Trotter by Trotter v. Chicago Housing Authority

• Decision Date: 09 November 1987
• Docket Number: No. 86-2495,86-2495
• Citation: 516 N.E.2d 684,163 Ill.App.3d 398
• Parties: , 114 Ill.Dec. 529 Marvin TROTTER, a minor by his Grandmother and Duly Appointed Guardian, Dolly TROTTER, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, a municipal corporation, and Bulford Givins, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 684

516 N.E.2d 684

163 Ill.App.3d 398, 114 Ill.Dec. 529

Marvin TROTTER, a minor by his Grandmother and Duly Appointed Guardian, Dolly TROTTER, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, a municipal corporation, and Bulford Givins, Defendants-Appellees.

No. 86-2495.

Appellate Court of Illinois First District, First Division.

Nov. 9, 1987.

Schwartzberg, Barnett & Cohen, Benjamin H. Cohen, Heller & Morris and Assoc., Ltd., Todd A. Heller, Chicago, for plaintiff-appellant.

Moore & Maisel, Gary K. Moore, Thomas J. Branit, Chicago, for defendants-appellees.

Justice O'CONNOR delivered the opinion of the court:

Plaintiff Marvin Trotter, a minor, by Dolly Trotter, his grandmother and duly appointed guardian, sued defendants Chicago Housing Authority (CHA) and its janitor Bulford Givins (Givins) for personal injuries sustained, where, at age 11 months, he fell off a bed in his mother's apartment and was burned by a steam pipe adjacent to his bed. The trial court, relying on Hubbard v. Chicago Housing Authority (1985), 138 Ill.App.3d 1013, 93 Ill.Dec. 576, 487 N.E.2d 20, entered summary judgment for defendants. Plaintiff appeals contending that the rule stated in Hubbard is no longer valid.

The record shows:

Plaintiff's mother Shirley Anne Trotter rented an apartment from CHA's Henry Horner Homes and moved in on October 31, 1975 with her son Matthew. When she moved in she did not notice anything wrong with the apartment.

In 1976, plaintiff's grandmother, who lived in an apartment in another building in the Henry Horner Homes complained to the CHA at its maintenance office about the bare pipe. That was the only time she complained. Plaintiff's mother never did.

On January 15, 1977, plaintiff Marvin was born. About 9 p.m. on December 9, 1977 plaintiff, aged 11 months was badly burned when he fell from his bed on to a bare steam pipe that ran horizontally into a radiator which together with the pipe was part of the heating system of the building. The pipe had been there from the time she moved in. Plaintiff was at the age where he was on his way to begin to walk; he was holding on, standing up and then falling down. Plaintiff's bed was a single bed without any guardrails. Plaintiff had never fallen on the pipe before.

Plaintiff alleged defendants were negligent in that they

(a) failed to exercise reasonable care in the operation and control of its premises;

(b) failed to inspect the bedroom which would have revealed a hazardous condition;

(c) permitted uninsulated pipes to be used in heating the apartment;

(d) failed to warn plaintiff of dangerous conditions;

(e) failed to repair defective condition of pipes by enclosing or insulating them;

(f) failed to inaugurate and maintain necessary and proper safety standards in the operation of the premises.

As stated, the trial court entered summary judgment for defendants on the authority of the Hubbard case.

In that case Hubbard v. Chicago Housing Authority (1985), 138 Ill.App.3d 1013, 93 Ill.Dec. 576, 487 N.E.2d 20, appeal denied, (No. 62882 March Term 1986) a tenant was injured when he came in contact with a hot steam pipe located in his apartment which was owned by CHA (the same defendant as in the case at bar). There, as here, plaintiff alleged negligence on the part of the CHA in placing steam pipes along the surface of the apartment walls where tenants would come in contact with the pipes which were not covered by any type of insulating material. Defendant was alleged to be negligent in leaving hot steam pipes exposed (one of the charges of negligence in the case at bar).

This court held that there was no liability on the part of CHA, stating (138 Ill.App.3d at 1015, 93 Ill.Dec. 576, 487 N.E.2d 20):

It is well settled that a landlord is not liable for injuries sustained by a tenant on premises leased to the tenant. (Thorson v. Aronson (1970), 122 Ill.App.2d 156, 258 N.E.2d 33.) "In multiple-unit dwellings, a landlord owes his tenants a duty of reasonable care in the management and maintenance of areas open for use by all tenants, and not part of the premises occupied by one tenant." Webster v. Heim (1980), 80 Ill.App.3d 315 316, 399 N.E.2d 690, 691.

The steam pipes in the instant case are similar to the steam radiator involved in Dargie v. East End Bolders Club (1952), 346 Ill.App. 480, 105 N.E.2d 537. There, the plaintiff was a three-year-old child who was burned by an exposed radiator in a restroom in defendant's club. Plaintiff alleged that defendant was negligent in failing to cover the radiator with a guard. This court held that leaving a steam radiator exposed did not constitute negligence since the radiator was being used for the purpose for which it was intended and there was no defect in the radiator. (346 Ill.App. 480, 490, 105 N.E.2d 537, 542.) Similarly, in the instant case, we do not believe plaintiff has stated an action for common law negligence. Plaintiff do not point to any defects in the steam pipes. The steam pipes were simply hot and exposed, but not defective. Plaintiff was free to install safety guards around the steam pipes, but the lack of guards does not form the basis of liability on the part of defendant.

Plaintiff argues that these precedents should not be followed; that the feudal concepts of landlord and tenant should no longer apply. (See Kuhn v. General Parking Corp. (1987), 98 Ill.App.3d 570, 54 Ill.Dec. 191, 424 N.E.2d 941, appeal denied, 85 Ill.2d 578.) Cited in support of this contention are Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, 280 N.E.2d 208 which expanded the rights of tenants; Aranzullo v. Harrison (1946), 64 N.Y.S.2d 354 (14-year-old child--uncovered steam pipe); Thompson v. Paseo Manor South, Inc. (Mo.App.1959) 331 S.W.2d 1 (22-month-old child--steam pipe); and Coleman v. Steinberg (1969), 253 A.2d 167, 54 N.J. 58 (one-year-old infant--hot water pipe).

However, in Yuppa v. Whittaker (1958), 145 A.2d 255, 88 R.I. 214 the court held that the landlord of a tenement in which a child was injured from an uncovered heated pipe was not liable stating that where the tenant rented with knowledge that the uncovered pipe passing through the premises would be heated on occasion, the tenant took the premises as she found it and the landlord did not have a duty to guard against such defect either as to the tenant or any invitee including members of her household.

Plaintiff also cites in support of changing the standard: the concepts of landlord and tenant law as stated in Judge George Moran's dissent in Dapkunas v. Cagle (1976), 42 Ill.App.3d 644 at 653 et seq., 1 Ill.Dec. 387, 356 N.E.2d 575, appeal denied, 65 Ill.2d 577; and the cases of Sargent v. Ross (1973), 308 A.2d 528, 113 N.H. 388 (four-year-old--fall from stairway); Gladden v. Walker & Dunlop, Inc. (1948), 168 F.2d 321, 83 U.S.App.D.C. 224 (adult-defective electric switch); and Javins v. First National Realty Corp. (1970), 428 F.2d 1071, 138 U.S.App.D.C. 369.

Plaintiff further argues that the court should apply the rule of Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836 which, as to trespassing minors, substituted in place of the "attractive nuisance" doctrine, the general rules of negligence, principally foreseeability of harm to a minor, and a consideration that the expense or inconvenience of remedying the condition is slight compared to the risk to children. We disagree.

But even if the principles adopted in Kahn applied to the landlord-tenant relationship, CHA was not liable in the case at bar.

It is well settled that a landlord is not an absolute insurer (Bonamie v. Welsh (1981), 95 Ill.App.3d 349, 50 Ill.Dec. 926, 420 N.E.2d 243, appeal denied, 85 Ill.2d 563); neither is a landowner as to child trespassers (Driscoll v. C. Rasmussen Corp. (1966), 35 Ill.2d 74 at 78, 219 N.E.2d 483).

Even where a landlord retains control of part of the premises, he is not liable for injuries that are not reasonably foreseeable; he is not an absolute insurer for all injuries occurring on his premises. Kostecki v. Pavlis (1986), 140 Ill.App.3d 176, 94 Ill.Dec. 645, 488 N.E.2d 644 (one-year-old injured when hand went through glass panel of door).

Where there is no duty to repair, common law liability can only arise from a negligent performance of a voluntary undertaking. (Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 199 N.E.2d 769.) Defendants did not voluntarily undertake any repairs here.

Further, the existence of a legal duty on the part of a landowner is not dependent on the factor of foreseeability alone, but includes consideration of public policy and local requirements. Duncan v. Rzonca (1985), 133 Ill.App.3d 184, 195, 88 Ill.Dec. 288, 478 N.E.2d 603.

Under the facts of this case, the CHA could not reasonably foresee that an 11-month-old infant, who was beginning to be active would be left unattended on a bed without sides.

The responsibility for a child's safety lies primarily with the parents. Driscoll v. C. Rasmussen Corp. (1966), 35 Ill.2d 74, 219 N.E.2d 483 where the court said (35 Ill.2d at 79, 219 N.E.2d 483):

"... It is always unfortunate when a child gets injured while playing, but a person who is merely in possession and control of the property cannot be required to indemnify against every possibility of injury thereon. The responsibility for a child's safety lies primarily with its parents, whose duty it is to see that his behavior does not involve danger to himself. Others can be held responsible for injuries only if they are at fault under some recognized theory of liability."

See also Kay v. Ludwick (1967), 87 Ill.App.2d 114, 119, 230 N.E.2d 494.

Further, there is nothing in the record to indicate what will be the relative expense or inconvenience in remedying the claimed dangerous condition of the uninsulated pipe as related to the risk to children. This court can take judicial notice of the fact that the Henry Horner Homes is a large housing project and is only one of such projects in...