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Shifrin v. Associated Banc Corp.

United States District Court, Seventh Circuit

April 30, 2013

YAN SHIFRIN, Plaintiff,
v.
ASSOCIATED BANC CORP., ASSOCIATED BANK, N.A., ASSOCIATED INVESTMENT SERVICES, INC., FIRST FINANCIAL BANK, FSB and UNKNOWN OWNERS, Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on defendants Associated Banc-Corp, Associated Bank, N.A., Associated Investment Services, Inc., and First Financial Bank, FSB's ("Defendants") motions for summary judgment on Counts I, II, III (Doc. 27) and V (Doc. 30) of plaintiff Yan Shifrin's ("Shifrin") complaint. For the following reasons, the Court denies Defendants' motions for summary judgment.

I. Facts and Procedural History

Defendants are the current owners of the real property located at 100 E. Washington Street, Belleville, Illinois 62220 ("the property"). Bric Partnership, LLC ("Bric") leased Suite 220 of the property from Defendants and operated a business office within the suite. Shifrin was employed by Bric during the period of time between approximately March 31, 2009 and January 4, 2011. During his employment with Bric, Shifrin worked within the property on a daily basis. Shifrin alleged that during his employment, mold, fungi, bacteria and other harmful substances were located in and about the property. Specifically, Shifrin stated that he saw these substances within Suite 220 of the property in the following locations: in the duct work above shelves in a basement storage room where ceiling tiles were broken or missing, on approximately 3 window sills in and about Suite 220, and around the faucet in the men's bathroom on the second floor of Suite 220. (Doc. 28-3, Interrogatory No. 21).

Shifrin alleged that Defendants knew, or if they had exercised reasonable care, should have known, about the harmful substances located within the property. As a result, Shifrin alleged that Defendants were under an obligation to take steps to remove the substances or warn those working within the property of the conditions. The lease agreement between Defendants and Bric ("Bric Lease Agreement") addresses the care and maintenance of the property:

10. Care and Maintenance
a) Landlord shall keep the following in good repair: roof, exterior walls, foundation, sewer, plumbing, heating, wiring, air conditioning, plate glass, windows and window glass, exterior decorating, including maintenance, repair and replacement of light bulbs, tubes and ballasts and all common areas including entrances, hallways, corridors, stairways, elevators, restrooms, parking area, driveways, sidewalks, excepting therefrom any such repair caused by the gross negligence or willful misconduct of Tenant.
b) Tenant shall maintain and repair the Leased Premises in accordance with local ordinances and lawful direction of proper authorities in a reasonable safe, serviceable, clean and presentable condition used by Tenant within the Leased Premises. Tenant shall, at is sole expense, provide and maintain adequate fire extinguishers upon Leased Premises, as required under applicable law.

(Doc. 31-2). The Supervisor of Defendants' maintenance team, Mark Jacobson, acknowledged that "from time to time, employees on the maintenance team or contractors did enter Bric Partnership's premises for building repair and maintenance issues." (Doc. 28-1). The building was inspected monthly for such maintenance and repair issues. (Doc. 28-1). A maintenance person, employed by Defendants, also did routine daily maintenance in addition to periodic repairs every 2-3 weeks within Suite 220. (Doc. 28-3, Interrogatory No. 22).

Despite the frequent inspection and maintenance by Defendants' employees, Defendants did not take steps to remove the substances or warn those working within the property of the conditions. Because he had no notice of the harmful conditions, Shifrin assumed he was working within a safe environment and continued to go to work daily within the property. Shifrin alleged that since he continued to work within the property, he was exposed to, ingested and/or inhaled mold, fungi, bacteria and other harmful substances. Had Shifrin been aware of the harmful conditions, he would have taken steps to protect himself and reported the conditions to the proper authority. As a result of his exposure, ingestion or inhalation of these harmful substances, Shifrin alleged that he has contracted asthma, pneumonia and other health-related injuries.

On June 11, 2012, Shifrin filed his five-count complaint in the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, alleging negligence, negligence under the Premises Liability Act, negligence based on the theory of res ipsa loquitur, fraudulent misrepresentation and negligent misrepresentation against Defendants. Defendants removed the case to this Court based on diversity. Thereafter, Defendants' filed a motion to dismiss (Doc. 24) pursuant to Fed.R.Civ.P. 12(b)(6), which this Court denied.

The Defendants filed the instant motions for summary judgment (Doc. 27 & 30) on Counts I, II, III and V of Shifrin's complaint prior to the denial of their motion to dismiss by the Court. In their summary judgment motions, Defendants claimed that they did not owe a duty to Shifrin because they lacked control over the portion of the premises where the mold, fungi, bacteria and other harmful substances were allegedly found. Defendants argued that as Shifrin's claims lacked the essential duty element necessary to proceed, they were entitled to judgment as a matter of law. Shifrin responded and Defendants replied.

II. Analysis

To prevail on a motion for summary judgment, the movant must show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). When considering a motion for summary judgment, the Court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. A court cannot enter summary judgment for a moving party if the moving party fails to meet its burden of proof, even if the nonmoving party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. ...


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