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Ward v. Kamberos

OPINION FILED FEBRUARY 27, 1976.

MARTHA GARDNER WARD, ADM'RX OF THE ESTATE OF TAMMY ALTICE, DECEASED, PLAINTIFF-APPELLEE,

v.

NICK KAMBEROS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT E. McAULIFFE, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

This is an action for the wrongful death of Tammy Altice, a 19-month-old child. The case was originally brought by Eva Gardner, the child's grandmother. Following the death of Mrs. Gardner it was prosecuted by plaintiff, the child's mother and only heir-at-law. The second amended complaint alleged that the child died as a result of injuries suffered when she fell through the broken third-floor balustrade of a building owned by defendant. The complaint further alleged that defendant was negligent and had committed willful and wanton misconduct due to his failure to properly maintain the third-floor landing. The case went to the jury which returned a verdict for plaintiff in the amount of $24,000 and judgment was entered thereon.

On appeal defendant contends that (1) counsel for plaintiff, through argument and questioning of witnesses, brought to the attention of the jury facts concerning the condition of the building immaterial to any relevant issue, and that due to resultant prejudice a reversal of the judgment and a remandment for a new trial is warranted; and (2) the trial court erred in refusing to allow him to introduce evidence of plaintiff's abandonment of the child to rebut her allegation of having suffered a substantial pecuniary loss on her death.

At trial defendant was called by plaintiff as an adverse witness and testified that he is the owner of a three-story building located at the corner of Pulaski Road and Lawrence Avenue in Chicago. The building consists of two units, one with its entrance at 4750 North Pulaski, and the other with its entrance at 4001 West Lawrence. Several small shops are located on the first floor of the building; apartments are located on the upper floors. Defendant or his son would visit the building to collect the rent. Thus, defendant would be at the building at least once a month. Defendant testified that he never noticed any missing balusters on the third-floor landing of the unit in which plaintiff lived, nor was he ever informed of the existence of such a defect by plaintiff's family. However, defendant also testified that after "the baby had the accident, somebody repaired or replaced the pickets on the third floor at 4750. I didn't know anything about them, but if it was broke, we fixed it."

Eva Gardner, plaintiff's mother, rented a third floor apartment in the 4750 Pulaski unit in September 1968. She occupied the apartment with plaintiff, two sons, plaintiff's child and a niece. Four months later Mrs. Gardner's mother rented another apartment on the third floor.

Plaintiff and her sister, Maggie Dezern, testified that they inspected the apartment several days prior to Mrs. Gardner's rental of it. They noticed missing balusters on the third-floor landing and called this to the attention of the janitor. They further testified that they requested he repair the balusters before their mother moved in with "her [Mrs. Gardner's] baby." They claimed that the balusters had not been repaired on September 9, 1969, the date of the occurrence which resulted in the death of the little girl. Plaintiff admitted that she never directly informed defendant that the balustrade was in disrepair.

No witnesses were called who could testify to having seen the child fall through the third-floor balustrade. It was adduced that shortly after 2 p.m. on September 9 the child was found lying on the tiled floor of the lobby of the 4750 Pulaski building by Mrs. Dezern. The distance from the floor of the lobby to the third-floor landing is approximately 40 feet. The record indicates that shortly before the child was found in the lobby, Mrs. Gardner had given her two young nieces change to buy candy. The girls rushed out the front door of her apartment. Mrs. Gardner and plaintiff were in the kitchen. Plaintiff noticed her daughter walking toward the partially open door. A very short time later plaintiff heard her sister scream, and Mrs. Dezern entered the apartment carrying the child. The youngster died on September 14, 1969. She had suffered a skull fracture and a fracture of the humerus (upper portion) of one arm.

Norman Law, a Chicago police officer, was called by plaintiff. He testified that on September 14, 1969, in the course of his investigation into the death of Tammy Altice, he visited the scene of the occurrence. Officer Law identified a photo as depicting the third-floor landing area of the 4750 unit as it appeared at the time of his investigation. There appeared to be newly installed balusters in the balustrade. Officer Law was later recalled by defendant at which time he testified that, in his opinion, if two pickets had been missing in the balustrade, there would have been sufficient space for a child to fall through.

Edward Kozmer, a city building inspector, testified for plaintiff that he viewed the building in question in October 1969. He found the third-floor landing area to be in disrepair. He was asked to examine a photo of the third-floor landing, taken in April 1970, which depicted repaired balusters in the balustrade. Over defense objections, Kozmer testified that shoddy materials and improper techniques had been used in making the repairs.

Adam Gaertner, a janitor employed at the building in question, testified on behalf of defendant that no one in plaintiff's family had ever told him that there were missing balusters on the third floor of the 4750 unit. He could not recall seeing any missing "pickets" prior to September 9, 1969. He admitted, however, that on the morning of September 10, 1969, he found two balusters missing on the third floor.

Jack Jacobs testified on behalf of the defendant that he had been employed as a city building inspector in 1969. He viewed defendant's building on September 11, 1969, and found the third-floor balustrade of the 4750 unit to be in good repair. There were no missing balusters.

Edward Ciepiela, another city building inspector, testified on behalf of defendant that he inspected the building on July 22, 1969. He found no missing balusters at that time.

George Kamberos, defendant's son, testified on behalf of defendant that he was property manager of the building during the tenancy of plaintiff's family. None of them ever complained to him "that there were pickets or vertical supports missing on the third floor at 4750 North Pulaski, in that period before the child was injured."

OPINION

Defendant, defendant's son, Gaertner, the janitor, Officer Law and building inspectors Kozmer, Jacobs and Ciepiela were all questioned extensively by plaintiff regarding the existence of various building code violations in both the 4750 Pulaski unit and the 4001 Lawrence unit. These code violations included excess garbage, failure to have metal garbage containers or covers for refuse receptacles, unsightly rubbish and debris at the rear of the building, peeling paint and plaster, loose boards, defects in the rear porch, the absence of hot water in the business premises on the first floor and the presence of rats and roaches. *fn1 Plaintiff also questioned these witnesses regarding the condition of balustrades in areas other than the third floor landing of the 4750 unit. In addition, plaintiff argued to the jury that up to and including the time of trial balusters could be found missing in the building. Defendant repeatedly objected to these questions and this line of argument. These objections were renewed in his post-trial motion, and he raises them once again ...


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