Rahn v. Beurskens

• Decision Date: 11 January 1966
• Docket Number: Gen. No. 10646
• Citation: 213 N.E.2d 301,66 Ill.App.2d 423
• Parties: Duane A. RAHN, as Guardian of the Estate of Raymond Daniel Rahn, a minor, Plaintiff-Appellant, v. M. H. BEURSKENS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 301

213 N.E.2d 301

66 Ill.App.2d 423

Duane A. RAHN, as Guardian of the Estate of Raymond Daniel Rahn, a minor, Plaintiff-Appellant, v. M. H. BEURSKENS, Defendant-Appellee.

Gen. No. 10646.

Appellate Court of Illinois, Fourth District.

Jan. 11, 1966.

Webber, Balbach & Thies, Urbana, (Stanley B. Balbach, Urbana, of counsel), for appellant.

Lemna & Lee, Tuscola, for appellee.

SMITH, Justice.

Raymond Rahn, a 15 month old toddler, by his guardian, sued the landlord of his father for personal injuries sustained when he grasped a defective outside electrical wire on the premises with one hand and a water faucet with the other. At the close of plaintiff's evidence, the trial court directed a verdict, denied a post-trial motion and entered the judgment in bar which we now review.

Defendant successfully contended in the trial court, as he asserts here, that he cannot be liable for defects on the leased premises unless plaintiff establishes (1) that defendant retained possession of that part of the premises where the injury occurred; (2) or that the defect was latent; (3) or that the defendant had actual knowledge of such defect at the time of the letting and concealed it from the tenant; (4) or that any agreement to repair was entered into at the inception of the lease. Plaintiff apparently concedes that one or more of these conditions are a prerequisite to liability in proper cases and that none of them exist under the facts of this case. Nevertheless, he asserts that his age insulates him from the effective application of any of these conditions and that his right to recovery is based on ordinary rules of negligence. This is the issue.

The Rahns leased the property from the defendant on a month to month basis and moved into it in August 1962, with their four children who were all below the age of 10 years. At the time of the leasing, defendant was cleaning up the house and testified when called as an adverse witness: '* * * After Mr. Waugh moved out I cleaned up and painted and varnished the floor and woodwork and the house was in 100% good condition at the time that I rented it to the Rahns. I checked everything before it was rented to the Rahns including the wiring and it was all in good shape. All was okay. At the time I rented to them I think they had three or four children * * *.' Waugh, the previous occupant, testified that he 'observed the cable on the west side of the house and at certain spots of the cable it was bare like it had been eaten away or gnawed on or something.' He told the defendant he was going to have the house rewired but specified no particular wire. Defendant told him if he thought it needed rewiring to go ahead as it was his responsibility under his purchase contract. Defendant further testified that he made any repairs the Rahns requested and repaired a sewer and put in a screen within 10-12 feet of the cable in question. Mrs. Rahn said she noticed the wire and asked defendant about it when she paid the rent after the first month and again in the spring when she asked him to repair it, he said 'he would see about having it fixed'. Mr. Rahn also testified to defendant's promise to fix the wire within a week after they moved in and again when the sewer was being fixed and again in the spring. On this latter occasion, defendant said: 'Hasn't Sparks fixed it yet--I told him about it.' The wire was a Romax two-wire installation running from the meter down the side of the house near the water faucet. An offer of proof that the cost of repair would be $15.00 to $20.00 was refused.

Taking this evidence in the light most favorable to the plaintiff as we must in considering the propriety of the directed verdict, we think the evidence suggests (1) that the wiring was in a defective condition at the time of the leasing; (2) that the defendant knew or should have known it; (3) that defendant knew that the young children frequented the vicinity; (4) that he knew small children would not understand or appreciate the danger; (5) that injury to person or property was reasonably foreseeable from its condition and (6) the cost of repair was minimal. Under these circumstances, what was the duty and what is the liability of the defendant?

In Wagner v. Kepler, 411 Ill. 368, 104 N.E.2d 231, the court recognizes the general rule that, absent an agreement concerning repairs, the lessee and not the owner is liable to third persons for injuries received as a result of a failure to keep leased real estate in repair. It likewise recognizes the rule that where an owner has actual or constructive notice of a defective and dangerous condition existing at the time of the lease which remains uncorrected the owner, notwithstanding the lease, is liable to strangers for injuries resulting from such defective condition to the same extent as if he were in control and possession of the property. [Citing Cases.] In discussing the rule as to small children where the attractive nuisance doctrine does not apply, the court states the rule to be:

'* * * [W]here an owner knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of discovering the danger or appreciating the risk involved, and where the expense or inconvenience to the owner in remedying the condition is slight compared to the risk to the children, the duty devolves upon the owner to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. Ramsay v. Tuthill Building Material Co., 295 Ill. 395, 129 N.E. 127, 129, 36 A.L.R. 23; Gritton v. Illinois Traction, Inc., 247 Ill.App. 395; Restatement of the Law of Torts, sec. 339; Prosser on Torts, sec. 77. * * *'

The foregoing rule was followed in kahn v. James Burton Company, 5 Ill.2d 614, 126 N.E.2d 836, where, in discussing the liability of one who was neither a lessor nor a lessee nor one in possession either of the premises or the instrumentality causing the injury at the time of its occurrence, the court adopts the rule that the true basis of liability to a child is the foreseeability of harm to the child and customary rules of negligence apply. Kahn has...