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12/19/97 ECONOMY MECHANICAL INDUSTRIES v. T.J.

December 19, 1997

ECONOMY MECHANICAL INDUSTRIES, INC., PLAINTIFF-APPELLANT,
v.
T.J. HIGGINS COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 95 L 11112. The Honorable David G. Lichtenstein, Judge, Presiding.

As Corrected January 9, 1998.

The Honorable Justice Hourihane delivered the opinion of the court. South, J., concurs. Hoffman, P.j., dissents.

The opinion of the court was delivered by: Hourihane

The Honorable Justice HOURIHANE delivered the opinion of the court:

In this appeal, we are asked to determine whether a clause in a commercial lease is void as against public policy pursuant to the provisions of the Landlord and Tenant Act (Act) (765 ILCS 705/0.01 et seq. (West 1996)). We find that it is and therefore affirm the judgment of the circuit court dismissing the plaintiff's complaint with prejudice.

Plaintiff, Economy Mechanical Industries, Inc., filed a one-count complaint for breach of lease against defendant, T.J. Higgins Company. Plaintiff leased certain warehouse space to defendant pursuant to the terms of an "Industrial Building Lease". Paragraph 5 of the lease, titled "Indemnity for Accidents", provides as follows:

"Lessee covenants and agrees that he will protect and save and keep the Lessor forever harmless and indemnified against and from any penalty or damages or charges imposed for any violation of any laws or ordinances, whether occasioned by the neglect of Lessee or those holding under Lessee, and that Lessee will at all times protect, indemnify and save and keep harmless the Lessor against and from any and all loss, cost, damage or expense, arising out of or from any accident or other occurrence on or about the Premises, causing injury to any person or property whomsoever or whatsoever and will protect, indemnify and save and keep harmless the Lessor against and from any and all claims and against and from any and all loss, costs, damage or expense arising out of any failure of Lessee in any respect to comply with and perform all the requirements and provisions hereof."

Plaintiff alleged that one of its employees sustained injuries while on the leased premises and that as a result plaintiff was required to pay $35,135.92 in workers' compensation benefits. Plaintiff seeks to recover this sum from defendant based on the provisions of paragraph 5 of the lease. The complaint is devoid of any detail as to the circumstances of the injury, and contains no allegation as to whether the negligence of defendant, plaintiff, or plaintiff's employee proximately caused the injury.

Defendant filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1996)), arguing, inter alia, that under the Act, paragraph 5 of the lease is void as against public policy. *fn1 The trial court ruled that plaintiff's contract claim against the defendant is barred by virtue of Illinois public policy forbidding indemnity claims in the circumstances averred and dismissed plaintiff's complaint with prejudice. Plaintiff appeals. 155 Ill. 2d R. 301.

ANALYSIS

Under section 2-619(a)(9), a cause of action will be dismissed where "the claim asserted is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 1996). An "affirmative matter" is something in the nature of a defense which completely negates the cause of action or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. Bucci v. Rustin, 227 Ill. App. 3d 779, 782, 592 N.E.2d 297, 169 Ill. Dec. 810 (1992). We review de novo the grant of a section 2-619 motion. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 189 Ill. Dec. 31 (1993).

Section 1 of the Act provides, in its entirety, as follows:

"Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property, exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his or her agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable." 765 ILCS 705/1 (West 1996).

Citing Madigan Brothers, Inc. v. Melrose Shopping Center Co., 198 Ill. App. 3d 1083, 556 N.E.2d 730, 145 Ill. Dec. 112 (1990), plaintiff argues that because this is a contract action, not a negligence action, the Act is inapplicable. In Madigan Brothers, a shopping center tenant sued his landlord for breach of contract when the roof over the tenant's store collapsed due to water damage. In defense of the action, the landlord invoked the exculpatory provisions of the lease. The tenant argued that such provisions were void as against public policy under the Act. On appeal, the court held that because the Act refers only to lease provisions that relieve the landlord of liability for its own "negligence", application of the Act is limited to negligence actions. Since the ...


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