Moldenhauer v. Krynski
| Decision Date | 14 September 1965 |
| Docket Number | Gen. No. 49733 |
| Parties | Elaine MOLDENHAUER, Plaintiff-Appellant, v. Tadeusz KRYNSKI, also known as Teddy Krynski and Krystyna Krynski, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Charles Pressman and Harold Friedman, Chicago, for appellant.
Gates W. Clancy, Chicago, Wendell W. Clancy, Chicago, of counsel, for appellees.
This was an action to recover damages for injuries received by plaintiff in a fall in an apartment rented by her and her husband from defendants. The trial court directed a verdict for defendants on the issue of liability, from which plaintiff appeals.
In June of 1958, plaintiff and her husband inquired about renting the second floor apartment in defendants' apartment building. Mr. Krynski informed them that the rent was $135.00 per month, but that inspection could not be made of the apartment at that time because the tenants living there were not home; plaintiff and her husband were told that the apartment was identical to the first floor apartment where defendants resided. Several days later the Moldenhauers were informed that they could have the apartment and were invited to inspect it. During the inspection it was noticed that several of the one-inch hexagonal ceramic floor tiles in the bathroom were loose. The loose tiles were supposed to cover a metal plate in the floor in an area located immediately adjacent to the bathtub. Mr. Krynski was asked if the tiles would be replaced, and he stated that the plumbing would have to be repaired first but that he would have the tiles replaced 'so that no one was hurt.' On the day of the inspection conditions of the tenancy were discussed, which included the furnishing of heat and the removal of a mirror from the apartment. The Moldenhauers rented the apartment on a month-to-month basis until June of 1959. No written lease was ever entered, nor does it appear that one was ever discussed.
During the duration of the tenancy the Moldenhauers requested Mr. Krynski to repair the tiles on six to nine occasions, but the repairs were never made. They testified they offered to repair the tiles themselves, or to employ someone to do it, but that Mr. Krynski refused to allow this for the reason that the plumbing would have to be repaired and the tiles in question would be removed in the process. For the entire period of the tenancy a small rug and a bathmat were kept partially over the loose tiles.
In June of 1959 the Moldenhauers were in the process of moving from the apartment. All of their property had been removed, including the small rug and the bathmat which had covered the loose tiles in the bathroom. While making a final inspection of the premises to make sure that nothing was left behind, plaintiff noticed two hand brushes on the bathtub ledge in a far corner. Plaintiff testified that she placed her foot on the secure tile next to the loose tile, making certain that she was not standing on the loose tiles, and reached over the bathtub to get the brushes. As she reached over, the apparently secure tile upon which she had been standing gave way with the loose tile. Plaintiff's feet went out from under her and she fell, striking her knees and sustaining injuries. Prior to the occurrence plaintiff had been suffering from lymphedema and elephantiasis in her legs.
Plaintiff's witness, Peter Keller, was employed in plumbing, tile, and building maintenance work. He testified that floor tiles support one another, and that if one is removed, weight has a tendency to cause the mortar around adjacent tiles to crack, causing them to become loose.
It was agreed upon by trial counsel that defendants' motion for a directed verdict on the issue of liability should be ruled upon by the court before plaintiff presented any evidence on damages. At the close of plaintiff's case on liability the court sustained defendants' motion for a directed verdict, on the ground that plaintiff's remedy was for breach of contract and that the damages for said breach could not include the personal injuries sustained by plaintiff, and on the further ground that plaintiff was guilty of contributory negligence as a matter of law.
When a court is ruling on a motion for a directed verdict the sole question presented for its consideration is whether all the evidence in favor of the plaintiff, taken to be true, together with all legitimate inferences, fairly tends to sustain the cause of action. In deciding the motion the court has no right to pass upon the credibility of witnesses, to consider any purported impeachments, the weight thereof, or the quality of the testimony. Crawford v. Orner & Shayne, Inc., 331 Ill.App. 568, 73 N.E.2d 615; Vieceli v. Cummings et al., 322 Ill.App. 559, 54 N.E.2d 717. Before it can be determined whether the motion in the instant case was properly sustained or not, the matter raised, concerning the landlord's liability for personal injuries suffered by his tenant on the demised premises, must be considered.
The landlord is generally under no duty to repair defects in the demised premises, unless he assumes such duty by way of an express contract. West Chicago Masonic Association v. Cohn, 192 Ill. 210, 61 N.E. 439, 55 L.R.A. 235; Sontag v. O'Hare, 73 Ill.App. 432. As with any contract, unless it is supported by consideration, it is nudum pactum and consequently unenforceable. Borggard v. Gale, 107 Ill.App. 128. The court below was of the opinion that, except in cases of fraud and concealment, the tenant assumes the risk of personal injuries arising from defects within the demised premises, notwithstanding the existence of a valid contract by the landlord to repair the defects. The court stated where such contract is breached, the tenant's remedy is limited to one of the following: (1) abandon the premises, (2) make the repairs himself and deduct the costs thereof from the rent, (3) continue in possession without making repairs and recoup the damages for the breach in an action for the rent, or (4) sue for damages for breach of covenant, the measure of damages being the difference between the value of the premises in repair and the value out of repair. Plaintiff contends that the position taken by the court incorrectly states the law in Illinois, for the reason that recovery may be had from a landlord by a tenant for personal injuries incurred as a result of the landlord's breach of his covenant to repair, where such damages were within the contemplation of the parties at the time of the making of the contract.
The position taken by the court overlooks the cases which allow recovery for personal injuries suffered by a tenant on demised premises where the landlord has breached his contractual duty to repair. See Alaimo v. Du Pont, 4 Ill.App.2d 85, 123 N.E.2d 583; Page v. Ginsberg, 345 Ill.App. 68, 102 N.E.2d 165. As stated in the landmark case of Cromwell v. Allen, 151 Ill.App. 404, the reason for the rule that the landlord is generally not liable for personal injuries to his tenant as a result of the landlord's...
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