Rios v. Field

• Decision Date: 08 March 1971
• Docket Number: Gen. No. 53972
• Citation: 270 N.E.2d 98,132 Ill.App.2d 519
• Parties: Richard RIOS, Plaintiff, v. Laura Willoughby FIELD and Frances Willoughby, Defendants. Frances WILLOUGHBY, Third-Party Plaintiff-Appellant, v. Helen DEL RIO and George Del Rio, Third-Party Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 98

270 N.E.2d 98

132 Ill.App.2d 519

Richard RIOS, Plaintiff, v. Laura Willoughby FIELD and Frances Willoughby, Defendants.

Frances WILLOUGHBY, Third-Party Plaintiff-Appellant, v. Helen DEL RIO and George Del Rio, Third-Party Defendants-Appellees.

Gen. No. 53972.

Appellate Court of Illinois, First District, First Division.

March 8, 1971.

Clausen, Hirsh, Miller & Gorman, Chicago, James T. Ferrini, Chicago, of counsel, for third party plaintiff-appellant.

Garretson & Santora, Chicago, Melvin A. Garretson, Dom J. Rizzi, Chicago, of counsel, for third party defendants-appellees.

LYONS, Justice.

Richard Rios was injured when the balustrade of a stairway which he was descending collapsed, causing him to fall. He brought an action in the Circuit Court of Cook County against the owners of the building, Laura Willoughby Field and Frances Willoughby. Frances Willoughby, in turn, filed a third party action against Helen and George Del Rio, lessees of the grade level store in the building and employers of Rios. The third party complaint alleged an indemnity agreement and failure of the third party defendants to tender a defense in the original action. The original action was dismissed by stipulation of the parties following a settlement of Rios' claim for $22,000.00, the order of dismissal specifically providing that the third party action was not to be prejudiced by such dismissal. The third party action, submitted to the court sitting without a jury, on the pleadings, exhibits, and a stipulation of facts resulted in a judgment for third party defendants from which third party plaintiff, Willoughby, has appealed.

The building in question, owned by Willoughby, consisted of a grade level store and second floor. Third party defendants leased the grade level store for the purpose of conducting a restaurant and tavern business. Although the lease conveyed only the grade level store, third party defendants were in the habit of storing certain cleaning materials on the second floor landing and also on the second floor. Rios, their employee, was descending an outside wooden stairway with such cleaning materials when the balustrade collapsed, causing him to sustain serious injuries.

In support of her claim for indemnity Willoughby has relied upon Articles twenty-three and twenty-four of the lease agreement which provide:

TWENTY THIRD: Lessee will further carry Liability insurance, other than the aforesaid Dram Shop insurance in the sum of $10,000.00, at lessee's expense and will provide that said Liability insurance will insure both the Lessee and the Lessor, against claims resulting from the use of the premises as Restaurant and Tavern.

TWENTY FOURTH: It is further covenanted and agreed that Lessee shall save harmless and indemnify Lessor against all lawsuits, demands, claims and judgments, liens, costs, and expenses resulting from lessee's transactions of business on the premises as Restaurant and Tavern.

She argues first that Article twenty-four requires the lessees to indemnify her even for injuries caused by her own negligence where such injury 'results' from lessees' transaction of business on the premises and that Rios' use of the stairway in the course of his employment, (lessees having stored cleaning materials on the second floor) was incidental to their transaction of business on the premises.

Willoughby also contends that the third party defendants stand in the relationship of liability insurers with respect to her by reason of their having breached the agreement contained in Article twenty-three. She argues that their failure to have her included as a named insured on the OLT policy which they procured, as required by Article...