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DUNCAN v. UNITED STATES

April 2, 1990

LARRY DUNCAN, Plaintiff,
v.
UNITED STATES OF AMERICA and SKENDER HANO, Defendants


Ilana Diamond Rover, United States District Judge.


The opinion of the court was delivered by: ROVER

ILANA DIAMOND ROVER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 This is an action against the United States pursuant to the Federal Tort Claims Act (FTCA) to recover damages for injuries incurred when the plaintiff fell on a stairway in the building where he was residing. Pending is the United States' motion for summary judgment. For the reasons described below, the motion for summary judgment is granted.

 Plaintiff Larry Duncan was a tenant in a building located at 5141 South Laflin, in the City of Chicago. The property had been subject to a mortgage guaranteed by the Veterans Administration ("VA"), on which the borrower defaulted. The VA accepted a deed in lieu of foreclosure and acquired title to the property on August 25, 1987. In anticipation of this ownership, the VA had contracted on August 11, 1987, with Skender Hano to act as the Property Management Broker (PMB) for the property, pursuant to a VA policy of contracting with PMB's for the management and sale of all properties to which the VA acquires title.

 The duties of PMB's are governed by the VA's Acquired Property Management Guidelines. Pursuant to those Guidelines, brokers are required, among other things, to inspect the property periodically, recommend to the VA the need for any repairs, and supervise any repairs. The PMB is authorized to spend up to $ 200 for repairs without approval; for repairs over $ 200, VA approval is required.

 There is some dispute over the efforts which were made to evict plaintiff from the property. According to the United States, Hano served a demand for possession on plaintiff on August 13, 1987. (The United States has submitted a copy of a demand for possession, including an affidavit by Hano that he served it on Duncan on August 13.) Plaintiff remained on the property, and the VA hired an attorney on August 21 to commence eviction proceedings. Those proceedings were terminated on January 25, 1988, after the VA had been told by the new purchaser of the property that he wished the occupants to remain as tenants.

 According to plaintiff, a VA specialist contacted Hano at some time in August and told him that she wished to make a deal with plaintiff. Although her original plan had been to evict plaintiff, at this point she wanted plaintiff to remain in the building pending the sale of the building by the VA. Under normal procedures, Hano would not inspect the property unless it was vacant, but the VA specialist instructed Hano to inspect the property even though it was occupied.

 On August 31, Hano made an inspection of the property. Pursuant to this inspection, Hano completed a report by filling in a prepared form. In the category of "recommended repairs, Hano listed 39 items, along with cost estimates for the repairs ranging from 20 dollars to 1500 dollars and totalling 10,161 dollars. The recommended repairs included such items as patching plaster, retiling floors, and replacing light fixtures. Among the recommended repairs were the following:

 
36. Replace damaged deck members on rear porch of 1st floor and replace 1 handrail & 6 treads & 5 treads. $ 300.00.
 
37. Replace small deck, 8 risers, 7 treads & replace two north-south handrails. $ 350.00.

 The form also includes a space for the category of "urgent repairs," which are defined as "items which if not repaired will result in additional damage to the property or constitute a hazard." The form further states, "such items should be reported to the VA Property Management Section as soon as possible." In this space for itemization of urgent repairs, Hano stated "none."

 On September 29, 1987, plaintiff suffered a fall which allegedly resulted from the defective steps and stair rails. The VA sold ...


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