Lamkin v. Towner

Decision Date13 October 1989
Docket NumberNos. 5-88-0088,5-88-0094,s. 5-88-0088
Citation190 Ill.App.3d 631,546 N.E.2d 1020
CourtUnited States Appellate Court of Illinois
Parties, 137 Ill.Dec. 907 Jason LAMKIN, a Minor, by his mother and Next Friend, Carol A. Lamkin, and Carol Lamkin, Plaintiffs-Appellees, v. Stan TOWNER, Pat Dooling, Joe Dooling, Kenneth Vanek, Wood River Glass Company, Carroll Supply & Service, and Gallatin Aluminum Products, Inc., Defendants-Appellants. Dustin Troy PACE, a Minor, by his mother and Next Friend, Robin R. Pace, and Robin R. Pace, Plaintiffs-Appellees, v. Stan TOWNER, Pat Dooling, Joe Dooling, Kenneth Vanek, Wood River Glass Company, Carroll Supply & Service, and Gallatin Aluminum Products, Inc., Defendants-Appellants.

Stephen W. Thompson and Charles C. Compton, Reed, Armstrong, Gorman, Coffey, Thomson and Gilbert, P.C., Edwardsville, for Stan Towner.

Christopher B. Hunter, Farrell & Long, P.C., Godfrey, for Carroll Supply & Service.

Harold A. Donovan, Clark D. Smith, Donovan, Rose, Nester & Szewczyk, P.C., Belleville, for Gallatin Aluminum Products, Inc.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Stephen R. Swofford, Michael A. Lawder, Bruce L. Carmen, of counsel), for Joseph Dooling and Kenneth Vanek.

Robert D. Larson, Smith, Larson, Pitts, Walters & Metz, Ltd., East Alton, Lewis E. Mallott, Campbell & Mallott, Godfrey, for Dustin Troy Pace and Jason Lamkin.

Justice GOLDENHERSH delivered the opinion of the court:

Defendants, Stan Towner, Pat Dooling (also referred to in the briefs as Pat Dooley, Joe Dooling and Joseph Dooling), Kenneth Vanek, Carroll Supply & Service, and Gallatin Aluminum Products, Inc., appeal from orders of the circuit court of Madison County denying defendants' motions for summary judgment. In this cause, all defendants raise the issue whether the trial court erred in denying their motions for summary judgment.

On March 2, 1983, plaintiff, Jason Lamkin, a two-year-old, lived with his mother, Carol A. Lamkin, in an apartment located at 911 East Fifth Street in Alton. On that date, plaintiff, Carol A. Lamkin, was vacuuming Jason's bedroom on the second floor and had moved Jason's bed underneath the window to vacuum the area where Jason's bed was usually positioned. She had opened the window before vacuuming, but a screen was still in place and covering the space. This was the first time she had ever opened this window. She did not notice anything wrong with the screen in the bedroom, although she had trouble with other screens in the apartment. In her deposition she stated that the screen in her bedroom window was bent and had a tendency to fall out. She never reported this to the landlord.

After Carol moved the bed, Jason stood on top of his bed and was looking out the window at another child who was playing with his toys on the ground below. Carol explained to Jason that he should share his toys, and she sent him into the hallway to play. Carol continued to vacuum. When she turned off the vacuum cleaner, she heard a grunting noise and turned to see Jason's feet going out the window. Jason fell out the window and struck his head on the paved area below. He suffered numerous injuries which are not detailed in the discovery which has been supplied.

On September 1, 1982, plaintiff, Dustin Troy Pace, age 18 months, lived with his mother, Robin R. Pace, in an apartment located at 911 East Fifth Street in Alton. On that date, plaintiff, Robin R. Pace, was on the first floor of her two-story apartment washing her hair. Dustin was also downstairs at a window watching people at a neighbor's party. Dustin's brother was downstairs watching television. Robin went upstairs to dry her hair. When she turned off the hair dryer, she heard something hit. She ran into Dustin's bedroom and saw the screen was off the window. She ran downstairs and outside and found Dustin lying on the ground below. He, too, suffered injuries which have not been detailed in the provided discovery. Earlier in the day, she had opened the window in question and the screen was in place. She had not experienced any difficulty with the window or the screen in the past. It does not appear that anyone actually witnessed the fall.

According to the building's owner, Stanley Towner, the windows in the building at 911 East Fifth Street in Alton are all the same, with the exception of the bathroom windows, which are smaller. The frames are aluminum with a white baked-on finish. The top half of the window is fixed. Only the bottom goes up and down. The screen is also fixed. It does not slide up and down and only covers the bottom half of the window. There is a shallow channel area at the base of the window into which a screen fits. There are also some triangular clips with a spring that helps keep the window anchored in the bottom ledge.

Stan Towner bought the building from Kenneth Vanek and Joe Dooling on October 15, 1982. Vanek and Dooling had renovated the building at 511 E. Fifth Street in Alton. As part of the renovation, defendant Dooling had ordered window units, including screens, from Dale Carroll. The windows were ordered according to Dooling's specifications. Upon arrival from the manufacturer, the window units were inspected by Dale Carroll and no damage was found. Dale Carroll stated in his deposition that no alterations were made on the window units. They were delivered to Dooling as packaged by the manufacturer.

On February 28, 1985, Jason Lamkin, a minor, by his mother and next friend, Carol A. Lamkin, and Carol Lamkin filed a complaint alleging that on March 2, 1983, Jason sustained personal injury after falling from the second story window in which the window screen fell out of a rental apartment complex. Plaintiffs named as defendants the owner of the apartment complex, Stan Towner, the rehabilitators of the apartment who put the windows and screens in place, Pat Dooling and Kenneth Vanek, the retailer of the windows and screens, Carroll Supply & Service, and the manufacturer of the window units, Gallatin Aluminum Products, Inc. Also, on February 28, 1985, plaintiffs, Dustin Troy Pace, a minor, by his mother and next friend, Robin R. Pace, and Robin R. Pace filed a complaint alleging that on September 1, 1982, Dustin sustained personal injury after falling from the second story window in which the screen fell out of a rental apartment complex.

Both plaintiffs allege that defendants Stan Towner and Pat Dooling and Kenneth Vanek, a partnership, were negligent in one or more of the following respects: (a) failed to securely and firmly attach the window screens to the window frames of the apartment building (b) failed to warn plaintiffs' mothers with regard to the fragile condition of the window screens, (c) failed to repair or replace the window screens when defendant knew, or should have known of their fragile nature. With respect to defendants Dooling and Vanek, a partnership, plaintiffs additionally allege that defendants were negligent in that they (d) failed to locate the windows a reasonable and safe distance above the floor level within the apartments.

Both plaintiffs also allege that defendants, Carroll Supply & Service and Gallatin Aluminum Products, Inc., were negligent in that the windows and screens were unreasonably dangerous and defective because (a) the screens readily popped out from the frames, (b) the screens were not securely fastened within tracks on the windows, (c) there were no secure latches, locks, or other devices to fix the window screens to the frames. As a proximate result of one or more of these negligent acts or omissions by defendants, plaintiffs sustained severe and permanent injuries.

Defendants all filed answers to plaintiffs' complaints. Defendants then filed motions for summary judgment based on the absence of any legal duty on their part on which liability could be predicated. Additionally, Carroll Supply & Service filed a motion to dismiss pursuant to section 2-621 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-621). The trial court denied defendants' motions for summary judgment and the motion to dismiss filed by defendant Carroll Supply & Service. On November 18, 1987, defendants filed a motion pursuant to Supreme Court Rule 308 (107 Ill.2d R. 308). The trial court granted defendants' motion. Both cases have been consolidated for purposes of appeal.

Defendants' only issue on appeal is whether the trial court erred in denying defendants' motions for summary judgment. Defendants specifically argue that in Illinois, a window screen is not required or intended to keep persons from falling out the window in which it was placed. Window screens provide only a way for air and light to enter a room and to keep insects out. Since Illinois courts have consistently held there is no such duty on the part of a landlord to maintain a window screen which will keep minors from falling out, there can be no legal liability on the part of the landlord, the builder, the retailer, or the manufacturer of the screens for negligence for failure to provide a child-proof screen. Defendants essentially rely on the same cases to support their proposition. (Laster v. Chicago Housing Authority (1982), 104 Ill.App.3d 540, 60 Ill.Dec. 286, 432 N.E.2d 1185; Scheffler v. Ringhofer (1966), 67 Ill.App.2d 222, 214 N.E.2d 575; Gasquoine v. Bornstein (1956), 10 Ill.App.2d 423, 135 N.E.2d 121; Rogers v. Sins (1953), 349 Ill.App. 353, 110 N.E.2d 643; Crawford v. Orner & Shayne, Inc. (1947), 331 Ill.App. 568, 73 N.E. 615.) Plaintiffs respond that defendants' proposition that screens serve the sole purpose of keeping insects out and, therefore, there is no liability when a screen fails causing a child to fall through a window opening is antiquated and fails under modern tort law. The evolution of technology has been such that there is the potential for a child-proof screen. A jury should be allowed to hear evidence of negligence. We agree.

The standards governing...

To continue reading

Request your trial
7 cases
  • Lamkin v. Towner
    • United States
    • Illinois Supreme Court
    • October 4, 1990
    ...court affirmed the trial court's denial of the motions for summary judgment as well as the motion to dismiss. (190 Ill.App.3d 631, 137 Ill.Dec. 907, 546 N.E.2d 1020.) We granted appellants' petitions for leave to appeal (107 Ill.2d R. In allowing appellants' motions for interlocutory appeal......
  • Calles v. Scripto-Tokai Corp.
    • United States
    • Illinois Supreme Court
    • June 30, 2005
    ...child suffered severe injuries when he leaned on a screen in a window and the screen gave way. Lamkin v. Towner, 190 Ill.App.3d 631, 633, 137 Ill.Dec. 907, 546 N.E.2d 1020 (1989), rev'd, 138 Ill.2d 510, 150 Ill.Dec. 562, 563 N.E.2d 449. Our supreme court fully applied risk-benefit analysis,......
  • Lamkin v. Towner
    • United States
    • United States Appellate Court of Illinois
    • June 16, 1993
    ...trial court's denial of defendants' motions for summary judgment and the retailer's motion to dismiss. (Lamkin v. Towner (1989), 190 Ill.App.3d 631, 137 Ill.Dec. 907, 546 N.E.2d 1020.) Our supreme court granted defendants' petitions for leave to appeal and ultimately reversed and remanded f......
  • Henstein v. Buschbach
    • United States
    • United States Appellate Court of Illinois
    • June 30, 1993
    ...affirmed the trial court's denial of the motions for summary judgment as well as a motion to dismiss. (Lamkin v. Towner (1989), 190 Ill.App.3d 631, 137 Ill.Dec. 907, 546 N.E.2d 1020.) The supreme court reversed the judgments of the appellate and circuit courts. Lamkin, 138 Ill.2d 510, 150 I......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT