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Kostecki v. Pavlis

OPINION FILED JANUARY 15, 1986.

DEANNA KOSTECKI, A MINOR, BY DONALD KOSTECKI, HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

CHRIS PAVLIS ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. William R. Quinlan, Judge, presiding.

JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Donald Kostecki, as father and next friend of plaintiff Deanna Kostecki, instituted this action to recover damages for injuries sustained by Deanna. Deanna appeals from the summary judgment entered in favor of the defendants, Chris and Fay Pavlis.

The record reveals that on August 3, 1977, plaintiff, an 11-year-old minor, was injured in a building located at 6243 North Fairfield Avenue, Chicago. The building, which consists of three separate apartments, was owned and controlled by Chris and Fay Pavlis, who occupied the second floor with their two minor children, Tina and Patty. Louis Pavlis, Chris' brother, occupied the first floor with his wife and three minor children, Nicko, Dino and Marta. Plaintiff lived next door to defendants' property and played with all of the Pavlis children during the summer of 1977.

Plaintiff testified, in her deposition, that a few hours prior to the incident, she left her house to play outside with her brother, Donald Kostecki, and his friends. Subsequently, the Pavlis children joined them to play a game of chase. The children divided into two teams, with one team hiding while the other team sought out and chased them. Plaintiff's team was hiding when the other team discovered them and began chasing them. Plaintiff's team then followed Dino Pavlis through the outer door into the foyer of defendants' property. At the end of the foyer was a second door which had 15 small glass panes. This door opened into a hallway which had two stairways, one leading to the upstairs apartments and the other leading to the basement.

Dino Pavlis opened the second door and proceeded into the basement. Donald Kostecki's friend held the second door open after Dino went through. Donald held the first door (the outside door) closed as plaintiff stood next to him. Donald then told plaintiff to followed Dino and the others through the second door and into the basement. According to plaintiff's deposition, as she ran quickly towards the second door, Donald's friend let go of that door. First the door was closing slowly toward her, but as plaintiff reached for the doorknob the door quickly slammed shut. Her hand met one of the glass panes of the door, causing her hand and arm to be forced through it. Plaintiff cut her arm and hand and suffered permanent partial disability, scarring and disfigurement.

In 1981, plaintiff filed this action against Chris and Louis Pavlis. Louis was dismissed with prejudice by an agreed order because he was not an owner of the building. Fay Pavlis, Chris' wife, as an owner of the property, filed her appearance. Defendants filed an answer to the complaint consisting of general denials. Depositions and affidavits were filed and are included in the record.

In February 1984, approximately six years after the incident, plaintiff hired Lester Kolom, a registered professional safety engineer, to examine the door. Mr. Kolom also reviewed the deposition transcript of Deanna and the affidavits of Chris and Louis Pavlis. Mr. Kolom concluded in his affidavit that the door was unreasonably dangerous in that the door was defectively maintained and in violation of several building codes.

On June 1, 1984, defendants filed a motion to strike Kolom's affidavit which the court denied. On June 22, 1984, defendants filed a motion for summary judgment. The trial judge granted the motion and entered judgment in favor of defendants on September 4, 1984. This appeal followed.

On appeal, plaintiff contends that the record presents a genuine issue of material fact as to whether the door was unreasonably dangerous and defective, thus precluding an award of summary judgment for the defendants. Specifically, plaintiff claims that (1) defendants were negligent in that the door's closure mechanism was defectively maintained and (2) defendants' noncompliance with certain Chicago building ordinances establishes prima facie evidence of their negligence.

Summary judgment should be granted only where there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005.) The court is to determine the existence or absence of a genuine issue of any material fact by strictly construing the affidavits, depositions, admissions, exhibits and pleadings in the case. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 380, 313 N.E.2d 457; Bak v. Burlington Northern, Inc. (1981), 93 Ill. App.3d 269, 272, 417 N.E.2d 148.

• 1 Initially, we address defendants' claim that the door's closure mechanism was unreasonably dangerous because it was defectively maintained by defendants. Plaintiff bases this claim upon evidence that as she approached the door, it began closing slowly, but just as she reached for the doorknob, the door quickly slammed shut on her hand.

As a general rule, the duty of a landlord is as follows:

"Where only a portion of the premises is rented and the landlord retains control of other parts of the same such as stairways, passageways, or cellarways, or where he rents the premises to several tenants, retaining control over a part of the same for the common use of the several tenants, he has the duty of exercising reasonable care to keep the premises in a reasonably safe condition and he is liable for an injury from failure to perform such duty." (Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App.3d 482, 485, 448 N.E.2d 1042.)

This duty is owed not only to the landlord's tenants, but also to those lawfully on the premises. Hiller v. Harsh (1981), 100 ...


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