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[W] Mendez v. Vaca

Illinois Appellate Court


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 of action is not provided for the type of injury asserted by plaintiffs.

Section 5-12-110 lists a number of situations that constitute material noncompliance with section 5-12-070. This extensive list, though not intended to be comprehensive, does not mention chipped or peeling paint or the existence of a lead hazard. Rather, the Chicago city council passed a complete and separate chapter of the Municipal Code solely to address lead hazards.

Chapter 7-4, entitled "Lead-bearing Substances," specifically forbids the use or application of lead-bearing substances in a number of situations, including within a residential building. Chicago Municipal Code §7-4-010 et seq. (1990). Section 7-4-030 provides that every owner of a residential building has a duty to maintain the residential building in such a manner so as to prevent the existence of a lead hazard. Chicago Municipal Code §7-4-030 (eff. January 1, 1994). This chapter establishes a regulatory scheme for the inspection and abatement of lead hazards and imposes criminal penalties and fines for violators.

It is a fundamental rule of statutory construction that a statute be evaluated as a whole, with each provision being construed in connection with every other section. Giles v. Industrial Comm'n, No 5-95-474WC (October 4, 1996); Department of Central Management Services v. American Federation of State, County & Municipal Employees, 284 Ill. App. 3d 963, 673 N.E.2d 447 (1996). In addition, specific language in a statute prevails over general language. Department of Central Management Services, 284 Ill. App. 3d at 968. We believe these basic principles of statutory construction are appropriately applied in interpreting the various chapters of the Chicago Municipal Code regarding lead hazards.

Chapter 5-12 establishes the rights and obligations of a landlord and tenant in the rental of dwelling units and covers a wide variety of the issues that arise in the context of a landlord-tenant relationship. Chapter 7-4, however, was passed specifically to address lead hazards. It provides guidelines for the identification and elimination of lead hazards in residential buildings, child care facilities and schools. With regard to the existence of lead hazards in rental properties, chapter 7-4 provides a context within which a landlord may be sanctioned for using or applying a lead-bearing substance.

Based on the specificity with which the lead hazard is addressed in chapter 7-4, we do not believe the city council intended to provide a private right of action for lead-related personal injuries within the Landlord Tenant Ordinance. In light of the existence of chapter 7-4, which is exclusively devoted to dealing with such lead hazards, such an interpretation would be illogical.

Accordingly, we find that a private right of action for lead poisoning, either express or implied, does not exist within chapter 5-12 and is beyond the scope of the Landlord Tenant Ordinance.

C. Lead-bearing Substances

Chapter 7-4 of the Municipal Code, specifically dealing with lead hazards, more appropriately governs the situation in the present case than the more general provisions within chapter 5-12, the Landlord Tenant Ordinance. Thus, we now turn to whether there exists an implied right of action under chapter 7-4 of the Municipal Code.

In Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 1026, 467 N.E.2d 915 (1984), the court held that where it is consistent with the underlying purpose of a statute and necessary to achieve its aim, a private right of action can be implied. In analyzing whether a private right of action may be maintained, the Rhodes court addressed the following factors: (1) whether plaintiff is a member of the class for whose benefit the statute was enacted; (2) whether implication of a private right is consistent with the underlying purpose of the Act; (3) whether plaintiff's injury is one the statute was designed to prevent; and (4) whether implication of a civil private right of action is necessary to provide an adequate remedy for violations of the Act. Rhodes, 126 Ill. App. 3d at 1026.

Like the trial court, we find the Rhodes analysis to be quite helpful in the present case. In Rhodes, a restaurant patron injured by a glass door in the restaurant sought to impose strict tort liability based upon a violation of the Safety Glazing Materials Act (Materials Act) (Ill. Rev. Stat. 1981, ch. 111 ½, par. 3101 et seq.) in various counts of her complaint. The court held that the plaintiff could not maintain her civil action based upon a violation of the Materials Act, as the implication of a private right of action was neither consistent with the purpose of the Act nor necessary to provide an adequate remedy for a violation of the Act. Rhodes, 126 Ill. App. 3d at 1026.

Turning to the first prong of the Rhodes test, it is clear plaintiffs are members of the class for whose benefit chapter 7-4, "Lead-bearing Substances," was enacted, and we agree with the trial court on this point. However, the Rhodes court noted that although numerous acts of the legislature may have as their purpose the protection of a substantial segment of the public, this fact alone does not imply that the legislature intended to create a private right of action for breach of the statute. Rhodes, 126 Ill. App. 3d at 1026; Hoover v. May Department Stores Co., 77 Ill. 2d 93, 395 N.E.2d 541 (1979).

We next turn to the question of whether plaintiffs' injuries are among those the statute was designed to prevent. Consistent with the trial court, we find that one of the primary purposes of the "Lead-bearing Substances" chapter of the Municipal Code is to protect against injuries resulting from exposure to lead-bearing substances, and thus the city council contemplated injuries of the type suffered by minor plaintiffs in passing the ordinance.

The next factor to be addressed is whether implication of a private right is consistent with the underlying purpose of the legislation. Consideration of the underlying policy of the legislation and the overriding purpose of an act is important in determining whether a private right of action exists absent specific statutory authority. Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379, 432 N.E.2d 849 (1982).

Chapter 7-4 provides a specific regulatory scheme for the prohibition of lead hazards in residential buildings and the procedures for dealing with existing lead hazards. The chapter also includes penalties for owners who, notified of the existence of a lead hazard on their property, fail to comply with city requirements regarding the abatement of such hazards. Based on the language and contents of this chapter, we believe the purpose is to provide mandatory statutory guidelines for dealing with lead hazards and to punish those who violate these mandates. We do not believe this chapter was intended to provide a means for tenants adversely affected by lead hazards to sue landlords beyond the remedies provided at common law, and there is no support for such an interpretation within chapter 7-4.

Finally, we must determine whether the implication of a civil private right of action is necessary to provide an adequate remedy for violations of the Act. Illinois courts have demonstrated a willingness to imply a private remedy where there exists a clear need to effectuate the purpose of an act. Sawyer, 89 Ill. 2d at 389.

When a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil as well as criminal liability even though the former remedy is not specifically mentioned therein. Thompson v. Tormike, Inc., 127 Ill. App. 3d 674, 469 N.E.2d 453 (1984). The Thompson case involved chapter 99 of the Municipal Code, which provides that a building or structure kept in an unsafe condition creates a public nuisance. The plaintiff sued the owner of a parking lot under the ordinance when she was injured after she slipped and fell in the lot. The court held that chapter 99 does not provide for a private cause of action and that one should not be implied, primarily because a private cause of action is not necessary to achieve the aim of the city ordinance. Thompson, 127 Ill. App. 3d at 675. The court noted that the ordinance provides for a series of fines for each offense committed and that a separate and distinct offense shall be held to have been committed each day the violation continues. Thompson, 127 Ill. App. 3d at 675-76.

Similarly, in the present case, section 7-4-120 provides the following:

"Violation of any section of this chapter and any failure to comply with any order authorized pursuant to this chapter shall be punishable by incarceration not to exceed six months and by a fine no less than $50.00 nor more than $500.00 for each offense. Each day that such violation or noncompliance exists shall be considered a separate offense." Chicago Municipal Code §7-4-120 (1990).

While the provision of a criminal penalty does not necessarily preclude implication of a private cause of action (Bybee v. O'Hagen, 243 Ill. App. 3d 49, 612 N.E.2d 99 (1993)), it is one factor to be considered in determining whether there is a need for a civil remedy. Parra v. Tarasco, Inc., 230 Ill. App. 3d 819, 595 N.E.2d 1186 (1992).

We disagree with plaintiffs' assertion that because the "modest criminal penalties" provided in chapter 7-4 are inadequate to redress the substantial injuries suffered by plaintiffs, we should imply a private right of action within the ordinance.

When the judiciary implies a cause of action within a statute or ordinance, it is assuming policy-making authority, a power more properly exercised by the legislature. Parra, 230 Ill. App. 3d at 824-25. As noted by the trial court in the present case, the courts should exercise this authority with due caution. Parra, 230 Ill. App. 3d at 825; Galinski v. Kessler, 134 Ill. App. 3d 602, 480 N.E.2d 1176 (1985).

Additionally, as noted by the trial court, chapter 7-4 "seems to have an exclusively official remedy." Section 7-4-160 provides as follows:

"Any department of the city of Chicago may take appropriate action to enforce any of the provisions of this chapter when a violation of any of the provisions comes to its attention." Chicago Municipal Code §7-4-160 (1990).

This language reinforces the proposition that the city council did not intend tenants or others harmed by lead hazards to have a private right of action pertaining to a violation of this chapter.

Plaintiffs rely heavily on Corgan v. Muehling, 143 Ill. 2d 296, 574 N.E.2d 602 (1991), in which the court implied a private right of action within the Psychologist Registration Act (Registration Act) (Ill. Rev. Stat. 1981, ch. 111, par. 5301 et seq. The court determined that a plaintiff who received incompetent treatment from an unlicensed psychologist had a private right of action, even though the Registration Act provided criminal sanctions for unlicensed practitioners. Corgan, 143 Ill. 2d at 315. The Corgan court said that a private right of action under the Registration Act was the only way an aggrieved plaintiff could be made whole. Corgan, 143 Ill. 2d at 315. However, this rationale does not apply to the present case. A plaintiff injured by a Municipal Code violation has a mechanism for compensation by pursuing a common law cause of action in negligence. In the course of litigating the negligence counts asserted in their complaint, plaintiffs may avail themselves of the rule that the violation of a statute designed to protect human life or property is prima facie evidence of negligence. Rhodes, 126 Ill. App. 3d at 1028. Also, the threat of a negligence award promotes statutory compliance. A plaintiff's cause of action for negligence can thereby provide both compensation and deterrence.

Based on the factors outlined in Rhodes and discussed above, we find that a private cause of action is not necessary to effectuate the purpose of chapter 7-4 of the Municipal Code, and plaintiffs' personal injuries are more appropriately addressed at common law. We agree with defendants that an implied claim under this chapter of the Municipal Code is beyond the scope of the ordinance.

It is not within our authority to expand the scope of the statute to provide the redress sought by plaintiffs. Such policy making is authority more appropriately exercised by the legislature. See Moore v. Lumpkin, 258 Ill. App. 3d 980, 630 N.E.2d 982 (1994).

D. Remaining Provisions

On appeal, plaintiffs also assert the trial court incorrectly refused to imply a private right of action under sections 5-4-90 and 13-196-540(d) of the Municipal Code.

Section 5-4-90 of the Code provides that a building that is unfit for habitation is considered to be a public nuisance. Chicago Municipal Code §5-4-090 (1990). However, section 5-4-100 specifically provides that if a building is determined to be a public nuisance upon inspection by the building commissioner, the owner may be directed to abate the condition. If the condition is not corrected, the property may be demolished.

Chapter 13-196 outlines minimum requirements that existing buildings must meet, and section 13-196-540(d) provides that interior walls, floors and ceilings of residential buildings must be free from flaking, peeling and chipped or loose paint. Chicago Municipal Code §13-196-540(d)(1990). However, chapter 13-8 specifically provides for the administration of zoning, building and housing provisions related to the safety of buildings. Chicago Municipal Code §13-8 et seq. (1990). Chapter 13-8 charges the building commissioner with enforcing and monitoring compliance with housing provisions, and the commissioner may ultimately cause unsafe buildings to be vacated and/or demolished.

Under Rhodes, we do not find that implication of a private right of action is consistent with the underlying purpose of these ordinances, nor is implication of such a right necessary to provide an adequate remedy for violations. Both chapters 5-4 and 13-196 have mechanisms under which their provisions may be enforced. Both ordinances provide the building commissioner with express power to administer these particular provisions of the Code and establish a framework for handling any Code violations. For these reasons, in addition to the public policy reasons discussed above, we find the trial court correctly refused to imply a private right of action within sections 5-4-90 and 13-196-540(d) of the Municipal Code.

III CONCLUSION

We do not find that chapter 5-12 contains an express or implied private right of action for a personal injury caused by a lead hazard, and we note that the city council has elected to address lead hazards within the statutory framework established in chapter 7-4.

With regard to finding an implied private right of action within chapter 7-4, we conclude that plaintiffs are clearly members of the class for whose benefit this chapter was enacted and their injuries are among those designed to be prevented by this section of the Municipal Code. However, we find that a private right of action is not necessary to provide an adequate remedy for a violation of the relevant provisions.

Likewise, we do not find an implied private right of action within sections 5-4-090 and 13-196-540 of the Municipal Code. The Municipal Code provides sufficient sanctions to adequately effectuate the purposes of the relevant ordinances. The language of the Code does not either expressly or impliedly supplement plaintiffs' remedies by allowing an additional cause of action where existing remedies are sufficient to compensate plaintiff. While the courts have demonstrated a willingness to imply private causes of action where there exists a clear need to effectuate the purpose of an act, no such need has been shown here.

Accordingly, we find the trial court correctly refused to find an express or implied private right of action within the Chicago Municipal Code with regard to the violations asserted by plaintiffs and affirm the dismissal of counts III, VI and IX.

Affirmed.

O'BRIEN and GALLAGHER, JJ., concur.

19980511


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