Smith v. Rengel

• Decision Date: 16 June 1981
• Docket Number: No. 16826,16826
• Citation: 97 Ill.App.3d 204,422 N.E.2d 1146,52 Ill.Dec. 937
• Parties: , 52 Ill.Dec. 937 Curtis SMITH, Plaintiff-Appellant, v. Delbert RENGEL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1146

422 N.E.2d 1146

97 Ill.App.3d 204, 52 Ill.Dec. 937

Curtis SMITH, Plaintiff-Appellant, v. Delbert RENGEL, Defendant-Appellee.

No. 16826.

Appellate Court of Illinois, Fourth District.

June 16, 1981.

Allen, Clark & Cullinan, Ltd., Michael N. Cullinan, Peoria, for plaintiff-appellant.

Joseph E. Winne, Nicol, Newell, Prusak & Winne, Peoria, for defendant-appellee.

WEBBER, Justice:

This is an action in negligence for personal injuries in which the circuit court of McLean County allowed a motion for summary judgment in favor of the defendant and against the plaintiff. We reverse.

Defendant is a landowner of an apartment house containing three apartments. One of these was rented to Lynn Gose. Plaintiff had been paying court to Ms. Gose prior to the time of the injury which is the subject of this lawsuit. On December 31, 1977, at the request of Ms. Gose, plaintiff arrived at her apartment for the purpose of removing a refrigerator which had been left there by a prior occupant. The removal had been requested by defendant's wife, a co-owner of the building.

The apartment house is located four feet from a public sidewalk and is connected to it by a private walkway. Between the public sidewalk and the street there is a parkway, or boulevard, 14 feet in width, which is owned by the city of Bloomington. It is traversed by a walkway, whose location and dimensions give it the appearance of being an extension of the walkway from the public sidewalk to the apartment house. However, it is located entirely upon city property.

On the day in question plaintiff had backed his pickup truck partially onto the boulevard with its rear toward the apartment house in order to facilitate the removal of the refrigerator. As he and two others were carrying the refrigerator across the boulevard to the pickup truck, plaintiff stepped off the walk and into a hole which was adjacent to the walk and within the confines of the boulevard. This caused the refrigerator to slip and fall upon him with the resultant alleged injuries. There was also evidence that on that day both the boulevard and the walk traversing it were covered with snow, making the hole difficult to see.

All of the foregoing factual matters are gleaned from the affidavits and depositions presented in support of the motion for summary judgment.

In its order allowing the motion for summary judgment in favor of defendant, the trial court found that the defendant owed no duty to the plaintiff and that there was no genuine issue of material fact showing that defendant had violated any duty.

Summary judgment is proper when the issue is determinable solely as a matter of law. Serowski v. Klapper (1978), 65 Ill.App.3d 238, 22 Ill.Dec. 179, 382 N.E.2d 499.

The existence of a duty is a matter of law to be determined by the court. (Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617.) As tersely stated by Professor Prosser, "This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court." Prosser, Torts § 36, par. 3 (3d ed. 1964).

The central inquiry in this case is whether a landlord owes any duty of care to an invitee or social guest of his tenant who is injured in an area adjacent to, but not upon, the landlord's premises. Before proceeding to that inquiry, it is first necessary to discuss briefly the status of the plaintiff.

It has long been held that where a landlord reserves a portion of his premises for common use with his tenants, he is under a duty to use ordinary care to keep that portion in a reasonably safe condition. (Loveless v. Warner (1962), 37 Ill.App.2d 204, 185 N.E.2d 392.) The same duty extends to invitees of the tenants (Shiroma v. Itano (1956), 10 Ill.App.2d 428, 135 N.E.2d 123) and to the social guests of the tenants (Fugate v. Sears, Roebuck & Co. (1973), 12 Ill.App.3d 656, 299 N.E.2d 108). Thus, whether plaintiff was an invitee of Ms. Gose, or her social guest, defendant owed him the same duty as to her.

The duty owed by the landlord has been extended beyond the naked and precise property lines to include means of ingress and egress. (Cooley v. Makse (1964), 46 Ill.App.2d 25, 196 N.E.2d 396.) Cooley involved a sidewalk which was two or three feet from the defendant's tavern and apparently was the only means of ingress and egress. The duty was extended beyond such a defined means of ingress and egress in ...