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Wright v. Mr. Quick

OPINION FILED OCTOBER 17, 1984.

LISA WRIGHT, PLAINTIFF-APPELLANT,

v.

MR. QUICK, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Tazewell County; the Hon. Ivan L. Yontz, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 14, 1985.

The plaintiff, Lisa Wright, was seriously injured when she fell while walking across the parking lot of her employer, Great Eight, Inc. (hereafter the employer). Her employer operated a Mr. Quick restaurant pursuant to a franchise agreement with the defendant, Mr. Quick, Inc. The plaintiff brought suit against the defendant for negligence in maintaining the restaurant premises. When the trial court granted the defendant's motion for summary judgment, the plaintiff brought the instant appeal.

The defendant leased the land and building for the Mr. Quick restaurant from persons not a party to this suit. In that lease, the defendant agreed to maintain the "exterior including drives and blacktop in good condition * * *." The defendant subsequently subleased the property and building to the employer. In that sublease, the original lease was incorporated into the sublease. A franchise agreement was also executed in which the employer agreed to keep and maintain the premises.

The defendant argued in its motion for summary judgment that it had no duty to the plaintiff as a matter of law following the execution of the sublease. The trial court granted the defendant's motion for summary judgment.

The sole issue on appeal is whether the trial court erred in finding that, as a question of law, the defendant owed no duty to the plaintiff. The plaintiff asserts that the defendant did owe a duty based alternatively upon the defendant's duty as the lessor of the premises and the defendant's contractual agreements.

• 1, 2 Generally, a lessor is not liable for injuries to a lessee or others which occur on premises wholly leased to and under the control of the lessee. (Gilbreath v. Greenwalt (1980), 88 Ill. App.3d 308, 410 N.E.2d 539.) One exception to this general rule is where a lessor contracts to keep the property in repair. (Restatement (Second) of Torts sec. 357 (1965); Dial v. Mihalic (1982), 107 Ill. App.3d 855, 438 N.E.2d 546.) The lessor's duty under this exception is a tort duty which extends to persons on the land with the consent of the lessee even though they are not parties to the contract. 107 Ill. App.3d 855, 861, 438 N.E.2d 546, 551.

• 3 In the instant case, the defendant contracted in the original lease to maintain the exterior of the premises. This lease was incorporated into the sublease between the defendant and the employer. We find that based upon these contractual agreements, the defendant took on the duty to maintain the premises it leased and then sublet. As lessor of the premises, the defendant owed a tort duty to maintain the premises in good repair to the plaintiff, who was on the premises with the employer's permission.

• 4 The defendant argues that the provision in the franchise agreement wherein the employer agreed to maintain the premises eliminated any duty on its part. It may be true that the employer also assumed a duty to maintain and repair. However, it does not follow that the assumption of the duty by the employer destroys any duty of the defendant. If the employer had a duty to maintain, it existed simultaneously with the separate duty of the defendant.

• 5 The defendant also argues that the providing of adequate lighting does not fall within the meaning of the contractual promise. This, however, is a question of fact. The only question before this court is whether the defendant owed a duty to the plaintiff. The scope of that duty and whether that duty was breached are questions for a trier of fact.

Because we find that the defendant owed a duty to the plaintiff based upon the common law duty of lessors, we do not consider whether a duty also arose based solely upon the contracts.

Accordingly, the judgment of the circuit court of Tazewell County is reversed and the cause remanded for further proceedings consistent with this decision.

Reversed and ...


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