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09/17/87 Mary Cerniglia, v. Kenneth H. Farris Et Al.

September 17, 1987

MARY CERNIGLIA, PLAINTIFF-APPELLANT

v.

KENNETH H. FARRIS ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

514 N.E.2d 792, 160 Ill. App. 3d 568, 113 Ill. Dec. 10 1987.IL.1362

Appeal from the Circuit Court of Sangamon County; the Hon. Jerry S. Rhodes, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. GREEN and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Plaintiff, Mary Cerniglia, brought this action in the circuit court of Sangamon County on January 7, 1986. She sought to recover for injuries sustained in a fall January 10, 1984, at the residence of her daughter, Georgianna Cooper (Cooper). Named as defendants were Kenneth Farris and Evelyn Farris (Farrises), alleged lessors of the premises, and Cooper. The circuit court granted the Farrises' motion for summary judgment and allowed Cooper's motion to dismiss count III. Plaintiff appeals, contending a genuine issue of material fact exists precluding summary judgment. She also claims the trial court erred in granting Cooper's motion to dismiss. We affirm.

On January 7, 1986, plaintiff filed a three-count complaint in the circuit court of Sangamon County. She sought recovery for injuries sustained January 10, 1984, when she fell down a stairway at Cooper's leased residence in Springfield. On September 19, 1986, the court granted the Farrises' motion for summary judgment on counts I and II filed pursuant to section 2-1005 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005). Cooper's supplemental motion to dismiss count III was allowed December 17, 1986. Plaintiff filed her notice of appeal January 15, 1987.

Count I of the verified complaint, directed to Kenneth Farris (Kenneth), alleged Kenneth owned the premises in question and leased it to Cooper. Plaintiff stated she "had an occasion" to visit Cooper on January 10, 1984. Two doors, separated by a stairway and a breezeway, provided egress from the residence. While exiting the inner door, plaintiff fell down the stairway and was injured.

Plaintiff alleged Kenneth owed her a duty to maintain the leased premises in a reasonably safe manner. She alleged he failed to provide adequate lighting and safety railings on the stairway, failed to maintain the exit in a reasonably safe manner, allowed the carpeting on the stairs and approach to reach a state of disrepair creating an unreasonably dangerous condition, and failed to warn plaintiff and others of the alleged dangerous and latent condition. Count II was directed to Evelyn Farris (Evelyn) and repeated the allegations of count I.

Plaintiff's third count, directed toward Cooper, alleged Cooper owed a duty to plaintiff "to maintain her leasehold in a reasonably safe manner." She alleged Cooper allowed inadequate stairway lighting, failed to maintain the exit in a reasonably safe manner, allowed the carpeting on the stairs and approach to reach a state of disrepair creating an unreasonably dangerous condition, and failed to warn plaintiff and others of the dangerous latent condition.

In the Farrises' answer filed February 7, 1986, and amended July 29, 1986, Kenneth denied he owned or leased the property. Evelyn admitted she was owner and lessor. The Farrises denied all other allegations of the complaint and filed an affirmative defense alleging plaintiff's comparative fault.

Cooper's "Supplemental Motion to Dismiss," filed pursuant to section 2-615 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), asserted count III failed to state a cause of action. Cooper stated that as a social visitor, plaintiff was a licensee, to whom Cooper's only duty was to refrain from wilful and wanton conduct. Since plaintiff failed to allege such conduct, no duty existed as a matter of law.

On September 2, 1986, the Farrises filed a motion for summary judgment pursuant to section 2-1005(b) of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(b)). The Farrises alleged they owed no duty to plaintiff, and attached affidavits in support of their motion. Kenneth's affidavit stated he did not own the premises or lease it to Cooper. He also stated he had no knowledge of any defects in the carpeting, handrails, and light fixtures, which had been installed prior to September 15, 1980, the effective date of Cooper's lease. He stated the premises consisted of a single-family dwelling and he retained no care, custody or control of the premises. Evelyn's affidavit contained the same statements as Kenneth's, though she did not deny ownership of the premises or that she was Cooper's lessor.

Plaintiff filed no response to the motion for summary judgment. Cooper's response opposing summary judgment was filed September 9, 1986. In support of her contention the landlord retained control over the premises, she attached a photocopy of her lease dated September 11, 1980. ...


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