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11/04/87 Donna Northrup, v. Allister Construction

November 4, 1987

DONNA NORTHRUP, PLAINTIFF-APPELLANT

v.

ALLISTER CONSTRUCTION COMPANY ET AL., DEFENDANTS (CARL MIDLAND ET AL., DEFENDANTS AND COUNTERDEFENDANTS-APPELLEES; ALLISTER



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

Construction Company,

Counterplaintiff-Appellant)

516 N.E.2d 586, 163 Ill. App. 3d 221, 114 Ill. Dec. 431 1987.IL.1634

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. McNAMARA, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Plaintiff Donna Northrup sued defendants Allister Construction Company, National Homes Corporation, and Carl and Mary Midland, alleging that defendants' negligent acts caused plaintiff to fall down a flight of stairs in the Midlands' home. The Midlands moved for summary judgment and the trial court granted the motion. Plaintiff appealed in docket No. 86 -- 0155. Allister countersued the Midlands for contribution, and the trial court granted the Midlands' motion for summary judgment on the countersuit. Allister appealed in docket No. 86 -- 3065. The cases were consolidated for oral argument. I

Northrup alleged in her complaint that she was a social guest of the Midlands on July 6, 1981, and she spent the night at their home. Around 8 a.m. on July 7, as she came downstairs, Northrup tripped on some clothes left on the staircase. In her complaint she alleged that the Midlands negligently left clothes on the stairs and failed to warn her of the dangerous condition of the stairs.

The Midlands moved for summary judgment and they supported their motion with a transcript of Northrup's deposition. The Midlands' staircase consists principally of rectangular stairs, each following the other in a straight line, but near the bottom the staircase curves, and the two steps which form the curve are nearly triangular. Northrup testified in her deposition that when she descended the staircase on the morning of July 7, 1981, she saw a pile of clothes on the wide end of the stairs, which forms the curve. She placed a foot on the narrow end of the stair in order to avoid stepping on the clothes. She felt that her footing was precarious, so she brought her other foot down. It caught the clothing. She reached to brace herself, but there was no handrail around the curve. Her feet slipped out from under her and she flew down the remaining stairs. She found herself at the bottom of the staircase in excruciating pain.

On appeal, Northrup contends that the Midlands could be found guilty of negligence. Under the law in effect in Illinois at the time of the accident, the degree of care which a landowner owed to a person on his property was determined by that person's status as invitee, licensee, or trespasser. (Pashinian v. Haritonoff (1980), 81 Ill. 2d 377, 380, 410 N.E.2d 21.) Social guests, like plaintiff herein, are considered licensees. (Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 336, 443 N.E.2d 1162.) A landowner owes his licensees a duty not to engage in wilful or wanton conduct which injures the licensees (Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343, 347, 97 N.E.2d 290), and this duty includes a duty to warn licensees of any concealed hazards on the land (Latimer v. Latimer (1978), 66 Ill. App. 3d 685, 688, 384 N.E.2d 107). The landowner may be liable to an invitee for ordinary negligence, but he cannot be held liable to a licensee for ordinary negligence. (Langford v. Cook County (1984), 127 Ill. App. 3d 697, 700, 469 N.E.2d 335.) In the eyes of the common law, "[a] licensee's privilege to enter is a gift." (Restatement (Second) of Torts § 342 comment D (1965).) "[There] is a common understanding that the guest is expected to take the premises as the possessor himself uses them . . .." Restatement (Second) of Torts § 330, comment H, illustration 3 (1965).

Under the Premises Liability Act (Ill. Rev. Stat. 1985, ch. 80, par. 301 et seq.), effective September 12, 1984, "[the] distinction under the common law between invitees and licensees as to the duty owed by an owner or occupier of any premises to such entrants is abolished." (Ill. Rev. Stat. 1985, ch. 80, par. 302.) Plaintiff asks us to apply this act retroactively to the accident at issue in this case. The act affects substantive rights and duties, not merely matters of procedure or remedy, and it does not state on its face that it is to be applied retroactively. (See Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390, 415 N.E.2d 1034, cert. denied (1981), 451 U.S. 921, 68 L. Ed. 2d 312, 101 S. Ct. 2000.) Therefore, the Premises Liability Act will not be applied retroactively. (Grimwood v. Tabor Grain Co. (1985), 130 Ill. App. 3d 708, 711, 474 N.E.2d 920; Zimring v. Wendrow (1985), 137 Ill. App. 3d 847, 851, 485 N.E.2d 478.) Under the law in effect at the time of the accident, the Midlands could not be liable to Northrup for ordinary negligence because Northrup was only a licensee, and not an invitee, at their home. The trial court properly granted the Midlands summary judgment against Northrup insofar as Northrup attempted to state a cause of action for negligence.

Northrup next claims that in her complaint and her deposition, she has stated facts adequate to support a cause of action for wilful and wanton misconduct. The landowner's conduct is considered "wilful and wanton" if he fails to warn social guests of concealed dangers, or latent defects, but the "licensee must avoid open or obvious danger at his peril." (Lorek v. Hollenkamp (1986), 144 Ill. App. 3d 1100, 1103, 495 N.E.2d 679.) The dangerous condition in the case at bar was obvious to Northrup, as she stated in her deposition that she saw the pile of clothes while she was walking down the staircase. Since the plaintiff has not alleged any latent defect, the Midlands' failure to warn plaintiff cannot constitute wilful and wanton misconduct. Lorek, 144 Ill. App. 3d at 1103-04.

Latimer v. Latimer (1978), 66 Ill. App. 3d 685, 384 N.E.2d 107, is not to the contrary. In that case the defendant placed a separate section of carpeting in front of his bathroom. The section, which was not tacked down, matched the remainder of the carpeting, which was tacked down. The edges of the section had curled slightly, and defendant had tripped on the edge himself. He did not warn the plaintiff, a social guest, that the section was loose. Plaintiff tripped on the edge of the section. The appellate court ruled that the separate ...


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