Appeal from the Circuit Court of Will County; the Hon. Charles
P. Connor, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 23, 1983.
After a jury trial the circuit court of Will County entered judgment on the verdict in favor of the defendant, Dorothy Halley, and against the plaintiffs, William Schranz and Kimberly Schranz, on their claim for damages for personal injury.
On this appeal the plaintiffs argue the trial court erred in refusing to direct a verdict in their favor on the issue of liability and grant them a new trial on the issue of damages only. We find no merit to this argument. Alternatively, the plaintiffs argue the trial court erred in giving a modified instruction at the request of the defendant over the objection of the plaintiffs which error the plaintiffs claim constitutes reversible error. We agree with this contention.
The evidence in this case is neither extensive nor complicated. A brief summary will suffice for our purposes.
The defendant, Dorothy Halley, owned property in Joliet improved with a building containing two apartments. She lived in the downstairs apartment and the upstairs apartment was served by an outside stairway. The property adjoining was occupied by William Schranz and his family, including the minor plaintiff, Kimberly Schranz, who was seven years old at the time of this incident.
On the 30th day of April 1978, Kimberly was on the stairway and apparently leaned against the railing which gave way causing her to fall to the ground below injuring her. Her father was working outside in his own yard and heard the incident but did not actually see the fall take place.
Conflicting evidence was introduced concerning the condition of the railing and what the landlord should or should not have known about its condition, as well as the frequency of Kimberly's presence on the stairway either with or without the invitation of the upstairs tenant. There was also some evidence of the defendant's conduct or gestures on some occasions disapproving of the child's presence on the stairway.
William Schranz brought this action individually and as next friend of his minor daughter Kimberly.
• 1 Although the plaintiffs argue the facts disclose liability as a matter of law, their argument ignores two rather salient areas of controversy namely, the dispute concerning the condition of the railing and the knowledge the landlord had or should have had of its condition and also a dispute concerning the foreseeability of the child's presence on the stairway and the duties which depend on such foreseeability. Both parties have referred at length to Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836, which sets forth elements which a minor plaintiff is required to prove in order to recover under the legal theory applicable to liability in cases of this type. Without restating the elements here, we repeat our belief that questions of fact were presented sufficient to require their resolution by a jury and the facts do not impose liability on the defendant as a matter of law.
We next consider the plaintiffs' contention the trial court erred in giving an instruction over plaintiffs' objection. The instruction complained of is Illinois Pattern Jury Instructions, Civil, No. 20.01 (modified) (2d ed.) (issues instruction), which provides in pertinent part:
"The defendant claims that the plaintiff, Kimberly Schranz [sic] was contributorily negligent in trespassing on defendant's stairway and that the plaintiff William Schranz, was contributorily negligent allowing his daughter to trespass on defendant's stairway.
The defendant further claims that the foregoing was the sole proximate cause of the claimed injuries of plaintiffs."
Plaintiffs objected for the following reasons: First, the issue of trespass is not a defense in this matter; Second, there is nothing in the evidence suggesting that Kimberly was a trespasser; Third, it is totally irrelevant whether or not Kimberly was trespassing; Finally, the instruction is confusing because it strongly suggests that if William Schranz allowed his daughter to trespass on the stairway, Kimberly cannot recover if the jury finds that to be the sole proximate cause of the injuries. Plaintiffs' contention is ...