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Towne Realty, Inc. v. Shaffer

June 25, 2002

TOWNE REALTY, INC., AND ZILBER, LTD., PLAINTIFFS-APPELLANTS,
v.
JOHN C. SHAFFER, AN INDIVIDUAL, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Sangamon County No. 00L76 Honorable Donald M. Cadagin Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

Released for publication.

TOWNE REALTY, INC., AND ZILBER, LTD., PLAINTIFFS-APPELLANTS,
v.
JOHN C. SHAFFER, AN INDIVIDUAL, DEFENDANT-APPELLEE.

Appeal from Circuit Court of Sangamon County No. 00L76 Honorable Donald M. Cadagin Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

In September 2000, plaintiffs, Towne Realty, Inc., and Zilber, Ltd. (collectively Towne and Zilber), filed an amended complaint against defendant, John C. Shaffer, seeking to recover for property damage caused by a fire in an apartment Shaffer rented from Towne and Zilber. In October 2000, Shaffer filed a motion to dismiss the amended complaint under sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2000)), arguing that the language of his lease agreement with Towne and Zilber precluded them from suing him for property damage caused by fire. Following a June 2000 hearing, the trial court granted Shaffer's motion to dismiss.

Towne and Zilber appeal the trial court's dismissal of their amended complaint, and we affirm.

I. BACKGROUND

In January 1998, Shaffer entered into an agreement with Towne and Zilber to lease an apartment in the Lincoln Tower building in Springfield for a three-month period (from February 1, 1998, through April 30, 1998). The form lease agreement, which was drafted by Towne and Zilber, provided, in pertinent part, as follows. Under paragraph two, the "yield-back" clause, Shaffer agreed to

"keep the [apartment], *** in good order and repair and be responsible for any damage to the premises, appliances, furniture, furnishings[,] and equipment, except such as is caused by normal wear and tear."

That paragraph also provided that "[a]t the expiration or termination of this lease, [Shaffer] will yield up the demised premises in good condition and repair, ordinary wear and tear excepted."

Under paragraph three of the lease, Shaffer agreed

"not to use or keep in or about the premises anything which will affect the validity of or increase the premiums on [Towne and Zilber's] property damage and liability insurance policies on the subject premises."

Paragraph four provided, in pertinent part, as follows:

"[Shaffer] shall hold [Towne and Zilber] harmless for any loss or damage which [Shaffer] may sustain:

(c) From fire, water, rain, frost, ice, snow, gas, odors[,] or fumes from any source whatsoever and from injury or damage caused by the bursting or leaking of pipes or the failure or backing up of sewer drains and pipes.

(d) From any injury to any person or damage to any property."

Under paragraph six of the lease, Shaffer agreed to "keep the premises in good order and repair and be responsible for any damage to the premises, appliances[,] and equipment thereon, except such as is caused by normal wear and tear."

Paragraph 14 of the lease provided as follows:

"If during the term of this lease the building is so damaged by fire or other casualty, not occurring through [Shaffer's] negligence, that the demised premises is rendered wholly unfit for occupancy and the demised premises cannot be repaired within thirty (30) days from the happening of said casualty, then this lease shall cease and terminate from the date of such casualty."

Paragraph 23 of the lease provides as follows:

"[Shaffer] hereby expressly waives and releases any cause of action or right of recovery which [Shaffer] may have hereafter against [Towne and Zilber] for any loss or damage to the leased premises or to the contents thereof belonging to [Shaffer], caused by fire, explosion, or any other risk covered by [Shaffer's] insurance."

Paragraph 11 of the "Rules and Regulations" portion of the lease provided that "[i]t is the responsibility of [Shaffer] to provide insurance coverage for his personal property."

At some point before Towne and Zilber and Shaffer entered into the lease, Travelers Indemnity Company issued an insurance policy to Towne and Zilber (hereinafter the Travelers policy), which covered damage to property caused by fire, among other things.

In March 2000, Towne and Zilber filed a complaint against Shaffer, alleging that on March 9, 1998, a lit candle or oil lamp in Shaffer's apartment caused a fire in the Lincoln Tower building. In September 2000, Towne and Zilber filed an amended complaint, alleging that Shaffer acted negligently when he (1) placed a lit candle or oil lamp near combustible material in such a way that it created a fire risk to his apartment and the Lincoln Tower building and (2) failed to extinguish the lit candle or oil lamp prior to leaving it ...


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