Lamkin v. Towner

• Decision Date: 04 October 1990
• Docket Number: 69499,Nos. 69498,69506 and 69519,s. 69498
• Citation: 563 N.E.2d 449,150 Ill.Dec. 562,138 Ill.2d 510
• Parties: , 150 Ill.Dec. 562, Prod.Liab.Rep. (CCH) P 12,593 Jason LAMKIN, by his Mother and Next Friend, Carol Lamkin, et al., Appellees, v. Stan TOWNER et al., Appellants. Dustin Troy PACE, by his Mother and Next Friend, Robin Pace, et al., Appellees, v. Stan TOWNER et al., Appellants.
• Court: Illinois Supreme Court

Page 449

563 N.E.2d 449

138 Ill.2d 510, 150 Ill.Dec. 562,

Prod.Liab.Rep. (CCH) P 12,593

Jason LAMKIN, by his Mother and Next Friend, Carol Lamkin, et al., Appellees, v. Stan TOWNER et al., Appellants.

Dustin Troy PACE, by his Mother and Next Friend, Robin Pace, et al., Appellees, v. Stan TOWNER et al., Appellants.

Nos. 69498, 69499, 69506 and 69519.

Supreme Court of Illinois.

Oct. 4, 1990.

Rehearing Denied Nov. 30, 1990.

Stephen W. Thomson and Charles C. Compton, of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, P.C., Edwardsville, for appellant Stan Towner.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Stephen R. Swofford, William F. Kopis and Bruce L. Carmen, of counsel), for appellants Joseph Dooling and Kenneth Vanek.

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

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

William J. Meacham, of Smith, Larson & Pitts, Ltd., East Alton, and Robert D. Larson and G. Edward Moorman, Alton, for appellees.

Justice CLARK delivered the opinion of the court:

The primary issue in this case is whether liability can be imposed under theories of negligence or strict products liability for damages sustained by a child who fell through a window screen.

On September 1, 1982, appellee Dustin Pace, a minor, lived with his mother in an apartment in Alton, Illinois. Dustin's bedroom was on the second floor of the apartment. That morning, appellee Robin Pace, Dustin's mother, had opened the window in Dustin's bedroom and left the window screen down. From the bathroom on the second floor, Robin heard a sound coming from Dustin's bedroom. Running from the bathroom to Dustin's bedroom, Robin saw that the screen was gone from the window she had opened earlier that day. Robin found Dustin outside, lying on the ground below the open window. The record does not reveal the extent of the minor's injuries.

Appellee Jason Lamkin, also a minor, resided with his mother in the same apartment complex as Dustin and Robin Pace. On March 2, 1983, appellee Carol Lamkin, Jason's mother, was vacuuming Jason's bedroom. Before she began vacuuming, Carol opened a window in the bedroom located on the north wall. An aluminum screen was in place in the window frame. Jason's bedroom was located on the second floor of the building.

Jason's bed was ordinarily positioned along the east wall of the bedroom, but Carol had moved the bed to the north wall to vacuum the perimeter of the room, placing the top of the bed approximately one foot below the bottom of the open window. While Carol vacuumed, Jason climbed on top of the bed and peered out the open window on his hands and knees. As Carol reached to turn off the vacuum, she heard a noise. Turning to determine the origin of the sound, Carol saw Jason's feet as he fell headfirst out the open window, landing on the ground below. The screen was out of the window frame. Again, the record does not reveal the extent of the minor's injuries.

On February 28, 1985, Dustin Pace, by his mother and next friend, Robin Pace, and Robin Pace brought a negligence and products liability action in Madison County for injuries Dustin sustained after falling from the second-story window of the apartment building in Alton. Jason Lamkin, by his mother and next friend, Carol Lamkin, and Carol Lamkin also filed a negligence and products liability action on February 28, 1985, in Madison County for injuries Jason sustained after falling from the second-story window of the same apartment building in Alton. Named as defendants in appellees' complaints were the owner of the apartment building, appellant Stan Towner; the renovator/builder of the building, appellants Pat Dooling and Kenneth Vanek, a partnership; the manufacturer of the windows and screens, appellant Gallatin Aluminum Products, Inc.; and the retailer of the windows and screens, appellant Carroll Supply & Service.

All appellants filed motions for summary judgment (Ill.Rev.Stat.1987, ch. 110, par. 2-1005) in both cases based on the absence of any legal duty on their part on which liability could be predicated. The manufacturer also 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 appellants' motions for summary judgment and the motion to dismiss. On December 18, 1987, the trial court granted appellants' motions for interlocutory appeal in each case pursuant to Supreme Court Rule 308 (107 Ill.2d R. 308). The cases were consolidated on appeal and the appellate 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. 315).

In allowing appellants' motions for interlocutory appeal, the trial court certified four questions for review pursuant to Supreme Court Rule 308(a) (107 Ill.2d R. 308(a)). These questions are as follows:

"a. Whether, as a matter of law, * * * a landlord is under any common-law [sic ] duty to install and maintain screens in the windows of the apartments he rents to his tenants, sufficiently strong to support the weight of a tenant's child leaning against such window screen and prevent the child from falling out that window * * *.

b. Whether, as a matter of law, * * * a renovator/builder of apartments has a common law duty to install and construct screens in the windows of the apartments he renovates and/or builds which are sufficiently strong to support the weight of a tenant's child leaning against such window screen, so as to prevent that child from falling out that window * * *.

c. (1) Whether, as a matter of law, * * * a window frame and window screen can be defective or unreasonably dangerous because they were not sufficiently strong to support the weight of a child leaning against the window screen so as to serve as the basis for a cause of action for products liability against the retailer distributor-seller of such window frames and window screens * * *.

(2) Whether, as a matter of law, the trial court erred in not dismissing [the retailer distributor-seller] pursuant to Section 2-621 of the Illinois Code of Civil Procedure * * *.

d. Whether, as a matter of law, * * * a window frame and window screen can be defective or unreasonably dangerous because they were not sufficiently strong to support the weight of a child leaning against the window screen so as to serve as the basis for a cause of action for products liability against the manufacturer of such window frames and window screens."

Before proceeding with an examination of these questions, we note that the appellate court opinion failed to address the certified questions individually. Instead, the appellate court reached a general conclusion that there was "liability on the part of the landlord, the builder or renovator, the retailer * * * or the manufacturer" (190 Ill.App.3d at 637, 137 Ill.Dec. 907, 546 N.E.2d 1020) without first determining whether a separate duty existed on the part of each of these individual appellants. Implicit in the restriction that any appeal pursuant to Rule 308 should be limited to only those questions certified by the trial court (see Key v. Jewel Cos. (1988), 176 Ill.App.3d 91, 99, 125 Ill.Dec. 652, 530 N.E.2d 1061; State ex rel. Skinner v. Lombard Co. (1982), 106 Ill.App.3d 307, 311, 62 Ill.Dec. 540, 436 N.E.2d 566) is the requirement that those questions must, in fact, be addressed. We turn therefore to a separate review of each of the questions certified by the trial court.

I. THE LANDLORD'S DUTY

The first question certified by the trial court, and the only issue (other than the retailer's motion to dismiss) discussed by the parties in their briefs and during oral arguments, is the landlord's common law duty to the appellees. An examination of the principles of landlord and tenant law will resolve this issue.

It is an established principle in Illinois that if a landlord retains control of a portion of the premises leased to the tenant, the landlord has the duty, as the party in control, to use ordinary care in maintaining that part of the premises in a reasonably safe condition. (Rowe v. State Bank (1988), 125 Ill.2d 203, 220, 126 Ill.Dec. 519, 531 N.E.2d 1358; Drewick v. Interstate Terminals, Inc. (1969), 42 Ill.2d 345, 247 N.E.2d 877; Murphy v. Illinois State Trust Co. (1940), 375 Ill. 310, 31 N.E.2d 305.) Conversely, where a defective condition exists on premises leased to a tenant and under the tenant's control, a landlord is not liable for injuries caused by the condition. (Rowe, 125 Ill.2d at 220-21, 126 Ill.Dec. 519, 531 N.E.2d 1358; Wright v. Mr. Quick, Inc. (1985), 109 Ill.2d 236, 238, 93 Ill.Dec. 375, 486 N.E.2d 908; Wagner v. Kepler (1951), 411 Ill. 368, 371, 104 N.E.2d 231.) As this court noted in Rowe:

" '[t]he lessee acquires an estate in the land, and becomes for the time being both owner and occupier, subject to all of the responsibilities of one in possession, to those who enter upon the land and those outside of its boundaries.' " Rowe, 125 Ill.2d at 221 [126 Ill.Dec. 519, 531 N.E.2d 1358], quoting W. Keeton, Prosser & Keeton on Torts § 63, at 434 (5th ed. 1984).

An exception to the general rule is where the landlord contracts to keep the property under the tenant's control in repair. (Mr. Quick, 109 Ill.2d at 239, 93 Ill.Dec. 375, 486 N.E.2d 908.) Having assumed a duty, otherwise absent, to maintain the property in a certain condition, common law liability may arise from the negligent performance of this voluntary undertaking. Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 199 N.E.2d 769; see also Pippin v. Chicago Housing Authority (1979), 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596 (holding that the Chicago Housing...