MODIFIED OPINION FILED ON REHEARING JULY 7, 1981.
APPEAL from the Circuit Court of Kankakee County; the Hon.
JOHN F. MICHELA, Judge, presiding.
MR. JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
This cause involves a negligence action between a landlord and tenant. The apartment building, a two-flat, is located in Kankakee, Illinois. The plaintiff, Charles Seago, is the tenant. When moving out of the upper apartment he suffered an injury on the stairway. Richard and Sondra Roy, the defendants, own the apartment building. The trial court granted their motion for summary judgment. Mr. Seago perfected this appeal.
In reviewing the propriety of a summary judgment order, the foremost inquiry is whether a genuine, triable issue of fact exists. The answer to this question requires scrutiny of the pleadings and their accompanying affidavits or depositions. If plaintiff has a provable claim, entry of summary judgment against him is wrong.
In sum, the complaint says that: on May 16, 1976, Charles Seago, a tenant in the Roys' apartment building, fell through a wooden guardrail on a stairway leading to his apartment; the railing was unsafe due to wood rot or decay; he sustained injuries, through no fault of his own, due to the railing's condition. On May 1, 1978, the defendants answered. The original answer admitted the stairway was a common area, but denied the railing was deteriorated or the cause of the accident. Mr. Seago was alleged to be at fault and the extent of his injuries disputed. Both sides propounded interrogatories. Attaching the plaintiff's discovery deposition, the Roys moved for summary judgment. On April 24, 1980, a hearing on that motion convened. The same day, with leave of court, the Roys filed an amended answer denying the stairway was a common area.
Did the trial judge err in granting summary judgment in favor of the defendants? We hold he did not err, and we affirm for the following specific reasons.
• 1, 2 Generally, a landlord is not liable for injuries occurring on premises leased to, and under the control of, a tenant. Moreover, absent a covenant to repair in a lease agreement, or the landlord's knowledge of latent defects on the premises, he has no duty to repair premises demised to a tenant. (Cuthbert v. Stempin (1979), 78 Ill. App.3d 562, 568-69.) Therefore, he is not liable in negligence for his failure to do so. An exception to this rule exists where a landlord retains control over common passageways or areas in an apartment building. Where a stairway or hallway is allocated for the common use of all tenants and the landlord retains control over such areas, he must make them reasonably safe. (Murphy v. Illinois State Trust Co. (1940), 375 Ill. 310, 312-14.) Failure to repair, then, may make the landlord liable for an injury resulting to a person lawfully in such common areas.
In their amended answer, the Roys denied the stairway where the accident occurred was a common area. In so doing, they denied their responsibility as landlords to repair the wooden railing and keep it safe. Did a duty arise? By denying responsibility, they raised the legal question of whether a duty was owed to the tenant and, therefore, whether Mr. Seago had a provable claim.
A denial that the stairway is a common passageway disclaims the proposition that a landlord has a legal duty to repair the stairway and its railing. Whether such a legal duty exists may well become a legal question for the trial court to decide. (Cunis v. Brennan (1974), 56 Ill.2d 372.) Based on the record before us which indicates the stairway led only to plaintiff's apartment, there is insufficient evidence to find the Roys owed a duty to fix the stairway and its railing.
To determine who had the duty to repair, the agreement of the parties is controlling. In this case the oral lease between Mr. Seago and a prior landlord was silent as to which party had the duty to repair the stairway. Therefore, the party who had control over the stairway is the one having the duty to repair. (Savka v. Smith (1978), 58 Ill. App.3d 12.) Because the lease agreement was silent, the parties' conduct is the best indication of who had control over the stairway.
Two stairways entered the upstairs apartment. The one from which the tenant fell serviced his apartment exclusively. At his tenancy's inception the stairway was in good repair. No other tenants used the stairway as a means of access. In his discovery deposition the plaintiff was vague, and at times contradictory, as to when and what extent repairs to the stairway were made by the prior landlord. A fair reading of the transcript shows that any repairs made by that landlord were minimal.
• 3 Merely because a landlord makes minor repairs or cosmetic changes to rental property, he does not thereby become accountable to fix areas under the tenant's control or assume liability from consequent injuries that occur in those areas. A duty is an affirmative obligation to act or refrain from acting so as to avoid creating an unreasonable risk of harm to another. Where a party's conduct, as opposed to his express agreement, is the premise for imposing such a duty, the acts or omissions giving rise to the conduct must be substantial and clearly delineated. If not, the placement of liability for any resulting injury is anyone's guess. And, the possibility that an accident could happen is no foundation upon which to assign fault. The evidence of record does not support the conclusion that the activities of the Roys were of such a degree to establish their control of the stairway. Nor were the few intermittent repairs made by the prior landlord clearly defined, continuous, or substantial to show control. The trial judge was correct in finding the Roys did not control the stairway where Mr. Seago fell. Thus, the Roys had no duty to repair. Accordingly, since a duty was not owed, plaintiff's claim could not have succeeded at trial. Summary judgment, given such circumstances, was proper.
Accordingly, we affirm the order of the trial court granting summary judgment to the defendants.