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Shehy v. Bober





APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.


In a wrongful death action plaintiff Carlotta Shehy, on behalf of herself and her minor son Anthony, sought to recover from defendants Frank and Irene Bober damages resulting from an accident in which her four-year-old daughter Deborah sustained fatal injuries in a fall from a window of their third-floor apartment located in a building owned by defendants. The trial court entered judgment upon a jury trial verdict of $150,000 and denied defendants' post-trial motions for judgment n.o.v. or, among other relief alternatively sought, a new trial upon all issues. Defendants appeal from the judgment order and the order denying the post-trial relief named, raising, inter alia, the sufficiency of the underlying complaint.

For the reasons hereinafter stated, we reverse the judgment orders of the circuit court and remand the cause for a new trial.

Plaintiff's initial complaint was filed on December 3, 1973, and as finally amended contained four counts. Count I was brought under the provisions of the Illinois Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, pars. 1, 2) and alleged among other things that defendants "at the inception" of plaintiff's tenancy agreed to assume the ordinary upkeep, maintenance and repair of the apartment for its duration; at the time of the accident and for a considerable period prior thereto defendants had notice, knew or should have known that certain windowsills were rotten and falling apart, and that certain windows had no screens or other protective devices on them; defendants were under a duty to repair the premises and keep them in repair for the safety of tenants and children of tender years; on or about December 3, 1971, Deborah fell through a window at defendants' building, was precipitated three stories to the ground and consequently died, said occurrences being directly and proximately caused by dangerous and defective conditions and conduct ascribable to defendants' negligence, including failure to warn the plaintiff of rotten windowsills and to repair rotten windowsills. Count II was a claim for funeral expenses incorporating the factual allegations of count I. Count III added an allegation of pain and suffering undergone by Deborah from the date of the accident until the date of her death. Count IV alleged that defendants "for valuable consideration" agreed to perform certain repairs to the windows and windowsills in her apartment. Sections 78-11 and 78-17.3 of the Chicago Housing Code were alleged to be in full force and effect at all relevant times, which defendants were claimed to have violated as a direct and proximate result of which the accident allegedly occurred. Defendants' answer consisted of general denials.

The case proceeded to trial on February 15, 1978. At the conclusion of the opening statements and prior to the presentation of evidence, the court allowed defendants' motion to dismiss count III of the complaint on the ground that available information confirmed and plaintiff's counsel in his opening statement had just admitted that Deborah had been unconscious from the time of the accident until death and, therefore, no conscious pain and suffering occurred. The court also ordered "* * * that the plaintiff be and is hereby prohibited, warned and admonished from making any reference to conscious pain and suffering * * *" for the duration of the trial.

Plaintiff called defendant Frank Bober (sometimes hereinafter "Bober") as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), who testified that he bought the building located at 739 S. Kostner about April of 1971 from a Mrs. Jesse Herman. Existing apartment leases remained in effect after the purchase. He inspected the building prior to purchase, and was in plaintiff's apartment on three or four occasions prior to December 2, 1971. On the first occasion, he came to inspect it and on another to check the heat after plaintiff phoned him. He personally painted the window trim on the outside of the building. On the date of the accident, he was working in the basement when an unidentified person told him a little girl was playing on the window ledge. He went outside and found her beneath the window lying on the concrete and apparently bleeding. He then ran up to plaintiff's apartment, banged on the door, and receiving no answer, went down to the first floor to call the police. The girl's parents appeared after the police arrived. At this point in defendant's questioning by plaintiff's counsel the following exchange occurred regarding Deborah's condition after the fall and before she was removed:

"Q. Was she conscious?

A. Was she conscious? She was moving, she was breathing.

Q. Groaning?

A. She was moving, yes.

Q. Was she uttering any sound?

A. Not anything that you know, understandable, maybe just grunting something.

Q. Well, did she make the sound that she was obviously in pain?

A. I don't know. She made a sound, I really would not go into that much detail. I am not a professional ...

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