Stedman v. Spiros

• Decision Date: 19 October 1959
• Citation: 161 N.E.2d 590,23 Ill.App.2d 69
• Parties: Lawrence B. STEDMAN, Plaintiff-Appellant, v. Nicholas SPIROS, Defendant-Appellee. Gen, no. 11269.
• Court: United States Appellate Court of Illinois

Page 590

161 N.E.2d 590

23 Ill.App.2d 69

Lawrence B. STEDMAN, Plaintiff-Appellant, v. Nicholas SPIROS, Defendant-Appellee.

Gen, no. 11269.

Appellate Court of Illinois, Second District, Second Division.

Oct. 19, 1959.

Hollerich & Hurley, LaSalle, for appellant.

Pool & Langer, Ottawa, Berry & O'Conor, Streator, for appellee.

SOLFISBURG, Justice.

This is a suit for personal injuries. The defendant filed a motion to strike the plaintiff's Amended Complaint and dismiss the action, which motion was supported by affidavits. Counsel for plaintiff filed suggestions in opposition to defendant's motion, a motion to strike the defendant's affidavits in support of his motion, and counter-affidavits in opposition to defendant's motion. After hearings the trial court allowed defendant's motion to strike and dismissed the Amended Complaint as amended, and ordered that the plaintiff take nothing by his suit and defendant go hence without day with costs awarded defendant. From this final order of the trial court this appeal has been taken.

Since this appeal arises on the pleadings, it is essential that we outline their contents. Plaintiff's Amended Complaint as amended, upon which plaintiff elected to stand, alleged the following:

1. That on September 11, 1952, and prior and subsequent thereto, the State of Illinois was the owner and in possession of a public park known as Starved Rock State Park, in Deer Park Township, LaSalle County, Illinois, consisting of approximately seven hundred (700) acres, including numerous buildings among which were a lodge building consisting of lounge, lobby, offices, dining rooms; a hotel building consisting of some forty-eight rooms; one five-room guest house; two deluxe cabins, and six double and four single cabins; 'that said Lodge building and Hotel building consisted of a main building or buildings, with divers additions thereto, all of which extended in an easterly and westerly direction, with means of ingress and egress on the north and south sides of said Lodge building, and were constructed and used for hotel, inn and restaurant purposes, and to provide lodging, meals, relaxation and enjoyment for the general public; that said guest house was constructed for and used by the guests of said Lodge and Hotel for the purposes aforesaid, and was situated a short distance southwesterly of said Lodge building; that said cabins were constructed for and used by guests of said Lodge and Hotel for the purposes aforesaid, and were situated as follows: Said deluxe cabins were located just west of said Hotel building, and said single and double cabins were located a short distance east or southwest of said Lodge building; that about fifty feet north of said Lodge building there was a steep precipice with a perpendicular drop of more than one hundred feet; that vehicular approach to said Lodge, Hotel and cabins was only from the south by reason of the fact that said several buildings and the premises in connection therewith were surrounded on the north, east and west sides thereof by the aforementioned precipice.

'2. That on the north side of and adjacent to said Lodge building, there was a patio which extended for a considerable distance along the north side of said building; that the portion of said patio nearest said Lodge building was covered with flag stones; that a concrete sidewalk extended in an easterly direction from said flag stones; that the portion of said patio north of said sidewalk and between said sidewalk and said precipice consisted of a mowed lawn or grass plot; that the surface of the ground between said precipice and said sidewalk was sandstone, and was of a soft and crumbling nature; that the main doors on the north side of said Lodge opened directly upon said patio; that from said patio an unobstructed view could be had of Starved Rock, Starved Rock Dam, and the Illinois River Valley as far as the eye could see; that at all of the times herein mentioned, patrons of said Lodge, Hotel and cabins were in the habit of going to the aforementioned patio, lawn and grass plot, and using the chairs and benches there, for their comfort, convenience and enjoyment, as hereinafter set forth, and in order to see and enjoy the scenic beauty of the said park and its surroundings; that in the night time the said precipice and the dangerous condition there existing was not apparent or obvious to persons on said lawn; that all of the matters and facts herein set forth were then well known to the defendant, or by the exercise of a reasonable degree of care would have been known to him.

'3. That said patio was constructed and was thereafter maintained for the use pleasure and enjoyment of the patrons of said Lodge, Hotel and cabins; that in the north said of said Lodge building there are two or more large doors which furnished means of egress from said Lodge building to said patio, and ingress from said patio to said Lodge.'

4. That on December 9, 1947, the defendant entered into a certain lease agreement with the State of Illinois whereby said State of Illinois leased to defendant for the term of five years the 'aforementioned Lodge building, Hotel, Guest House, cabins, and certain other concessions' for a specified rental, which lease was in effect on September 11, 1952.

5. That on September 11, 1952, and prior thereto, large numbers of guests patronized the Lodge, Hotel, cabins, and restaurant, and numerous chairs and benches 'had been placed and maintained' on said patio both on the paved portion thereof and on the lawn portion thereof.

6. That on September 11, 1952, plaintiff registered and became a paying guest of the defendant at said Lodge and was assigned a room in one of the cabins.

7. That on said date, about 8:30 p. m., the plaintiff and some business associates, after dining in the restaurant of the Lodge, went upon the lawn or grass plot; that plaintiff was standing on said lawn 'about 15 feet north of said cement sidewalk' and was pointing out to his associates places of interest as shown by the lights therefrom.

8. That the plaintiff had never previously been a guest of the Lodge and had no knowledge or familiarity with the location of the precipice and of the dangerous condition there existing.

9. That the defendant well knew the patio, lawn and grass plot, and the chairs and benches thereon were constantly occupied and used by the Lodge, Hotel and cabin patrons.

10. That it was the duty of the defendant to 'see that the aforementioned patio including said lawn or grass plot was properly lighted before patrons were permitted to go thereon' and it was further his duty to 'post notices or erect warning signs or otherwise warn the plaintiff or other patrons' of the dangerous conditions there existing.

11. That the defendant disregarded his duty in negligently failing to see that the patio, lawn and grass plot were properly lighted at night, and negligently failed to post any notices or signs or otherwise warn plaintiff and other guests of the hotel of the dangerous condition there existing.

12. That defendant knew, or should have known, all the facts alleged hereinbefore.

13. That plaintiff was in the exercise of due care and caution for his own safety.

14. That on the day in question, while plaintiff was a guest of the Hotel and standing on the lawn at a point fifteen feet north of the cement sidewalk and at a point close to the edge of the precipice, when it was so dark that he could not see the precipice or the edge thereof, the soil upon which he was then and there standing 'suddenly slipped from under his feet and gave away', whereby plaintiff lost his balance and fell over the edge of the precipice, dropping a distance of more than fifty (50) feet, causing him severe and permanent injuries.

15. That as a direct and proximate result of the negligence of the defendant, severe injuries set forth in detail were suffered by the plaintiff to his damage.

Defendant's motion to strike the Amended Complaint and dismiss the action was based on the following grounds:

1. The Amended Complaint was substantially insufficient in law to state a cause of action.

2. The Amended, Complaint failed to allege facts creating a duty on defendant to perform the acts demanded of him by the plaintiff.

3. The acts or omissions complained of occurred on premises situated between the northerly side of the Lodge building in Starved Rock State Park and a precipice situated just a short distance to the north thereof. The Amended Complaint does not allege facts to place the duty on the defendant to fence, guard, light, or otherwise maintain said parcel of land.

4. The Amended Complaint does not allege that the premises demised to defendant by the State of Illinois included the premises located between the northerly side of the Lodge building and the edge of the precipice, and said premises remained in the possession and control of the State of Illinois for the use and benefit of the general public. Defendant was never obliged to maintain said premises between the northerly side of the Lodge building and the precipice.

The defendant supported his motion with various affidavits, his motion to dismiss being based both on Section 45 and Section 48 of the Civil Practice Act (Ill.Rev.Stats., Ch. 110, §§ 45, 48). The affidavits in support of the motion set forth the lease agreement, photographs of the Lodge site, lengthy verified statements by the defendant and an employee as to the physical facts concerning the Lodge building and surrounding terrain, as well as evidentiary matters concerning the occurrence which befell the plaintiff on September 11, 1952. While the trial judge considered that the defendant properly asserted his defense by means of a motion to dismiss under Section 48 of the Practice Act, a careful study of the record convinces this Court that Section 48 could not properly be availed of in this case. The defense which the defendant sought to raise does not come...