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Roseman v. Wilde

ILLINOIS APPELLATE COURT — FIRST DISTRICT, FOURTH DIVISION.


FEBRUARY 14, 1969.

SANDRA ROSEMAN, PLAINTIFF-APPELLANT,

v.

PAUL A. WILDE AND RICHARD W. WILDE, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

The plaintiff brought an action for injuries sustained on June 21, 1964, when, as the result of the alleged negligence of the defendants in permitting a defect to remain in a porch floor, she fell on a porch which was part of premises leased to her grandmother by defendants. The Circuit Court entered a summary judgment in favor of the defendants from which this appeal is taken.

Mrs. Ella L. Carr (grandmother of plaintiff) commencing in 1957 rented an apartment by successive leases from defendants in the building at 1739 Grove Street, Glenview, Illinois. Mrs. Carr, who was residing in her Wisconsin summer home, invited plaintiff to use her apartment temporarily. Plaintiff moved into the apartment with her husband on June 18, 1964. They planned to remain there for two weeks until their own apartment was ready for occupancy.

At about 11:00 p.m. on June 21, 1964, (about an hour after the cessation of a rainstorm) plaintiff was carrying some garbage outside across a porch which is adjacent to and accessible only through the apartment, when she slipped and fell and sustained injuries. She fell in an area which was wet from rain and where "the cement top layer had come up leaving a rough surface." There was a light on the porch. Plaintiff admitted she was aware of the rough surface of the porch as was her grandmother, the lessee. The porch is part of the premises leased by Mrs. Carr and is under her exclusive control. In her affidavit Mrs. Carr stated that she first rented the premises in 1957. Her affidavit continues:

That at the time the premises were rented to her, there was a spot in the patio in which the cement was scaling and deteriorated. The cement in said spot continued to deteriorate and she called it to the attention of her then landlord in the summer or spring of 1958. The landlord thereupon attempted to make repairs in the said patio at the spot aforesaid and in so doing, spread cement over a hole in the patio which had developed but that the said cement in a short time broke away and the hole in the patio reverted to the same condition as before the repairs were made.

Affiant further says that the hole in the cement was the identical spot pointed out to her by SANDRA ROSEMAN as the spot where she sustained her injury. Affiant further says that at no time during her occupancy of the premises did she make any repairs to or alter or change the condition of the spot at the place aforesaid.

The lease under which Mrs. Carr was holding was dated June 14, 1963, and became effective September 1, 1963, nine months before the accident. It contained the standard provisions in leases that "lessee has examined and knows the condition of said premises and has received the same in good order and repair. . . ." and that "lessor shall not be liable for any damage occasioned by failure to keep said premises in repair."

Opinion

Plaintiff contends that she was a guest of the lessee and that the landlord is liable for a defective condition which existed prior to the leasing even in that part of the leased premises over which the lessee had exclusive control. In support of this contention plaintiff relies on Wagner v. Kepler, 411 Ill. 368, 104 N.E.2d 231. In that case the plaintiff, a minor who lived in a first-floor apartment, was playing on the landing of the second-floor apartment. A separate stairway led from the backyard to the second-floor apartment which was occupied by a lessee of the owner-defendant. The boy was injured when an allegedly defective railing gave way. It did not appear that the plaintiff had been invited onto the lessee's stairway or landing nor that the lessee even knew that plaintiff was there. The court, after restating the general principle that the lessee and not the owner is liable for injuries to third persons as a result of failure to keep the building in repair, further said at page 371:

But where an owner leases property with actual or constructive notice of a defective and dangerous condition which remains uncorrected, the owner, notwithstanding the lease, is liable to strangers for injuries caused by the defect. . . . [Emphasis added.]

In Wagner the plaintiff was a stranger. In the instant case plaintiff was a guest and not a stranger. Therefore Wagner is inapplicable, *fn1 and it is necessary to determine what duty is owed by a landlord to the guest of a tenant.

A guest is categorized as a licensee, Kapka v. Urbaszewski, 47 Ill. App.2d 321, 198 N.E.2d 569; and a licensee stands in the same position as a lessee vis-a-vis a landlord and has no greater rights. Hendricks v. Socony Mobil Oil Co., 45 Ill. App.2d 44, 53-54, 195 N.E.2d 1; Elbers v. Standard Oil Co., 331 Ill. App. 207, 222-224, 72 N.E.2d 874; Soibel v. Oconto Co., 299 Ill. App. 518, 521, 20 N.E.2d 309; Shields v. J.H. Dole Co., 186 Ill. App. 250, 255.

[3-5] As between a landlord and his lessee, the landlord is not liable for defects in the premises which exist at the beginning of the lease period unless he conceals or fails to disclose such defects of which he has or should have knowledge. Soibel v. Oconto, supra. If the defect is of such a nature that the lessee can or does discover it himself, then there is no liability on the landlord. Elbers v. Standard Oil Co., 331 Ill. App. 207, 226, 72 N.E.2d 874; Restatement of the Law of Torts 2d, § 358. In the instant case it is clear that both the plaintiff and her grandmother, the lessee, knew of the irregularity in the porch and therefore there is no liability on the landlord for injury ensuing therefrom.

Since there were no questions of fact for the trial court, the entry of a summary judgment for the defendants was proper and the judgment is affirmed.

Affirmed.

ENGLISH and STAMOS, JJ., concur.


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