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Hanna v. Creative Designers, Inc.

Court of Appeals of Illinois, First District, Fourth Division

September 15, 2016

GHADA HANNA, Plaintiff-Appellant,
v.
CREATIVE DESIGNERS, INC.; LUTHERAN HOME FOR THE AGED; KEN BRUCE; and EVANGELICAL LUTHERAN ALTENHEIN GENSELOSCHAFT VON CHICAGO, Defendants Creative Designers, Inc., Defendant-Appellee.

         Appeal from the Circuit Court Cook County. No. 12 L 12602 Honorable Kathy Flanagan, Judge Presiding.

          JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.

          OPINION

          McBRIDE, JUSTICE

         ¶ 1 In February 2013, plaintiff Ghada Hanna filed her amended complaint for premises liability against defendants Creative Designers, Inc. (Creative Designers), Lutheran Home for the Aged (Lutheran Home), Ken Bruce, and Evangelical Lutheran Altenhein Genseloschaft Von Chicago, alleging negligence to properly own, manage, maintain, and control the premises, specifically a shelf which fell and injured plaintiff on December 16, 2010. Creative Designers and Bruce filed a motion for summary judgment, and the Lutheran Home filed a separate motion for summary judgment. Following briefing, the trial court granted both motions for summary judgment.

         ¶ 2 Plaintiff appeals the trial court's grant of summary judgment in favor of Creative Designers but does not challenge summary judgment in favor of the other defendants. On appeal, plaintiff argues that the trial court erred in (1) determining that a tenant/lessee is not liable for a defective and/or dangerous condition on the premises the tenant/lessee controls; (2) determining that when a landlord is responsible for repair on a property, the tenant/lessee is relieved of control of the property for any unsafe conditions; and (3) granting summary judgment in favor of Creative Designers when a genuine issue of material fact existed.

         ¶ 3 In November 2012, plaintiff filed her initial complaint for premises liability against the defendants. In February 2013, plaintiff filed an amended four count complaint for premises liability, with identical counts raised against each of the four defendants. In her complaint, plaintiff alleged that on December 16, 2010, she was lawfully on the premises of 1250 Village Drive, Arlington Heights, Illinois, when she was "struck violently on her head and/or neck due to the dangerous and unsafe conditions to wit, a falling, unsecured shelf, located on the aforesaid premises." According to the complaint, Creative Designers owned, managed, maintained, and controlled the premises and had a duty to properly secure the shelf with reasonable care and caution so that those lawfully upon said premises would not be injured. Notwithstanding this duty, Creative Designers breached its duty by carelessly and negligently (1) managing, maintaining, and controlling the premises to allow an unsecured and/or defective shelf to remain and fall on plaintiff; (2) permitting the premises to become an unreasonably dangerous condition by failing to secure the shelf; (3) failing to warn plaintiff of the dangerous and defective conditions of the premises, including the shelf; (4) allowing the premises to remain in an unsafe and dangerous condition although Creative Designers knew or should have known of the defective and dangerous conditions; and (5) failing to make any inspections of the premises although Creative Designers knew or in the exercise of ordinary care should have known the premises should have been inspected. As a direct and proximate cause of one or more acts of negligence by Creative Designers, plaintiff sustained severe and lasting injuries. The complaint repeated these allegations for each count against the other defendants.

         ¶ 4 After discovery, including depositions, interrogatories and other filings, the facts of the case are as follows. Creative Designers is an Illinois corporation engaged in the business of cosmetology. Ken Bruce is the president of Creative Designers and operates the salon. Pursuant to a lease agreement between Creative Designers and Luther Village Owners Corporation (Luther Village), Creative Designers agreed to operate a salon in a designated space in the Luther Village Retirement Community, located in the Wittenberg Commons, 1250 Village Drive in Arlington Heights. The salon was primarily to serve residents of the community. According to the lease, Luther Village purchased and installed all fixtures in the salon, and the fixtures remained the property of Luther Village throughout the lease term. Luther Village was responsible for repairs of any damage to the fixtures resulting from defects in the material, workmanship, or normal wear and tear. Luther Village was also responsible for any repairs caused by negligence on the part of Creative Designers or its employees, but said repairs were to be paid by Creative Designers. Under the lease, Creative Designers were to permit Luther Village's employees to clean the premises.

         ¶ 5 In 1993, Bruce was contacted by an administrator from Luther Village to inquire if he was interested in operating a salon at the community. Bruce signed a lease in January 1994 to operate the salon at that location. He operated as a sole proprietor until Creative Designers was formed in 1996. His wife, Shirley Bruce, has acted as the day-to-day manager of the salon since 1994. Creative Designers employs stylists as independent contractors at the salon. Each independent contractor has a one-year contract, which can be renewed annually. Plaintiff was hired as an independent contractor in 2008.

         ¶ 6 In July 2008, Luther Village renovated the salon. The new fixtures, including shampoo bowls, countertops, work stations, and necessary equipment were selected and installed by Luther Village. Bruce and the stylists were consulted and shown samples of the textures for the walls and floors as well as photographs of the fixtures with the recommendations of Luther Village, and Bruce accepted the recommendations. Creative Designers did not contribute to the cost of the renovation. Bruce testified at his deposition that Luther Village was responsible for cleaning and maintenance of the salon since the inception of the lease. It was his understanding that the Luther Village maintenance staff performed regular inspections of the fixtures in the salon, including the flip-top countertops. At some point after installation, a request was made to cut the depth by a couple inches because the countertops were too deep for the workstation. Shirley testified at her deposition that plaintiff had never made any complaints to her regarding the countertops. She was not aware of maintenance finding any problems with the countertops.

         ¶ 7 In their depositions, Shirley, Sally Doti, another independent contract stylist at Creative Designers, and William Scherdin, director of the Luther Village maintenance department at the time of the incident, described the use of the flip-top countertops. The countertops were attached by a spring lever and could be lifted and locked into an upright position to access the shampoo bowl and some storage space. When the countertop was lifted, a lock would catch and one would hear an audible click sound to know the countertop was secured in the upright position. To release the countertop, one needed to push a lever to release the lock with one hand, while lowering the countertop with the other hand. There was an audible click upon release as well. Scherdin stated that the maintenance department inspected the countertops on a quarterly basis as part of a routine inspection of the salon. The inspection included checking the hinges, ensuring the screws were tight, and confirming the locking mechanism was operational. No repairs had been required. Scherdin said that he had not received any complaints about the countertops. Doti stated that she had never had a problem with the countertops nor a situation in which the countertop did not lock properly into an upright position.

         ¶ 8 In contrast, plaintiff testified at her deposition that there was no sound made when the countertop locked into the upright position. She also stated that to bring the countertop down, she would push it toward the mirror, further forward, to release the lock and then lower it. She denied that she had to push a lever to release the lock. She testified that the screws on the countertop at her station had come loose in the past which was reported to Bruce, Shirley, or maintenance, but she was unable to specify when this had occurred prior to the day of the incident.

         ¶ 9 In November 2010, Bruce decided to terminate plaintiff's independent contract, and she was given 30-days notice with plaintiff's last day to be December 31, 2010. The termination was based on customer complaints and plaintiff's objection to giving manicures to customers. Around December 15, 2010, Bruce had an encounter with plaintiff's daughter which resulted in Bruce terminating plaintiff's employment at the end of business on December 16.

         ¶ 10 On December 16, 2010, plaintiff lifted and locked the countertop without incident at least six or seven times throughout the day. Toward the end of business, plaintiff was closing her station. She testified that she lifted the countertop to put shampoo and a comb sterilizer into storage. She did not hear a click indicating that the countertop was locked in the upright position. Immediately after she lifted the countertop, she stated that it fell, striking her on the back of the head, neck, and shoulder, and she was injured.

         ¶ 11 Shirley, Doti, and Jane Dirks, another independent contract stylist, were working at the time of the incident. Shirley testified that she was in the restroom outside of the salon at the time of the incident. Doti testified that she was at her station at the time of the incident. She said that prior to the incident, plaintiff had been cashing out her station and counting money. Doti turned to her station but a couple minutes later heard plaintiff say, "ow." Doti turned around and saw the countertop on plaintiff's right shoulder. She did not see the countertop fall. Doti stated that she did not hear the locking mechanism click prior to the incident. In a statement, Dirks said she worked at the station next to plaintiff. She observed plaintiff doing bookwork and counting her money on top of her station. Dirks had her back to plaintiff and continued to work on a customer. Shortly thereafter, she heard a cry from plaintiff and saw plaintiff leaning into the sink with the countertop leaning on plaintiff. Dirks went and notified Shirley. ...


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