APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
V. DALY, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Plaintiff, Robert D. Musser, brought this action to recover damages for injuries incurred on March 2, 1971, in a fall down an unguarded stairway in vacant office space in a building in Libertyville, Illinois. Named as defendants were Libertyville Realty Assoc., Inc. (Libertyville Realty), Northbrook Trust & Savings, as trustee (the holder of the legal title to the premises), the beneficiaries of the trust, Ayars Realty, Inc., Ayars Realty Co. and William G. Schwandt, d/b/a Schwandt Realty Co. (Schwandt Realty). Plaintiff dismissed Northbrook Trust & Savings, as trustee, Ayars Realty, Inc. And Ayars Realty Co.
One of the beneficiaries, Allen B. Ayars, was the manager of the property through Ayars Realty Co. Ayars had given the rental listing to Schwandt Realty, which was located on the same block as the property.
The complaint alleged that the defendants owned, operated, maintained, managed and controlled the building. Libertyville Realty denied the substance of the complaint, as did Schwandt Realty, which moved for summary judgment, which was granted. The motion for summary judgment alleged that Schwandt Realty never had any interest in the ownership, operation, maintenance or control of the building, and was supported by the affidavit of William Schwandt stating that neither he nor Schwandt Realty owned, operated, maintained and controlled the building and that, as a courtesy to Libertyville Realty, Schwandt Realty made available to prospective purchasers a key to the premises, but did not show the premises to plaintiff.
Plaintiff appeals from the order granting summary judgment, contending there was an issue of material fact as to Schwandt's liability. The other defendants are not involved in this appeal.
The record discloses the following:
Plaintiff was looking for office space for his business and had gone to see the property with an agent of Libertyville Realty Assoc., Inc., James Bales. Schwandt Realty gave Bales the key to allow him and Musser to inspect the property on their own.
The office space had three rooms. Access to the second room was through the first, and to the third through the second. The third room was windowless and was dark when Musser and Bales entered it. Bales crossed the room to turn on a light. At the same time, plaintiff, in the dark, walked toward the center of the room, tripped over rolls of carpeting next to a stairwell and fell down the stairs just as Bales turned on the light. There was no railing around the stairs and a trapdoor that covered the stairs had been propped up and latched in an open position.
Ayars Realty Co. was the managing agent for the beneficiaries of the property. At the time of the accident, the office space in question was vacant but was serviced with heat and electricity. The managing agent paid the gas and electric bills on behalf of the owner. Allen B. Ayars and one of his associates were responsible for inspecting the premises, seeing that they were properly heated and maintained and not occupied by unauthorized persons. Ayars did not generally inspect the premises before showing them. He did not know what the custom is in commercial properties with respect to inspection prior to showing. He is a member of the Evanston-North Shore Board of Realtors, whose regulations do not, to his knowledge, set out the obligations of a realtor who is seeking a tenant.
Prior to March 2, 1971, he had been in that room on many occasions dating back to 1968. He had the opportunity to inspect the premises maybe once every six months, but not on a regular basis. Mr. Olson of his office would go out once in a great while. When the property was leased and there was regular income, they didn't bother about it. The inspection was more of the exterior than of the interior. The last time he (Ayars) inspected the premises prior to March 2, 1971, was sometime in the fall of 1970. The lease of the prior tenant (Larson) was terminated as of December 31, 1970.
Ayars verbally gave Schwandt Realty the right, beginning in the fall of 1970, to show the premises to prospective tenants and also gave them the key to the premises. It was not paid to inspect the building. The only remuneration Schwandt Realty would get would be the real estate broker's commission if the premises were leased. It would receive nothing more either as salary or otherwise. Its commission would be seven percent of the first year's lease. If another broker found a tenant, the commission would be split equally between that broker and Schwandt Realty.
Schwandt Realty was the only broker in Libertyville who had the key, although Ayars and the Christian Science Reading Room (which leased adjoining space) also had keys.
James Bales was a salesman with Libertyville Realty. He learned of the listing of the premises when he saw a for-rent sign in the window of Schwandt Realty. This meant that Schwandt Realty was the rental agent. Bales stated that generally the salesperson who receives a listing for a property makes a personal inspection. Other people who become aware of it later may take it upon themselves to acquaint themselves with the property when it is convenient. Two weeks to a month before the accident here involved, Bales had shown the premises to a client. When Bales called Schwandt Realty to make arrangements to show the property, he found out how much he had to quote for rental. Bales thought his conversation was with Bliss, a salesman for Schwandt Realty. When Bales showed the premises at that time he was accompanied by Bliss. Bliss pointed out the advantages and disadvantages to the prospective tenant. Bales stayed close to the front door because he had parked in a no-parking zone in front of the premises. He did not go back to the second room when Bliss was there. He did not see Bliss and the prospective tenant go through all the rooms, only the front one. There were no signs of any craftsmen working in or about or any tools or materials.
Bales later learned through Mr. Cmiel, who worked for plaintiff Musser, that Musser was seeking rental space. Bales made arrangements to show the property to Musser on the morning of March 2, 1971. He called the Schwandt office, talking to a girl who said that Bales could show the premises. Musser and Cmiel drove to Bales' office about 3 p.m. Bales went with them to the premises, parking in front of the Schwandt office. The girl gave him the key and told him there was nobody to accompany him. The three of them went into the first room and then into the second room. There was no light in the second room. Musser and Cmiel didn't stay together. The only way into the third room was through the second room. Bales was the first one into the third room. It was totally dark and there was no light switch at the opening between the second and third rooms. Bales saw a crack of light along a door in the far corner of the third room and walked toward ...