Vesey v. Chicago Housing Authority

• Decision Date: 21 November 1991
• Docket Number: No. 71212,71212
• Citation: 583 N.E.2d 538,164 Ill.Dec. 622,145 Ill.2d 404
• Parties: , 164 Ill.Dec. 622 Dorothy VESEY, Indiv. and as Next Friend of Lonzo Vesey, Appellee, v. The CHICAGO HOUSING AUTHORITY, Appellant.
• Court: Illinois Supreme Court

Page 538

583 N.E.2d 538

145 Ill.2d 404, 164 Ill.Dec. 622

Dorothy VESEY, Indiv. and as Next Friend of Lonzo Vesey, Appellee, v. The CHICAGO HOUSING AUTHORITY, Appellant.

No. 71212.

Supreme Court of Illinois.

Nov. 21, 1991.

Moore & Maisel, Chicago (Gary K. Moore, and Thomas J. Branit, of counsel), for appellant.

Ronald G. Fleisher, Karlin & Fleisher, and Gerald M. Sachs, of Sachs, Earnest & Associates, Ltd., Chicago (David A. Novoselsky, and Tammy A. Koester, David A. Novoselsky & Associates, Chicago, of counsel), for appellee.

Justice CLARK delivered the opinion of the court:

Plaintiff, Dorothy Vesey, individually and as next friend of her son, Lonzo Vesey, filed a two-count second-amended complaint in the circuit court of Cook County against defendant, the Chicago Housing Authority (hereinafter the CHA). In count I, plaintiff sought damages for personal injuries Lonzo suffered when he came in contact with an exposed steam heating pipe. In count II, plaintiff sought recovery of medical expenses she incurred in the treatment of Lonzo. The circuit court granted the CHA's motion for summary judgment. The appellate court reversed and held that the CHA had a duty of ordinary care under the Local Governmental and Governmental Employees Tort Immunity Act to "maintain[ ] all of its property in a reasonably safe condition." (Emphasis in original.) (205 Ill.App.3d 962, 971, 150 Ill.Dec. 789, 563 N.E.2d 916.) We granted the CHA's petition for leave to appeal (134 Ill.2d R. 315).

In the early morning hours of March 25, 1984, six-month-old Lonzo Vesey came in contact with an exposed steam heating pipe in the apartment of his baby-sitter, Lola McClinton. At the time, Lonzo was being cared for by Lola and her sister, Josephine McClennon, in Lola's apartment at 120 N. Hermitage in the Henry Horner public housing apartments. On the night of the accident, Josephine put Lonzo to bed at approximately 10:30 p.m., placing him on his stomach with pillows propped on both sides of him. Josephine went to sleep next to Lonzo at 12:30 a.m., and woke up several hours later when she heard Lonzo screaming. Evidently, Lonzo had gotten out of the bed, crawled to the steam heating pipe which was located in the bedroom, and touched it with his left hand. Lola stated that Lonzo had been attracted to the steam heating pipe due to "clicking noises" it made while steam moved through it. Lonzo suffered severe burns to his left hand and thigh, and one of his fingers was later amputated. According to Myles Doran, the acting chief engineer of the Henry Horner apartments, the protective guard which was to cover the steam pipe to prevent residents from being burned had been pushed aside leaving the front area of the steam pipe exposed.

In her second-amended complaint, plaintiff alleges that the CHA was negligent in its maintenance of Lola's apartment in that it failed to provide a cover or guard for the steam heating coil; failed to repair the exposed steam heating coil; failed to warn of the dangerous condition; and failed to set up and operate an inspection program to discover hazardous conditions on the premises. Plaintiff alleges that the CHA had "actual oral notice" of the defect in Lola's apartment at least five years prior to the accident.

In its motion for summary judgment, the CHA relied primarily on Trotter v. Chicago Housing Authority (1987), 163 Ill.App.3d 398, 114 Ill.Dec. 529, 516 N.E.2d 684, and Hubbard v. Chicago Housing Authority (1985), 138 Ill.App.3d 1013, 93 Ill.Dec. 576, 487 N.E.2d 20, for its claim that it was not negligent in this matter. In Hubbard, the plaintiff sued the CHA, claiming that it had acted negligently in failing to provide protective guards for hot steam pipes located in the plaintiff's apartment. The trial court dismissed the plaintiff's complaint for failure to state a cause of action. The appellate court affirmed the dismissal, stating that "[t]he 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 [the CHA]." (Hubbard, 138 Ill.App.3d at 1015, 93 Ill.Dec. 576, 487 N.E.2d 20.) Citing Hubbard, the appellate court in Trotter held that the defendant, the CHA, did not owe a duty to provide insulating material for exposed hot steam pipes in the apartments. (Trotter, 163 Ill.App.3d 398, 114 Ill.Dec. 529, 516 N.E.2d 684; see also Loving v. Chicago Housing Authority (1990), 203 Ill.App.3d 205, 148 Ill.Dec. 532, 560 N.E.2d 1129.) In both Trotter and Hubbard, the appellate court noted the well-settled rule that a landlord is not liable for injuries sustained by a tenant on the demised premises. See Lamkin v. Towner (1990), 138 Ill.2d 510, 150 Ill.Dec. 562, 563 N.E.2d 449.

In this case, the appellate court reversed the circuit court's order granting summary judgment, believing that the CHA owed plaintiff a duty under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill.Rev.Stat.1985, ch. 85, par. 1- 101 et seq.). Specifically, the appellate court cited section 3-102 of the Tort Immunity Act as support for its claim that the CHA owed a duty of reasonable care in this matter. Section 3-102 reads:

"(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition." (Emphasis added.) Ill.Rev.Stat.1985, ch. 85, par. 3-102(a).

The appellate court stated, "We conclude that the legislature, in enacting section 3-102, intended that a public entity would be held to the duty of ordinary care in maintaining all of its property in a reasonably safe condition, subject to the qualifications of that duty as set out in that section." (Emphasis added.) (205 Ill.App.3d at 971.) In so holding, the appellate court seemingly rejected the common law principle that a landlord is not liable for injuries caused by a defective condition existing on premises leased to a tenant and under the tenant's control. (See Lamkin, 138 Ill.2d at 518, 150 Ill.Dec. 562, 563 N.E.2d 449; Rowe v. State Bank (1988), 125 Ill.2d 203, 220-21, 126 Ill.Dec. 519, 531 N.E.2d 1358; Wright v. Mr. Quick, Inc. (1985), 109 Ill.2d 236, 238, 93 Ill.Dec. 375, 486 N.E.2d 908.) The appellate court stated, "Section 3-102 does not condition the public entity's liability on its exclusive control over or possession of the premises in question." (205 Ill.App.3d at 971, 150 Ill.Dec. 789, 563 N.E.2d 916.) Rather, the appellate court explained that section 3-102 requires actual or constructive notice on the part of the public entity in order to be held liable for unsafe conditions. (205 Ill.App.3d at 971, 150 Ill.Dec. 789, 563 N.E.2d 916.) The appellate court concluded that summary judgment was improper in this case because "[t]he record before us contains enough evidence that the CHA knew or should have known of the condition of the steam pipes and guard to let the case proceed to trial." 205 Ill.App.3d at 971-72, 150 Ill.Dec. 789, 563 N.E.2d 916.

Before this court, the CHA maintains that the appellate court misinterpreted the Tort Immunity Act as creating a duty on the part of the CHA to maintain the exposed hot steam pipe so as to prevent Lonzo from being burned. Specifically, the CHA claims that the appellate court has abolished for public entities the common law's distinction between demised premises and common areas, and has imposed a unique duty on public entities to maintain and inspect those demised portions of their property of which they have no possession or control. The CHA argues that no such duty exists at common law for public or private landlords, and the imposition of such a duty on public entities subverts the purpose of the Tort Immunity Act. The plaintiff, on the other hand, claims that this court need not consider the broad issue of interpreting section 3-102 of the Tort Immunity Act. Rather, the plaintiff argues that the facts of this case demonstrate a "classic example" of voluntary undertaking on the part of the CHA, and that summary judgment should be denied since material facts are in dispute. Regarding the appellate court's interpretation of section 3-102, the plaintiff asserts that its interpretation is correct.

We agree with the CHA that the appellate court erred in holding that the Tort Immunity Act imposed a duty on the CHA to maintain the exposed hot steam pipe so as to have prevented Lonzo from being burned. Further, we disagree with plaintiff's argument that under the voluntary-undertaking theory of liability, sufficient facts are in dispute that the circuit court should have denied the CHA's motion for summary judgment.

Initially, we note that this matter is before us on the CHA's motion for summary judgment. A motion for summary judgment should be granted when the pleadings, depositions, and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (See Ill.Rev.Stat.1989, ch. 110, par. 2-1005(c).) Further, in an action for negligence, the plaintiff must set out sufficient facts establishing the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Rowe, 125 Ill.2d at 215, 126 Ill.Dec. 519, 531 N.E.2d 1358; Curtis v. County of Cook (1983), 98 Ill.2d 158, 162, 74 Ill.Dec. 614, 456 N.E.2d 116; Pelham v. Griesheimer...