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Cuthbert v. Stempin





APPEAL from the Circuit Court of Cook County; the Hon. PAUL ELWARD, Judge, presiding.


Rehearing denied November 21, 1979.

The plaintiff was injured when the front steps of the house she had leased crumbled as she was descending them. She sued the landlords, alleging they were liable for failing to maintain and repair the steps. The trial court granted the defendants' motion for summary judgment, specifically finding the plaintiff contributorily negligent as a matter of law. The plaintiff has appealed. We agree with the plaintiff that the finding that she was negligent was premature; however, we affirm because it is clear that as a matter of law the defendants owed no duty to the plaintiff to maintain or repair the steps.

In her complaint, the plaintiff alleged that on May 5, 1974, and long prior thereto the defendants owned, maintained and were in possession and control of a certain apartment building; that on that date and prior thereto the plaintiff was a tenant residing in said building and at all times referred to in the complaint the relationship of landlord and tenant existed between the plaintiff and the defendants; that the plaintiff at all times mentioned was in the exercise of ordinary care; that on May 5, 1974, and for a long time prior thereto the concrete stairway at the front of said premises was broken and in defective condition, and the defendants knew or should have known of the condition in time to have repaired it; that because the defendants negligently maintained the premises and failed to repair the steps she was hurt as she was proceeding down them. The defendants denied all allegations except the first, that they were and had owned, possessed and controlled the premises. Neither the complaint nor the answer were verified. Subsequently on August 9, 1978, the defendants moved for summary judgment contending:

1. that a landlord owes no duty to a lessee in regard to defects on the premises at the beginning of the lease period unless the defect was concealed; here, the plaintiff was aware of the defect when the house was leased;

2. that by terms of the lease agreement the plaintiff was responsible for maintenance of the premises;

3. that plaintiff knew there was another means of ingress and egress yet used the front stairway which she knew to be in a defective and unsafe condition;

4. that plaintiff was guilty of contributory negligence;

5. that as the lease and the plaintiff's deposition reveal, the plaintiff had for a long period of time prior to the occurrence, exercised sole dominion and control over the leased premises and that no duty whatever arose under the lease terms to the defendants with respect to the maintenance of the premises.

Attached to the motion and submitted in support thereof were the plaintiff's deposition and the lease. The following facts are disclosed by the deposition. The leased property was not, as stated in the complaint, an apartment building; it was a single-family brick bungalow. Plaintiff lived there with her husband, son and daughter. They had first moved in in 1971; they moved out in 1974 because the property was sold to someone else. The house had both a front and a back door; both were accessible from the street although obviously the front door was more convenient. She used the front exit perhaps once a day. There was nothing which, at any time, prevented her from using the back steps.

The front door was not at ground level. Leading up to the door were eight steps. The plaintiff testified that these steps had been obviously unsafe from the time she moved in; indeed, she testified that when she and her family took the house, they mentioned to the defendants that the steps were in poor condition and defendants said they would take care of it after the plaintiff moved in. Specifically the steps were badly cracked, looked as if they were becoming dilapidated and could give way at any time; they were falling apart. Cement was lying on the ground. The stairs continued to deteriorate after the plaintiff moved in. However, as far as the plaintiff knew, no one had tripped or stumbled on those stairs prior to May 5, 1974.

On May 4, 1974, the plaintiff and her daughter started to leave the house to go to church. Her daughter went down the stairs first. The plaintiff followed, walking on the left side of the steps (it appears from certain pictures in the record that the worst cracking was on the right side of the steps). As she was walking down the steps, one of them crumbled beneath her foot and she fell. She had never experienced anything like it before.

The lease shows that the property, a house with the appurtenances thereto, was leased to the plaintiff and her husband although only her husband signed the lease. It provided that the lessees acknowledged that the premises were in good repair and that no representations as to the conditions or repair thereof had been made by the lessor that were not expressed in the lease. It also provided that it was the duty of the lessee to keep the premises in good repair.

• 1 In response to the defendants' motion for summary judgment, the plaintiff's attorney filed an affidavit stating that the lease did not require the lessee to maintain the outside of the premises; that the lessor in consideration of the renting of the premises agreed to repair the front steps and continued to promise to make such repairs; that the plaintiff was not guilty of contributory negligence as a matter of law in that the defect first noted was on the right side of the steps and her injury occurred while walking down the left side; and that the lease did not give plaintiff sole dominion and control over the outside of the leased premises and it was the duty of the lessors to keep the outside front steps in good repair. Of course this affidavit could not properly be considered by the court since the attorney could not competently testify as to the matters in the affidavit. (Hedrick v. Goodwin Brothers, Inc. (1975), 26 Ill. App.3d 327, 325 N.E.2d 73.) Furthermore, many of the statements were mere unsupported conclusions as to matters of law. (Dangeles v. Marcus (1978), 57 Ill. ...

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