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Hurt v. Pershing Mobile Home Sales





APPEAL from the Circuit Court of Macon County; the Hon. DONALD W. MORTHLAND, Judge, presiding.


Plaintiff, Cynthia Hurt, appeals from an order of the circuit court of Macon County entered on August 1, 1979, dismissing with prejudice counts I and II of her second amended complaint against defendants. We have jurisdiction by virtue of a finding, contained in the order of dismissal, that no just reason existed to delay enforcement or appeal of the order. 73 Ill.2d R. 304(a).

In each count plaintiff sought damages for injuries she received on March 12, 1978, when she put her hand and forearm through the glass in the storm door of a trailer of which she was the lessee. The counts differed only to the extent that count I is directed against defendant Pershing Mobile Home Sales, Inc., and charges them with the obligations of the lessor, while count II is directed against defendant Barding Mobile Home Sales, Inc., and charges them with those obligations. The counts allege that (1) on November 4, 1977, plaintiff and defendants entered into a written lease for the trailer, (2) plaintiff was at all times in the exercise of due care, (3) defendants repaired or paid for all repairs to the trailer during the course of the lease, (4) certain defects in the porch and storm door existed at the time of the execution of the lease, (5) prior and subsequent to the execution of the lease, defendants' agents assured plaintiff on numerous occasions that defendants would repair the defects, (6) defendants negligently failed to repair the defects, and (7) plaintiff's injuries were proximately caused thereby.

The written lease was before the court at the hearing on the motion to dismiss. Paragraph 8 of the lease provided, "The Lessee promises to keep the premises in good condition and repair, ordinary wear and tear excepted, * * *." Paragraph 6 stated:

"The Lessee shall permit the Lessor to have free access to the premises hereby leased for the purpose of inspecting and examining the same in order to make any necessary repairs, in order to see that the terms of this lease agreement are being fulfilled and in order to make arrangements to rent the premises at the termination of this lease agreement and the Lessee promises not to interfere with Lessor's right to do these things."

The issue is whether the complaint set forth a duty upon defendants to make repairs. Section 356 of the Restatement (Second) of Torts (1965) provides that, except as stated in sections 357-362, a lessor of land is not liable to his lessee or others for dangerous conditions of the land which existed when the lessee took possession. Only section 357 is applicable here. It states:

"Where Lessor Contracts to Repair

A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if

(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and

(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor's agreement would have prevented, and

(c) the lessor fails to exercise reasonable care to perform his contract." Restatement (Second) of Torts § 357 (1965).

The comment to section 357 indicates that the rule stated in the section goes further than most States in imposing liability upon the landlord.

• 1 The statement in section 357(a) that the landlord must contract by covenant indicates, of course, that the covenant must be binding upon him. Comment b to the section indicates that the covenant must be given for consideration. In the instant case, there is no allegation or indication that the alleged promises of the landlord were either for consideration or otherwise binding. Any oral promise made prior to or contemporaneous with the lease would be directly contrary to the terms of the lease and unenforceable as a matter of substantive law because of the parol evidence rule. (Mertke v. Kracik (1969), 122 Ill. App.2d 347, 259 N.E.2d 328; see Cleary, Handbook of Illinois Evidence § 16.5 (2d ed. 1963).) No allegation is made that any promises by the defendants made after the execution of the lease were for consideration, nor is there any allegation of plaintiff's detrimental reliance upon the promises. Counts I and II failed to state a cause of action within the requirements of the applicable provisions of the Restatement (Second) of Torts (1965).

As this court stated in Forshey v. Johnston (1971), 132 Ill. App.2d 1106, 271 N.E.2d 81, the general rule in this State is that a landlord has no duty to repair patent defects in premises unless he has bound himself to do so. An exception to this rule arose from Kaufman v. Shoe Corporation of America (1960), 24 Ill. App.2d 431, 164 N.E.2d 617, where a landlord was held responsible for installing a new heating system to replace one made obsolete by a public utility's discontinuance of a particular type of service. The lease had provided for the tenant to make all repairs. The court deemed this repair to be extraordinary and of a structural ...

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