Shehy v. Bober

• Decision Date: 20 November 1979
• Docket Number: No. 78-1440,78-1440
• Citation: 34 Ill.Dec. 405,398 N.E.2d 80,78 Ill.App.3d 1061
• Parties: , 34 Ill.Dec. 405 Carlotta SHEHY, Administratrix of the Estate of Deborah Shehy, Deceased, Plaintiff-Appellee, v. Frank BOBER and Irene Bober, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 80

398 N.E.2d 80

78 Ill.App.3d 1061, 34 Ill.Dec. 405

Carlotta SHEHY, Administratrix of the Estate of Deborah Shehy, Deceased, Plaintiff-Appellee, v. Frank BOBER and Irene Bober, Defendants-Appellants.

No. 78-1440.

Appellate Court of Illinois, First District, Second Division.

Nov. 20, 1979.

Clausen, Miller, Gorman, Caffrey & Witous, P. C., Chicago (James T. Ferrini, Chicago, of counsel), for defendants-appellants on appeal only.

William D. Maddux & Associates, Chicago (Philip J. Rock, William P. Jones, Chicago, of counsel), for plaintiff-appellee.

HARTMAN, Justice:

In a wrongful death action plaintiff Carlotta Shehy, on behalf of herself and her minor son Anthony, sought to recover from defendants Frank and Irene Bober damages resulting from an accident in which her four-year-old daughter Deborah sustained fatal injuries in a fall from a window of their third floor apartment located in a building owned by defendants. The trial court entered judgment upon a jury trial verdict of $150,000 and denied defendants' post-trial motions for judgment n.o.v. or, among other relief alternatively sought, a new trial upon all issues. Defendants appeal from the judgment order and the order denying the post-trial relief named, raising, Inter alia, the sufficiency of the underlying complaint.

For the reasons hereinafter stated, we reverse the judgment orders of the circuit court and remand the cause for a new trial.

Plaintiff's initial complaint was filed on December 3, 1973, and as finally amended contained four counts. Count I was brought under the provisions of the Illinois Wrongful Death Act (Ill.Rev.Stat. 1971, ch. 70, pars. 1, 2) and alleged among other things that: defendants "at the inception" of plaintiff's tenancy agreed to assume the ordinary upkeep, maintenance and repair of the apartment for its duration; at the time of the accident and for a considerable period prior thereto defendants had notice, knew or should have known that certain windowsills were rotten and falling apart, and that certain windows had no screens or other protective devices on them; defendants were under a duty to repair the premises and keep them in repair for the safety of tenants and children of tender years; on or about December 3, 1971, Deborah fell through a window at defendants' building was precipitated three stories to the ground and consequently died, said occurrences being directly and proximately caused by dangerous and defective conditions and conduct ascribable to defendants' negligence, including failure to warn the plaintiff of rotten windowsills and to repair rotten windowsills. Count II was a claim for funeral expenses incorporating the factual allegations of Count I. Count III added an allegation of pain and suffering undergone by Deborah from the date of the accident until the date of her death. Count IV alleged that defendants "for valuable consideration" agreed to perform certain repairs to the windows and windowsills in her apartment. Sections 78-11 and 78-17.3 of the Chicago Housing Code were alleged to be in full force and effect at all relevant times, which defendants were claimed to have violated as a direct and proximate result of which the accident allegedly occurred. Defendants' answer consisted of general denials.

The case proceeded to trial on February 15, 1978. At the conclusion of the opening statements and prior to the presentation of evidence, the court allowed defendants' motion to dismiss Count III of the complaint on the ground that available information confirmed and plaintiff's counsel in his opening statement had just admitted that Deborah had been unconscious from the time of the accident until death and, therefore, no conscious pain and suffering occurred. The court also ordered " * * * that the plaintiff be and is hereby prohibited, warned and admonished from making any reference to conscious pain and suffering * * * " for the duration of the trial.

Plaintiff called defendant Frank Bober (sometimes hereinafter "Bober") as an adverse witness under section 60 of the Civil Practice Act (Ill.Rev.Stat. 1977, ch. 110, par. 60), who testified that he bought the building located at 739 S. Kostner about April of 1971 from a Mrs. Jesse Herman. Existing apartment leases remained in effect after the purchase. He inspected the building prior to purchase, and was in plaintiff's apartment on three or four occasions prior to December 2, 1971. On the first occasion, he came to inspect it and on another to check the heat after plaintiff phoned him. He personally painted the window trim on the outside of the building. On the date of the accident, he was working in the basement when an unidentified person told him a little girl was playing on the window ledge. He went outside and found her beneath the window lying on the concrete and apparently bleeding. He then ran up to plaintiff's apartment, banged on the door, and receiving no answer, went down to the first floor to call the police. The girl's parents appeared after the police arrived. At this point in defendant's questioning by plaintiff's counsel the following exchange occurred regarding Deborah's condition after the fall and before she was removed:

"Q. Was she conscious?

A. Was she conscious? She was moving, she was breathing.

Q. Groaning?

A. She was moving, yes.

Q. Was she uttering any sound?

A. Not anything that you know, understandable, maybe just grunting something.

Q. Well, did she make the sound that she was obviously in pain?

A. I don't know. She made a sound, I really would not go into that much detail. I am not a professional on whether she was in pain.

Q. It was obvious that she was in pain?

Defense counsel objected to the foregoing questions based upon the prior order prohibiting reference to conscious pain and suffering and on the opening statements of plaintiff's counsel. The court overruled the objection on the ground that it could not " * * * suppress the truth of a witness under oath." Counsel for plaintiff then asked defendant again if the girl was obviously in pain when he observed her on the ground and defendant responded affirmatively.

Defendant was then questioned extensively about his understandings and course of conduct relating to repair and maintenance of apartments generally and plaintiff's specifically. He understood it to be his responsibility to keep the walls, windows, doors and "permanent" parts of the building in good repair. While painting the outer window trim he was in a position to observe the two part window latches on the inside. Apparently referring to the window from which Deborah fell, he found no rotten wood on the outside that needed replacing. Defendant also observed the latches on that window while he was painting. He did not think he would have had trouble getting permission to enter plaintiff's apartment to make a necessary repair. If he had observed that any window hardware was missing, he would have been interested in replacing it.

Defendant was aware of the City ordinance requiring an apartment owner to keep windows in a sound state of repair, including the window hardware, part of which were the latches. He did not replace any hardware on the windows in plaintiff's apartment, but he did check them and see latches on them. Defendant acknowledged having testified at a prior deposition that he never checked the latches before the baby fell.

Plaintiff then testified. She identified her Exhibit 13 as a copy of the lease applying to her apartment at 739 S. Kostner. Before she moved in she had an opportunity to examine the apartment's interior, including the windows on the side of the apartment facing Kostner, from one of which Deborah later fell. The condition of the window was "pretty bad," with rotten wood over the sill and no noticeable lock. Before signing the lease plaintiff went to the real estate office to ask them to fix the windows and they agreed. After she moved in, however, the windows were not fixed.

In April of 1971 plaintiff was informed she should pay rent thenceforth to Bober. She discussed the windows with him on three occasions after he bought the building but he never fixed them. The only repair work done on the windows was the replacement of a pane broken in the middle window during a windstorm, to the right of which was the one from which Deborah fell. It was replaced from the inside of the apartment by defendant before Deborah's accident.

On December 2, 1971, sometime after 3:30 to 4 p.m., plaintiff and her son Anthony left the apartment to meet her husband, who had gone looking for Anthony when he had not returned from school at the usual hour. Deborah remained in the apartment alone, where she had been sleeping for fifteen or twenty minutes before they left. They walked to the corner of the building toward Lexington and waited there for plaintiff's husband. After he had arrived and was talking to plaintiff and Anthony, defendant ran up and told her Deborah had fallen from the window. The window had been closed when she left the building, but when she returned it was just high enough for Deborah to have gotten through. Deborah remained in a coma until she died on December 8th. Before the accident plaintiff had seen Deborah and Anthony playing around the windows on the side of the apartment facing Kostner and once had found them trying to let up the windows and look outside. Although she attempted to discipline them, plaintiff was unable to prevent the children from playing at the windows and therefore kept asking that they be fixed.

On cross-examination plaintiff testified that when the management failed to fix the window she tried to nail across the top part of the window, but the wood would not hold the nails. No other attempt was made to fix the window. She estimated she had been away from the apartment no longer than twenty minutes when she was told of Deborah's accident. She first said she frequently left Deborah alone in the apartment, later...