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12/14/94 GAIL M. SANDSTROM v. PARAKRAMA DE SILVA

December 14, 1994

GAIL M. SANDSTROM, ADMINISTRATOR OF THE ESTATE OF PAMELA F. WITEK, DECEASED, PLAINTIFF-APPELLANT,
v.
PARAKRAMA DE SILVA, DEFENDANT, AND CORNELL VILLAGE TOWNHOUSE HOMEOWNER'S ASSOCIATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Joseph N. Casciato, Judge Presiding.

The Honorable Justice Greiman delivered the opinion of the court: Tully, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff Gail Sandstrom brought this wrongful death and survival action, as administrator of the estate of Pamela Witek, against defendants Parakrama De Silva and the Cornell Village Townhouse Owner's Association (the Association) on grounds that defendants did not equip and maintain a smoke detector in De Silva's townhouse. Plaintiff's decedent, a guest in De Silva's townhouse, died as a result of a fire.

The Association moved for summary judgment claiming it had no statutory duty to provide a smoke detector in De Silva's townhouse since it did not "own, possess or control" the unit, and the trial court granted the motion from which plaintiff now appeals.

The sole issue raised on appeal is whether the Illinois Smoke Detector Act (425 ILCS 60/1 et seq. (West 1992) (the Act)) *fn1 or the City of Chicago Smoke Detector Ordinance (Chicago Municipal Code ยง 13-196-100 et seq. (1990) (the Ordinance)) *fn2 requires a townhouse owners' association to equip the individual units with smoke detectors.

We affirm, and file this opinion pursuant to Illinois Supreme Court Rule 23(a)(1). Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23(a)(1), effective July 1, 1994.

On June 2, 1991, Pamela Witek died in a fire while a guest in De Silva's townhouse allegedly due to the negligent wiring of the townhouse which was not equipped with a smoke detector. De Silva's ownership of the townhouse is not at issue.

De Silva's unit was situated in a residential development commonly known as Cornell Village, which consists of two separate brick buildings each containing nine units. Each of the units contains two stories and a basement with a single entrance to the exterior of each unit. Each unit also has its own address and is separated from neighboring townhouses by fire walls.

Cornell Village was organized under the Illinois Condominium Property Act (765 ILCS 605 (West 1992)) and adopted a declaration and bylaws to define the rights and obligations of the unit owners and their association (the Declaration). Under Article I of the Declaration, the property is divided into two portions: the individual townhouses and the common elements which consist of all portions of the property except the units (i.e., outside walls, stairways, entrances and exits, and the structural parts of the buildings). Article V vests the administration of the property in a board of managers of the homeowners' association (the Board) which is granted certain powers including the maintenance and repair of any unit:

"If such maintenance or repair is necessary, in the discretion of the Board, to protect the Common Elements, or any other portion of the Building, and an Owner of any Unit has failed or refused to perform said maintenance or repair within a reasonable time after written notice[.]" (Emphasis added).

The Declaration allows the Board or its agents, upon reasonable notice, to enter any unit when necessary in connection with any maintenance or construction for which it is responsible. The Declaration provides that the Association shall acquire and pay out of the maintenance fund "such furnishings and equipment of the Common Elements as the Board shall determine are necessary and proper (emphasis added)," and any other materials which the Board is required to secure or pay for by law.

Marie Williams, managing agent of the Association, stated in her affidavit attached to the summary judgment motion that each townhouse owner has an undivided percentage interest in the common elements as a tenant in common with all other owners of the property as set forth in the Declaration. She later testified in a deposition that the Association has no ownership interest in De Silva's townhouse; any repairs or maintenance within the townhouses are the unit owner's responsibility unless otherwise defined by the common elements as set forth in the Declaration.

According to Williams, the Association is only responsible for the exterior of the building and common elements. Further, the Association plays no ...


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