APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
J. GILIBERTO, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Plaintiff, Danny Jones, age 5, while residing in a sixth floor Chicago Housing Authority apartment, fell out of a bedroom window, causing injuries to both of his legs. Suit was brought in his behalf by his mother as next friend. The trial court entered judgment on a jury verdict for plaintiff of $7,500.00. Defendant, Chicago Housing Authority appeals, contending (1) that defendant breached no duty to plaintiff, (2) that the verdict was against the manifest weight of the evidence, (3) that argument of plaintiff's counsel was prejudicial and (4) that the trial court improperly instructed the jury.
On November 5, 1969, after finishing school, plaintiff came home to his sixth floor apartment and went into his bedroom. He wanted to look out of the window but the window sill was higher than his height. Plaintiff climbed a radiator, then onto the headboard of a bed which was positioned near the window. As he looked out, his head touched the window, which swung open, and he fell out. He broke both of his legs. The window was a casement type which opened by pushing the window out and away from the frame. It could be securely locked in a closed position through the use of a latch. While the bottom portion swung out, the upper portion moved downward on a track in the frame. There was a two-inch ledge on each side of the window.
Before this occurrence, plaintiff's mother had telephoned C.H.A. twice over a period of several weeks to report that the window latch had broken. Ordinarily, repairs would be made by defendant within a few days after being informed of the need for repairs. However, no attempt was made to repair the latch prior to the time plaintiff was injured.
Defendant's witness, Daryl Stubblefield, testified that he was playing outside when he looked up to see plaintiff apparently trying to crawl from one window to the other along the outside ledge when plaintiff fell.
Defendant initially contends that the trial court erred in not granting its motion for a directed verdict since there was no duty to maintain a window latch to keep persons from falling out the window.
Verdicts ought to be directed in cases where all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) Here, we do not believe the defendant was entitled to a directed verdict in its favor.
1, 2 In the present case, the evidence disclosed that defendant had previously made repairs to the premises when notified of the need. Ordinarily, a landlord owes no duty to a tenant to make any repairs for any defects unless he agrees to do so by the terms of some express covenant or agreement. (Forshey v. Johnston (1971), 132 Ill. App.2d 1106, 271 N.E.2d 81) or where there are latent defects of which the landlord either has knowledge or is chargeable with knowledge, in which case he has a duty to disclose them. (Thorson v. Aronson (1970), 122 Ill. App.2d 156, 258 N.E.2d 33; 24 Ill. L. & Prac. Landlord and Tenant § 302 (1956).) While there was no direct evidence that defendant expressly covenanted to make repairs, his course of conduct in consistently repairing that which was reported to be in need of repair may establish a duty to properly maintain the premises in which plaintiff resided. (See Jordan v. Savage (1967), 88 Ill. App.2d 251, 232 N.E.2d 580.) We note that defendant did not challenge plaintiff's proof that defendant had a duty to repair. Accordingly, the jury could properly have concluded that such a duty existed.
In Strong v. Soodvoisky (1908), 141 Ill. App. 183, relied upon by defendant, it was held that there was no duty, as a matter of law, to repair a window latch located in the leased premises, and therefore no negligence could be attributed to the defendant landlord. In Strong, a pattern of repairs by the defendant, made upon the request of the tenant, had not been established.
Defendant further contends that a property owner need not foresee that a person may fall out of a window because of a defective latch. This issue involves determining the scope of the foreseeable risk involved in a negligent act. In Mangan v. F.C. Pilgrim & Co. (1975), 32 Ill. App.3d 563, 569-570, 336 N.E.2d 374, 379-80, the court stated:
"Although the element of foreseeability, essential to a finding of liability for negligence, has been dealt with from the aspect of `duty' (see Palsgraf [v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99] and Prosser [on Torts, ch. 7 § 43 (4th ed. 1971)]), it has also, and more traditionally, been approached from the standpoint of `proximate cause.' In Illinois, for example, it has often been stated that for the requirement of proximate cause to be fulfilled, an injury must be the natural and probable consequence of a negligent act or omission. (Ney v. Yellow Cab Co., 2 Ill.2d 74, 79, 117 N.E.2d 74, 78-79.) This test includes a consideration of whether the injury is a consequence of the negligent act or omission which human foresight could anticipate, i.e., whether the injury was foreseeable. (2 Ill.2d at 79, 117 N.E.2d at 79; see also Ill. L. & Pr. Negligence § 105.) It has also been stated that where it could have been reasonably foreseen that some injury might result from the negligent act or omission complained of, it is not essential that the precise consequences which actually resulted therefrom should have been foreseen. See Blue v. St. Clair Country Club, 7 Ill.2d 359, 131 N.E.2d 31; Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74; 28 Ill. L. & Pr. Negligence § 105 (1957)."
3 In Madison v. Rueben (1970), 128 Ill. App.2d 11, 262 N.E.2d 794, a minor fell through a broken window located in a common passageway after she had sat down on the window sill. The court held that whether defendant breached a duty owed to plaintiff, and whether this was the proximate cause for her injuries, was ordinarily a question of fact which should be decided by the trier of ...