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Chapman v. Lily Cache Builders

OPINION FILED MAY 3, 1977.

KEITH CHAPMAN ET AL., PLAINTIFFS-APPELLANTS,

v.

LILY CACHE BUILDERS, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Will County; the Hon. ROBERT E. HIGGINS, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 16, 1977.

Plaintiffs Keith Chapman and Thelma Chapman, as father and mother and next friends of Rita Chapman, a minor, and individually, appeal from an order of the Circuit Court of Will County dismissing the complaint filed by plaintiffs, on motion of defendant Lily Cache Builders, Inc. The action was instituted to recover damages for personal injuries sustained by the minor daughter of Keith and Thelma Chapman, when she fell on an improperly constructed stairway in the home owned by the Chapmans. The stair was built and sold to them by defendant Lily Cache Builders, Inc., a home-building general contractor.

On appeal in this court, plaintiffs acknowledge that their theories of recovery as advanced in the trial court have not heretofore been recognized by Illinois courts>, but argue and contend that we should impose liability upon the manufacturer-builder-contractor-vendor of the home on theories of negligence and of strict liability in tort.

Keith and Thelma Chapman contracted with defendant Lily Cache Builders, Inc. (hereinafter called "Lily"), which was a real estate development company and home building contractor. They purchased a lot from defendant in Plainfield, Illinois, upon which defendant constructed a house for them pursuant to contract. The home was occupied by plaintiffs in September 1973. On January 24, 1974, plaintiff Rita Chapman, the minor daughter of Keith and Thelma Chapman, slipped and fell while descending a flight of stairs, which caused her personal injuries. In the complaint it was alleged that (1) the width of the stair treads was shorter than required by law, (2) the stairs did not have a surface designed to limit the possibility of slipping, and (3) the stairs did not have handrails, all in violation of the Will County Building Code.

In counts I and III, plaintiffs, as parents and guardians of Rita, sought recovery for the personal injuries sustained by the minor. In counts II and IV, plaintiffs individually sought recovery for medical expenses incurred by them by reason of Rita's injuries. Counts I and II attempted to state causes of action based on strict liability in tort and counts III and IV sought to state causes of action based upon negligence. Defendant Lily moved to dismiss the complaint, and, as we have noted, the complaint was dismissed.

Plaintiffs first argue that the builder-vendor of the house should be strictly liable in tort to an occupant of that house who is injured after the vendee has taken possession of the house, where a dangerous condition which was created by the builder-vendor existed at the time the vendee took possession and was the cause of such injury. Plaintiffs acknowledge that Illinois law has not heretofore recognized such a right of recovery in the vendee of real estate, but argues that in light of the growing trend in other jurisdictions, the courts> of this State should impose strict liability in tort upon builders-vendors of new residences. The Illinois Supreme Court considered, in Sparling v. Peabody Coal Co. (1974), 59 Ill.2d 491, 322 N.E.2d 5, the issue of liability of a defendant-vendor of real estate (which had previously been used for coal mining operations) where personal injuries were sustained by the daughter of defendant's vendee, when, six years after the sale of the property, the daughter fell through a slack pile previously used by defendant-vendor, and into a fire burning at the bottom of the slack pile. In Sparling, the supreme court concluded that the liability of a vendor for physical injuries occurring after the vendor's transfer of possession is controlled by sections 352 and 353 of the Restatement (Second) of the Law of Torts (1965) (hereinafter referred to as Restatement), which states:

"§ 352. Dangerous Conditions Existing at time Vendor Transfers Possession.

Except as stated in § 353, a vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial which existed at the time that the vendee took possession."

"§ 353. Undisclosed Dangerous Conditions Known to Vendor.

(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if

(a) the vendee does not know or have reason to know of the condition or the risk involved, and

(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.

(2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to ...


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