APPEAL from the Circuit Court of Macon County; the Hon. JERRY
L. PATTON, Judge, presiding.
PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
• 1 In this case we hold that the warranty of habitability implied in a lease of a dwelling by the doctrine enunciated in Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, 280 N.E.2d 208, and expanded in Pole Realty Co. v. Sorrells (1981), 84 Ill.2d 178, 417 N.E.2d 1297, does not give rise to a cause of action for personal injuries or property damage. In doing so we are following the precedent set forth in pre-Pole Realty cases in comprehensive opinions by the Appellate Court for the First District in Beese v. National Bank (1980), 82 Ill. App.3d 932, 403 N.E.2d 595, and that of the Fifth District in Dapkunas v. Cagle (1976), 42 Ill. App.3d 644, 356 N.E.2d 575.
On March 26, 1981, in a multiparty case, plaintiffs, Gary S. Auburn and Karen Auburn, filed a third amended complaint in the circuit court of Macon County. The complaint was against defendants, Charles K. Ekiss and Alberta J. Rogers, as executors of the estate of Florence M. Ekiss, deceased. On September 14, 1981, the court allowed with prejudice defendants' motion to dismiss the complaint, denied plaintiffs leave to file a fourth amended complaint, and found no just reason to delay enforcement or appeal of the order. Plaintiffs have appealed. We affirm.
The third amended complaint alleged: (1) plaintiffs were tenants under a lease with defendants' decedent covering a dwelling house in Moultrie County; (2) plaintiffs resided in the house and kept substantial personal property in it; (3) at all times mentioned defendants' decedent was in breach of her implied warranty that the premises were habitable because the furnace in the house and its appliances and fuel supply were not in working order and were not reasonably safe for their intended purposes; and (4) as a proximate result of the foregoing, an explosion occurred destroying the house and causing plaintiffs to suffer substantial personal injury and property damages. Defendants' motion to dismiss alleged: (1) the theory of implied warranty of habitability does not give rise to a cause of action for damages for personal injury caused by breach of the warranty; (2) the lease, incorporated in the complaint, contained a clause disclaiming liability upon the lessor for the injuries alleged; and (3) the complaint contained no allegation that the injuries were caused by a hidden defect existing when plaintiffs commenced occupation and of which plaintiffs were unaware.
In pronouncing its ruling dismissing the third amended complaint, the trial court made a docket entry stating it was following the precedent of Beese and Dapkunas that no cause of action for personal injuries results from a breach of the implied warranty of habitability.
The opinion in Jack Spring is fully explained in Pole Realty, Beese, Dapkunas and numerous other cases. A lessor of a multiple-dwelling unit sued a lessee in forcible entry and detainer based upon failure to pay rent. The trial court struck an affirmative defense in which the lessee alleged the lessor had breached an implied warranty of habitability by failing to comply with the Chicago Building Code. On appeal, the supreme court reversed, holding that: (1) such a warranty is implied in leases for multiple-dwelling units; (2) the warranty could have been met by compliance with the applicable provisions of the building code; (3) a breach of the warranty by the lessor would be germane to whether the lessee was in default on rent; and (4) striking the defense was error.
In Pole Realty the implied warranty of habitability was extended to single-unit dwellings. The issue there also arose from a defense filed to a suit in forcible entry and detainer and, again, the allegation of breach was a violation of the Chicago Building Code. There, unlike in Jack Spring, the defendant also filed a counterclaim seeking relief which included damages for physical and emotional injury arising from the alleged breach of the warranty. Upon plaintiff's motion, both the breach-of-warranty affirmative defense and the counterclaim were stricken by the trial court on the ground that the warranty was not applicable to leases of single-unit dwellings. The supreme court agreed with the appellate court's decision (Pole Realty Co. v. Sorrells (1979), 78 Ill. App.3d 361, 397 N.E.2d 539) that the warranty applied to leases of single-unit dwellings and affirmed the appellate court's decision to reverse the order striking the mentioned affirmative defense and the counterclaim.
Even after Pole Realty uncertainty exists as to whether the implied warranty of habitability arises from a lease of all dwellings or only those subject to a building code. (See Eaton, The Implied Warranty of Habitability in Illinois: Prairie State Lags Behind Other Industrial States in Landlord-Tenant Law, 1979 S. Ill. U.L.J. 183.) No allegation of the third amended complaint stated the dwelling here to be subject to a municipal building code. In Beese and Dapkunas, lack of a building code covering the premises whose lease was in question was held to be one of the grounds for a ruling in favor of the lessor. Here, however, the motion to dismiss was not based on the failure to allege the existence of a building code. In any event, because of our conclusion that no action for personal injury or one for property damage lies here, we need not consider whether the demised premises need be subject to a building code in order for the warranty to be implied.
Plaintiffs assert that because the Pole Realty court reversed the order striking the counterclaim which sought damages for emotional and physical injury arising from the breach of warranty, that decision is precedent establishing the validity of the type of action they have brought here. We disagree.
Neither the supreme court nor the appellate court opinions in Pole Realty discuss any issue concerning the propriety of the counterclaim other than the question of the types of dwellings whose leases were covered by the warranty, except for the following from the appellate court opinion:
"Defendant also contends that the trial court erred in striking her counterclaim for damages resulting from plaintiff's alleged breach of the implied warranty. It is clear that a counterclaim raising the issue of whether excess rent has been paid may be asserted in an action for possession of property based upon non-payment of rent. (Peoria Housing Authority v. Sanders (1973), 54 Ill.2d 478, 298 N.E.2d 173.) Accordingly, we further hold that the trial court erred in striking defendant's counterclaim." (78 Ill. App.3d 361, 366, 397 N.E.2d 539, 543.)
We conclude that the question of whether an action for personal injury or property damages can arise from a breach of the implied warranty of habitability was never a subject of inquiry by the supreme court in Pole Realty.
Although we are aware of no Illinois case on the exact point, the following is pertinent to the precedent of Pole Realty as to the issue here:
"A decision is, generally, not a precedent as to a point which was not sufficiently argued and presented to the court, although if the point was an essential one the fact that it was duly ...