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Loveless v. Warner

SEPTEMBER 19, 1962.

NELSON H. LOVELESS, PLAINTIFF-APPELLANT,

v.

HENRY T. WARNER AND MARGARET WARNER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. BILL J. SLATER, Judge, presiding. Reversed and remanded.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

Nelson H. Loveless, hereafter referred to as the plaintiff, brought a suit in the Circuit Court of Cook County against Henry T. Warner and Margaret Warner, hereafter referred to as the defendants. In his complaint plaintiff alleged that he had been injured as a result of the negligence of the defendants with respect to the maintenance and control of an inadequate railing protecting a common stairway and porch on premises which defendants owned and had leased. At the close of the plaintiff's case the court, on motion of the defendants, directed a verdict for them and entered a judgment in their favor, from which this appeal is taken.

There can be no question that a motion for a directed verdict at the close of plaintiff's evidence presents only one question, and that is whether there is in the record any evidence which, standing alone and with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of the case. Donnelly v. Pennsylvania R. Co., 412 Ill. 115, 105 N.E.2d 730; Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847.

The defendants here first contend that plaintiff had not presented sufficient evidence to enable the jury to find that the porch and stairway was a common passageway over which the landlord retained control.

The building in question was located at 116-118 West Hubbard Street, Chicago, Illinois. The defendants had purchased the building in 1945 and had leased the premises at 118 West Hubbard Street and the use of the basement under 116 West Hubbard Street to Guy M. Zettler. There were tenants in the portion of the building at 116 West, which is located to the east of 118 West. There was a porch at the rear of 116 West which serviced both portions of the building. The only way to get to the basement from the porch was to use the basement stairway. The heating equipment and electrical fuse box for the entire premises were located in the basement of 116 West. From the porch landing there was a stairway that led to the basement. To get from the rear of 116 West to the alley behind the buildings it would be necessary to use the porch. The porch and stairway were not included in the lease to Zettler of the premises at 116 West. The lease does provide that Zettler shall have the use of the basement under 116 West. In order to fix the electrical or heating equipment any repairman provided by the defendants would use the porch and stairway in question. The rear doors of both 116 and 118 opened onto the porch. The tenants on the first floor at 116 would use the porch about two or three times a week, and the tenants on the second floor or third floor used the basement about once or twice a month. There is sufficient evidence in the record to require that the court submit to the jury the question of the defendants' retention of control over the porch and stairway.

The next question to be considered is whether the plaintiff has produced sufficient evidence, considering it with all intendments most favorable to him, to require the question of the negligence of the defendants in the construction and maintenance of the porch to be submitted to the jury.

Where a portion of the premises is reserved for common use and is under the landlord's control, a duty is imposed upon him to use ordinary care to keep such portion of the premises in a reasonably safe condition. Murphy v. Illinois State Trust Co., 375 Ill. 310, 31 N.E.2d 305; Smith v. Morrow, 230 Ill. App. 382; Payne v. Irvin, 144 Ill. 482, 33 N.E. 756.

In his amended complaint the plaintiff alleged that the porch was for the common use of all the tenants of the building as well as all other persons who were lawfully entering and leaving the premises. Numerous acts of negligence were alleged, one of which was that the defendants permitted on the premises a porch railing which was inadequate for the protection of the persons using the porch. There were also allegations that the defendants failed to adequately maintain and repair the railing surrounding the porch, that they failed to make adequate inspection of the railing and its supports to determine its condition, and that they otherwise negligently maintained and controlled the porch railing and stairway.

The porch in the rear of 116 and 118 ran to a stairway, and the edge of the porch was adjacent to the stairwell, the bottom of which was about ten steps below the porch. The porch had a three-foot high railing consisting of a single two-by-four eight to nine feet long. At the head of the stairway the railing was attached by some nails to a post. This post consisted of two two-by-fours which were nailed together. The base of this post was nailed into a joist in the porch. At the east end of the porch the railing was nailed against the wall and into the top of a two-by-four which was affixed to the porch wall. There were no other braces, either lateral or vertical, to support this railing.

On March 18, 1959 the plaintiff was employed by Zettler. He was carrying some buckets of waste material out to the rear of 116 West Hubbard. In order for him to reach the back of this lot it was necessary for him to use the porch. Zettler had placed some storage shelving, with the consent of the defendant, on the porch, which shelving reduced the passageway between the shelving and the railing to approximately two feet. The plaintiff had to traverse this narrow passageway. As he was walking toward the stairway he heard the telephone ring in his office at 118 West. He put down the buckets that he was carrying and in turning around he grasped the railing to balance himself. When he did this the railing collapsed and he fell to the bottom of the stairwell. He suffered serious injuries.

The defendants did not reside in Chicago. Henry Warner, one of the defendants, came to the premises once a month to collect the rents, and he was aware of the type of construction and the condition of the railing. He testified, as an adverse witness, that he would shake the railing periodically to see if it was secure but he did not look at the nails which were holding it together, nor could he remember when he had visited the premises the last time before the accident. The defendants did not employ a janitor or real estate agency to manage the property, and the porch and railing were there at the time they purchased the property in 1945. Another witness, an employee of Zettler, testified that he had one time knocked the railing loose. He replaced it and put in the same nails that were in there. That witness also testified that it was general knowledge that the rail was weak. Zettler, the tenant in 118 West, testified that he saw the railing after the accident and it was completely detached from the porch, and that before the accident the wood was old.

There is nothing in the evidence to show that prior to the accident any complaints were made to the defendants about the condition of the railing.

We must first determine the duty resting upon a landlord with respect to a common porch and railing. Most of the cases dealing with railings, porches and stairs discuss the question as to whether the landlord permitted them to deteriorate and failed to make proper repairs. However there is another duty resting upon the landlord, and that is that a railing which is intended to protect the persons using the porch from falling from it must be adequate for that purpose. In his amended complaint the plaintiff alleged that the defendants were negligent in that they permitted a railing to remain on the porch adjacent to the stairway, which railing was inadequate for the protection of persons using the porch. The defendants denied this allegation in their answer. Thus an issue was formed.

Colbert v. Holland Furnace Co., 333 Ill. 78, 164 N.E. 162, was a suit brought for personal injuries. The defendant had contracted with the plaintiff's husband to install a furnace in their home. As a part of such construction a hole was cut in the kitchen floor and a grating was installed. The plaintiff stepped on the grating, which gave way, and she was injured. The grating was supported by cleats. A cleat gave way and it was disclosed that the cleat had a break or crack where two of the nails had been and that the other nails must have pulled out of the soft ...


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