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Kuhn v. General Parking Corp.





APPEAL from the Circuit Court of Cook County; the Hon. JEROME LERNER, Judge, presiding.


Mercedes Kuhn, the plaintiff, brought this negligence action against General Parking Corporation (General Parking), Benjamin E. Sherman & Son, Inc. (Sherman & Son), *fn1 and Illinois Bell Telephone Company (Bell Telephone) to recover damages for bodily injury she suffered at her place of employment when she caught her heel in a broken asphalt floor tile. The plaintiff alleged that General Parking, the owner of the building, and Sherman & Son, the managing agent, were negligent in failing to maintain and repair the premises leased to the plaintiff's employer, Illinois Right to Life Committee (Right to Life). Bell Telephone was alleged to be negligent by breaking the tile and failing to repair it. General Parking and Sherman & Son filed a third-party action against Right to Life seeking indemnification in the event that liability was imposed upon them. They alleged that under their lease agreement, Right to Life, as lessee, had the duty to maintain the premises. After all the evidence was presented, the trial court granted a directed verdict in favor of Right to Life and denied motions for directed verdict by General Parking, Sherman & Son and Bell Telephone. The jury returned verdicts in favor of the plaintiff against General Parking and Sherman & Son and in favor of Bell Telephone against the plaintiff.

On appeal General Parking and Sherman & Son contend that the trial judge erred in: (1) failing to direct a verdict in their favor because they owed no duty to the plaintiff and because the plaintiff was guilty of contributory negligence, (2) directing a verdict in favor of Right to Life, (3) giving certain of the plaintiff's instructions, and (4) ruling on certain evidentiary matters.

At trial the plaintiff called Edward Greenhalgh, the former building manager. At the time of the plaintiff's accident, he supervised a number of employees regarding the maintenance of the building. Greenhalgh discussed the standard operating procedures for repairing and replacing broken floor tiles. It was the building management, not the tenant, who repaired broken and cracked tiles. When damage was reported to the building management, a work order would be given to the carpenter who kept similar tiles in storage. If the telephone company would break a tile during telephone installations it could not repair the tile without the building management's consent. Greenhalgh could not recall whether he issued a work order to replace the broken tile that caused the plaintiff's injury, but assumed he had based on custom and practice. He stated that, under normal operating conditions, it would take 24 to 48 hours to issue a work order and complete the work requested.

Peter Borchert, a carpenter employed by Sherman & Son, testified as an adverse witness. He stated that he received work orders from Greenhalgh and that he had received a work order to repair or replace a floor tile in the area leased to Right to Life. He did not repair the tile until after the plaintiff's injury occurred.

Anthony Williams testified as an adverse witness and stated that on December 12, 1975, while he was working for Bell Telephone, he installed telephones in the Right to Life offices. During the installation, a floor tile broke, and he notified Greenhalgh, who stated that the broken tile would be replaced.

Mercedes Kuhn, the plaintiff, testified that she was the office manager for Right to Life on December 15, 1975, when Right to Life took occupancy of a suite at the building owned and managed by the defendants. She was notified on that date by Mr. Greenhalgh that a tile in the office was broken and that it would be taken care of shortly. The broken tile was located a foot and a half in front of her desk in an aisle that led to the counter near the front of the office. Kuhn testified that at about 12:30 or 1 p.m., on December 24, 1975, she was taking care of a visitor at the counter. In walking to the counter from her desk she passed over the broken tile. She walked to a file cabinet, back to her desk to get a pen, and then stepped away from her desk to return to the counter when she caught the heel of her right shoe in the broken tile and fell. She sustained injuries to her right leg, hip and arm.

On cross-examination Kuhn testified that nothing was done to barricade the broken tile. She stated that the office lighting was sufficient and that the tile was plainly visible. Kuhn could not recall whether she looked at the tile every time she walked over it and said there was enough room to walk around it. Kuhn further testified that just prior to her fall she was aware of the broken tile but did not deliberately look at it as she was conversing with the office visitor.

The relevant portion of the lease between General Parking and Right to Life provided:

"12. Repairs: [T]he Lessee shall, at the Lessee's own expense, keep the premises in good order, condition and repair during the term, * * * under the supervision and with the approval of the Lessor. If the Lessee does not make repairs promptly and adequately, the Lessor may, but need not, make repairs, and the Lessee shall pay promptly the cost thereof. At any time or times, the Lessor, either voluntarily or pursuant to governmental requirement, may, at the Lessor's own expense, make repairs, alterations or improvements in or to the Building or any part thereof, including the premises * * *."

The defendants contend that the trial court erred in failing to direct a verdict against the plaintiff. They argue that they owed no duty to the plaintiff to maintain or repair the premises leased to her employer because a lessor has no obligation to repair leased premises (Baxter v. Illinois Police Federation (1978), 63 Ill. App.3d 819, 380 N.E.2d 832) and because they retained no control over the premises (Taylor v. Geroff (1952), 347 Ill. App. 55, 106 N.E.2d 210). The defendants also argue that their promise to repair the broken tile, which was made after the execution of the lease, was made without consideration and thus was not binding upon them. Forshey v. Johnston (1971), 132 Ill. App.2d 1106, 271 N.E.2d 81; Crawford v. Orner & Shayne, Inc. (1947), 331 Ill. App. 568, 73 N.E.2d 615.

Recovery in tort for negligence requires that there be a breach of duty owed to the plaintiff by the defendant. (E.g., Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill.2d 95, 306 N.E.2d 39; Chisolm v. Stephens (1977), 47 Ill. App.3d 999, 365 N.E.2d 80.) The existence of a legal duty is a question of law to be determined by the trial court. (E.g., Barnes v. Washington (1973), 56 Ill.2d 22, 305 N.E.2d 535; Lindquist v. Highland Park Hospital Foundation (1976), 40 Ill. App.3d 722, 353 N.E.2d 156.) Generally, a lessor is under no obligation to repair portions of rented premises which are in the exclusive use of the tenant. (Dapkunas v. Cagle (1976), 42 Ill. App.3d 644, 356 N.E.2d 575; Jordan v. Savage (1967), 88 Ill. App.2d 251, 232 N.E.2d 580.) The lessor also is not liable for injuries to a third party on the premises leased to the tenant and under the tenant's control. Coshenet v. Holub (1980), 80 Ill. App.3d 430, 399 N.E.2d 1022.

At common law, a lessor who retains control over portions of a building has a duty to all persons lawfully on the premises to maintain the premises in reasonable repair. (Gula v. Gawel (1966), 71 Ill. App.2d 174, 218 N.E.2d 42; Taylor v. Geroff.) Traditionally, this rule applied to common areas and not to demised areas. (Campbell v. Harrison (1973), 16 Ill. App.3d 570, 306 N.E.2d 643.) However, in Campbell v. Harrison the reviewing court found that the lessor could be liable for injuries caused by the disrepair of the tenant's walls and ceiling if the lessee could show that the lessor retained control over them.

• 1 We believe the evidence in the instant case supports a finding that the defendants maintained control over the asphalt tile floors throughout the building where the plaintiff's injury occurred. Under the provisions of the lease, the lessor reserved the right to make any repairs it desired. (Cf. Bielarczyk v. Happy Press Lounge, Inc. (1980), 91 Ill. App.3d 577, 414 N.E.2d 1161 (reservation of right to repair, without more, will not impose duty to repair upon the landlord).) In the instant case the defendants exercised the right to repair when their building manager told the Bell Telephone employee that he would have the broken tile repaired and when the building manager notified the plaintiff that the tile had been broken and that it would be fixed. The building manager testified that the carpenter kept replacement tiles in storage and that it was standard procedure for the ...

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