Webster v. Heim

• Decision Date: 15 January 1980
• Docket Number: No. 79-382,79-382
• Citation: 35 Ill.Dec. 624,399 N.E.2d 690,80 Ill.App.3d 315
• Parties: , 35 Ill.Dec. 624 Barbara WEBSTER, Plaintiff-Appellant, v. Roger HEIM, Defendant-Appellee, and Kim Leavitt, Defendant.
• Court: United States Appellate Court of Illinois

Page 690

399 N.E.2d 690

80 Ill.App.3d 315, 35 Ill.Dec. 624

Barbara WEBSTER, Plaintiff-Appellant, v. Roger HEIM, Defendant-Appellee and Kim Leavitt, Defendant.

No. 79-382.

Appellate Court of Illinois, Third District.

Jan. 15, 1980.

Larry T. Frantz, Raymond C. Rose, Ltd., Peoria, for plaintiff-appellant.

Daniel L. Furrh and Maximilian M. Prusak, Goldsworthy, Fifield & Gorman, Peoria, for defendant-appellee.

SCOTT, Justice:

This is an appeal from an order of the circuit court of Peoria County, Illinois, dismissing the second amended complaint for failure to state a cause of action.

On December 11, 1976, Webster leased from Heim a second floor apartment located in Peoria, Illinois. On December 24, 1976, at 2:00 a. m., a fire broke out in a first floor apartment. The only exit from the second floor was a stairway leading from the first to the second floor. There were no fire doors enclosing this stairway and no smoke detectors in the building. The fire spread up the stairway, preventing its use as a means of escape. In order to escape the fire, Webster jumped from the second floor and was seriously injured.

On January 13, 1978, Webster filed suit alleging negligence in the maintenance of the common areas and alternatively that there were undisclosed defects on the premises. On January 17, 1979, a second amended complaint was filed. On January 25, 1979, Heim filed a motion to dismiss or strike. On May 1, 1979, an order of dismissal was entered.

On appeal Webster raises these issues: (1) whether the complaint stated a cause of action, and (2) whether this court should reject the common law rule of the non-liability of a landlord for injuries to a tenant, and instead adopt a rule of reasonable care in such cases.

In Count I of her second amended complaint Webster alleged that Heim owed her a duty of ordinary care to keep the common areas of the building in a reasonably safe condition and that he violated that duty by providing only one means of exit from the second floor of the building, in failing to install fire doors to prevent the spread of flames and fumes up the stairway, and in failing to install a smoke or fire detection system.

In Count III Webster alleges that Heim had a duty to advise her of existing defects on the premises which were not readily apparent. Count III of the amended complaint alleges that latent defects were in existence on the premises, to-wit, inadequacy of exits, lack of fire doors, rapidly combustible furniture and inadequate wiring. It is Webster's contention that the landlord Heim knew or should have known of the defects and that he was therefore negligent and as a consequence liable.

Webster argues that Heim is liable for her injuries under the "common areas" rule. 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. (Meiners v. Moyer (1970), 119 Ill.App.2d 94, 255 N.E.2d 201.) Webster further argues that even though the injury may occur on that part of the premises occupied by one tenant, a landlord may be liable if the injury occurs because he was negligent in the management and maintenance of a common area. (Mangan v. F. C. Pilgrim & Co. (1975), 32 Ill.App.3d 563, 336 N.E.2d 374.) Webster argues that this theory was pled in Count I of her second amended complaint.

At common law a landlord had no duty to anticipate that his property might be damaged by fire (Dodd v. Nazarowski (1972), 4 Ill.App.3d 173, 280 N.E.2d 540) and no duty to the occupants of the property to provide proper exits for escape from a fire (Mazzu v. Darojo Realty Co., Inc. (1938), 254 App.Div. 633, 3 N.Y.S.2d 90). Failure to provide fire exits, smoke detection devices, and fire doors was not negligence at common law. Therefore any claim for damage resulting from a fire and based on that failure must be predicated upon a statute which creates liability. No such statute was pled. When one has no duty to perform, failure to perform in that manner is...