Nunez v. Diaz

         Appeal from the Circuit Court of Cook County No. 15 M1 301696 The Honorable Deborah J. Gubin, Judge Presiding.

          JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.

          OPINION

          GORDON, JUSTICE

         ¶ 1 Plaintiff Martha Nunez filed a complaint alleging negligence against her landlord, defendant Lourdes Diaz, after plaintiff fell down a second-story staircase. Plaintiff alleged that defendant failed to repair a loose cap on a newel post at the top of the staircase, and as plaintiff reached for the post to regain her balance, the cap came loose, contributing to plaintiff's fall, causing her injuries. Defendant filed a motion for summary judgment, which the trial court granted. Plaintiff appeals, arguing that (1) the trial court erred in determining there was no question of fact as to the existence of a defective condition in the stairwell and (2) plaintiffs deposition testimony supported a finding that defendant had notice of the defective condition. For the reasons that follow, we reverse the trial court's judgment.

         ¶ 2 BACKGROUND

         ¶ 3 On July 14, 2015, plaintiff filed a complaint against defendant, alleging that on October 5, 2013, she lost her balance descending a staircase in a building located on North Springfield Avenue in Chicago that was owned by defendant. Plaintiff alleged that the staircase did not have a handrail and that defendant "knew or should have known that said stairs represented a dangerous condition to those lawfully on the premises." Plaintiff alleged that defendant "had a duty to maintain the aforementioned premises in a safe and reasonable manner so as to prevent injury to those lawfully on the premises" and breached that duty by "[c]arelessly and negligently operat[ing], manag[ing], maintain[ing] and controll[ing] the premises"; "[c]arelessly and negligently fail[ing] to take any safety precautions whatsoever to remove and/or prevent the dangerous condition, knowing *** that [her] failure to do so represented a danger to those lawfully on the premises"; and "[c]arelessly and negligently fail[ing] to provide handrails for those lawfully on the premises." Plaintiff alleged that, as a result of defendant's conduct, plaintiff "sustained severe and permanent injuries."

         ¶ 4 On September 10, 2015, defendant filed an answer to plaintiffs complaint admitting that she owned the property located on North Springfield Avenue and admitting "only those duties imposed by law, [and] den[ying] the existence of any and all other duties ***." Defendant also filed an affirmative defense, alleging that plaintiff was injured because she "[f]ailed to keep a proper lookout for her own safety, " "[f]ailed to properly watch where she was going, " "[f]ailed to observe the open and obvious condition complained of, " and "[o]therwise proceeded in a careless manner such that she lost her balance and fell." Defendant alleged that plaintiff's contributory fault was more than 50% of the proximate cause of the injury for which recovery was being sought, so plaintiff should be barred from recovering damages.

         ¶ 5 On January 29, 2016, plaintiff filed a motion to voluntarily dismiss her claims against defendants Luis Hernandez, Lourdes Hernandez, and Lourdes Cintron, ^[1] which was granted on February 18, 2016. After this dismissal, defendant was the sole defendant remaining.

         ¶ 6 On July 18, 2016, defendant filed a motion for summary judgment. The motion claimed that plaintiff resided at the North Springfield Avenue residence pursuant to a lease agreement between plaintiff and defendant that began in September 2012 and continued on a month-to-month basis through the time of her fall. The motion further claimed that the stairway where plaintiff fell exclusively serviced plaintiff's second-floor apartment and that no other tenants used the stairway. The motion claimed that the stairway contained a post to service the top several steps and, after an "elbow" made by the first three to four steps, contained a handrail for the remaining steps. Plaintiff claimed she slipped for an unknown reason while on the wood stairway and tried to hold onto the cap on the post at the top of the stairs, but the cap came off and plaintiff fell, sliding down the remainder of the steps while sitting.

         ¶ 7 The motion claimed that defendant owed no duty to plaintiff since the location of plaintiff's fall was not in an area of the building controlled by defendant. Additionally, the motion claimed that even assuming arguendo that defendant owed a duty to plaintiff, plaintiff failed to establish that defendant was liable because plaintiff did not present any evidence that the condition of the premises presented an unreasonable danger and that defendant had notice of any such condition.

         ¶ 8 Attached to the motion for summary judgment was a copy of plaintiff's lease agreement with defendant, ^[2] entered into on September 15, 2012. Section 7 of the lease is entitled "Alterations and Improvements" and provides:

"7. ALTERATIONS AND IMPROVEMENTS. Lessee shall make no alterations to the buildings or improvements on the Premises or construct any building or make any other improvements on the Premises without the prior written consent of Lessor. Any and all alterations, changes, and/or improvements built, constructed, or placed on the Premises by Lessee shall, unless otherwise provided by written agreement between Lessor and Lessee, be and become the property of Lessor and remain on the Premises at the expiration or earlier termination of this Agreement."

         Section 11 is entitled "Maintenance and Repair; Rules" and provides, in pertinent part:

"11. MAINTENANCE AND REPAIR; RULES. Lessee will, at its sole expense, keep and maintain the Premises and appurtenances in good and sanitary condition and repair during the term of this Agreement and any renewal thereof. Without limiting the generality of the foregoing, Lessee shall:

(a) Not obstruct the driveways, sidewalks, courts, entry ways, stairs and/or halls, which shall be used for the purposes of ingress and egress only;

* * *

(k) Deposit all trash, garbage, rubbish or refuse in the locations provided therefor and shall not allow any trash, garbage, rubbish or refuse to be deposited or permitted to stand on the exterior of any building or within the common elements[.]"

         ¶ 9 Also attached to the motion for summary judgment was plaintiff's June 7, 2016, discovery deposition testimony. Plaintiff testified that at the time of her fall, she was occupying the second floor of the North Springfield Avenue residence with her husband and children. The residence had a wooden staircase leading up to the second floor, which exclusively served the second-floor unit; the first-floor unit had a different entrance, and other than the second-floor tenant, the only person who would use the staircase would be defendant's brother, who would use the stairs if he was "doing something with the unit." From the landing at the top of the stairs, the staircase consisted of three or four triangular steps making an "elbow" or right angle, after which the staircase straightened out and continued to the first floor. The staircase had a post around which the triangular steps rotated, then a handrail existed for the straight portion of the staircase. At the bottom of the staircase was a door, which led to a small porch area and an exterior door.

         ¶ 10 Plaintiff testified that on October 3, 2013, she slipped on the top step and fell down the staircase, falling in such a way that her bottom struck the staircase, and she slid down to the bottom, hitting her head on a stair on her way down. Plaintiff was asked what caused her to slip, and responded, "I don't know. I don't remember, " but also testified that "the wood [on the staircase] is slippery." Plaintiff testified that as she began to fall, she tried to hold onto the post at the top of the stairs, but the cap on the top of the post "wasn't even screwed on. It came off, and then I went all the way down."

         ¶ 11 Plaintiff was asked how long the cap "had been in that condition, the not-secured-on?" She testified that "[i]t could have been before we moved in. I don't know." However, plaintiff testified that she believed her husband "mentioned it, not to the landlord but her brother, which [sic] was the person he kind of dealt with." Plaintiff further testified:

"Q. So at what point did your husband mention to Ms. Diaz's brother that there was some issue with the stairwell?

A. Once it was hanging out.

Q. Do you recall when that happened?

A. No.

Q. All right. It was at some point before your fall; is that correct?

A. Yes.

Q. And you personally were aware of that as well. You'd encountered that before; is that correct?

A. Yes."

         ¶ 12 Also attached to the motion for summary judgment was a copy of three photographs that had been used as exhibits during plaintiff's deposition, showing the second-story staircase from different angles. While the copies included in the record on appeal are of poor quality, the first image depicts the staircase from an angle as though someone was standing in front of the staircase and looking up. In this image, the staircase appears to be straight for seven or eight steps, after which the steps appear to curve to the left; only the first two curving steps are depicted in the image. The second image depicts a bird's-eye view of the staircase, as though someone was looking from the ceiling down at the staircase. In this image, there is a landing at the top of the stairs, after which there appear to be four triangular steps rotating around a post, followed by steps leading straight down. The cap on top of the post is circled in the image, as plaintiff testified about it during her deposition. The third image depicts a different bird's-eye view of the staircase, as though someone was standing at the top of the staircase and looking down. This image again appears to show four triangular steps curving the staircase to the right, after which the staircase straightens.

         ¶ 13 On August 25, 2016, plaintiff filed an emergency motion to reopen discovery, strike arbitration, and strike the motion for summary judgment and/or for an extension of time to file a response. Plaintiff claimed that it had recently been discovered that defendant's deposition had not been taken and requested leave to do so. Plaintiff also asked for the motion for summary judgment to be stricken, claiming that the lease attached to the motion for summary judgment "is not even valid as it is not signed by the owner and for various reasons it violates the law and the City of Chicago Landlord and Tenant ordinance." The trial court granted plaintiff leave to depose defendant and extended the time for plaintiff to respond to the motion for summary judgment.

         ¶ 14 On September 16, 2016, plaintiff filed a response to the motion for summary judgment, claiming that the stairway was a common area under defendant's control and pointing to defendant's testimony, in which "Defendant admits the stairway is a common area where she would make any necessary repairs (which she did not want the tenants to do)." Plaintiff also claimed that there were questions of fact as to whether the loose cap was a dangerous condition and as to notice to defendant.

         ¶ 15 Attached to plaintiff's response was defendant's September 7, 2016, discovery deposition testimony. Defendant testified that she is the owner of the property located on North Springfield Avenue in Chicago, which was divided into three units: a first-floor unit, a second-floor unit, and a garden unit "that's merged with the first floor." Defendant's mother resided in the first-floor unit, and defendant's brother was her property manager. Defendant testified that "[t]he first floor has its own separate entrance, and then the second floor has its own proper entrance as well." Defendant further explained that "[t]here is one main door; but when you walk in to go to the first floor, it's right there. If you go to the second floor, there's a door there that leads to the stairs to go up to the second floor."

         ¶ 16 Defendant testified that there was a key to the door leading to the staircase, "but they never use a key, " and the stairwell was kept unlocked. Defendant further testified that the stairwell area contained a light fixture, and she changed the lightbulbs on that fixture. She also paid the electricity for that fixture; when asked what other portions of the building she paid for, she testified that she paid for electricity for "[j]ust the main floor, the hallway lights, the outside lights, the back lights."

         ¶ 17 Defendant was asked several questions about the lease agreement. Concerning the provision prohibiting alterations to the unit, defendant testified that while a tenant would be permitted to paint the inside of the apartment, the tenant would not be permitted to paint the stairwell; defendant was the one who painted the stairwell. The tenant would similarly be prohibited from storing a bicycle or garbage in the stairwell. Defendant testified that the prohibition against garbage in the stairwell came from section 11 of the lease:

"Q. In fact, in your lease I believe it's (k)-it's 11(k). It says, 'Deposit all trash, garbage, rubbish, or refuge [sic] in the locations provided therefore, and shall not allow any trash, garbage, rubbish, or refuse to be deposited or permitted to stand on the exterior of ...