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06/27/95 JAMES P. GUERINO AND KATRINA GUERINO v.

June 27, 1995

JAMES P. GUERINO AND KATRINA GUERINO, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
DEPOT PLACE PARTNERSHIP, EDWARD WEINER AND RONALD A. BARTELSTEIN, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Lake County. No. 93-L-346. Honorable Stephen E. Walter, Judge, Presiding.

The Honorable Justice Thomas delivered the opinion of the court: Doyle and Colwell, JJ., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

The plaintiffs, James Guerino and Katrina Guerino, filed this lawsuit against the defendants, Edward Weiner, Ronald Bartelstein and Depot Place Partnership, alleging, inter alia, that they were negligent in failing to maintain and repair a gate on the premises which they leased to the plaintiff's employer, The Concrete Doctor, Inc. (the Concrete Doctor). The defendants filed a motion for summary judgment contending that: (1) they did not exercise control over the premises and therefore did not owe a duty to the plaintiffs; and (2) the suit was barred by the exclusive-remedy provisions of section 5(a) of the Workers' Compensation Act (the Act) (820 ILCS 305/5(a) (West 1992)). The trial court granted the defendants' motion for summary judgment finding that the defendants did not have the requisite control of the premises to impose a duty on them. In addressing the exclusive-remedy issue, however, the court noted that summary judgment would be "inappropriate on this issue." The plaintiffs appeal and the defendants cross-appeal from the trial court's order.

On April 5, 1991, plaintiff James Guerino reported for work at the principal place of business of his employer, the Concrete Doctor. As he was attempting to open the gate at the entrance to the property, a beam became dislodged and fell on him. As a result, he suffered a severe and permanent injury.

The Concrete Doctor paid plaintiff Guerino worker's compensation benefits in connection with the accident. At the time of the accident, defendant Weiner was president and treasurer of the Concrete Doctor and defendant Bartelstein was vice-president and secretary of that corporation.

The property on which the accident occurred was owned by the Cole Taylor Bank, in an Illinois land trust. Defendants Weiner and Bartelstein owned a beneficial interest in the land trust which they acquired, along with Mark Goldstein, on December 30, 1986. The three men created a partnership, Depot Place Partnership (the Partnership), to lease the property in question to the Concrete Doctor. The Partnership also leased equipment to the Concrete Doctor and other entities, when such entities embarked on a joint venture with the Concrete Doctor. Prior to the accident, Goldstein transferred his interests in the Concrete Doctor and the Partnership to Weiner and Bartelstein.

The Partnership made payments on a loan and mortgage that were connected with the subject property. Further, the Partnership made improvements to the yard and building and paid for the same from a Partnership loan fund. Additionally, the Partnership listed the premises as its place of business, had the real estate tax bills on the property sent to the Partnership, maintained records on the premises, and claimed a depreciation deduction for the property on its tax return. Although the Partnership did not pay for the repair of the gate following the accident in question, it did pay for $15,000 of repairs to the premises on at least one other occasion.

At the time of the accident, the Concrete Doctor, as lessee, was in possession of the property pursuant to a lease agreement with the Partnership, as lessor. The lease placed the duty of repair and maintenance upon the Concrete Doctor. Although it was not required to do so, the lease allowed the Partnership to enter the premises and make any necessary repairs. The lease also contained a clause requiring the lessee to indemnify and hold the lessor harmless in connection with any suit arising out of the lease or the occupancy of the property. The lease agreement was executed on behalf of the Concrete Doctor by Weiner and on behalf of the Partnership by Bartelstein.

On appeal, the plaintiffs contend that the trial court erred in granting summary judgment on the ground that the defendants did not exercise control over the property. In their cross-appeal, the defendants contend that the exclusive-remedy provisions of section 5(a) of the Act barred the plaintiffs' claims.

Summary judgment is appropriate where no genuine issue of fact is present and the moving party is entitled to judgment as a matter of law. However, it is a drastic means of resolving litigation and should only be allowed when the right of the moving party to judgment is clear and free from doubt. ( Ralls v. Village of Glendale Heights (1992), 233 Ill. App. 3d 147, 151, 174 Ill. Dec. 140, 598 N.E.2d 337.) Summary judgment is proper when the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. (735 ILCS 5/2-1105(c) (West 1992).) Although the party opposing summary judgment need not prove his case at this preliminary stage, he must present some factual basis that would arguably entitle him to a judgment under the applicable law. ( Ralls, 233 Ill. App. 3d at 151.) The court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. In re Estate of Hoover (1993), 155 Ill. 2d 402, 411, 185 Ill. Dec. 866, 615 N.E.2d 736.

The party in control and possession of the premises is liable for the negligent maintenance of property. ( Conway v. Epstein (1964), 49 Ill. App. 2d 290, 294, 200 N.E.2d 16.) The duty toward a third party arises out of possession and control and can be attributed only to the persons who have possession and control. ( Conway, 49 Ill. App. 2d at 294.) Generally, the tenant who is in possession, not the landlord, is liable for injuries sustained by third persons because of the failure to keep the property in repair. ( Wright v. Mr. Quick, Inc. (1985), 109 Ill. 2d 236, 238, 93 Ill. Dec. 375, 486 N.E.2d 908.) The basic rationale for this doctrine of lessor immunity is that a lease is a conveyance of property which ends the lessor's control over the premises, a prerequisite of tort liability. Buente v. Van Voorst (1991), 213 Ill. App. 3d 116, 118, 156 Ill. Dec. 729, 571 N.E.2d 513.

In the instant case, the Partnership leased the premises in question to the Concrete Doctor. Nonetheless, the plaintiffs argue, the Partnership exercised control and possession of the property, pointing to the fact that the Partnership made improvements to the yard and building, reimbursed the Concrete Doctor for some repairs to the premises, kept and maintained Partnership records on the premises, and listed the premises as its place of business. While we agree that ordinarily the Partnership's leasing of the premises to another entity would be conclusive evidence of its relinquishment of possession and control, we are unable to say, on the record before us, that there is no genuine issue of material fact as to this issue. We find that the Partnership's use and maintenance of the premises created a question of fact to be resolved by the trier of fact as to whether it controlled and possessed the premises.

Turning to the issue involving the exclusive-remedy provision of section 5(a) of the Act, we initially note that the plaintiffs contend that the defendants' cross-appeal should be dismissed. The plaintiffs' argument, however, is moot. Findings of the trial court adverse to the appellee do not require the appellee's cross-appeal if the judgment of the trial court was not at least in part against the appellee. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387; People ex rel. Hartigan v. Knecht Services, Inc. (1991), 216 Ill. App. 3d 843, 852, 159 Ill. Dec. 318, 575 N.E.2d 1378.) It is the judgment rather than the reasoning of the court that is to be reviewed on appeal; thus, the necessity of filing a cross-appeal arises only in situations where the appellee requests the reversal or modification of the judgment below. ( People ex rel. Hartigan, 216 Ill. App. 3d at 852.) On the other hand, it has been noted that where a general verdict for the appellee contains a specific finding not in his favor the appellee must file a cross-appeal to bring the issue properly before the reviewing court. ( Village of Arlington Heights v. National ...


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