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[W] Mendez v. Vaca

May 11, 1998

NIDIA CAROLINA MENDEZ AND BERENICE MENDEZ, MINORS, BY AND THROUGH, ANA ISABEL MELENDEZ, THEIR MOTHER AND NEXT FRIEND, PLAINTIFFS-APPELLANTS,
v.
JOSE J. VACA, MARIA T. VACA, AND LOUIS GUITRON, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 95 L 14667 Honorable Edward R. Burr, judge Presiding.

The opinion of the court was delivered by: Justice O'mara Frossard

Plaintiff Ana Melendez, mother and next friend of minor plaintiffs Nidia and Berenice Mendez, appeals an interlocutory order dismissing three of the eight counts in plaintiffs' complaint against the family's landlords, defendants Jose Vaca, Maria Vaca and Louis Guitron. Ms. Melendez filed the initial complaint after her children exhibited injuries due to lead poisoning, which she asserts was caused by her landlords' negligence, violations of the Chicago Municipal Code (Municipal Code) and violations of the Illinois Lead Poisoning Prevention Act (Act)(410 ILCS 45/1 et seq. (West 1994)).

This interlocutory appeal addresses the trial court's dismissal of the counts of plaintiffs' complaint which assert violations of the Municipal Code. Specifically, the issue is whether the Municipal Code provides an express or implied private right of action for damages resulting from personal injuries caused by lead paint.

I. FACTS

From June 1993 until May 1994, minor plaintiffs and their family resided in an apartment located at 919 W. 32nd Street, which was rented from defendants Maria and Jose Vaca. From May 1994 until May 1995, the family resided in an apartment at 915 W. 32nd Street, which was rented from defendant Louis Guitron. Plaintiff Ana Melendez filed suit against defendants on her minor daughters' behalf, alleging that the premises in which the family lived contained deteriorating lead-based paint and dust that lead poisoned the children, causing them to suffer severe and permanent lead-related injuries.

Specifically, the complaint alleges that each defendant is liable in negligence and has violated the Illinois Lead Poisoning Protection Act and several sections of the Chicago Municipal Code pertaining to building maintenance and the prevention of lead hazards. The complaint also alleges that defendant Guitron used improper methods to abate the lead hazard in the family's apartment, compounding the minor plaintiffs' injuries.

Defendants filed a motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994) for failure to state a cause of action as to all counts except the negligence counts. On January 14, 1997, the trial court upheld all counts except counts III, IV, and IX, the counts that alleged direct violations of the Municipal Code. The trial court ruled that none of the cited sections of the Municipal Code gave plaintiffs an express or implied private remedy for damages. It is on this basis that plaintiffs appeal.

II. ANALYSIS

A. Standard of Review

In reviewing an order on a section 2-615 motion to dismiss, the court shall apply a de novo standard of review. Board of Library Trustees v. Cinco Construction, Inc., 276 Ill. App. 3d 417, 658 N.E.2d 473 (1995). Under a section 2-615 motion to dismiss, the court must determine whether the complaint sufficiently states a cause of action, and the merits of the case are not considered. Jesperson v. Minnesota Mining & Manufacturing Co., 288 Ill. App. 3d 889, 681 N.E.2d 67 (1997). Upon review, all well-pleaded facts are taken as true and considered in the light most favorable to the plaintiffs. Rodgers v. Whitley, 282 Ill. App. 3d 741, 668 N.E.2d 1023 (1996). The complaint is to be construed liberally and should only be dismissed when it appears that plaintiff could not recover under any set of facts. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282 (1994).

B. Chicago Residential Landlord and Tenant Ordinance

Plaintiffs first contend that section 5-12-110(e) of the Chicago Residential Landlord and Tenant Ordinance (Landlord Tenant Ordinance) expressly gives injured tenants a private right of action for damages against landlords who violate the ordinance. Chicago Municipal Code §5-12-110(e)(amended November 6, 1991). Plaintiffs assert defendants violated section 5-12-070 of the ordinance, which states:

"The landlord shall maintain the premises in compliance with all applicable provisions of the municipal code and shall promptly make any and all repairs necessary to fulfill this obligation." Chicago Municipal Code §5-12-070 (amended November 6, 1991).

The ordinance further provides:

"If there is material noncompliance by the landlord with the rental agreement or with section 5-12-070, the tenant may obtain injunctive relief, and/or recover damages by claim or defense. This subsection does not preclude the tenant from obtaining other relief to which he may be entitled under this chapter." Chicago Municipal Code §5-12-110(e)(amended November 6, 1991).

Plaintiffs contend that the peeling paint in the family's apartment constituted material noncompliance with section 5-12-070. However, an examination of the Landlord Tenant Ordinance in the context of the entire Municipal Code leads us to conclude that an express statutory right ...


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