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Savka v. Smith

OPINION FILED MARCH 13, 1978.

JOHN SAVKA, PLAINTIFF-APPELLANT,

v.

RICHARD SMITH, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES M. WILSON, Judge, presiding. MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court of Peoria County entered after a jury verdict and a directed verdict in favor of defendant Smith and against plaintiff Savka.

On April 18, 1968, John Savka, in the course of his employment by "Chicken Delight," made a delivery of food to James Hutchison, a tenant in the apartment house owned by defendant, Richard Smith. The apartment was in the basement of a frame house which had been converted into an apartment house. Entry to the apartment was by means of a stairway consisting of five steps leading down to a small entry area. The outside door to Hutchison's apartment was at the end of this small area under the building. The furnace room was also in the basement, but it was not accessible from this stairway and entry area.

After Savka completed the delivery and as he went up the stairs outside the apartment, he struck his head on a low fascia board or wooden beam over the stairway. Subsequent measurement of the area indicated the lower edge of the overhanging beam was 67 inches or 5 feet 7 inches above the step immediately below it.

Savka brought suit for his personal injuries. The original complaint was dismissed on motion of Smith and an appeal followed. This court reversed the decision of the trial court, held the complaint to be sufficient, and remanded the cause for trial. Savka v. Smith (1973), 14 Ill. App.3d 542, 301 N.E.2d 839.

The cause was tried before a jury on an amended complaint. At the close of plaintiff's evidence, the trial court directed a verdict in favor of Smith as to count II (negligence based on common or public way) of the amended complaint and the matter went to the jury on counts I (dangerous and defective condition) and III (also dangerous and defective condition). A verdict was returned by the jury in favor of Smith and against Savka as to counts I and III and judgment was entered on the verdict.

Savka's post-trial motion to vacate the judgment was denied.

This appeal is from that judgment. There were five issues presented by Savka:

(1) The court erred in dismissing count II of the amended complaint in light of evidence that the portion of the premises on which plaintiff was injured was part of the common areas or a public way which the owner was responsible for maintaining in a reasonably safe condition.

(2) The court erred in admitting the testimony of the defendant as to the terms of an alleged oral lease with regard to control of the area where plaintiff was injured.

(3) The court committed reversible error in excluding evidence of subsequent repairs to the premises offered by plaintiff to show that defendant retained control of the portion of the premises causing plaintiff's injury.

(4) The court erred in refusing to permit plaintiff to introduce into evidence the ordinance of the City of Peoria requiring owners and occupants to provide unobstructed exit ways from apartments and dwelling units.

(5) The court's refusal to admit mortality tables in evidence or to instruct the jury on the issue of future damages was error where evidence of recurrent medical treatment and pain and disability was presented without contradiction.

We have carefully studied the record on appeal and the briefs of counsel. We do not believe that a lengthy discussion or analysis is required.

• 1 There are three elements required in actionable negligence: (1) a duty to exercise care in favor of the plaintiff, (2) the failure to perform that duty, and (3) an injury proximately caused by that failure. (Powell v. Kempton (1923), 231 Ill. App. 380.) We believe that the plaintiff did allege these elements in his complaint which was the subject of the appeal referred to above. (Savka v. Smith (1973), 14 Ill. App.3d 542, 301 N.E.2d 839.) A careful reading of that opinion will disclose that we did not indicate that recovery should be had; we only found that a cause of action had been stated. We plainly stated that recovery depended upon the evidence presented at trial. "The ...


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