APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
JASON LAMKIN, a Minor, by his Mother and Next Friend, Carol
546 N.E.2d 1020, 190 Ill. App. 3d 631, 137 Ill. Dec. 907 1989.IL.1628
Appeal from the Circuit Court of Madison County; the Hon. George J. Moran, Jr., Judge, presiding.
JUSTICE GOLDENHERSH delivered the opinion of the court. LEWIS and HOWERTON, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH
Defendants, Stan Towner, Pat Dooling (also referred to in the briefs as Pat Dooley, Joe Dooling and Joseph Dooling), Kenneth Vanek, Carroll Supply & Service, and Gallatin Aluminum Products, Inc., appeal from orders of the circuit court of Madison County denying defendants' motions for summary judgment. In this cause, all defendants raise the issue whether the trial court erred in denying their motions for summary judgment.
On March 2, 1983, plaintiff Jason Lamkin, a two-year-old, lived with his mother, Carol A. Lamkin, in an apartment located at 911 East Fifth Street in Alton. On that date, plaintiff Carol A. Lamkin was vacuuming Jason's bedroom on the second floor and had moved Jason's bed underneath the window to vacuum the area where Jason's bed was usually positioned. She had opened the window before vacuuming, but a screen was still in place and covering the space. This was the first time she had ever opened this window. She did not notice anything wrong with the screen in the bedroom, although she had trouble with other screens in the apartment. In her deposition she stated that the screen in her bedroom window was bent and had a tendency to fall out. She never reported this to the landlord.
After Carol moved the bed, Jason stood on top of his bed and was looking out the window at another child who was playing with his toys on the ground below. Carol explained to Jason that he should share his toys, and she sent him into the hallway to play. Carol continued to vacuum. When she turned off the vacuum cleaner, she heard a grunting noise and turned to see Jason's feet going out the window. Jason fell out the window and struck his head on the paved area below. He suffered numerous injuries which are not detailed in the discovery which has been supplied.
On September 1, 1982, plaintiff Dustin Troy Pace, age 18 months, lived with his mother, Robin R. Pace, in an apartment located at 911 East Fifth Street in Alton. On that date, plaintiff Robin R. Pace was on the first floor of her two-story apartment washing her hair. Dustin was also downstairs at a window watching people at a neighbor's party. Dustin's brother was downstairs watching television. Robin went upstairs to dry her hair. When she turned off the hair dryer, she heard something hit. She ran into Dustin's bedroom and saw the screen was off the window. She ran downstairs and outside and found Dustin lying on the ground below. He, too, suffered injuries which have not been detailed in the provided discovery. Earlier in the day, she had opened the window in question and the screen was in place. She had not experienced any difficulty with the window or the screen in the past. It does not appear that anyone actually witnessed the fall.
According to the building's owner, Stanley Towner, the windows in the building at 911 East Fifth Street in Alton are all the same, with the exception of the bathroom windows, which are smaller. The frames are aluminum with a white baked-on finish. The top half of the window is fixed. Only the bottom goes up and down. The screen is also fixed. It does not slide up and down and only covers the bottom half of the window. There is a shallow channel area at the base of the window into which a screen fits. There are also some triangular clips with a spring that helps keep the window anchored in the bottom ledge.
Stan Towner bought the building from Kenneth Vanek and Joe Dooling on October 15, 1982. Vanek and Dooling had renovated the building at 911 E. Fifth Street in Alton. As part of the renovation, defendant Dooling had ordered window units, including screens, from Dale Carroll. The windows were ordered according to Dooling's specifications. Upon arrival from the manufacturer, the window units were inspected by Dale Carroll and no damage was found. Dale Carroll stated in his deposition that no alterations were made on the window units. They were delivered to Dooling as packaged by the manufacturer.
On February 28, 1985, Jason Lamkin, a minor, by his mother and next friend, Carol A. Lamkin, and Carol Lamkin filed a complaint alleging that on March 2, 1983, Jason sustained personal injury after falling from the second-story window in which the window screen fell out of a rental apartment complex. Plaintiffs named as defendants the owner of the apartment complex, Stan Towner; the rehabilitators of the apartment who put the windows and screens in place, Pat Dooling and Kenneth Vanek; the retailer of the windows and screens, Carroll Supply & Service; and the manufacturer of the window units, Gallatin Aluminum Products, Inc. Also, on February 28, 1985, plaintiffs Dustin Troy Pace, a minor, by his mother and next friend, Robin R. Pace, and Robin R. Pace filed a complaint alleging that on September 1, 1982, Dustin sustained personal injury after falling from the second-story window in which the screen fell out of a rental apartment complex.
Both plaintiffs allege that defendants Stan Towner and Pat Dooling and Kenneth Vanek, a partnership, were negligent in one or more of the following respects: (a) failed to securely and firmly attach the window screens to the window frames of the apartment building, (b) failed to warn plaintiffs' mothers with regard to the fragile condition of the window screens, and (c) failed to repair or replace the window screens when defendant knew, or should have known, of their fragile nature. With respect to defendants Dooling and Vanek, a partnership, plaintiffs additionally allege that ...