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Dapkunas v. Cagle

OPINION FILED SEPTEMBER 20, 1976.

VEMBA DAPKUNAS, PLAINTIFF-APPELLANT,

v.

BONNIE CAGLE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Williamson County; the Hon. GEORGE OROS, Judge, presiding. MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiff brought suit for personal injuries which allegedly occurred when she fell from the back steps of a home she had rented from defendant. Plaintiff's fifth amended complaint was dismissed for failure to state a cause of action, and judgment was entered in favor of defendant. Plaintiff appeals.

Plaintiff's fifth amended complaint contained two counts. The first count alleged that defendant owned a frame house in Johnston City, Illinois; that prior to August 13, 1969, plaintiff and defendant entered into a "verbal lease" of the house on a month-to-month basis; that plaintiff rented the house to use it as a dwelling; that in the back yard of the house were clothesline posts and clotheslines; that the back steps were made of concrete blocks and bricks which were not fastened together and which were laid loosely and were narrow and unstable; that the back entranceway was the only entranceway in close proximity to the clothesline; that at the time plaintiff rented the house defendant knew or should have known that plaintiff would use the clothesline and that plaintiff would use the back steps to carry clothes to the clothesline; that defendant had a duty to make necessary repairs to the house including the rear entranceway and steps; that defendant was negligent in that she failed to repair the loose and unsecure back steps and to install proper steps; that on August 13, 1969, plaintiff fell and sustained injuries when the back steps tumbled as she was carrying a basket of clothes over them; that immediately thereafter defendant purchased and installed precast concrete steps at the back entrance of the house; and that prior to August 13, 1969, plaintiff had attempted to find other available and suitable housing but was unable to do so because of the unavailability of such housing and because of her inability to pay an amount of rent greater than the $50 per month which she paid defendant.

The second count of plaintiff's fifth amended complaint alleged the same facts but in place of negligence substituted as the grounds for liability "that the defendant impliedly warranted to the habitability and fitness for its intended use of the furnished dwelling at the time she rented it to the plaintiff."

Two questions are presented for review: (1) whether plaintiff's fifth amended complaint alleges sufficient facts to state a cause of action for recovery under established tort law for injuries sustained during the fall from the steps; and (2) whether the fifth amended complaint states a cause of action for recovery for personal injuries under a theory of an implied warranty of habitability and fitness for intended purpose of a leased residential house. We answer both questions in the negative and accordingly affirm.

• 1, 2 In Thorson v. Aronson, 122 Ill. App.2d 156, 258 N.E.2d 33, the court noted that as a general rule of law, subject to a few exceptions, a landlord is not liable for injuries occurring on premises leased to a tenant and under the tenant's control. The court pointed out that the exceptions are:

"(1) where a latent defect exists at the time of the leasing, which defect is known or should have been known to the landlord in the exercise of reasonable care and which could not have been discovered upon a reasonable examination of the premises by the tenant; (2) where the landlord fraudulently conceals from the tenant a known, dangerous condition; (3) where the defect causing the harm, in the law, amounts to a nuisance; and (4) where the landlord promises the tenant to repair the premises at the time of the leasing." (122 Ill. App.2d 156, 160, 258 N.E.2d 33, 34-35.)

In accord with this statement of the law is Looger v. Reynolds, 25 Ill. App.3d 1042, 324 N.E.2d 238, which, in expanding on the fourth exception noted above, adopted the following rule from the Restatement (Second) of Torts (1965):

"A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if

(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and

(b) the disrepair creates an unreasonable risk * * * and

(c) the lessor fails to exercise reasonable care to perform his contract." 2 Restatement (Second) of Torts § 357 (1965).

• 3 We note that the court in Mangan v. F.C. Pilgrim & Co., 32 Ill. App.3d 563, 336 N.E.2d 374, recognized that an additional exception to the general rule may exist in cases where an injury to a tenant results from a violation of a statute or ordinance by the landlord. The court stated:

"The violation of a statute or ordinance prescribing a duty for the protection and safety of persons or property may constitute negligence such as gives rise to a cause of action on behalf of a person who suffers injury or damage by reason thereof * * *.

But it is generally required [for recovery] that the plaintiff be within the class of persons intended to be protected by the particular statute or ordinance, and that the plaintiff's harm be of the kind which the statute or ordinance was intended in general, to prevent." 32 Ill. App.3d 563, 569, 572, 336 N.E.2d 374, 379, 381.

• 4 In the instant case the allegations of the fifth amended complaint do not bring plaintiff under any of the exceptions to the general rule noted above. The complaint alleged only a defect that could have been easily discovered by plaintiff upon a reasonable inspection. Furthermore, the complaint contained no allegation of a fraudulent concealment by the landlord; a defect amounting to a nuisance; a promise by the landlord to repair; or a violation of a statute or ordinance. ...


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