Court of Appeals of Illinois, First District, Fourth Division
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 ...