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11/09/94 RODNEY TODD v. ELDA SMITH AND DOLLIE TODD

November 9, 1994

RODNEY TODD, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF TIFFANY TODD, A DECEASED MINOR, PLAINTIFF-APPELLANT,
v.
ELDA SMITH AND DOLLIE TODD AS ADMINISTRATORS OF THE ESTATE OF HERBERT COOK, DECEASED, DEFENDANTS-APPELLEES AND HERBERT SMITH AND KATHY SMITH, DEFENDANTS.



Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois. No. 91 L 149. Honorable Robert L. Carter, Judge Presiding

Rehearing Denied and Released for Publication December 21, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Mccuskey

Justice McCUSKEY delivered the opinion of the court:

The plaintiff, Rodney Todd, brought this action seeking recovery for the death of his minor daughter in a house fire. His complaint alleged that Herbert Cook (landlord) had a statutory duty to install smoke detectors and that the landlord's failure to do so proximately caused his daughter's death. The circuit court of La Salle County found the landlord had no statutory duties at the time of the fire. The plaintiff appeals. We affirm the decision of the trial court.

Prior to March 27, 1988, Todd lived with his family as tenants in the landlord's private residence near Earlville in La Salle County. On March 27, 1988, a fire destroyed the home. Todd's daughter, Tiffany, was killed in the fire.

As administrator of Tiffany's estate, Todd filed a six-count complaint against the landlord and Herbert and Kathy Smith in the circuit court of Cook County on March 26, 1990. The administrators of the landlord's estate, Elda Smith and Dollie Todd, were substituted as defendants following the landlord's death. Counts I through III alleged common-law negligence against the Smiths. Counts IV through VI were based on the Smoke Detector Act (Ill. Rev. Stat. 1991, ch. 127 1/2, par. 801 et seq.) (the Act) and alleged that the landlord had a duty to install smoke detectors in his home. On the defendants' motion, the case was transferred to the circuit court of La Salle County on March 6, 1991.

On May 5, 1993, the defendants filed a motion to dismiss counts IV through VI of the complaint. In response, Todd argued that the Act, as of the date of its passage, imposed on the landlord a civil duty requiring the installation of smoke detectors. On July 15, 1993, the trial court dismissed counts IV through VI.

On August 12, 1993, Todd filed an amended complaint containing two counts which specifically alleged that section three of the Act furnished a statutory basis for a duty to install smoke detectors. The defendants again filed a motion to dismiss on August 20, 1993. They argued that no civil duty could have arisen by virtue of the Act since section three took effect after the house fire. After a hearing on December 16, 1993, the trial court dismissed with prejudice the counts alleging a violation of the Act. This timely appeal followed. We note that Herbert and Kathy Smith were dismissed as defendants before Todd filed his notice of appeal. As a result, they are not parties to this appeal.

First, we will discuss whether the Act imposed on the landlord any civil duties to install smoke detectors in the home on March 27, 1988. In this opinion, we will only discuss the application of the Act to landlords. The Act became effective on August 14, 1987. Section three of the Act (Ill. Rev. Stat. 1991, ch. 127 1/2, par 803) (section 3) sets forth its operative provisions. Section 3(d) imposes on homeowners the responsibility to install smoke detectors and requires tenants to test and maintain the detectors upon taking possession of premises. (Ill. Rev. Stat. 1991, ch. 127 1/2, par. 803(d).) Section 3(e) provides for a delayed effective date, as follows:

"The requirements of this Section shall apply to any dwelling unit in existence on July 1, 1988, beginning on that date. " (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 127 1/2, par. 803(e).)

Section four imposes criminal penalties for the violation of the Act. Ill. Rev. Stat. 1991, ch. 127 1/2, par. 804(a), (b).

The fourth district appellate court has recently recognized in the Act an implied private cause of action against landlords. In Bybee v. O'Hagen (1993), 243 Ill. App. 3d 49, 612 N.E.2d 99, 183 Ill. Dec. 842, the court held that a private cause of action promotes the policies supporting the Act's passage, i.e., the protection of inhabitants of dwellings from injuries due to smoke or fire. Additionally, the court held that a private right of action was necessary to provide plaintiffs with an adequate remedy at law because tenants could not recover from landlords through other statutory provisions or based on common law. Bybee, 243 Ill. App. 3d at 52-53, 612 N.E.2d at 101-02.

The crucial question in this appeal is whether the civil liability announced in Bybee arose on the effective date of sections 1, 2, and 4 of the Act (August 14, 1987) or on the effective date of section 3 (July 1, 1988), which includes the duty to install smoke detectors. For the reasons which follow, ...


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