Lulay v. South Side Trust and Sav. Bank of Peoria

• Decision Date: 28 March 1972
• Docket Number: No. 71--31,71--31
• Citation: 280 N.E.2d 802,4 Ill.App.3d 483
• Court: United States Appellate Court of Illinois
• Parties: Mary LULAY, a/k/a Mary Lulay Sipka, Plaintiff-Appellee, v. SOUTH SIDE TRUST & SAVINGS BANK OF PEORIA, an Illinois Banking Corporation, Defendant-Appellant.

Page 802

280 N.E.2d 802

4 Ill.App.3d 483

Mary LULAY, a/k/a Mary Lulay Sipka, Plaintiff-Appellee, v. SOUTH SIDE TRUST & SAVINGS BANK OF PEORIA, an Illinois

Banking Corporation, Defendant-Appellant.

No. 71--31.

Appellate Court of Illinois, Third District.

March 28, 1972.

Heyl, Royster, Voelker & Allen, Peoria, for defendant-appellant.

Kellstedt & Young, Peoria, for plaintiff-appellee.

DIXON, Justice.

This was an action brought by Mary Lulay for injuries sustained by her when she fell through a step on an exterior stairway that gave way as she was descending from the second floor apartment where her family lived, to her car, parked on the ground level. Defendant bank, the landlord, rented the premises to plaintiff's father with a lessor's agreement to make exterior repairs. The case was tried before a jury and a verdict was returned in favor of plaintiff in the amount of Nineteen Thousand Dollars. This appeal is from the judgment entered on the verdict.

The building rented included a first floor combination grocery-bakery-food-dining-catering business operated by the tenant and second floor apartment where plaintiff lived with her father. The second floor also had a storeroom, a bakery work area and other premises used in the business. The exterior rear uncovered wooden stairway which gave way causing plaintiff's injuries was also used by business invitees and employees as well as the tenant, plaintiff, and guests. The rear stairway led to a back porch or landing about 12 feet above ground level.

The rental agreement covered the entire premises, provided for a monthly rental of $250.00. The agreement obligated the lessor to make repairs to the exterior of the building upon notice from the tenant concerning a defect, and the tenant agreed to repair the interior of the building. The dilapidated condition of the stairs was called to the bank's attention at the time of the original leasing in March, 1964. The need for repairs was repeatedly reported to the bank, and was pointed out to the bank's repairman who inspected the stairs.

At the time of the leasing and until long after the accident the stairs were weathered, needed painting, the end of the bannister was broken and the bottom steps needed repairs. All steps were loose and some needed replacement. Defects in the bottom three steps were noticed by plaintiff.

On the evening of September 9, 1965 plaintiff was descending the stairs when she fell on the fifth step from the top. Apparently the fifth step had become dislodged from the stairway and gave way as she stepped on it. The wood of the fifth step was in good condition but the nails securing the step to the frame had given way.

Prior to the accident plaintiff was employed by her father in the business. She was not paid other than room and board and a promise of a future gift of property. As a result of the injuries her working time diminished by about 30%. She did receive her share of the property promised. She was treated by four doctors and there was testimony of permanent injury.

The first argument advanced by defendant is, in effect, that it was never notified of the specific defect, that is, that step 5 was defective; as an alternative it also contends that the defect was latent.

A growing number of courts adhere to the rule that a landlord who has convenanted to keep premises in repair is liable for injuries received by a tenant, his family, servants, invitees or sub-tenants, because of his failure to do so. 49 Am.Jur.2d, Landlord and Tenant, Sec. 851. Moldenhauer v. Krynski, 62 Ill.App.2d 382, 210 N.E.2d 809. (Leave to appeal denied) Annotation: 78 A.L.R.2d, 1238.

Actual or constructive knowledge on the part of the landlord, of the defect causing the injury is necessary to render the landlord liable, and he may be held liable if he could, by the exercise of ordinary care, have discovered the defect causing the injury. 24 I.L.P. Landlord and Tenant § 306. It is common knowledge that there are many old structures, weakened by age and hard usage, the defects and weaknesses obvious, and it cannot be foreseen what particular timber may break or nail loosen under a strain, but constant care and watchfulness is required to keep the entire structure safe. In other words, we do not believe that in a situation, as here where the entire structure was decripit, that the exact nail must be pointed out in order to alert the landlord.

'In order to come fully within the scope of the definition of a latent defect, the defect must be hidden from the knowledge as well as from the sight and must be one which could not be discovered by the exercise of ordinary and reasonable care. Smith v. Morrow, 220 Ill.App. 627. If, by the exercise of reasonable care, the landlord could have ascertained and discovered the defective condition * * * then such defect cannot be classified as a latent...