Sparrow v. Talman Home Federal Sav. & Loan Ass'n, 1-90-1755

• Decision Date: 27 March 1992
• Docket Number: No. 1-90-1755,1-90-1755
• Citation: 227 Ill.App.3d 848,592 N.E.2d 363,169 Ill.Dec. 876
• Parties: , 169 Ill.Dec. 876 Stephen A. SPARROW and Marlene Sparrow, Plaintiffs-Appellants, v. TALMAN HOME FEDERAL SAVINGS & LOAN ASSOCIATION, Defendant-Appellee. First District, Fifth Division
• Court: United States Appellate Court of Illinois

Page 363

592 N.E.2d 363

227 Ill.App.3d 848, 169 Ill.Dec. 876

Stephen A. SPARROW and Marlene Sparrow, Plaintiffs-Appellants, v. TALMAN HOME FEDERAL SAVINGS & LOAN ASSOCIATION, Defendant-Appellee.

No. 1-90-1755.

Appellate Court of Illinois,

First District, Fifth Division.

March 27, 1992.

Justice LORENZ delivered the opinion of the court:

Plaintiff, Stephen A. Sparrow, suffered personal injuries after falling through drywall in the attic of defendant's converted garage. On the opening day of trial, plaintiff filed an emergency motion for leave to file a fifth-amended complaint adding a count under the Structural Work Act (Ill.Rev.Stat.1987, ch. 48, par. 60 et seq.). The trial court denied the motion. After plaintiff presented his case based on a negligence theory, the trial court entered a directed verdict in favor of defendant. The court found that the danger presented by the drywall was open and obvious and, therefore, defendant did not owe plaintiff a legal duty. Plaintiff appealed. We consider: (1) whether the trial court, on the opening day of trial, abused its discretion denying plaintiff's emergency motion for leave to file a fifth-amended complaint adding a count under the Structural Work Act; and (2) whether the trial court properly entered a directed verdict in favor of defendant.

We affirm.

Relevant to our disposition are the following facts as disclosed by the record. On August 18, 1982, Stephen A. Sparrow (Sparrow) suffered personal injuries after falling through the ceiling of a converted garage located at 1521 Fairfield, Hoffman Estates, Illinois. Sparrow filed suit against Talman Home Federal Savings & Loan (defendant), owner of the premises. (Although Sparrow's wife, Marlene, was named in the notice of appeal, her participation in the proceedings is not relevant to our disposition.)

In 1977, Walter Ragnow, as owner of 1521 Fairfield, converted the garage into a bedroom. Prior to the conversion, the attic above the garage had been accessed by a scuttle hole (a framed opening with a trap door). As part of the conversion, Ragnow filled the scuttle hole with a piece of drywall which was plastered over and made part of the bedroom ceiling. Ragnow did not place a piece of plywood over the drywall. The drywall sat 3 1/2 inches below the two-by-four support beams in the attic above. Ragnow then installed a disappearing stairwell to provide new access to the attic. The mouth of the stairwell was adjacent to the covered scuttle hole.

Ragnow subsequently defaulted on his mortgage and Northwest Federal Savings & Loan (Northwest Federal) acquired title to 1521 Fairfield through foreclosure proceedings. Then, on February 19, 1982, defendant acquired title to 1521 Fairfield through a merger with Northwest Federal.

Prior to the day of his injury, Sparrow was employed by Northwest Federal as a real estate manager. On the day of his injury, Sparrow was employed by Talman Home Mortgage Corporation as a real estate manager. Sparrow's responsibilities with both employers required that he inspect foreclosed property to determine whether the property needed to be cleaned or repaired. Eventually, the property would be made available to the public for sale.

Defendant, on its part, executed a service agreement with Talman Home Mortgage Corporation which required that Talman Home Mortgage Corporation maintain various properties owned by defendant. If repairs or cleaning were required, an independent contractor was hired to perform the work.

On August 18, 1982, the day of his injury, Sparrow went to inspect 1521 Fairfield pursuant to the service agreement with defendant. It was Sparrow's first visit to 1521 Fairfield. Sparrow was accompanied by John Martz, an independent contractor. Martz often placed bids for the repair work on the foreclosed properties; however, he did not intend to bid for the work at 1521 Fairfield. Both Sparrow and Martz entered the premises but Martz soon returned to his truck.

Sparrow had in his possession an inspection report for 1521 Fairfield which had been given to him by Dick Bauer, another manager with Talman Home Mortgage Corporation. The inspection report stated: "attic has quite a bit of debris. Clean out is in order. Folding stairs to attic." Sparrow located and pulled down the string to the disappearing stairwell. He ascended to the top of the stairs and placed his foot on Sparrow filed his initial complaint in 1983. In 1990, on the opening day of trial, Sparrow filed an emergency motion for leave to file a fifth-amended complaint adding a count under the Structural Work Act. The court denied the motion on two grounds: (1) the attic floor was not used as a "scaffold" or "support" or "device" as those terms are defined in the Act; and (2) the emergency motion unfairly surprised defendant.

[169 Ill.Dec. 878] a two-by-four support beam in the attic. He stood on the support beam, looked around, and saw a volume of debris to his left. He then took two or three steps forward to get a better view of the debris. His foot came into contact with the drywall and his body fell through the drywall to the floor below. As a result of the fall, he broke his leg. Sparrow admitted that the lighting in the attic was sufficient and that he was looking at the drywall when he stepped forward. He did not, however, intentionally step on the drywall. Furthermore, Sparrow knew the difference between plywood and drywall and that drywall could not support his weight.

After Sparrow presented his case in chief based on a negligence theory, defendant moved for a directed verdict. During the hearing on the motion, defendant argued, in part, that (1) defendant did not know of the existence of the drywall (covered scuttle hole) and, therefore, defendant could not be held liable; and (2) that the danger presented by the drywall was open and obvious to Sparrow and, therefore, defendant did not owe Sparrow a legal duty. The trial court found that the danger was open and obvious and granted the motion on the ground that defendant did not owe Sparrow a legal duty. The court relied on Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 N.E.2d 465.

OPINION

We first address whether the trial court properly denied Sparrow's emergency motion for leave to file a fifth-amended complaint adding a count under the Structural Work Act. Because we agree that the emergency motion unfairly surprised defendant, we do not consider whether the attic floor was a "scaffold" or "support" or "device" as those terms are defined under the Act.

Although the Code of Civil Procedure provides that pleadings may be amended at anytime prior to trial, it is well settled that parties have no absolute right to amend a complaint; rather, granting or denying a motion for leave to amend a complaint is a matter within the discretion of the trial court and its decision will not be disturbed on appeal except where there is a clear or manifest abuse of that discretion. Intini v. Schwartz (1979), 78 Ill.App.3d 575, 33 Ill.Dec. 751, 397 N.E.2d 84.

Here, the court considered that Sparrow filed his initial complaint in 1983. Sparrow subsequently filed four amended complaints (dated December 13, 1983; March 13, 1984; August 15, 1984; and October 2, 1986), each alleging damages under a negligence theory. Then, seven years after filing the initial complaint and on the opening day of trial (January 3, 1990), Sparrow filed an emergency motion for leave to file a fifth-amended complaint adding a count under the Structural Work Act. The trial court noted that Sparrow's counsel was fully aware of the facts in the case for over seven years. The trial court also noted that a claim under the Structural Work Act, unlike a claim under a negligence theory, did not permit consideration of Sparrow's negligence. In light of these considerations, the court ruled that the emergency motion constituted unfair surprise to defendant.

We note that other courts have held that similar motions to amend complaints constituted unfair surprise to the opposing party. In particular, Mundt v. Ragnar Benson, Inc. (1975), 61 Ill.2d 151, 335 N.E.2d 10, held that a complaint amended on the opening day of trial adding a count under the Structural Work Act constituted unfair surprise to the defendant. Accordingly, we hold that the trial court here did not abuse its discretion denying Sparrow's emergency motion for leave to file his fifth-amended complaint.

We next consider whether the trial court properly directed a verdict in favor of defendant. The trial court relied on Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 N.E.2d 465, and held that, where the danger was open and obvious, defendant did not owe Sparrow a legal duty. However, we believe that the Illinois Supreme Court opinion in Ward v. K Mart Corp. (1990), 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, requires that we reverse the trial court on the specific issue of whether a legal duty existed.

It is well settled that whether a legal duty exists in a particular case is a question of law to be determined by the court. (Ward, 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223.) It is also true that Genaust established a common law principle that an owner or occupier did not have a legal duty to warn entrants on his premises of a danger which was open and obvious. (Genaust, 62 Ill.2d 456, 343 N.E.2d 465.) However, Ward, which was issued before the trial court below disposed of Sparrow's post-trial motion, established:

"to the extent that the rule may have held that the duty of reasonable care owed by an owner or occupier to those lawfully on his premises does not under any circumstances extend to conditions which are known or obvious to such entrants, that rule is not the law in this State." (Emphasis in original.) (Ward, 136 Ill.2d at 145, 143 Ill.Dec. at 294, 554 N.E.2d at 229.)

Instead, Ward provides that an owner's duty toward entrants on his property is always that of reasonable care; and the...