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Fountaine v. Hadlock

MARCH 18, 1971.




APPEAL from the Circuit Court of Cook County; the Hon. BEN SCHWARTZ, Judge, presiding.


Plaintiff, a lessee, brought this action to recover for personal injuries sustained in a fall on the rear staircase of an apartment building owned by defendant Mrs. Marion Harlock. Defendant moved for summary judgment pursuant to Section 57 of the Civil Practice Act. (Ill. Rev. Stat. 1969, ch. 110, par. 57.) Section 57 provides that the moving party is entitled to judgment as a matter of law if the pleadings, depositions and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact. Defendant's motion was based on the pleadings, plaintiff's deposition and two photographic exhibits of the staircase. Four counter-affidavits were filed by plaintiff. The trial court allowed the motion and judgment was entered for the defendant. The sole issue is whether there was a genuine issue of material fact to be tried.

The premises involved is a two-story building containing one apartment on each floor. Plaintiff and her husband lived on the first floor and the defendant occupied the second floor. On the morning of November 4, 1960, plaintiff climbed the back stairs to defendant's porch carrying a broom and a bucket of water. The staircase connecting the two floors was composed of three sections separated by two landings. Upon reaching the top of the stairs, plaintiff poured water on defendant's porch and down the stairway. She had swept the water off several steps when she decided to return to her apartment to refill the bucket. As she tread on a step in the middle section of the staircase, she lost her footing and fell. Plaintiff in her deposition stated that either the step itself or the sole of her shoe was wet, that she did not look at the step before placing her foot on it, that she had nothing in her hands and could have held on to the railing, but did not do so. When she first ascended the stairs, she looked at each step and did not notice any debris or paper, nor were there any apparent defects in the staircase nor, according to her deposition, were the hand railings loose or otherwise defective.

• 1 Defendant based her motion on plaintiff's statements in her deposition of October 22, 1963, that she was never asked to clean the stairs and received no pay for doing so. Under such circumstances plaintiff would be a mere licensee while on defendant's premises and the only duty owed her by the defendant was not to wantonly and wilfully injure her. (Ellguth v. Blackstone Hotel, Inc., 408 Ill. 343, 97 N.E.2d 290; Jones v. 20 North Wacker Drive Bldg. Corp., 332 Ill. App. 382, 75 N.E.2d 400; Wesbrock v. Colby, Inc., 315 Ill. App. 494, 43 N.E.2d 405.) Plaintiff's complaint alleged only the failure of defendant to exercise ordinary care for plaintiff's safety. In opposition to defendant's motion, plaintiff filed a counter-affidavit stating, contrary to her deposition, that she received "monetary consideration" for cleaning the stairs. Based on that affidavit the plaintiff argues that her status was that of a business invitee, rather than a licensee, and that defendant was under a duty to exercise reasonable care for her safety.

• 2 The purpose of summary judgment procedure is not to try facts, but to determine whether a genuine issue exists as to any material fact which would require a trial. (Commercial Products Corp. v. Briegel, 101 Ill. App.2d 156, 242 N.E.2d 317.) Our Supreme Court has held that the use of summary judgment procedure is to be encouraged since, in a proper case, it benefits not only the litigants in the saving of time and expense, but also the community in avoiding congestion of trial calendars and the expense of unnecessary trials. Allen v. Meyer, 14 Ill.2d 284, 152 N.E.2d 576.

• 3 The first statements relative to any invitation or payment by the defendant are contained in plaintiff's discovery deposition taken on October 22, 1963. The following interrogation took place:

"Q. And had you made arrangements with Mrs. Hadlock to wash the stairs?

A. This had been a common practice since I had been in there.

Q. Did she tell you to do this?

A. She never asked it, no.

Q. Did she pay you anything for it?

A. No.

Q. And this was a gratuitous undertaking ...

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