2025 IL App (1st) 240802-U
No. 1-24-0802
Order filed March 14, 2025
FIFTH DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
MYRIAN GARCIA, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 2021L010389 ) DORIS BAWCUM, ROBERT JEWELL, ) Honorable individually and as agent of JEWELL PROP., ) Nichole C. Patton, LLC, an Illinois Limited Liability Company, ) Judge, presiding. d/b/a JEWELL PROP., LLC – 2114 SCOVILLE ) AVENUE, CYNTHIA JEWELL, individually ) and as agent of JEWELL PROP., an Illinois ) Limited Liability Company d/b/a JEWELL ) PROP., LLC -2114 SCOVILLE AVENUE, ) JEWELL PROP., LLC an Illinois Limited ) Liability Company d/b/a JEWELL PROP., LLC - ) 2114 SCOVILLE AVENUE, ) ) Defendants-Appellees. )
JUSTICE MITCHELL delivered the judgment of the court. Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in granting summary judgment for the defendant landlords where they did not owe a duty to the plaintiff who was bitten by a tenant’s dog. No. 1-24-0802
¶2 Plaintiff, Myrian Garcia, appeals the circuit court’s order for summary judgment in favor
of defendants Robert Jewell, Cynthia Jewell, and Jewell Prop., LLC. The issue presented is
whether the circuit court erred in granting summary judgment for the defendants because neither
the voluntary undertaking exception nor latent defect exception created a duty to protect the
plaintiff. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 The defendants owned property at 2114 Scoville Avenue, Berwyn, Illinois. They leased
the property to defendant Doris Bawcum. The property has a common area in the back which is
bounded by a picket fence on two sides. This fence separates the common area of the property
from the public alley. All parties agree that the fence was “rickety” and had been in a state of
disrepair since Bawcum moved to the property.
¶5 Bawcum’s dog, Titan, escaped her control when she was letting it into the house. The dog
left the defendants’ property by forcing himself through the fence. Once in the alley, Titan bit
plaintiff Myrian Garcia on the leg. Titan had been in two prior reported incidents, neither of which
had been reported to Robert or Cynthia Jewell.
¶6 Garcia filed a complaint against the defendants based on a common law theory of
negligence. She alleged the defendants owed a duty to her on the theory of voluntary undertaking
and a latent defect present on the premises.
¶7 The defendants moved for summary judgment predicated on the supposed absence of a
duty. The circuit court granted the motion, 735 ILCS 5/2-1005 (West 2020), and concluded that
the defendants had no duty because there was no latent defect in the fence, and they had not
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engaged in a voluntary undertaking. This timely appeal followed. Ill. S. Ct. R. 303 (eff. July 1,
2017).
¶8 II. ANALYSIS
¶9 Garcia argues that the circuit court erred in granting summary judgement because there
was evidence of a latent defect in the property and that the defendants engaged in a voluntary
undertaking. These are exceptions to the general rule that “a landlord is not liable for injuries
caused by a dangerous or defective condition on the premises leased to a tenant and under the
tenant’s control.” Klitzka ex rel. Teutonico v. Hellios, 348 Ill. App. 3d 594, 597 (2004) (citing
Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 413 (1991)). The defendants contend there
was no latent defect and no voluntary undertaking which would create a duty to a third party. We
review the grant or denial of a motion for summary judgment de novo. Cohen v. Chicago Park
District, 2017 IL 121800, ¶ 17. Summary judgment is proper when there is no genuine issue of
material fact and that the moving party is entitled to judgement as a matter of law. Id.
¶ 10 In order to prove a common law negligence claim, a plaintiff must show the existence of
a duty owed by the defendant, a breach of that duty, and an injury proximately resulting from that
breach. Klitzka, 348 Ill. 3d at 596. The existence of a duty is a question of law to be determined
by the court. Id. “Where the plaintiff fails to provide facts ‘from which the court could infer the
existence of a duty,’ summary judgement for the defendant is appropriate.” Id. (quoting Vesey, 145
Ill. 2d 413).
¶ 11 Illinois courts have repeatedly rejected the claim that landlords should be responsible for
dog bites that take place off the leased premises. See Sedlacek v. Belmonte Properties, LLC, 2014
IL App (2d) 130969, ¶ 32 (“Where there was no undertaking of a duty, we will not hold a landlord
-3- No. 1-24-0802
liable for injuries caused to a third person by a tenant’s dog off of the leased property.”); Solorio
v. Rodriguez, 2013 IL App (1st) 121282, ¶ 28 (“[W]e are unwilling to make a landlord an insurer
of the public against injuries caused away from the premises***.”); Klitzka, 348 Ill. 3d at 601
(holding that a landlord owes no duty to a tenant’s invitee to prevent injuries from a tenant’s animal
even on leased premises if the landlord does not control the area where the injury occurred). Here,
the incident took place in a public alley, not on the leased property. Following Illinois’ tradition
of holding the dog’s owner accountable for the dog’s actions, defendants would not normally be
liable for an attack that took place away from the property.
¶ 12 In Illinois, lessors who relinquish control of a property to a lessee owe no duty to third
parties who are injured while on the leased property unless an exception applies. Klitzka, 348 Ill.
3d at 597-98. The court in Klitzka laid out six exceptions, two of which are relevant here: “(1) a
latent defect exists at the time of the leasing that the landlord should know about; *** (6) the
landlord voluntarily undertakes to render a service.” Id. Garcia argues that under these two
exceptions, there was at least a factual question that precludes summary judgement.
¶ 13 “The essential element of the voluntary undertaking doctrine is an undertaking and the duty
of care imposed on a defendant is limited to the extent of his undertaking.” Iseberg v. Gross, 366
Ill. App 3d 857, 865 (2006). The voluntary undertaking exception is narrowly construed. Sedlacek,
2014 IL App (2d), ¶ 30 (citing Bell, 2001 IL 110724, ¶ 12). “[T]he extent of the undertaking is
determined by the reasonable assessment of its underlying purpose.” Sedlacek, 2014 IL App (2d),
¶ 30. In Sedlacek, on nearly identical facts, the appellate court held that only an express promise
to fix the fence so the [rottweiler] would be contained would constitute a voluntary undertaking.
Id. ¶ 31. The Sedlacek court also found the landlord’s original intent to fix the fence to contain
-4- No. 1-24-0802
animals generally had been abandoned through inaction. Id. In this case, there was no promise by
the defendants to fix the fence for any reason, and certainly no promise to make it suitable to
contain a dog. The closest statement in the record is that Robert Jewell said he would maintain the
common area so it would “look nice.” He never promised or attempted to do more than that. With
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2025 IL App (1st) 240802-U
No. 1-24-0802
Order filed March 14, 2025
FIFTH DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
MYRIAN GARCIA, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 2021L010389 ) DORIS BAWCUM, ROBERT JEWELL, ) Honorable individually and as agent of JEWELL PROP., ) Nichole C. Patton, LLC, an Illinois Limited Liability Company, ) Judge, presiding. d/b/a JEWELL PROP., LLC – 2114 SCOVILLE ) AVENUE, CYNTHIA JEWELL, individually ) and as agent of JEWELL PROP., an Illinois ) Limited Liability Company d/b/a JEWELL ) PROP., LLC -2114 SCOVILLE AVENUE, ) JEWELL PROP., LLC an Illinois Limited ) Liability Company d/b/a JEWELL PROP., LLC - ) 2114 SCOVILLE AVENUE, ) ) Defendants-Appellees. )
JUSTICE MITCHELL delivered the judgment of the court. Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in granting summary judgment for the defendant landlords where they did not owe a duty to the plaintiff who was bitten by a tenant’s dog. No. 1-24-0802
¶2 Plaintiff, Myrian Garcia, appeals the circuit court’s order for summary judgment in favor
of defendants Robert Jewell, Cynthia Jewell, and Jewell Prop., LLC. The issue presented is
whether the circuit court erred in granting summary judgment for the defendants because neither
the voluntary undertaking exception nor latent defect exception created a duty to protect the
plaintiff. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 The defendants owned property at 2114 Scoville Avenue, Berwyn, Illinois. They leased
the property to defendant Doris Bawcum. The property has a common area in the back which is
bounded by a picket fence on two sides. This fence separates the common area of the property
from the public alley. All parties agree that the fence was “rickety” and had been in a state of
disrepair since Bawcum moved to the property.
¶5 Bawcum’s dog, Titan, escaped her control when she was letting it into the house. The dog
left the defendants’ property by forcing himself through the fence. Once in the alley, Titan bit
plaintiff Myrian Garcia on the leg. Titan had been in two prior reported incidents, neither of which
had been reported to Robert or Cynthia Jewell.
¶6 Garcia filed a complaint against the defendants based on a common law theory of
negligence. She alleged the defendants owed a duty to her on the theory of voluntary undertaking
and a latent defect present on the premises.
¶7 The defendants moved for summary judgment predicated on the supposed absence of a
duty. The circuit court granted the motion, 735 ILCS 5/2-1005 (West 2020), and concluded that
the defendants had no duty because there was no latent defect in the fence, and they had not
-2- No. 1-24-0802
engaged in a voluntary undertaking. This timely appeal followed. Ill. S. Ct. R. 303 (eff. July 1,
2017).
¶8 II. ANALYSIS
¶9 Garcia argues that the circuit court erred in granting summary judgement because there
was evidence of a latent defect in the property and that the defendants engaged in a voluntary
undertaking. These are exceptions to the general rule that “a landlord is not liable for injuries
caused by a dangerous or defective condition on the premises leased to a tenant and under the
tenant’s control.” Klitzka ex rel. Teutonico v. Hellios, 348 Ill. App. 3d 594, 597 (2004) (citing
Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 413 (1991)). The defendants contend there
was no latent defect and no voluntary undertaking which would create a duty to a third party. We
review the grant or denial of a motion for summary judgment de novo. Cohen v. Chicago Park
District, 2017 IL 121800, ¶ 17. Summary judgment is proper when there is no genuine issue of
material fact and that the moving party is entitled to judgement as a matter of law. Id.
¶ 10 In order to prove a common law negligence claim, a plaintiff must show the existence of
a duty owed by the defendant, a breach of that duty, and an injury proximately resulting from that
breach. Klitzka, 348 Ill. 3d at 596. The existence of a duty is a question of law to be determined
by the court. Id. “Where the plaintiff fails to provide facts ‘from which the court could infer the
existence of a duty,’ summary judgement for the defendant is appropriate.” Id. (quoting Vesey, 145
Ill. 2d 413).
¶ 11 Illinois courts have repeatedly rejected the claim that landlords should be responsible for
dog bites that take place off the leased premises. See Sedlacek v. Belmonte Properties, LLC, 2014
IL App (2d) 130969, ¶ 32 (“Where there was no undertaking of a duty, we will not hold a landlord
-3- No. 1-24-0802
liable for injuries caused to a third person by a tenant’s dog off of the leased property.”); Solorio
v. Rodriguez, 2013 IL App (1st) 121282, ¶ 28 (“[W]e are unwilling to make a landlord an insurer
of the public against injuries caused away from the premises***.”); Klitzka, 348 Ill. 3d at 601
(holding that a landlord owes no duty to a tenant’s invitee to prevent injuries from a tenant’s animal
even on leased premises if the landlord does not control the area where the injury occurred). Here,
the incident took place in a public alley, not on the leased property. Following Illinois’ tradition
of holding the dog’s owner accountable for the dog’s actions, defendants would not normally be
liable for an attack that took place away from the property.
¶ 12 In Illinois, lessors who relinquish control of a property to a lessee owe no duty to third
parties who are injured while on the leased property unless an exception applies. Klitzka, 348 Ill.
3d at 597-98. The court in Klitzka laid out six exceptions, two of which are relevant here: “(1) a
latent defect exists at the time of the leasing that the landlord should know about; *** (6) the
landlord voluntarily undertakes to render a service.” Id. Garcia argues that under these two
exceptions, there was at least a factual question that precludes summary judgement.
¶ 13 “The essential element of the voluntary undertaking doctrine is an undertaking and the duty
of care imposed on a defendant is limited to the extent of his undertaking.” Iseberg v. Gross, 366
Ill. App 3d 857, 865 (2006). The voluntary undertaking exception is narrowly construed. Sedlacek,
2014 IL App (2d), ¶ 30 (citing Bell, 2001 IL 110724, ¶ 12). “[T]he extent of the undertaking is
determined by the reasonable assessment of its underlying purpose.” Sedlacek, 2014 IL App (2d),
¶ 30. In Sedlacek, on nearly identical facts, the appellate court held that only an express promise
to fix the fence so the [rottweiler] would be contained would constitute a voluntary undertaking.
Id. ¶ 31. The Sedlacek court also found the landlord’s original intent to fix the fence to contain
-4- No. 1-24-0802
animals generally had been abandoned through inaction. Id. In this case, there was no promise by
the defendants to fix the fence for any reason, and certainly no promise to make it suitable to
contain a dog. The closest statement in the record is that Robert Jewell said he would maintain the
common area so it would “look nice.” He never promised or attempted to do more than that. With
no promise and no action, there can be no voluntary undertaking.
¶ 14 Under Illinois law, a “latent defect” is one which is “hidden and not readily observable or
discoverable to any but the most searching examination.” Board of Education of Maine Township
High School District 207 v. International Insurance. Co., 292 Ill. App. 3d 14, 20 (1997). Defects
exist in relation to a function or purpose; objects are not defective in the abstract. The implied
function for which the fence was defective here is the fence’s ability to keep a dog contained in
the property’s common area. Both the plaintiff and defendants reference Bawcum’s deposition
testimony that the fence was “rickety” and had loose planks. Additionally, the common area was
never fully enclosed. These conditions had existed since Bawcum first moved into the property,
and she was aware of them. Even assuming that the fence’s purpose was keeping a dog contained,
the defect was patent not latent. Therefore, the latent defect exception does not apply.
¶ 15 In short, there is no evidence in the record to support a claim under the voluntary
undertaking or latent defect exceptions. Therefore, as a matter of law, the plaintiff’s claim against
the defendants fails.
¶ 16 III. CONCLUSION
¶ 17 Accordingly, the judgment of the circuit court of Cook County is affirmed.
¶ 18 Affirmed.
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