No. 2--06--0505 Filed 3-21-07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
RHONDA GILLEY, ) Appeal from the Circuit Court
) of Winnebago County.
Plaintiff-Appellant, )
)
v. ) No. 03--L--133
)
GERALD KIDDEL, ) Honorable
) Timothy R. Gill,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BYRNE delivered the opinion of the court:
Plaintiff, Rhonda Gilley, appeals from the involuntary dismissal (735 ILCS 5/2--619(a)(9)
(West 2004)) of her amended complaint for negligence against defendant, Gerald Kiddel. The
complaint was based on injuries plaintiff sustained when she fell down the stairs inside an apartment
owned by defendant and leased to plaintiff's boyfriend, Roland Shipman. We affirm.
According to the discovery depositions of plaintiff, defendant, and Shipman, the following
evidence was adduced. Shipman and two roommates leased the premises from October 2001 until
June 2003. The stairs where the fall occurred were within the leased premises. Shipman testified
that he inspected the premises before he moved in and did not notice a problem with the carpeting
on the stairs. Several weeks after moving in, Shipman stapled the carpeting to the stairs "just for
more grip." Shipman testified that both he and others had fallen on the stairs prior to plaintiff's fall.
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Shipman believed he had told defendant about the prior falls. He stated, "I was trying to infer that
I didn't particularly like the quality of the steps. Maybe I did it in a roundabout way just to be nice
to my landlord but it was like we had a temporary covering and I was hoping for something more
permanent." Shipman further testified that he "implied" that he wanted the carpeting altered in some
way but he did not think he "ever came out and said it." Shipman testified, "I wouldn't say it was
unsafe but it wasn't suitable for living there for almost 2 years, plus, if he was going to leave it there,
he had done no maintenance on it at all." After plaintiff's fall, Shipman hoped defendant would
remove the carpeting on the stairs, but, because he never did, Shipman himself removed the
carpeting. Also, sometime before plaintiff's fall, the handrail along the stairs had come loose and
Shipman repaired it by pushing the rail back into the wall.
On May 11, 2002, plaintiff was at Shipman's apartment and was heading down the stairs.
Plaintiff had been up and down the stairs several times before and did not notice anything different
on the night that she fell. Plaintiff was looking down the stairs and took about three steps when the
"carpeting came loose" and her foot slid out from underneath her. As a result, she fell back and slid
down the stairs to the bottom, breaking her ankle. Plaintiff had held onto the handrail, and the
handrail did not come loose during her fall. The day after the fall, plaintiff noticed ripples in the
carpeting. Shipman observed the stairs after plaintiff's fall and did not notice anything out of the
ordinary.
Defendant testified that he owned and managed the premises and was responsible for
collecting rent and receiving phone calls for problems. He testified that he did not usually personally
perform repairs but rather 80% of the time he would hire a contractor to perform the work. When
defendant bought the premises in July 2000, the stairs were in good condition, and defendant never
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made any repairs or alterations to the carpeting. Between July 2000 and May 2002, he had been up
and down the stairs between 25 and 50 times and never noticed any problems with the stairs. He
never noticed any ripples in the carpeting. Furthermore, defendant testified that if he had observed
any problem with the stairs and felt they needed repairs, he would have repaired them. According
to the lease, the tenants were not authorized to make any alterations or repairs to the premises
without defendant's authorization. The tenants never requested authorization to make any repairs
to the stairs. Prior to May 11, 2002, no one ever complained to him about the condition of the stairs
and no one reported any falls or accidents involving the stairs. Shipman called defendant soon after
plaintiff's fall and told defendant that plaintiff fell down the stairs. Shipman stated that plaintiff was
wearing sandals and lost her footing. Shipman did not report that there were any problems with the
stairs.
Plaintiff filed a complaint, and defendant moved for summary judgment on the basis that
defendant, as the landlord, was not liable for injuries caused by a defective condition on premises
leased to the tenant and under the tenant's control. The motion was granted. Plaintiff subsequently
filed a motion to reconsider the grant of summary judgment and a motion for leave to file an
amended complaint. The court denied the motion for reconsideration but granted plaintiff leave to
file the amended complaint. The amended complaint asserted that defendant "owed plaintiff a duty
of care because the lessor contracted by a covenant in the lease or otherwise to keep the land in
repair. *** [T]he lessor failed to exercise reasonable care to perform his contract."
Defendant moved to dismiss the amended complaint. 735 ILCS 5/2--619(a)(9) (West 2004).
The trial court granted the motion, finding that "there is no duty on behalf of the defendant landlord."
Plaintiff timely appealed.
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Plaintiff argues that the trial court erred in granting both summary judgment and the motion
to dismiss pursuant to section 2--619 of the Code of Civil Procedure (735 ILCS 5/2--619 (West
2004)). However, the issue of the propriety of the trial court's grant of summary judgment is not
properly before this court, for when an amendment is filed that is complete in itself and that does not
refer to or adopt by reference the prior pleadings, the earlier pleadings are effectively withdrawn and
cease to be a part of the record for most purposes. Foxcroft Townhome Owners Ass'n v. Hoffman
Rosner Corp., 96 Ill. 2d 150, 154 (1983), quoting Bowman v. County of Lake, 29 Ill. 2d 268, 272
(1963). Thus, the filing of an amended pleading waives any objection to the trial court's ruling on
any former complaint. Foxcroft, 96 Ill. 2d at 154. Here, by filing an amended complaint, plaintiff
was precluded from appealing the order on her original complaint, and we restrict our review to the
court's dismissal of plaintiff's amended complaint.
The purpose of section 2--619 is to summarily dispose of issues of law or easily proved issues
of fact at the outset of a case. Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995); Milz v. M.J. Meadows,
Inc., 234 Ill. App. 3d 281, 286 (1992). The motion "invokes certain defects or defenses that raise
the question of whether the defendant is entitled to judgment as a matter of law." Albert Brooks
Friedman, Ltd. v. Malevitis, 304 Ill. App. 3d 979, 983 (1999). Subparagraph (a)(9), in particular,
provides for the raising of affirmative matter that avoids or defeats a claim or cause of action. 735
ILCS 5/2--619(a)(9) (West 2004). "Affirmative matter" is defined as a defense that either negates
the alleged cause of action completely or refutes a crucial conclusion of law or conclusion of
material fact unsupported by allegations of specific fact contained in or inferred from the complaint.
Krilich v. American National Bank & Trust Co., 334 Ill. App. 3d 563, 570 (2002); Milz, 234 Ill.
App. 3d at 286-87. It "encompasses any defense other than a negation of the essential allegations
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of the *** cause of action." Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115
(1993); see, e.g., Young v. Chicago Housing Authority, 162 Ill. App. 3d 53, 54 (1987) (the issue of
whether the defendant owed the plaintiff a duty of care is a question of law that is properly asserted
in a motion to dismiss pursuant to section 2--619). In ruling on a section 2--619 motion to dismiss,
a court may consider pleadings, depositions, and affidavits. Zedella, 165 Ill. 2d at 185.
The question on appeal is "whether the existence of a genuine issue of material fact should
have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter
of law." Kedzie, 156 Ill. 2d at 116-17. Our review is de novo. Krilich, 334 Ill. App. 3d at 569.
It is fundamental that to state a claim for negligence, a plaintiff must establish that the
defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the
plaintiff was injured as a proximate result of such breach. Milz, 234 Ill. App. 3d at 287. "Whether
a duty exists is a question of law to be determined by the court, and depends on whether the parties
stood in such a relationship to one another that the law imposes an obligation on the defendant to
act reasonably for the protection of the plaintiff." Gouge v. Central Illinois Public Service Co., 144
Ill. 2d 535, 542 (1991). In the absence of a duty, no recovery by a plaintiff is possible as a matter
of law. Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 215 (1988).
It is well settled in Illinois that a landlord is not liable for injuries caused by a defective or
dangerous condition on premises leased to a tenant and under the tenant's control. Klitzka v. Hellios,
348 Ill. App. 3d 594, 597 (2004). "Therefore, a lessor who relinquishes control of property to a
lessee owes no duty to a third party who is injured while on the leased property." Klitzka, 348 Ill.
App. 3d at 597. " 'The basic rationale for lessor immunity has been that the lease is a conveyance
of property which ends the lessor's control over the premises, a prerequisite to the imposition of tort
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liability.' " Wright v. Mr. Quick, Inc., 109 Ill. 2d 236, 238 (1985), quoting R. Schoshinski, American
Law of Landlord and Tenant §4.1, at 186 (1980). There are, however, several exceptions to the rule.
Klitzka, 348 Ill. App. 3d at 598. A landlord may be liable where: "(1) a latent defect exists at the
time of the leasing that the landlord should know about; (2) the landlord fraudulently conceals a
dangerous condition; (3) the defect causing the harm amounts to a nuisance;" (4) the landlord has
contracted by a covenant in the lease to keep the premises in repair (Wright, 109 Ill. 2d at 239); "(5)
the landlord violates a statutory requirement of which a tenant is in the class designated to be
protected by such requirement;" or (6) "the landlord voluntarily undertakes to render a service."
Klitzka, 348 Ill. App. 3d at 598.
Plaintiff first argues that, under the lease, defendant assumed a duty to repair the premises
and, thus, this case falls within an exception to lessor immunity.
Where a defendant is charged with negligence because of his failure to perform an act
allegedly required by contract, the question of whether the defendant actually had a duty to act will
be determined by the terms of the contract. Perkaus v. Chicago Catholic High School Athletic
League, 140 Ill. App. 3d 127, 134 (1986). "[T]he defendant's duty will not be extended beyond the
duties described in the contract." Perkaus, 140 Ill. App. 3d at 134.
Plaintiff cites several clauses of the lease that she contends created a duty to maintain the
premises. Our review of the provisions reveals that they did not require defendant to maintain the
property. The terms of the lease provide in pertinent part:
"3. Tenant *** agrees, during the occupancy of said demised premises to maintain
and keep the same in as good condition and repair as the same shall be upon taking
possession
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thereof, natural wear excepted ***.
4. *** Landlord shall have reasonable opportunity to inspect said premises, and do
any repairing or other work thereon which he shall deem necessary for the preservation of
the property.
***
18. No alterations or repairs may be performed in said apartment without landlord
approval."
The lease agreement expressly addresses the question of responsibility for repairs and
provides that the tenant is to "maintain and keep the [demised premises] in as good condition and
repair as the same shall be upon taking possession." It is thus clear that the parties intended the duty
of repair to rest on the tenants and not defendant. Wright, 109 Ill. 2d at 240; see, e.g., Bielarczyk
v. Happy Press Lounge, Inc., 91 Ill. App. 3d 577, 580 (1980) (under the lease, lessee had the primary
responsibility to keep the premises " 'in a clean, sightly and healthy condition, and in good repair'
").
Plaintiff also relies on the provision that states that "[n]o alterations or repairs may be
performed in said apartment without landlord approval." Plaintiff's argument fails because there is
no implied duty on a landlord to make repairs where the lease provision simply states that the lessee
cannot make certain changes without obtaining the lessor's consent. See Cerniglia v. Farris, 160 Ill.
App. 3d 568, 574 (1987); see also Yacoub v. Chicago Park District, 248 Ill. App. 3d 958, 961 (1993)
(lessor's contractual right to approve any improvements made by lessee does not create a duty on the
part of lessor). For example, in Rowe, 125 Ill. 2d at 220, a tenant argued that its landlord had control
over its premises based on a lease provision that stated: " 'The Lessee will make no alterations in or
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additions to said premises without first obtaining the Lessor's written consent.' " The court held that
this provision did not establish that the landlord maintained control over the tenant's premises, as
there was "nothing to suggest that if a request had been made, it would have been refused." Rowe,
125 Ill. 2d at 221. Here, the same is true. The agreement allowed for alterations and repairs with
the landlord's approval, and plaintiff put forth no evidence that if the tenants had asked to repair the
carpeting, defendant would have refused that request. Thus, this provision in the agreement does
not establish that defendant had a duty to repair the premises.
Next, plaintiff relies on paragraph 4 of the lease, which states that the "[l]andlord shall have
reasonable opportunity to inspect said premises, and do any repairing or other work thereon which
he shall deem necessary for the preservation of the property." Although the lease reserves the
landlord's "right to enter the apartment and to make any repairs he deems necessary, that, without
more, does not impose on the landlord a duty to repair." Laster v. Chicago Housing Authority, 104
Ill. App. 3d 540, 544 (1982); see also Bielarczyk, 91 Ill. App. 3d at 580. A lease provision
authorizing the landlord to enter the premises to make repairs does not require the landlord to do so.
St. Mary's Hospital v. Auburn, 128 Ill. App. 3d 747, 749 (1984); see Hurt v. Pershing Mobile Home
Sales, Inc., 83 Ill. App. 3d 724, 727 (1980) ("We do not agree with plaintiff's contention that the
lease provision authorizing defendants to enter the premises to make repairs imposed a duty upon
defendants to do so"). Virtually every landlord retains the right to enter the premises in order to
make improvements and to prevent the tenant from doing the same on the leased premises. Yacoub,
248 Ill. App. 3d at 961. "These reservations in the lease do not, however, change the rule that it is
the lessee, as the party in possession and control of the premises, who owes a duty to third parties
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and can be liable for injuries from defective conditions on the premises." Yacoub, 248 Ill. App. 3d
at 961.
Plaintiff's attempt to distinguish the above case law is unavailing. Plaintiff asserts that the
lease provision here imposes a duty by stating that the landlord "shall" do any repairing. This is not
an accurate description of the lease provision. Rather, the lease provides that the "[l]andlord shall
have reasonable opportunity to inspect said premises, and do any repairing or other work thereon
which he shall deem necessary for the preservation of the property." (Emphasis added.) Again, this
provision simply reserves the landlord's right to enter the premises to perform repairs but does not
obligate him to do so.
Lastly, plaintiff argues that defendant assumed a duty to properly maintain the premises,
based on his course of conduct in making all necessary repairs. Plaintiff relies on Jones v. Chicago
Housing Authority, 59 Ill. App. 3d 138 (1978), and Jordan v. Savage, 88 Ill. App. 2d 251 (1967), for
this proposition. In Jones, the evidence showed that the housing authority had the practice of
consistently making repairs to the tenant's premises upon the tenant's request. Jones, 59 Ill. App. 3d
at 140. When the housing authority failed to repair a window latch at the tenant's request, the
housing authority was held liable for injuries sustained by the tenant's child who fell through the
window. The court noted that a landlord's course of conduct "may establish a duty to properly
maintain the premises in which plaintiff resided." Jones, 59 Ill. App. 3d at 140.
However, Jones does not apply when there is an express agreement between the parties
governing maintenance of the property. Hurt, 83 Ill. App. 3d at 727. In Hurt, the court specifically
noted that in Jones there was no evidence of any express agreement as to who was required to make
repairs. Hurt, 83 Ill. App. 3d at 727. Thus, the court interpreted the rationale of Jones to be that, "in
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the absence of a showing of an express binding agreement as to who was to make repairs, the course
of dealing of the parties may imply the existence of an agreement imposing that duty." Hurt, 83 Ill.
App. 3d at 727. Because, here, there was an express agreement that provided that the tenants were
responsible for maintaining the premises in good condition, Jones does not apply.
In any event, the evidence contradicts plaintiff's argument. There was no evidence,
whatsoever, of any specific repairs defendant performed. Rather, plaintiff relies on defendant's
testimony that, in general, he was responsible for receiving phone calls regarding problems and that
if he had noticed that the stairs were unsafe, he would have repaired them. This, however, does not
establish a practice of making repairs to the premises. See McCoy v. Chicago Housing Authority,
333 Ill. App. 3d 305, 312 (2002) (court distinguished Jones and found no duty where the evidence
showed that workmen came only once to repair tenant's apartment and landlord repeatedly failed to
fulfill promises that it would make repairs). Moreover, the evidence showed that the tenants,
themselves, and not defendant, made repairs to the stairs and handrail. "Thus, there is no basis from
which a court could infer that [defendant] had made a practice of making repairs" to the premises.
McCoy, 333 Ill. App. 3d at 312.
Likewise, Jordan is distinguishable from this case. In Jordan, the landlord voluntarily
undertook to make repairs and did so negligently. Jordan, 88 Ill. App. 2d at 260-61. The holding
in that case "was merely an application of the general rule that liability can arise from negligence in
performance of a voluntary undertaking." St. Mary's Hospital, 128 Ill. App. 3d at 750 (explaining
Jordan). Because there is no allegation that defendant negligently performed repairs to the stairs,
plaintiff's argument fails.
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In sum, because there is no basis on which defendant could be held liable for plaintiff's
injuries, there is no genuine issue of material fact, and defendant was entitled to judgment as a matter
of law. Therefore, we affirm the dismissal of plaintiff's amended complaint.
Affirmed.
McLAREN and HUTCHINSON, JJ., concur.
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