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Carolyn Hilgart v. 210 Mittel Drive Partnership

October 17, 2012

CAROLYN HILGART,
PLAINTIFF-APPELLANT,
v.
210 MITTEL DRIVE PARTNERSHIP;
STEVEN LETURNO, INDIVIDUALLY AND D/B/A 210 MITTEL DRIVE PARTNERSHIP; AND
DANIEL LISOWSKI, INDIVIDUALLY AND D/B/A 210 MITTEL DRIVE PARTNERSHIP, DEFENDANTS-APPELLEES THE BRICKMAN GROUP, LTD., DEFENDANT AND
THIRD-PARTY PLAINTIFF,
AND
AIT WORLDWIDE LOGISTICS, INC.,
THIRD-PARTY DEFENDANT.



Appeal from the Circuit Court of Du Page County. No. 08-L-171 Honorable Kenneth L. Popejoy, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Carolyn Hilgart, appeals from an order granting summary judgment to defendants, 210 Mittel Drive Partnership (Mittel); Steven Leturno; and Daniel Lisowski, in this negligence action for injuries Hilgart sustained when she fell on stairs while leaving work. On appeal, Hilgart argues that the trial court erred in granting summary judgment, because there are genuine issues of material fact regarding whether: (1) Mittel, Leturno, and Lisowski had notice of the dangerous condition; and (2) Leturno and Lisowski can be held liable pursuant to the dual capacity doctrine. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On the morning of January 31, 2007, Hilgart was injured when she fell on the outdoor stairs leading to a parking lot while leaving the building of her place of employment, AIT Worldwide Logistics, Inc. (AIT). The stairs were installed by The Brickman Group, Ltd. (Brickman), in 1997.

¶ 4 On December 16, 2008, Hilgart filed an amended complaint seeking monetary damages for injuries incurred from her fall on the stairs. Hilgart sought judgment against: (1) Mittel, the partnership that owned the building; and (2) Leturno and Lisowski, Mittel's individual partners. Hilgart alleged that Mittel, Leturno, and Lisowski, and/or their agents, employees, or servants, negligently: (1) operated, managed, maintained, and controlled the premises; (2) "[a]llowed pieces of stone to protrude from the steps posing a tripping hazard"; (3) failed to properly inspect the stairs when they should have known that inspection was necessary; (4) failed to warn Hilgart of the dangerous stairs when they knew or should have known a warning was necessary; (5) failed to provide a handrail; (6) allowed the tread of the stairs to exist in a dangerous condition; and (7) allowed the risers of the stairs to exist in a dangerous condition.

¶ 5 Hilgart also sought damages against Brickman. Hilgart alleged that Brickman negligently constructed, designed, supervised, or planned the construction of the stairs. On April 9, 2009, Brickman filed against AIT a third-party complaint for contribution.

¶ 6 At the time of the incident, Mittel owned AIT. Leturno and Lisowski were individual partners of Mittel, shareholders of AIT, and president and vice president of AIT, respectively. Mittel acquired the building in 1997. Shortly thereafter, AIT leased the building for its freight logistics business. A lease, dated January 21, 1997, and in effect on the day of Hilgart's fall, was entered into between AIT, as "Lessee," and Mittel, as "Lessor." Paragraph two of the lease, entitled "Condition and Upkeep of Premises," provided:

"Lessee has examined and knows the conditions of the Premises and has received the same in good working order and repair, and acknowledges that no representations as to the condition and repair thereof have been made by Lessor, or his agent, prior to or at the execution of this lease that are not herein expressed; Lessee will keep the Premises including all appurtenances, in good working repair."

The lease was signed by Leturno on behalf of AIT and by both Leturno and Lisowski on behalf of Mittel.

¶ 7 Mittel, Leturno, and Lisowski filed a motion for summary judgment, arguing that: (1) Mittel, as the lessor of the premises, was immune from Hilgart's negligence suit because the premises were in the possession and control of Hilgart's employer, AIT; (2) Leturno and Lisowski, as agents of AIT, were immune from Hilgart's negligence suit, pursuant to section 5(a) of the Workers' Compensation Act (Act) (820 ILCS 305/5(a) (West 2006))*fn1 ; and (3) in the alternative, Mittel, Leturno, and Lisowski did not have actual or constructive notice of any defect in the stairs.

¶ 8 Hilgart filed a response, arguing that: (1) Mittel was not entitled to lessor immunity because the lease applied only to the interior space of the AIT office; (2) Mittel was not entitled to immunity under the Act, because Mittel and AIT were separate legal entities; and (3) Mittel, Leturno, and Lisowski each had constructive notice of a defect in the stairs, which were not constructed in compliance with code requirements.

¶ 9 On June 7, 2011, the trial court granted summary judgment in favor of Mittel, Leturno, and Lisowski. The entire order states:

"1) The motion for summary judgment filed by 210 Mittel Drive Partnership, Steven Leturno and Daniel Lisowski is granted for the reasons stated on the record by Judge Kenneth Popejoy, and judgment is hereby entered in favor of 210 Mittel Drive Partnership, Daniel Lisowski and Steven Leturno and against Plaintiff, Carolyn Hilgart.

2) There is no just reason to delay enforcement or appeal of this order pursuant to Illinois ...


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