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05/03/89 Reynolds T. Hawkins Et Al. v. Reynolds T. Hawkins Et Al.

May 3, 1989

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION IDA WELDON, PLAINTIFF-APPELLANT

v.

REYNOLDS T. HAWKINS ET AL., DEFENDANTS-APPELLEES



539 N.E.2d 229, 183 Ill. App. 3d 525, 131 Ill. Dec. 876 1989.IL.651

Appeal from the Circuit Court of Cook County; the Hon. Paul F. Elward, Judge, presiding.

Rehearing Denied June 21, 1989.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. McNAMARA* and RIZZI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiff, Ida Weldon, appeals from the trial court's granting of the motion of defendant Reynolds T. Hawkins *fn1 for a directed finding and the denial of plaintiff's motion for leave to file an amended complaint in a bench trial. Plaintiff, a tenant of the building on the premises owned by defendant, suffered injuries when she tripped and fell on weeds growing through a concrete sidewalk located near the garage on the premises. Plaintiff asserts that defendant's motion for a directed finding should have been denied since the subject matter of the motion was not pleaded in defendant's answer as an affirmative defense, and since the case law relied on by the trial court does not apply to plaintiff's action. Plaintiff also contends that the trial court abused its discretion in denying her motion for leave to amend her complaint in order to conform the complaint to the proofs.

For the reasons stated below, we reverse the judgment of the circuit court and remand this matter for further proceedings.

At trial, defendant testified that on October 3, 1984, the date plaintiff incurred her injury, he owned the premises located at 3559 West Medill in Chicago and owned and controlled the area of the premises near the garage and garbage cans where plaintiff fell. Defendant, who was in charge of maintaining the premises, could not recall the last time he cut down the weeds growing near the garbage cans.

Plaintiff testified that she had been a tenant of defendant for approximately four months prior to her fall. On October 3, 1984, she was taking out her garbage. She was wearing open-toed sandals with a crepe sole. On her second trip down from her third-floor apartment, she carried a box. After placing the box in one of the cans, plaintiff turned and her left foot was caught in the weeds growing at the corner of the garage near the garbage cans. The weeds caught plaintiff's foot and she fell, fracturing her ankle.

At trial plaintiff also called Carmen Ocon to testify. Ocon was a former tenant of defendant who lived on defendant's premises approximately three months before plaintiff's fall. Ocon testified that defendant never cut down the weeds.

Photographs of the area where plaintiff fell were admitted into evidence and are part of the record. The record indicates that the weeds over which plaintiff fell were growing through spaces or cracks between blocks of the concrete walkway that ran alongside the garage on defendant's premises. The garbage cans were located just past the garage on the walkway.

At the close of plaintiff's case, defendant moved for a directed finding. Plaintiff filed a response to defendant's motion and a motion for leave to file an amended complaint to conform to the proofs. In her response to defendant's motion, plaintiff cited section 99 -- 9 of the Chicago Municipal Code (Chicago Municipal Code § 99 -- 9 (1984)), which declares weeds a public nuisance and requires an owner of land to cut, pull, or chemically treat weeds growing on the premises.

After a hearing on the motions of the parties, the trial court entered an order granting defendant's motion for directed finding and dismissing plaintiff's complaint with prejudice based upon the holdings in Burns v. Addison Golf Club, Inc. (1987), 161 Ill. App. 3d 127, 514 N.E.2d 68, and Kostecki v. Pavlis (1986), 140 Ill. App. 3d 176, 488 N.E.2d 644. The court further denied plaintiff's motion for leave to file an amended complaint.

Plaintiff initially contends on appeal that defendant's motion for a directed finding should have been denied because defendant raised for the first time in his motion for directed finding the defense that the weeds are a natural condition on the land which bars plaintiff's recovery. Plaintiff contends that defendant's assertion that the weeds are a natural condition of the land constitutes an affirmative defense, which must be pleaded in an answer or be waived. We note that plaintiff has cited no case law or statutory authority in support of this contention. We find that defendant's failure to make such an assertion in his answer was not in itself fatal to ...


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