Madrazo v. Michaels (1971), 1 Ill.App.3d 583, 274 N.E.2d 635 with Kapka v. Urbaszewski (1964), 47 Ill.App.2d 321, 198 N.E.2d 569.) Other jurisdictions have abolished the social guest classification and hold the occupier to the duty of ordinary ca......
  • Stephen v. Swiatkowski
    • United States
    • United States Appellate Court of Illinois
    • May 27, 1994
    ...on the other hand, is "one who enters upon the premises of another by permission for his own purposes." (Kapka v. Urbaszewski (1964), 47 Ill.App.2d 321, 325, 198 N.E.2d 569. See also Trout, 36 Ill.App.3d at 87, 343 N.E.2d 261.) The possessor of land has no general duty of reasonable care to......
  • Fuller v. Justice
    • United States
    • United States Appellate Court of Illinois
    • September 6, 1983
    ...of others. (Gregor v. Kleiser (1982), 111 Ill.App.3d 333, 336, 67 Ill.Dec. 38, 41, 443 N.E.2d 1162, 1165; Kapka v. Urbaszewski (1964), 47 Ill.App.2d 321, 324, 198 N.E.2d 569, 571.) To sufficiently plead wilful and wanton conduct, a plaintiff must allege facts demonstrating a duty of defenda......
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