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Abbasi v. Paraskevoulakos

May 07, 1998

SANA JAMIL ABBASI, A MINOR, BY AND THROUGH HER MOTHER AND NEXT FRIEND, JAMIL ABBASI, PLAINTIFF-APPELLANT,
v.
PANAGIOTIS PARASKEVOULAKOS AND KATINA PARASKEVOULAKOS, DEFENDANTS-APPELLEES.



South, J. McNAMARA, J., concurs. Wolfson, J., specially concurs in part and Dissents in part.

The opinion of the court was delivered by: Justice South

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.

THE HONORABLE JOSEPH N. CASCIATO, JUDGE PRESIDING.

Plaintiff, Sana Jamil Abbasi, a minor, by and through her mother and next friend, Jamil Abbasi, filed an eight-count first amended complaint alleging that the minor tenant ingested lead while living in a dwelling unit owned and/or managed by defendants, Panagiotis Paraskevoulakos and Katina Paraskevoulakos. Counts I and V were directed against Panagiotis and Katina Paraskevoulakos, respectively, sounding in negligence and alleging as proof of negligence violations of the Illinois Lead Poisoning Prevention Act (the Act) (410 ILCS 45/1 et seq. (West 1997)) and the Chicago Municipal Code, chapters 5-4, 5-12, 7-4 and 13-196 (Chicago Municipal Code, ch. 5-4, 5-12, 7-4, 13-196 (1990)). In the remaining counts, plaintiff asserted private rights of action under the Chicago Municipal Code (counts II, IV, VI and VIII) and under the Act (counts III and VII). This appeal arises out of the dismissal of counts II, III, IV, VI, VII and VIII of plaintiff's first amended complaint.

Plaintiff filed a five-count complaint on April 16, 1996, claiming that the minor plaintiff suffered from lead poisoning ingested while residing in a rental property owned or managed by defendants from May 1990 until January 1996.

Defendants moved to dismiss this complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)). Instead of responding to the motion to dismiss, plaintiff filed a first amended complaint. This complaint contained eight counts; counts I through IV were directed against Panagiotis, and counts V through VIII were directed against Katina. Counts I and V sounded in negligence, claiming that each defendant was the owner and/or managing agent of the apartment where the minor plaintiff had lived between 1990 and 1996 and breached duties to the plaintiff evidenced by violations of the Act and the Chicago Municipal Code, titles 5, 7 and 13.

Counts II and VI stated a private cause of action for nuisance under section 5-4-090 of the Chicago Municipal Code. Chicago Municipal Code §5-4-090 (1992). Counts III and VII stated a private cause of action under the Act. Counts IV and VIII stated a private cause of action under the Chicago Municipal Code, titles 5, 7 and 13.

Defendants answered counts I and V, the two negligence counts, and moved to dismiss the nuisance, the Act and Chicago Municipal Code counts pursuant to section 2-615. Plaintiff filed a memorandum of law in opposition to the motion to dismiss, and defendants replied.

On January 6, 1997, the trial court dismissed counts II and VI of plaintiff's first amended complaint. Defendants moved to reconsider the denial of their motion to dismiss the remaining counts on February 21, 1997. Plaintiff responded and defendants replied.

On April 16, 1997, the trial court granted defendants' motion to reconsider and dismissed counts II, III, IV, VI, VII and VIII.

The trial court's order specifically found that the Act recognizes a negligence cause of action and that, therefore, it was not necessary to imply a private cause of action in order to remedy a violation of the Act and the Chicago Municipal Code. The trial court further found that the Act and sections of the Chicago Municipal Code, chapters 5-4, 7-4, 5-12 and 13-196, did not give rise to a private cause of action but that their provisions could be the basis for a negligence cause of action as was pled in this case. Plaintiff filed a notice of appeal.

A motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615(b)(West 1994)) challenges the legal sufficiency of the complaint. Zekman v. Direct American Marketers, Inc., 286 Ill. App. 3d 462, 469, 675 N.E.2d 994, 998 (1997). A trial court should grant a motion to dismiss a cause of action only when it is clearly apparent that no set of facts can be proven that will entitle a plaintiff to recover. Doe v. Surgicare of Joliet, Inc., 268 Ill. App. 3d 793, 795, 643 N.E.2d 1200, 1202 (1994). Upon review of an order granting a section 2-615 motion, all well-pleaded facts are taken as true. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995). This court reviews de novo the trial court's order of dismissal under section 2-615. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863 (1995); Zekman, 286 Ill. App. 3d at 469-70, 675 N.E.2d at 999.

Plaintiff argues that section 5-12-110(e) of the Residential Landlord and Tenant Ordinance (Chicago Municipal Code §5-12-110(e) (amended November 6, 1991)) expressly gives injured tenants a private right of action for damages against landlords who violate the ordinance. Plaintiff also asserts that she has an implied right to sue under the lead-bearing substances ordinance as well as section 13-196(d) of the Chicago Municipal Code, because the remedies specified in these ordinances do not afford sufficient relief to those injured by violation of the ordinances. Defendants contend that a private right of action is not necessary to achieve the aim of the statute or ordinances.

Implication of a private right of action on the basis of a statute or ordinance is appropriate only if: (1) plaintiff is a member of the class for whose benefit the statute was enacted; (2) it is consistent with the underlying purpose of the statute; (3) plaintiff's injury is one the statute was designed to prevent; and (4) it is necessary to provide an adequate remedy for violations of the statute. Corgan v. Muehling, 143 Ill. 2d 296, 312-13, 574 N.E.2d 602, 609 (1991). When a statute is enacted to protect a particular class of individuals, courts may imply a private cause of action for violation of that statute although no express remedy had been provided. Sawyer Realty Group, Inc. v. Jarvis Corp. 89 Ill. 2d 379, 432 N.E.2d 849 (1982); Galinski v. Kessler, 134 Ill. App. 3d 602, 480 N.E.2d 1176 (1985). Where the legislature had as its purpose in enacting a statute protection of a substantial segment of the public, it is proper to inquire in such circumstances whether the statute is a remedial one and whether certain private remedies are provided for ...


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