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Galayda v. Penman

OPINION FILED JANUARY 10, 1980.

ANDY GALAYDA, PLAINTIFF-APPELLANT,

v.

AL PENMAN, D/B/A PENMAN REAL ESTATE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Sangamon County; the Hon. RICHARD J. CADAGIN, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Plaintiff prosecutes this appeal from a final order of the circuit court of Sangamon County which dismissed with prejudice his third amended complaint. The sole issue before this court is the sufficiency of that complaint.

An original two-count complaint was filed by plaintiff on February 2, 1976. It was dismissed on motion of defendant with leave to plead over. A first amended complaint was thereafter timely filed, and defendant filed his answer thereto. Several months later defendant filed a motion to dismiss the first amended complaint, a motion for summary judgment and a motion to withdraw his answer and substitute a motion to dismiss. The latter motion was first denied by the trial court but later, on motion to reconsider, was allowed.

Plaintiff then filed his second amended complaint and this, too, was dismissed on motion with leave to plead over allowed. A third amended complaint was thereafter filed. The trial court dismissed this complaint on motion of the defendant. Plaintiff elected to stand on his third amended complaint and this appeal ensued.

Defendant's motion to dismiss the third amended complaint specifically incorporated all of his allegations directed at the second amended complaint. It must be noted at the outset that both of these motions to dismiss appear to be brought under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 45), although not so designated. However, there are no affidavits attached, nor allegations made, which could bring the motions under section 48 of the same statute. More meticulous practice would dictate that motions to dismiss be labeled as to which section, 45, or 48, or both, the pleader believes governs, since the requirements and the consequences of the sections are considerably different.

• 1 We note further that although the motion for summary judgment, and its evidentiary matter attached, are incorporated in the record before this court, we may not consider it in arriving at our conclusions, and we therefore ignore it. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 312 N.E.2d 605.) Our decision will be confined to facts well pleaded in the third amended complaint and the legal sufficiency of that document. Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill. App.3d 128, 359 N.E.2d 171.

The first four paragraphs of count I of the third amended complaint are not controverted by defendant. They set up venue in Sangamon County, the legal relationship of the parties as landlord and tenant arising from an oral lease of a sleeping room by defendant-landlord to plaintiff-tenant and describe the premises as a rooming house in Springfield. Paragraph 4 sets forth the fact that a front stairway to the second floor where plaintiff's room was located was not marked and was kept locked at the direction of defendant.

The remaining paragraphs 5, 6 and 7 of count I are controverted by defendant, as well as all of count II. Each of these will be discussed in detail hereinafter. For purposes of clarity, let it be understood that count I sounds in ordinary negligence and count II in wilful and wanton misconduct.

Paragraph 5 is an occurrence allegation and sets up that plaintiff was asleep in his room, awoke to find smoke coming in under his door, attempted to enter the upper hallway but was turned back by the smoke and flame, and then leaped from a window to escape. It is further alleged that plaintiff was injured as a result of the fall and that these injuries were the proximate result of the negligent acts and omissions of defendant or his employees and servants. Defendant objected to this paragraph on the ground that there were no allegations as to what acts or omissions caused the fire.

Paragraph 6 listed four allegations of negligence on the part of defendant: (1) failure to equip the building with a suitable and efficient fire alarm system or warning device; (2) failure to construct and maintain more than one means of ingress and egress for persons on the upper floors of the building; (3) failure to conform to certain sections of the city code of Springfield; and (4) failure to install a second stairway. Defendant objected that no facts were alleged from which a duty on him could be raised.

Paragraph 7 alleges the injuries to plaintiff and states that they were proximately caused by defendant's negligence. Defendant objected on the basis of how the breach of any alleged duty owed to plaintiff could have resulted in his injuries. Defendant further objected to a prayer for punitive damages under the negligence theory.

Count II realleged all of the matters contained in count I and denominated them as wilful and wanton. Defendant objected on the same basis as he did to count I and further objected that the same grounds, without additional facts, could not sustain a wilful and wanton misconduct count. Defendant objected further that paragraph 7 of count II realleged negligence instead of wilful and wanton misconduct as the basis for plaintiff's injuries.

The fundamental requirements of a negligence action are so well known as to need little reiteration here. They are: (1) the existence of a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) injury to the plaintiff; and (4) causal connection between the breach and the injury. Defendant's principal objections go to items (1) and (4); viz., no facts have been alleged from which the law will raise a duty on defendant; and even if any duty can be found, no facts have been alleged from which it could be found that any breach of duty was a proximate cause of plaintiff's injuries. The duty question will require a close analysis of paragraph 6 and the proximate cause question a briefer analysis of paragraph 7, both of the third amended complaint.

The first allegation of a negligent act under paragraph 6 reads as follows: "Failed to equip said building with an efficient and suitable fire-alarm system, or any device or system which should have warned occupants ...


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