Opinion
No. 1-20-0138
05-25-2021
REBECCA RENIER, Plaintiff-Appellant, v. GAIL G. PRAUSS, FIRST COMMUNITY MANAGEMENT, SANTA MARIA CONDOMINIUM AND HOMEOWNER ASSOCIATION, and FIRST PROPERTIES, LLC, Defendants-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 17 M1 302660 Honorable Lloyd James Brooks, Judge, presiding. JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.
ORDER
¶ 1 Held: The circuit court's order granting summary judgment is affirmed where there was no genuine issue of material fact that defendant landlord owed plaintiff tenant any duty to repair a window frame on the leased property. ¶ 2 Plaintiff-appellant, Rebecca Renier, filed a complaint in the circuit court of Cook County against defendant-appellants, Gail Prauss, First Community Management (First Community) Santa Maria Condominium and Homeowner Association (Santa Maria), and First Properties, LLC (First Properties), alleging that defendants were negligent in failing to repair a window frame that fell from above the porch exit door of a condominium unit and injured her. Plaintiff later amended her complaint and added a cause of action against defendants under the doctrine of res ipsa loquitur. The circuit court granted defendants First Community, Santa Maria, and First Properties motion for summary judgment. Subsequently, the court granted defendant Prauss' motion for summary judgment and denied plaintiff's motion to reconsider. For the following reasons, we affirm the judgment of the circuit court.
¶ 3 I. BACKGROUND
¶ 4 The following facts are taken from the record below. In 2013, defendant Prauss purchased a condominium unit located in the 208 block of Oak Park Avenue in Oak Park, Illinois. Prior to her purchase, an inspection of the condominium unit revealed no conditions on the property in need of repair. Since her purchase, Prauss made no repairs or alterations to the above-door window frame on the property. Two different tenants rented the unit prior to plaintiff. None of these tenants made complaints about the above-door window frame. ¶ 5 On December 7, 2015, plaintiff and defendants entered into an agreement with defendant Prauss for lease of the condominium unit. Pursuant to the agreement, the lease was for a term commencing December 10, 2015 and ending June 10, 2016. ¶ 6 On January 2, 2016, plaintiff was exiting the condominium unit from the back door, as she did normally, when the above-door window frame fell off and struck her on the head and shoulder. Upon being struck, she felt lightheaded and fell to the ground. After about 5 to 8 minutes later, she went back inside the condominium and contacted Prauss. Plaintiff stated that if she ever had a problem with the unit, she knew to contact Prauss. Plaintiff's January 2, 2016 call was the first time she had contacted Prauss about the above-door window frame. ¶ 7 For approximately a month before the accident, plaintiff used the back door exit every day to get to her vehicle. Prior to the accident, she never noticed the window being loose or shaking. After the window frame fell, she discovered that it had old glue marks and rusted nails. ¶ 8 In her initial complaint, plaintiff alleged that all of the defendants were negligent in failing to maintain and repair the window frame. She further alleged that the event took place within the "confines of the common areas of the premises." Plaintiff subsequently amended the complaint adding a cause of action against all defendants under the doctrine of res ipsa loquitur. ¶ 9 Defendants First Community, Santa Maria, and First Properties filed a combined motion for summary judgment, arguing that plaintiff failed to support a premises liability claim because the defendants do not own, manage, or control the window or screen. More specifically, defendants argued that plaintiff did not prove that these defendants had a duty to inspect and/or maintain the window framed screen in the individual condominium units. ¶ 10 Defendants attached plaintiff's deposition to their motion. In her deposition, plaintiff stated that she would see the president of Santa Maria sometimes in the building and never told him about any problems with the unit. Also attached to their motion is a copy of the deposition of John Kinay, Santa Maria's property manager. In his deposition, Kinay stated that the association's duty is to maintain the common areas, however, the condominium owner is responsible for window maintenance. ¶ 11 Plaintiff replied to defendants First Community, Santa Maria, and First Properties' motion for summary judgment. She argued that defendants had constructive knowledge because Kinay, in his deposition, said that he was not aware if the management company ever inspected the window or window frame. The circuit court granted defendants First Community, Santa Maria and First Properties motion for summary judgment. No appeal was taken from that judgment. ¶ 12 Prauss filed a separate motion for summary judgment arguing that she had neither actual nor constructive notice of the defective window frame, that as a landlord, she was not liable to plaintiff for any injuries, and that the doctrine of res ispsa loquitur did not apply in this case. Plaintiff's call to Prauss after the incident was the first time plaintiff had mentioned the window. Also, neither of the two previous tenants had complained about the window frame. Thus, Prauss had no knowledge of the defect. ¶ 13 Plaintiff replied to Prauss' motion for summary judgment, arguing that Prauss is liable under premise liability theory and res ipsa loquitur doctrine. Attached to her reply was a copy of her own deposition in which she stated that when the window frame fell it had old glue marks and rusted nails indicating that the landlord attempted to fix the defect. Also, attached to the reply was the lease agreement, Section 7 of which states that the "tenant shall neither make nor permit to be made any alterations, additions, improvements, or changes in the premises without in each case first obtaining written consent from the landlord." Plaintiff argued that pursuant to this section, Prauss had control over the window frame. ¶ 14 On September 24, 2019, the circuit court granted Prauss' motion for summary judgment. Subsequently, on December 19, 2019, the court denied plaintiff's motion for reconsideration. On January 16, 2020, plaintiff timely filed a notice of appeal.
In her brief, plaintiff states that the lease commenced on December 10, 2016 and ended on June 10, 2017. However, the lease, a copy of which is included as an exhibit in the record, reflects that it was executed by the parties on December 7, 2015, for a term commencing on December 10, 2015 and ending June 10, 2016.
¶ 15 II. ANALYSIS
¶ 16 On appeal, plaintiff contends that the trial court erred in granting summary judgment in favor of Prauss because (1) Prauss had actual or constructive notice of a defect on her property; (2) as a landlord, Prauss was liable under the facts of this case; and (3) the doctrine of res ipsa loquitur applies to impose liability.
¶ 17 A. Standard of Review
¶ 18 "Summary judgment is proper when the pleadings, depositions, admissions and affidavits, viewed in light most favorable to the nonmoving party, show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Chicago Title Ins. Co. v. Bass, 2015 IL App (1st) 140948, ¶ 13. A trial court's grant of summary judgment is a "drastic measure and should only be granted if the movant's right to judgment is clear and free from doubt." Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90, 102 (1992). ¶ 19 The initial burden is on the moving party to establish that there are no genuine issues of material fact. In re Estate of Ciesiolkiewicz, 243 Ill. App. 3d 506, 511 (1993). The trial court must decide whether the moving party has met its burden by construing the pleadings, depositions, admissions, and affidavits strictly against the movant. Id. As our review is de novo, we may affirm on any basis in the record. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).
¶ 20 B. Control and Notice
¶ 21 In her complaint, plaintiff alleges that defendant was negligent in failing to exercise ordinary care to maintain the premises. In support, she alleges that defendant failed to inspect the window; permitted an unreasonably dangerous condition, located in the common area on the property; failed to prevent plaintiff from encountering the dangerous condition, although she knew or should have known that permitting plaintiff access to the condition was reasonably necessary for plaintiff's safety; and, that defendant was otherwise negligent. ¶ 22 In her motion for summary judgment, Prauss characterizes plaintiff's claim as one of premises liability, sets forth the requisite elements for such a claim and cites as authority LaFever v. Kemlite Co., 185 Ill. 2d 380, 390 (1988). In LaFever, the plaintiff, a business invitee, brought a negligence claim against a possessor of land. Id. at 389. In determining what duty a possessor of land owes to an invitee, the court referenced factors set out in the Restatement (Second) of Torts, including whether the possessor knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitee. Id. at 389-90 (citing Restatement (Second) Torts § 343 (1965)). ¶ 23 The plaintiff in this case is neither a guest nor an invitee on the property. She is a tenant who seeks to hold her landlord liable for injuries she suffered on the property based on the landlord's alleged negligent conduct. Thus, our analysis is framed by firmly settled principles which govern the landlord-tenant relationship. ¶ 24 To prevail under a negligence claim, a plaintiff must show that a defendant owed plaintiff a duty, that the duty was breached, and that the defendant suffered an injury as a proximate result of that breach. Thompson v. Gordon, 241 Ill. 2d 428, 438 (2011); see also Bauer Brothers Construction Co., 141 Ill. 2d at 434 (1988). If the plaintiff fails to establish any element of his claim, summary judgment for the defendant is appropriate. Darden v. Kuehling, 213 Ill. 2d 329, 335 (2004). "[I]n determining whether a duty exists, the trial court considers whether a relationship existed between the parties that imposed a legal obligation upon one party for the benefit of the other party." Sameer v. Butt, 343 Ill. App. 3d 34, 40 (2004). Whether a defendant had a duty to exercise reasonable care is a question of law. Thompson, 241 Ill. 2d at 438-39. In the absence of a duty, the plaintiff cannot recover. Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34, 40 (2004). ¶ 25 "Only the party in control of the premises can be held liable for a defective or dangerous condition on the premises." Hilgart v. 210 Mittel Drive Partnership, 2012 IL App. (2d) 110943, ¶ 38. A "lease is a conveyance of property which ends the lessor's control over the premises, a prerequisite to the imposition of tort liability." Jackson v. Shell Oil Co., 272 Ill. App. 3d 542, 548 (1995) (quoting Wright v. Mr. Quick, Inc. 109 Ill. 2d 236, 238 (1985)). Generally, a landlord is not liable for injuries caused by a defective condition on the premises leased to a tenant and under the tenant's control. Wright, 109 Ill. 2d at 238. As Dean Prosser observed, "[t]he lessee acquires an estate in the land and becomes for the time being both owner and occupier, subject to all the responsibilities of one in possession, to those who enter upon the land and those outside of its boundaries." Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 221 (1988) (quoting W. Prosser & W. Keaton, Torts § 63 at 434 (5th ed. 1984)). However, if the landlord retains control of a portion of the premises leased to the tenant, the landlord, as the party in control, has a duty to maintain that part of the premises in a reasonably safe condition (Lamkin v. Tower, 138 Ill. 2d 510, 518 (1990)), and is liable for injuries which are sustained on the premises, or a portion thereof, retained in the lessor's control (Drewick v. Interstate Terminals, Inc., 42 Ill. 2d 345, 350 (1969)). ¶ 26 The general rules which shield a landlord from liability are not without exceptions. A landlord may be liable, even in the absence of control where (1) there was a latent defect existing at the date of the lease of the premises to the tenant, which defect was known to the landlord or could have been known by him in the exercise of reasonable care, and which defect could not have been discovered by a reasonable examination of the premises by the tenant; (2) there was a fraudulent concealment from the tenant by the landlord of a known, dangerous condition; (3) the thing which did the harm amounted in law to a nuisance; or (4) a promise to repair the premises made by the landlord to the tenant at the time of the leasing. Woods v. Lawndale Theatre Corp., 302 Ill. App. 570, 573-74 (1939). ¶ 27 Plaintiff first argues that physical evidence shows that Prauss had actual and constructive notice of a defect on her property. Secondly, she argues that the Prauss was liable because she maintained control of the property. Prior to considering plaintiff's claim regarding notice, we deem it appropriate to first consider whether Prauss retained control over the condominium. ¶ 28 In support of her contention that Prauss had control of the property, plaintiff cites to Section 7, the prior consent provision in the lease, which requires the landlord's prior approval before improvements or changes may be made to the premises. ¶ 29 Initially we note that other than her citation to Drewick v. Interstate Terminals, Inc., 42 Ill. 2d 345 (1969), for the general proposition regarding control, plaintiff cites to no other authority to support her argument. Supreme Court Rule 341 governs the content and format of appellate briefs. Ill. S. Ct. R. 341 (eff. Jan. 1, 2016). Failure to cite to pertinent authority is a violation of rule 341(h)(7). See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016); Northwestern Memorial Hospital v. Sharif, 2014 IL. App (1st) 133008, ¶ 20. The court's rules are not merely suggestions; they are mandatory. Voris v. Voris, 2011 IL App (1st) 103814, ¶ 8. We admonish plaintiff that this court is not a repository in which to drop the burden of research. Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 7. ¶ 30 That said, we fail to see how the prior consent provision in the lease had any effect on plaintiff's possessory interests. A similar argument was considered by our supreme court in Rowe v. State Bank of Lombard, 125 Ill. 2d 203 (1988) and failed. There, the plaintiffs suffered personal injuries from an attacker who accessed the premises which was leased by their employer. Rowe, 125 Ill. 2d at 220. The plaintiffs' sought to hold the defendant landlord liable, arguing among other things, that because the defendant landlord exercised exclusive control over the security devices on the premises, the defendant landlord was liable. Id. at 221. In support of the exclusive control argument, plaintiffs pointed to language in the lease which required the landlord's prior consent before alterations to the security systems could be made. Id. The court rejected the argument, holding that there was no evidence in the record that the landlord would have refused consent had it been requested. Id. ¶ 31 We hold similarly to the holding in Rowe. There is no evidence that had plaintiff requested to make any repairs to the above-door window frame that such a request would have been denied. Thus, we find that the lease notice requirement did not result in Prauss maintaining control of the premises. ¶ 32 Even more compelling is Almendarez v. Keller, 207 Ill. App. 3d 756 (1990). In Almendarez, the plaintiff brought a negligence claim against his landlord for injuries his son sustained on the leased premises out of which the plaintiff operated a meat market. Almendarez, 207 Ill. App. 3d at 758. Relying on testimony that the defendant landlord had keys to the premises, the plaintiff contended that the defendant retained control over the leased premises. Id. at 760. The court rejected plaintiff's argument, finding that possession of the keys did not exhibit defendant's control over the premises. Id. The court noted that the lease agreement stated that the plaintiff rented the "ground floor meat store" and no portion of the leased premises was retained for defendant's control. Id. ¶ 33 Here, the lease agreement identifies plaintiff as the lessee of the condominium unit. No portion of the space was retained by Prauss. By operation of the lease, Prauss was no longer in control of the leased premises and plaintiff points to nothing upon which we may conclude otherwise. See Wright, 109 Ill. 2d 236, 238 (quoting Schoshinski, American Law of Landlord and Tennant, § 4.1 at 186 (Lawyer's Cooperative (1980)) ("[l]ease is a conveyance of property that ends the lessor's control over the premises"). ¶ 34 The concept of control is closely tied with the ability to exclude people from the use of a piece of property or to direct how that property is to be used. Williams v. Sebert Landscape Co., 407 Ill. App. 3d 753, 756 (2011). Plaintiff makes no assertion that Prauss ever accessed the condominium once the tenancy commenced or that she controlled who plaintiff permitted access. On a final note, there is also no evidence that the door from which the window frame fell somehow comprised a part of any common area such that Prauss was responsible for its upkeep. Indeed, evidence provided by Kinay, Santa Maria's property manager, supports the conclusion that it was not. Thus, plaintiff's argument that Prauss maintained control over the premises fails. ¶ 35 Plaintiff fares no better with her notice argument which, incidentally, is also devoid of any citation to authority. She maintains that Prauss had notice of the faulty window frame. In support of her claim, she points out that when the frame fell it had old glue marks and rusted out nails indicating that it was loose, which the landlord attempted to repair and was fully aware of for a period of time. There is absolutely nothing in this record to support this conclusion. The fact that the glue marks were old and the nails rusty could simply mean that the window had been affixed in that manner in 2013 when Prauss purchased the property and that upon her pre-purchase inspection did not appear as defective. ¶ 36 By her own admission, during the period of her tenancy, plaintiff never noticed any defect in the above-door window under which she traversed daily. And, although there is nothing in the record to support this, we presume that plaintiff had some opportunity to walk-through the unit prior to entering into a lease agreement. Yet, prior to her injury, plaintiff never alerted Prauss to any issue with the window. Further, Prauss never replaced, removed, or repaired the window frame and neither plaintiff nor any of the prior tenants had ever complained about the window frame. Thus, plaintiff's argument that Prauss had notice of the defective window frame also fails.
¶ 37 C. Doctrine of Res Ipsa Loquitur
¶ 38 For her final contention, plaintiff argues that based on the doctrine of res ipsa loquitor, Prauss is liable for the injuries she sustained. ¶ 39 Res ipsa loquitur is a common law doctrine, the purpose of which is to permit "proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant." Metz v. Central Illinois Electric & Gas Co., 32 Ill. 2d 446-49 (1965). A plaintiff seeking to rely on the res ipsa doctrine must plead and prove two elements: (1) that he or she was injured in an occurrence that ordinarily does not happen in the absence of negligence, and (2) that the injury was caused by an agency or instrumentality within the defendant's exclusive control. Heastie v. Roberts, 226 Ill. 2d 515, 531- 32 (2007) (citing Gatlin v. Ruder, 137 Ill. 2d 284, 295 (1990)). Citing once again to Drewick, 42 Ill. 2d 345 (1969), plaintiff correctly notes that whether the doctrine applies is a question of law to be determined by the court. ¶ 40 Plaintiff again invites our attention to the prior consent provision in the lease as evidence of Prauss's control. Citing W. Prosser & W. Keaton on Torts § 39 at 250 (5th ed. 1984) on Torts, she argues that control must be flexible and that it may be enough that the defendant has the right or the power of control, and the opportunity to exercise it. ¶ 41 As our supreme court in Lynch v. Precision Machine Shop, Ltd., 93 Ill. 2d 266, 275 (1982) explained, "[i]n adopting a flexible standard of control, [the court] noted that res ipsa loquitur is simply a rule of evidence relating to the sufficiency of plaintiff's proof." We reject the prior consent provision as evidence of Prauss' control. As plaintiff is unable to satisfy the control element, we hold that the doctrine of res ipsa loquitur does not apply.
¶ 42 III. CONCLUSION
¶ 43 In sum, by operation of the lease agreement, plaintiff has exclusive control over the condominium. No provisions in the lease agreement, or exceptions to the general rules which govern the landlord-tenant relationship, alter the status of plaintiff's possessory interest in the property. Because we find no material issue of fact on either the issue of control or notice, we find no error in the trial court's grant of summary judgment in favor of Prauss. Accordingly, we affirm the court's judgment. ¶ 44 Affirmed.