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06/09/89 Maria Garcia, As Mother v. James Jiminez

June 9, 1989




APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

MARIA GARCIA, as Mother and Next Friend of Roberto Garcia,

a Minor, Plaintiff-Appellant, v. JAMES JIMINEZ, Defendant-Appellee

539 N.E.2d 1356, 184 Ill. App. 3d 107, 132 Ill. Dec. 550 1989.IL.878

Appeal from the Circuit Court of Kane County; the Hon. Patrick J. Dixon, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT, P.J., and LINDBERG, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Maria Garcia, as mother and next friend of plaintiff, Roberto Garcia, a minor, appeals from a trial court judgment entered on a jury verdict in favor of defendant, James Jiminez. Plaintiff's action sought damages for injuries sustained by the minor when he ingested lead-based paint chips from an apartment plaintiff leased from defendant. On appeal, plaintiff argues that (1) the jury verdict was contrary to the manifest weight of the evidence; (2) the trial court erred in denying plaintiff's motion for a directed verdict at the close of the evidence; (3) the trial court erred in denying plaintiff's motion in limine and allowing defendant to defend this action on the basis that he lacked any knowledge that the apartment contained lead-based paint; and (4) the trial court erred in directing a verdict for defendant at the close of plaintiff's case as to count III of the complaint based on defendant's breach of a covenant to repair. We affirm.

In February 1979, defendant purchased a building located in Elgin, Illinois. At the time of purchase, the building was badly in need of repair and was in violation of the Elgin building code. Defendant stated that the building was dirty and required plastering, dry walling, and painting.

In June or July 1979, Maria Garcia contacted defendant about renting the upstairs apartment of the building. Maria inspected the premises and told defendant that it needed some work. Defendant agreed to make repairs, although no particular repairs were specified. Maria moved into the apartment with her husband and three children, including plaintiff, prior to any repairs being made. Within the next few weeks, defendant and Maria's husband made repairs to the ceiling and walls of the hallway, paneled the bathroom, and did miscellaneous painting.

In September 1979, plaintiff became ill and suffered from convulsions and seizures. Plaintiff was hospitalized and diagnosed with acute lead poisoning. An inspection of the premises disclosed high levels of lead in the walls and woodwork, particularly around the windows. Maria stated that she had observed plaintiff eating paint chips from the apartment from the first week they had moved in. Maria further stated that she had told defendant about the paint chips, but defendant denied any such communication. As a result of the lead poisoning, plaintiff has suffered permanent neurological damage.

On September 12, 1981, plaintiff brought the instant action against defendant. After numerous amendments, plaintiff's complaint was submitted for trial on four counts. Counts I and II were based in negligence and negligence arising from the violation of a city ordinance. Count III alleged that defendant breached a covenant to repair, and count IV sounded in nuisance. Prior to trial, plaintiff made a motion in limine to preclude defendant from introducing any evidence or arguing that he did not know that the premises contained lead-based paint. Plaintiff's motion was denied, and the trial proceeded. Defendant moved for a directed verdict at the close of plaintiff's case. The trial court denied defendant's motion as to counts I and II sounding in negligence but granted defendant's motion as to counts III and IV. At the close of defendant's case, plaintiff moved for a directed verdict. The trial court denied that motion. The jury reached a verdict in favor of defendant on counts I and II, and the trial court entered judgment on that verdict. The trial court denied plaintiff's post-trial motion, and plaintiff filed this timely appeal.

Plaintiff's primary argument on appeal is that defendant should not have been permitted to present evidence or argue that he did not know or have reason to know that the premises contained lead-based paint. Plaintiff asserts that defendant's lack of knowledge of the toxic condition of the paint chips was irrelevant to a determination of liability. Thus, plaintiff challenges the jury verdict and the trial court orders denying his motion in limine and motion for directed verdict on that basis.

In support of his argument, plaintiff cites our supreme court's decision in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614. In Kahn, an 11-year-old child was injured while playing on a lumber pile located on a vacant lot owned by a third party. (5 Ill. 2d at 616.) In holding the defendant lumber company liable, the court acknowledged the general rule that a owner or person in possession or control of property is not under a duty to keep the premises safe as against trespassers. (5 Ill. 2d at 625.) However, the court created an exception to that rule as applied to minors where the plaintiff shows that (1) the owner or person in possession of the property knows or has reason to know that minors frequent the premises; (2) there is a defective or dangerous condition on the premises; (3) because of their immaturity, the minors are incapable of appreciating the risks of the defective or dangerous entity and are likely to be injured by it; and (4) the expense or inconvenience of remedying the condition is slight compared to the ...


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