Weldon v. Hawkins

• Decision Date: 03 May 1989
• Docket Number: No. 88-1325,88-1325
• Citation: 539 N.E.2d 229,131 Ill.Dec. 876,183 Ill.App.3d 525
• Parties: , 131 Ill.Dec. 876 Ida WELDON, Plaintiff-Appellant, v. Reynolds T. HAWKINS and Marylena Hawkins, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 229

539 N.E.2d 229

183 Ill.App.3d 525, 131 Ill.Dec. 876

Ida WELDON, Plaintiff-Appellant, v. Reynolds T. HAWKINS and Marylena Hawkins, Defendants-Appellees.

No. 88-1325.

Appellate Court of Illinois First District, Third Division.

May 3, 1989.

Rehearing Denied June 21, 1989.

Sheldon Hodes, Chicago, for plaintiff-appellant (Leonard D. Litwin, of counsel).

Terrence E. Leonard, Chartered, Chicago, for defendants-appellees.

Presiding Justice FREEMAN delivered the opinion of the court:

Plaintiff, Ida Weldon, appeals from the trial court's granting of the motion of defendant, Reynolds T. Hawkins ¹, for a directed finding and the denial of plaintiff's motion for leave to file an amended complaint in a bench trial. Plaintiff, a tenant of the building on the premises owned by defendant, suffered injuries when she tripped and fell on weeds growing through a concrete sidewalk located near the garage on the premises. Plaintiff asserts that defendant's motion for a directed finding should have been denied since the subject matter of the motion was not pleaded in defendant's answer as an affirmative defense, and since the case law relied on by the trial court does not apply to plaintiff's action. Plaintiff also contends that the trial court abused its discretion in denying her motion for leave to amend her complaint in order to conform the complaint to the proofs.

For the reasons stated below, we reverse the judgment of the circuit court and remand this matter for further proceedings.

At trial, defendant testified that on October 3, 1984, the date plaintiff incurred her injury, he owned the premises located at 3559 West Medill in Chicago, and owned and controlled the area of the premises near the garage and garbage cans where plaintiff fell. Defendant, who was in charge of maintaining the premises, could not recall the last time he cut down the weeds growing near the garbage cans.

Plaintiff testified that she had been a tenant of defendant for approximately four months prior to her fall. On October 3, 1984, she was taking out her garbage. She was wearing open-toed sandals with a crepe sole. On her second trip down from her third-floor apartment, she carried a box. After placing the box in one of the cans, plaintiff turned and her left foot was caught in the weeds growing at the corner of the garage near the garbage cans. The weeds caught plaintiff's foot and she fell, fracturing her ankle.

At trial plaintiff also called Carmen Ocon to testify. Ocon was a former tenant of defendant who lived on defendant's premises approximately three months before plaintiff's fall. Ocon testified that defendant never cut down the weeds.

Photographs of the area where plaintiff fell were admitted into evidence and are part of the record. The record indicates that the weeds over which plaintiff fell were growing through spaces or cracks between blocks of the concrete walkway that ran alongside the garage on defendant's premises. The garbage cans were located just past the garage on the walkway.

At the close of plaintiff's case, defendant moved for a directed finding. Plaintiff filed a response to defendant's motion and a motion for leave to file an amended complaint to conform to the proofs. In her response to defendant's motion, plaintiff cited section 99-9 of the Chicago Municipal Code (Chicago Municipal Code § 99-9 (1984)), which declares weeds a public nuisance and requires an owner of land to cut, pull, or chemically treat weeds growing on the premises.

After a hearing on the motions of the parties, the trial court entered an order granting defendant's motion for directed finding and dismissing plaintiff's complaint with prejudice based upon the holdings in Burns v. Addison Golf Club, Inc. (1987), 161 Ill.App.3d 127, 112 Ill.Dec. 672, 514 N.E.2d 68 and Kostecki v. Pavlis (1986), 140 Ill.App.3d 176, 94 Ill.Dec. 645, 488 N.E.2d 644. The court further denied plaintiff's motion for leave to file an amended complaint.

Plaintiff initially contends on appeal that defendant's motion for a directed finding should have been denied because defendant raised for the first time in his motion for directed finding the defense that the weeds are a natural condition on the land which bars plaintiff's recove ry. Plaintiff contends that defendant's assertion that the weeds are a natural condition of the land constitutes an affirmative defense, which must be pleaded in an answer or be waived. We note that plaintiff has cited no case law or statutory authority in support of this contention. We find that defendant's failure to make such an assertion in his answer was not in itself fatal to the motion for directed verdict. Since we are reversing this matter on the grounds stated below, however, we will not address further this contention raised by plaintiff.

Generally, a landlord has a duty to exercise reasonable care to keep the premises, including common areas used by tenants, in a reasonably safe condition, and he is liable for an injury for failure to perform such a duty. (Kostecki v. Pavlis (1986), 140 Ill.App.3d 176, 94 Ill.Dec. 645, 488 N.E.2d 644.) In the instant case, defendant moved for a directed finding on the basis that the weeds were in a natural condition on the premises and therefore defendant had no duty to change the condition.

Section 2-1110 of the Code of Civil Procedure (Ill.Rev.Stat. (1987), ch. 110, par. 2-1110) provides that in a nonjury case, where the defendant moves for a directed finding at the close of the plaintiff's evidence, the court is to weigh the evidence and determine the credibility of witnesses and the quality of the evidence. The supreme court in Kokinis v. Kotrich (1980), 81 Ill.2d 151, 40 Ill.Dec. 812, 407 N.E.2d 43 stated that, contrary to the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504), when a defendant moves for a directed finding in a bench trial, the trial court is not to view the evidence in the light most favorable to the plaintiff. Rather, the court must consider "all of the evidence, including any favorable to the defendant, and is to pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and the quality of the evidence." (Kokinis, 81 Ill.2d at 154, 40 Ill.Dec. 812, 407 N.E.2d 43.) The supreme court further explained that the trial judge must first determine whether the plaintiff has established a prima facie case by presenting some evidence on every element of his cause of action. If he has not, judgment is appropriate in favor of the defendant. If the plaintiff has made out a prima facie case, the trial judge must then weigh the evidence and determine if sufficient evidence remains to support the plaintiff's prima facie case after weighing the evidence. (Kokinis, 81 Ill.2d at 154-55, 40 Ill.Dec. 812, 407 N.E.2d 43.) The decision of the trial court should not be reversed on appeal unless contrary to the manifest weight of the evidence. Kokinis, 81 Ill.2d at 154, 40 Ill.Dec. 812, 407 N.E.2d 43.

In the instant case, the trial court considered, as a matter of law, the question of whether the area of defendant's land where the weeds were growing was in a natural condition. We find, however, that the issue should have been treated as a question of fact, and that the trial court should have allowed evidence to be presented by the parties regarding whether the weeds were in a natural condition. Our review of case law indicates that the burden is on plaintiff to show that the area of the premises containing the weeds was not in a natural condition at the time of the accident. (See Lohan v. Walgreens Co. (1986), 140 Ill.App.3d 171, 94 Ill.Dec. 680, 488 N.E.2d 679; McCann v. Bethesda Hospital (1979), 80 Ill.App.3d 544, 35 Ill.Dec. 879, 400 N.E.2d 16; Bakeman v. Sears, Roebuck & Co. (1974), 16 Ill.App.3d 1065, 307 N.E.2d 449.) In the instant case, therefore, plaintiff should have been allowed to present evidence regarding whether the land containing the weeds was in an unnatural condition. Accordingly, we must reverse the trial court's granting of the motion of defendant for a directed finding and remand this matter to the trial court for further proceedings. On remand, after plaintiff is allowed to present evidence, if defendant at that time presents a motion for directed finding, the trial court then has a duty to consider whether the evidence is sufficient to support a prima facie case for plaintiff. If sufficient evidence has been presented, then the court must weigh the evidence to determine whether sufficient evidence remains to support plaintiff's prima facie case. If sufficient evidence remains, then the court must deny defendant's motion for directed finding. See Kokinis, 81 Ill.2d at 154-55, 40 Ill.Dec. 812, 407 N.E.2d 43.

Further, we find that Burns v. Addison Golf Club, Inc. (1987), 161 Ill.App.3d 127, 112 Ill.Dec. 672, 514 N.E.2d 68, relied on by the trial court, actually supports the conclusion reached here that whether the area of the premises containing the weeds was in a natural condition is a factual question. In Burns, the appellate court affirmed an order granting summary judgment in favor of the defendant owner of a golf course on which the plaintiff was injured when she tripped and fell over the exposed root of a tree. The plaintiff asserted on appeal that the defendant failed to show that the land, with the exposed tree root, was in a natural condition at the time of the injury, leaving a disputed factual issue. In addition, the plaintiff asserted that the trial court erred in finding, as a matter of law, that the defendant did not owe the plaintiff a duty of care to warn or protect the plaintiff from the natural condition of the land containing the exposed root.

The appellate court held that the trial court properly granted summary judgment, as there remained no material issue of fact as to the natural condition of the land containing the tree root....