specially concurring:
This is a tough and tricky case that could have far-reaching implications, if we had decided in the favor of the plaintiff. Naturally, I feel sympathy for Mr. Grimm, who apparently was injured because someone was negligent. After all, we have all heard the adage that “accidents just don’t happen, they are caused.” The initial question then is who caused the accident?
Plaintiff’s counsel admitted in oral argument that the only logical inference or conclusion that could be reached was that some human force caused this “quite large” railroad tie to move. (The trial judge took judicial notice that railroad ties are “quite large.”) The fact that the tie moved onto the public sidewalk two or three times a week rules out natural causes. Moreover, we see trains with hundreds of tons of cargo roll over two rails loosely connected to railroad ties that are not attached to the ground without the ties moving out of place. There is no other reasonable inference to be reached except that someone negligently or intentionally was moving the particular railroad tie in this case onto the sidewalk.
Who then moved the railroad tie onto the sidewalk proximately causing plaintiff’s injury? It certainly was not proven that it was the defendants. Who was responsible for preventing the railroad tie from moving onto the sidewalk? The tenant may have been responsible because she controlled and had possession of the land. The tenant in possession, not the landlord, is liable for injuries sustained by third parties on the premises. Buente v. Van Voorst (1991), 213 Ill. App. 3d 116, 571 N.E.2d 513.
The dissent in this case points to another cause, the tenant’s boyfriend, who performed miracles, by somehow, and with regularity, parking an 18-wheeler in a small, single-lane, sloping residential driveway possessed by the tenant. The boyfriend was not on trial, but these facts offer an explanation of how a railroad tie could move. The boyfriend, assuming that his truck was the moving cause, was obviously negligent in even attempting to park an 18-wheeler in the driveway.
Justice Welch’s opinion mentioned other parties that may have been at fault for plaintiff’s injuries. The plaintiff, however, wants to shift the blame to third parties for reasons that may not be difficult to fathom. We should not allow the blame to be shifted to the defendants merely because they had legal title to the property, but that was what was done in this case. In fact, the evidence was that it was Barbara Arnold, one of the landlords, who pushed the tie back into place on all occasions. There was no evidence that Mark Arnold, Barbara’s husband, ever did anything other than to have an ownership interest in the property, yet he was found to be a proximate cause of the accident and had a judgment entered against him.
Barbara Arnold did not cause the accident by any overt act. She merely shoved the tie back into place and even put a concrete block against it so as to prevent a lesser force than a collision with the wheels of an 18-wheeler from moving the tie. The act of pushing the tie off of the sidewalk cannot be said to be negligent. Her and her husband’s negligence, according to the plaintiff and the trial court, was in not ensuring that the tie would stay in place regardless of outside forces or causes. We cannot even call this outside force an intervening cause because that would assume that the shoving of the tie back into place was a negligent act. The outside force, thus, was the proximate cause of the accident, because the accident would never have occurred without the intentional or negligent act of another person.
It should be emphasized that the accident did not occur on the leased property. The accident occurred on a public sidewalk. No one even suggests that a landlord has a duty to keep public sidewalks adjacent to the leased property free of debris. Yet, we are asked to rule that the landlord has such a duty, if the landlord attempts to clean the sidewalk two or three times. Would the landlord become responsible to prevent the public from tripping over the tenant’s children’s toys that were continuously left lying on the sidewalk, if the landlord regularly picked up the toys and put them into the yard?
Plaintiff cites no cases that give the landlord, absent an agreement in the lease, the right to enter upon the property leased and to make repairs. The tenant has the right to the possession of the property without interference by the landlord with her right to quiet enjoyment. (D.J. Bielzoff Products Co. v. James B. Beam Distilling Co. (1954), 3 Ill. App. 2d 530, 123 N.E.2d 135.) If the front porch or the garage were falling down, could the landlord take it upon herself to repair them "without the permission of the tenant?
The plaintiff, the trial judge, and the dissent in this case all assume that the landlord has the absolute right to enter upon the land of a tenant, in the absence of an agreement, and remove part of the property leased. No authority is cited for that proposition. When you think about it, it looks and smells like trespass and theft. See D.J. Bielzoff Products Co. v. James B. Beam Distilling Co. (1954), 3 Ill. App. 2d 530, 123 N.E.2d 135 (where the landlord’s permission to the defendant to paint a sign on the exterior walls of a building in which the lessee rented the sixth and seventh floors was a violation of the lessee’s right to possession).
I realize that we are talking about one railroad tie, but such a ruling could have major implications for landlords and tenants. For instance, what if the property that was knocked upon the sidewalk was a cornerpost of a fence? If the landlord fixed the fencepost several times and the tenant’s boyfriend continued to back an 18-wheeler into it, should the landlord then be under a duty to remove the fence? The tenant may rightfully become upset when the fence that she leased to keep the children in, and burglars and nosey neighbors out, is suddenly removed by the landlord. What if the TV antenna blows over every time that a storm occurs, does the landlord have a duty, after pushing the antenna back into the yard several times, to haul the tower off?
The supreme court raised the major problem with holding the landlord liable in Frye v. Medicare-Glaser Corp. (1992), 153 Ill. 2d 26, 605 N.E.2d 557. If you hold the landlord liable for attempting to make repairs, the landlord associations will soon notify landlords that they are opening themselves up to liability, if they attempt a repair. Furthermore, any kind of communication to the tenant by the landlord asking him to do something about the perceived dangerous condition may be enough to open the door to liability. We would be discouraging landlords from even warning tenants that there may be a dangerous condition on their leasehold.
The dissent cites Harnischfeger Corp. v. Gleason Crane Rentals, Inc. (1991), 223 Ill. App. 3d 444, 585 N.E.2d 166, a products liability case, for the proposition that the balancing of the likelihood of danger versus the cost of securing and/or removing the tie should be weighted in favor of a duty to secure or remove the tie. This argument assumes that the defendants had the right to secure or remove the tie. Even though the cost of removal may not have been great, there must first be a duty to repair and a right to repair or remove the property. In Harnischfeger, defendant had a duty and the right to attach to a crane warning decals provided by the manufacturer before selling the crane to another party. (Harnischfeger Corp. v. Gleason Crane Rentals, Inc. (1991), 223 Ill. App. 3d 444, 585 N.E.2d 166.) In the case at bar, there was no duty or right to repair or remove the tie.
One final matter, the dissent cites and uses section 379 of the Restatement (Second) of Torts (1965) to justify the finding of liability. This issue, however, was not raised by the parties. Further, a careful reading of section 379 indicates that the lessor is liable, as if he remained in possession of the land, if there is a condition which the lessor realizes or should realize will involve an unreasonable risk of harm to others outside the land. If the lessor in this case had remained in possession of the land, the railroad tie would have never moved upon the sidewalk! Barbara Arnold would not have tried to park an 18-wheeler in a small residential driveway. Moreover, there is nothing in the record that indicates that the defendants should have foreseen at the time of leasing the premises that the tenant, Sharon Steel, would date a truck driver, who would regularly park an 18-wheeler in the small driveway and knock the bordering railroad tie onto the sidewalk.
Accordingly, I have to concur with Justice Welch’s opinion.