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08/04/89 Cynthia Mccombs, v. Lyle Dexter

August 4, 1989

CYNTHIA MCCOMBS, PLAINTIFF

v.

LYLE DEXTER, INDIV., AND D/B/A DEXTER'S DEN, ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS (VICTORIA PATTERSON, DEFENDANT AND COUNTERDEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

542 N.E.2d 1245, 186 Ill. App. 3d 484, 134 Ill. Dec. 738 1989.IL.1209

Appeal from the Circuit Court of Whiteside County; the Hon. Clarence Darrow, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. WOMBACHER, P.J., and SCOTT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

This litigation had its origin in an accident occurring on February 9, 1980, when Cynthia McCombs fell on some stairs on the premises of a tavern operated by Lyle and Lois Dexter and known as Dexter's Den. McCombs, who was a guest at a private wedding anniversary party in the basement area of the tavern, had gone upstairs to the restroom and was returning when she fell near the bottom of the stairs and injured one foot.

McCombs filed a complaint for personal injuries and named as defendants Lyle and Lois Dexter, the tenants of the premises, and Victoria Patterson, the owner and landlord. The complaint alleged that both the tenants and the landlord were guilty of the following negligent acts or omissions:

(1) Failed to provide adequate lighting in the area of the stairs leading to the party area in the basement; and

(2) Failed to provide adequate handrails for the staircase.

The landlord filed a motion for summary judgment which asserted that a landlord is not liable for injuries occurring on premises which are in the possession and control of tenants at the time of injury. Next, the tenants Lyle and Lois Dexter filed a counterclaim for contribution against the landlord. The landlord's motion for summary judgment was granted, and judgment was entered in favor of defendant Victoria Patterson.

Landlord Patterson next filed a motion for summary judgment on the counterclaim for contribution, and following a hearing, that motion was granted. Defendants Lyle and Lois Dexter appeal from the judgment on the counterclaim and contend (1) that their right to contribution was not extinguished by the judgment in favor of the landlord on the first summary judgment, and (2) that the doctrine of collateral estoppel was not a bar to the counterclaim. We affirm.

The determinative issue is the first one. The Dexters argue that their action for contribution was based upon different legal theories than those contained in plaintiff's complaint. The counterclaim alleged that the landlord was guilty of one or both of the following negligent acts or omissions:

(1) Constructed, owned and maintained a building with structural defects which resulted in plaintiff's injuries; and

(2) Failed to provide the building with guardrails for the protection of tenants and foreseeable invitees "contrary to ...


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