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Bielarczyk v. Happy Press Lounge

OPINION FILED DECEMBER 5, 1980.

EDMUND J. BIELARCZYK, PLAINTIFF-APPELLANT,

v.

HAPPY PRESS LOUNGE, INC., ET AL., DEFENDANTS. — (CASIMIR R. STARSIAK, DEFENDANT-APPELLEE.)



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

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

In this appeal, plaintiff contends that summary judgment in favor of defendant Starsiak was improperly granted because an issue of fact existed and because Starsiak's supporting affidavit was insufficient.

It appears that Starsiak (through an agent) leased a building for use as a tavern to defendant Taki Pappas, who apparently formed a corporation (defendant Happy Press Lounge, Inc.) to conduct the business.

Plaintiff's third amended complaint alleged in pertinent part that he was a business invitee in the tavern when he was injured in a fall down an interior stairway leading to the basement; that Starsiak "owned, operated and maintained" the premises; that Happy Press and Pappas "rented, maintained and controlled" the premises; and that defendants were negligent in failing (1) to provide adequate lighting in the stairway area; (2) to warn the plaintiff of the existence of a stairway; and (3) to provide a door or other device to keep people from falling down a dark stairway. Starsiak's answer essentially denied the allegations applying to him.

Thereafter, Starsiak moved for summary judgment, asserting in substance that the premises had been demised to Pappas and that he (Starsiak) did not control and had no right to their control. In a supporting affidavit, Starsiak stated in pertinent part that neither he nor anyone on his behalf controlled the premises, as they were in the complete and exclusive control of Pappas, and that neither he nor anyone on his behalf made any alterations or repairs to the premises. Happy Press and Pappas, in their answers, asserted that Starsiak "was the owner of said premises, operating through his agent, Casey Management Companies, and had control of the maintenance of the entire premises * * *." Pappas filed the only supporting affidavit, stating in pertinent part that on the day of the alleged occurrence defendant had control of the premises. In his answer, plaintiff stated in substance that a question of fact regarding Starsiak's right to control existed because the lease allowed him access to the premises "for the purpose of making repairs or alterations which the Lessor may see fit to make."

After arguments of counsel, the motion for summary judgment was granted, and this appeal followed.

OPINION

It has been often stated that the use of summary judgment is to be encouraged in a proper case (Tatelman v. Tatelman (1975), 25 Ill. App.3d 678, 323 N.E.2d 821; Green v. McClelland (1973), 10 Ill. App.3d 350, 293 N.E.2d 629) and should be entered where there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law (American Buyers Club, Inc. v. Zuber (1978), 57 Ill. App.3d 899, 373 N.E.2d 786; Freeman v. Augustine's, Inc. (1977), 46 Ill. App.3d 230, 360 N.E.2d 1245) but that it is a drastic means of disposing of litigation (Equilease Corp. v. Cattlemen's Freezer Meats, Inc. (1973), 13 Ill. App.3d 1, 299 N.E.2d 419; Green v. McClelland) which should be granted only when the right of the movant thereto is clear and free from doubt (Marshall v. City of Chicago Heights (1978), 59 Ill. App.3d 986, 376 N.E.2d 657; United Security Insurance Co. v. Mason (1978), 59 Ill. App.3d 982, 376 N.E.2d 653).

• 1 Plaintiff's primary contention is that summary judgment should not have been granted because a factual issue existed as to defendant's control of the premises. "It is well settled in this State that a landlord is not liable for injuries occurring on premises leased to a tenant and under the tenant's control unless a latent defect existed at the time of the leasing which defect is known or should have been known to the landlord in the exercise of reasonable care and which could not have been discovered upon a reasonable examination of the premises by the tenant; or the landlord fraudulently concealed from the tenant a known, dangerous condition; or the defect causing the harm, amounted to a nuisance; or the landlord made an enforceable promise to repair the premises." (Cuthbert v. Stempin (1979), 78 Ill. App.3d 562, 568, 396 N.E.2d 1197, 1202.) However, a landlord could be liable to a tenant and the tenant's invitees or licensees for physical harm caused by a dangerous condition upon a portion of the premises retained in the landlord's control. Magnotti v. Hughes (1978), 57 Ill. App.3d 1000, 373 N.E.2d 801; Finesilver v. Caporusso (1971), 1 Ill. App.3d 450, 274 N.E.2d 905; Restatement (Second) of Torts § 361 (1965).

Plaintiff does not take the position that a latent defect existed at the time of the leasing or that there was fraudulent concealment of a known dangerous condition or that the alleged defect causing the harm amounted to a nuisance, or that the landlord made an enforceable promise to repair the premises; but, rather, he seeks reversal solely on the contention that an issue of fact existed as to defendant's control of the premises and, in support thereof, he argues only that such issue exists because "the lease on the premises in question grants the Lessor, (Starsiak) the right to enter the premises for the purpose of making repairs to the property." We disagree.

In Carson v. Weston Hotel Corp. (1953), 351 Ill. App. 523, 115 N.E.2d 800, a hotel guest was injured when the hoisting cables of an elevator in which he was riding broke, causing the elevator to fall. In determining whether the lessor had a duty to repair the elevator drum because of a reservation in the lease of a right to repair if the lessee did not fulfill its obligation to do so, the court stated:

"We are satisfied from a study of the lease that [tenant] had the primary obligation to keep and maintain the elevator in a safe and good condition of order and repair. The reservation of the right to repair if [tenant] did not fulfill its duty to repair and of the right to inspect in order to determine whether the duty was performed did not oblige [landlord] to repair the elevator drum. [Citation.] Neither did the fact that [landlord] made inspections and repairs (which he was under no obligation to make), on the smokestack, sidewalks and water tanks. [Citation.] The reservation in the lease gave [landlord] no control over the elevators, * * *. We conclude that the lease imposed no obligation on [landlord] to repair. This is clear from the lease. There is no question of fact for the jury on the element of an agreement by the landlord to repair." 351 Ill. App. 523, 531, 115 N.E.2d 800, 804; accord, Hurt v. Pershing Mobile Home Sales, Inc. (1980), 83 Ill. App.3d 724, 404 N.E.2d 842.

• 2 As in Carson, under the repairs and maintenance covenant of the lease here, lessee had the primary responsibility to keep the premises "in a clean, sightly and healthy condition, and in good repair." That this covenant imposed no duty on Starsiak to make repairs is clearly indicated by the pertinent language of the clause reserving to lessor the right to repair when the tenant fails to do so; namely:

"If, however, the Premises shall not thus be kept in good repairs and in a clean, sightly and healthy condition by Lessee, as aforesaid, Lessor may enter the same, himself or by his agents, servants or employees, without such entering causing or constituting a termination of this lease or an interference with the possession of the Premises by Lessee, and Lessor may replace the same in the same condition or repair, sightliness, healthiness and cleanliness as existed at the date of execution hereof, and Lessee agrees to pay ...


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