the motion to amend the complaint is granted, the motion for judgment on the pleadings is denied, the federal defendant's motion for summary judgment is granted, and defendant Moses Dosu is dismissed without prejudice. As a result of these rulings, the court need not rule on plaintiffs' subsequently filed Motion for Summary Judgment on the counterclaim.
The federal defendant Veterans Administration ("VA" or "United States") took title to the property in question, commonly known as 4946 W. Jackson St., Chicago, Illinois, ("the property") by a Sheriff's Deed dated March 30, 1984. On August 30, 1984, defendant Moses Dosu purchased the property from the VA, and took exclusive possession and control of the property.
The minor plaintiff, Titus Brooks (the "minor"), and his family moved into the 2nd floor apartment of the property (the "apartment") in November, 1984. Plaintiffs allege that in September and October of 1986, the minor ingested flaking plaster and/or paint which was in the apartment and/or common elements where he lived, and that such ingestion has caused injury to the minor.
Plaintiffs subsequently brought this two count action. Count I of plaintiffs' Amended Complaint is the minor's tort action against the United States for his personal injuries. See Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Count II of the Amended Complaint is the mother's claim for the medical expenses she has and will become liable for during the minor's minority, pursuant to the Family Expense Act, Ill Rev. Stat., ch. 40, para. 1015 (1987).
AMENDED COMPLAINT AND JUDGMENT ON THE PLEADINGS
Plaintiffs seek to amend the Complaint. See Fed. R. Civ. P. 15(a). The federal defendant objects to the filing of the Amended Complaint on three grounds. First, the federal defendant objects to the delay in filing of the Amended Complaint. However, under the facts of this case, the delay neither benefits plaintiffs nor prejudices defendants.
Second, the federal defendant argues that the Federal Tort Claims Act limits the amount of damages requested in a complaint to the amount of the claim presented to the administrative agency, in this case, the claim presented to the Administrator of Veterans Affairs. See 28 U.S.C. § 2675(b). However, there is an exception to this rule: where the increased amount is based on newly discovered evidence not reasonably discoverable at the time the claim was presented to the federal agency. Id. Here, plaintiffs allege that the full extent of the minor plaintiff's disability and the consequences of his illness could not have been discovered at the time the administrative claim was presented. The federal defendant makes no argument to the contrary. Therefore, for purposes of this motion, the court finds the exception applicable to this case.
Third, the federal defendant argues that the court has no subject matter jurisdiction over Count II of the Amended Complaint. However, this argument is no more applicable to Count II of the Amended Complaint than to Count II of the original Complaint. An objection to the filing of an amended complaint should only contain objections to the contents of the amended complaint which vary from those of the previously filed complaint. The federal defendant's argument would be more appropriately raised in a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1). Therefore, the court rejects the jurisdictional argument in the context of this motion.
For these reasons, plaintiffs are granted leave to file the Amended Complaint. The Motion for Judgment on the Pleadings is denied, as the Amended Complaint cures the defects described in the Motion for Judgment on the Pleadings. The court now turns to the Motion for Summary Judgment.
Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence which supports his complaint. Id.; see First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Accordingly, the nonmoving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Id.
The parties are in essential agreement as to the legal requirements for establishing the liability of the federal defendant. Illinois law applies to this action. See Fleishour v. United States, 365 F.2d 126, 128 (7th Cir.), cert. denied, 385 U.S. 987, 17 L. Ed. 2d 448, 87 S. Ct. 597 (1966). Illinois has adopted Sections 352 and 353 of the Restatement (Second) of the Law of Torts (1965). Martin v. 1727 Corp., 120 Ill. App. 3d 733, 458 N.E.2d 990, 993, 76 Ill. Dec. 336 (1983); Century Display Mfg. Corp. v. D. R. Wager Construction Co., Inc., 71 Ill. 2d 428, 376 N.E.2d 993, 995, 17 Ill. Dec. 664 (1978). Section 352 of the Restatement sets forth a general rule that the liability of a landowner for injuries occurring in connection with the property ends with the cessation of ownership, possession and control of the property. Martin, 458 N.E.2d at 993. However, Section 353 of the Restatement creates an exception to this general rule of nonliability:
Sec. 353. Undisclosed Dangerous Conditions Known to Vendor
(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involved unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his sub-vendee for physical harm caused by the condition after the vendee has taken possession, if