Appeal from the Circuit Court of Cook County; the HON. RAYMOND
P. DRYMALSKI, Judge, presiding. Judgment reversed and cause
remanded with directions.
Plaintiff Patterson, an employee of Arenberg who was a tenant of a portion of a building leased by defendants Stern and Birkenstein, *fn1 fell through a guardrail located in the outside wall of the building and suffered injuries. Plaintiff brought this action against the defendant landlords alleging negligence in the maintenance and possession of the building within the alleged control of the landlords. Defendants moved for summary judgment on the theory that the guardrail formed a portion of the premises leased to plaintiff's employer. Summary judgment was entered for defendants and plaintiff here appeals.
Plaintiff prays reversal of the summary judgment on the theory that the allegedly defective guardrail was excluded from the demised premises by the explicit terms of the lease between plaintiff's employer and defendants; that such guardrail formed a portion of the exterior wall within the control of the landlord; and that the evidence presented to the court in support of the oral motion for summary judgment, presented when the case was called for trial, was insufficient to demonstrate that there were no genuine issues of material fact between plaintiff and defendants.
Defendants contend that the trial judge properly entered summary judgment in favor of the defendants because (a) the guardrail, allegedly in a state of disrepair, which disrepair was the alleged cause of the occurrence which led to plaintiff's injury, was in the exclusive possession and control of plaintiff's employer by lease; and, (b) such railings were shown to be in a state of good repair.
Plaintiff's complaint alleged that Arenberg had on August 3, 1965, leased from defendants a certain area on the 5th floor of the building and that defendants owed a duty to plaintiff, as well as to others lawfully present, to exercise reasonable care in the repair and maintenance of the premises, "more particularly the railing on the balcony adjoining the leased premises." On the hearing on the motion for summary judgment a copy of the lease was put into evidence. It provided in part:
". . . Lessor hereby leases unto . . . lessee, and the lessee accepts the premises known as one thousand (1,000) square feet located on the 5th floor, being the middle south portion between the rear chute door and fire escape, all located in the building at 2221 North Elston Avenue, Chicago, Illinois . . ." (Emphasis supplied.)
In support of defendants' motion for summary judgment, they called as a witness an officer of certain of defendants. Over objection that the lease spoke for itself, he was allowed to testify that "the lease or all the leases in the building included common stairways, common elevator use of all the tenants, and common exits where there was more than one tenant per floor," and that another tenant occupied a portion of the same floor. In addition, two photographs, one Defendants' Exh. 2 showing the rear chute door referred to in the above quoted portion of the lease, closed and barred, the other Defendants' Exh. 3 showing the same door open and exposing an area extending beyond the chute door and a wooden guardrail located 3 or 4 inches beyond the chute door, in the outside wall of the building, were admitted into evidence, over objection. The witness testified that the two exhibits correctly portrayed the general appearance of the area at the time of the accident. On cross-examination the witness admitted that he knew neither who had taken the photographs nor the date they were taken. He testified that the lessee was the only person who had access to open the door, (which opened inward onto the leased area), and that the only use the tenant ever made of the area beyond the door was to get air for ventilation, and that he made no use of it for any other purpose. There was no evidence that the tenant had ever used the chute or any of the area beyond the door for any other purpose, nor was it shown that the nature of the tenant's operation on the leased premises was such as required the use of any portion of the building beyond the chute door.
[1-3] On motion for summary judgment all inferences are to be resolved in favor of the respondent and summary judgment is not proper unless, viewing all evidence most favorable to respondent, there is no genuine issue of material fact. Di Battista v. Centennial Ins. Co., 52 Ill. App.2d 84, 201 N.E.2d 466. And the right to judgment must be clear beyond question, Solone v. Reck, 32 Ill. App.2d 308, 177 N.E.2d 879; and the whole record must be considered. Sampson Co. v. Mandel Bros., Inc., 3 Ill. App.2d 92, 120 N.E.2d 571. A motion for summary judgment should be denied if upon examination of the record it can be fairly said that a triable issue of fact exists. Des Plaines Motor Sales Inc. v. Whetzal, 58 Ill. App.2d 143, 206 N.E.2d 806.
We know of no rule of law which suspends the rules of evidence, including the parole evidence rule, in presenting testimony of a witness in lieu of supporting a motion for summary judgment with affidavits. Affidavits in support must be statements of fact and not mere conclusions, opinions or beliefs, and affiants must have personal knowledge of the facts stated. The same rule must apply to the testimony of a witness whose testimony is substituted for an affidavit. As an affidavit in support, it must be strictly construed and leave no question as to the movant's right to judgment. Here, the witness's testimony contradicts the terms of the lease which was in evidence; he was allowed to testify that no one besides the lessee had access to the chute door, although the lease specifically provided that the lessors could make alterations and improvements which would permanently close the opening and chute and make alterations to the "Building, or any part thereof, including the premises." *fn2 There was no evidence as to when the witness had viewed the door, chute, and railing, with reference to its condition of repair, yet he was allowed to testify that Defendants' exhibits 2 and 3 correctly portrayed the general appearance "of the area" at the time of the accident, while on cross-examination he did not know who took the pictures or when they were taken. From his evidence, the last time he had seen the chute and railing could have been in 1956 when the lease was executed.
Defendants contend that since plaintiff offered no evidence to contradict the defendants' evidence in support of the motion, that therefore the facts are not in dispute and they are susceptible of a single inference and, therefore, present only a question of law. Under the state of the evidence it was not necessary for plaintiff to produce any evidence or affidavit. At an early opportunity defendants put the lease into evidence; it disclosed that plaintiff's employer was the lessee only of a well defined portion of the 5th floor which he was obligated to keep in repair, that lessors retained control of all portions of the building not leased for all purposes, including repair. Throughout the lease there is a consistent distinction between the building and the portion of the building, described as the premises, which is described as the area between the chute doors and the fire escape. It, of course, must be strictly construed since it was prepared by defendants and offered into evidence in support of their motion for summary judgment. The lease does not demise appurtenances to those premises and furthermore the testimony presented pertains to the doorway, not the exterior guardrail. If there is "a single inference" to be drawn, it is that the guardrail which allegedly gave way, was on the premises reserved to defendants. If the witness's testimony raises any inference contrary to the written terms of the lease, the lease must prevail for the reason that all inferences on a motion for summary judgment must be resolved in favor of respondent, and disputed questions of fact cannot be summarily resolved.
Defendants urge that the chute doorway, the guardrail or railing and the double doors fit Bouvier's definition of an appurtenance to a leasehold, and cites Bouvier's Law Dictionary, Rawle Revision Vol 1, 224:
"The word has technical signification, and, when strictly considered, is employed in leases for the purpose of including any easements or servitudes used or enjoyed with the demised premises."
This definition defines the term "appurtenance" as "employed in leases," but in the case at hand the word appurtenance is not employed in the sections of the lease describing the premises demised, or those describing the obligations to repair.
The lease appears on its face clear and unambiguous, and there has been no showing by extrinsic evidence that it is uncertain in meaning. Defendants do not contend there is an ambiguity in it; instead they choose to ignore it as evidence. They do not contend that the word "between" used in the demise of the premises has a meaning other than the space that separates two things (the chute door and the fire escape) and which is not itself a part of either of the things that it separates. 10 CJS, Between, p 349. We are unable to find that Illinois courts have defined "between" with reference to distance. However, the above definition is consistent with the holdings of our courts where the word has been defined ...