Provenzano v. Broyles

2021 IL App (3d) 190771-U

• Court: Appellate Court of Illinois
• Decided: August 5, 2021
• Docket: 3-19-0771
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 190771-U

Order filed August 5, 2021 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

JOHN PROVENZANO, as Special ) Appeal from the Circuit Court Representative of the Estate of MARLENE) of the 13th Judicial Circuit, PROVENZANO, Deceased, ) La Salle County, Illinois. ) Plaintiff-Appellant, ) ) Appeal No. 3-19-0771 v. ) Circuit No. 16-L-141 ) CRYSTAL PROVENZANO BROYLES and ) CATHERINE PROVENZANO, ) The Honorable ) Eugene P. Daugherity, Defendants-Appellees. ) Judge, presiding. _____________________________________________________________________________

PRESIDING JUSTICE McDADE delivered the judgment of the court. Justice Lytton concurred in the judgment. Justice Holdridge specially concurred. _____________________________________________________________________________

ORDER

¶1 Held: In a wrongful death action, the circuit court erred when it granted a section 2-619 motion to dismiss count I of the complaint, which alleged the breach of an express promise to repair, but did not err when it granted a section 2-615 motion to dismiss count II of the complaint, which alleged the beach of a voluntary undertaking.

¶2 In 2017, Marlene Provenzano tripped on a raised board on a wooden boardwalk between

her residence and the detached garage. Marlene later died from her injuries. The plaintiff, John Provenzano, who was Marlene’s special representative, filed suit against the defendants, Crystal

Provenzano Broyles and Catherine Provenzano, alleging (1) breach of an express promise to

repair, and (2) breach of a voluntary undertaking. The defendants moved to dismiss both counts.

After a hearing, the circuit court dismissed both counts with prejudice. On appeal, John argues

that the circuit court erred when it dismissed both counts. We affirm in part and reverse in part

and remand for further proceedings.

¶3 I. BACKGROUND

¶4 On March 17, 2016, 82-year-old Marlene Provenzano tripped on a raised board and fell

while walking across a wooden boardwalk between the garage and residence in which she was

living. Marlene hit her head on concrete and died the next day from her injuries. The board was

raised approximately 3/4-inch to 1 inch above the rest of the boardwalk.

¶5 Marlene had been living in her residence since 2005. The property was owned by her

granddaughters, defendants Crystal and Catherine, who had an oral agreement with Marlene to

let her reside there rent-free as long as she paid the utility bills. Sometime between 2009 and

2011, Marlene allowed her daughter, Irene Provenzano Fritz, to move in with her.

¶6 Marlene’s son, plaintiff John, and his sons performed general maintenance of the

residence over the years. However, they did not undertake any major tasks such as plumbing

work. Crystal stated that Marlene was responsible for minor repairs, but “[i]f it was a bigger

thing, they called me or my dad.” She recalled having to bring in a plumber a few times to make

some repairs. When Irene was asked what repairs John would perform at the residence, she

stated, “He would look at it and, if he couldn’t fix it, then he’d hire someone to fix it.” This

included hiring a plumber several times. Irene also stated that Crystal’s husband had been to the

residence a few times to do “chores.”

2 ¶7 Crystal, who was John’s daughter, was aware of the raised board, as Irene had told her

about it at an unspecified time prior to Marlene’s fall. John believed that Irene was the one who

told him to fix the board. However, he disregarded that request because “Irene talks so much,

you can’t take everything serious.” Irene stated that she asked John, John’s sons, Crystal, and

Crystal’s husband to fix the board, but none of them responded to her.

¶8 On October 28, 2016, John, as special representative of Marlene, filed a complaint

against Crystal and Catherine sounding in premises liability. The defendants filed a jury demand

and later moved for summary judgment, which the circuit court granted as to the premises

liability claim but denied in part to allow John to file an amended complaint asserting a claim for

voluntary undertaking of a duty to repair.

¶9 The first amended complaint essentially repled the premises liability action. The

defendants filed motions to strike and dismiss the first amended complaint, alleging that John

had included allegations that were rejected by the circuit court at the summary judgment hearing

and that the voluntary undertaking claim was legally deficient. The circuit court granted the

motion to dismiss but again granted John leave to replead or amend.

¶ 10 John then filed a second amended complaint, which repled premises liability in count I

and added two other counts: one for breach of express promise to repair and one for voluntary

undertaking. John alleged that Crystal had promised to repair the raised board but failed to do

so.

¶ 11 The defendants moved to strike the premises liability count and to dismiss counts II and

III. They alleged that counts II and III were identical causes of action and that both were legally

deficient, in part because John did not allege that Marlene relied upon the voluntary undertaking

3 to her detriment. After a hearing, the circuit court struck count I, dismissed count II with

prejudice, and dismissed count III with leave to replead.

¶ 12 John filed a third amended complaint, which repled premises liability in count I and

alleged breach of voluntary undertaking in count II. The defendants moved to strike count II as

legally deficient because it was identical to the previously dismissed count II. The circuit court

granted the motion to strike but once again granted John leave to refile.

¶ 13 John’s fourth amended complaint alleged breach of express promise to repair in count I

and breach of voluntary undertaking in count II. In part, count I alleged that (1) around 2005,

Crystal and Catherine entered into a leasehold agreement with Marlene in which they

“covenanted to keep the premises in good repair for the duration of the leasehold;” (2) during the

time Marlene lived in the residence, Crystal and Catherine regularly maintained the premises;

and (3) prior to Marlene’s trip-and-fall, Crystal had agreed to repair the raised board. In part,

count II alleged that (1) Irene told Crystal about the raised board and Crystal agreed to fix it, and

(2) Marlene reasonably relied on that promise and forwent any other efforts to get the board

fixed.

¶ 14 The defendants moved to dismiss the fourth amended complaint. Regarding count I, they

alleged that the count failed to assert the existence of a contractual agreement and was therefore

subject to dismissal under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-

615 (West 2018)) and that there was no formal lease agreement, rendering the count subject to

dismissal under section 2-619 of the Code (735 ILCS 5/2-619 (West 2018)). Regarding count II,

the defendants argued that it was again identical in substance to counts previously dismissed by

the circuit court.

4 ¶ 15 After a hearing, the circuit court dismissed count I pursuant to section 2-619 and Count II

pursuant to section 2-615. Regarding count I, the court found that John did not plead that the

defendants undertook a general covenant to perform all repairs to the property and that in fact

“there was no contractual undertaking that the defendants obligated themselves to making the

necessary repairs because there was no *** consideration to support that.”

¶ 16 Regarding count II, the court noted that it “had the benefit of the briefings on the

pleading practice” that had previously occurred in the case and that

“All that was done is [Marlene] here asserted to the

defendant there’s a loose board that needs to be repaired – or be

repaired and the defendant indicated we will take care of it. That is

a gratuitous promise, as I said, unsupported by any type of

contractual undertaking and fails the test under the voluntary

undertaking on reliance because the plaintiff knew what the actual

circumstances were and was equally capable along with the

defendant of ascertaining the same.”

¶ 17 Both counts were dismissed with prejudice, and John appealed.

¶ 18 II. ANALYSIS

¶ 19 John’s first argument on appeal is that the circuit court erred when it dismissed count I

pursuant to section 2-619 of the Code. Specifically, John alleges that the court erred when it (1)

found that no enforceable lease agreement existed between the parties, and (2) inquired into the

sufficiency of consideration between the parties.

¶ 20 Section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2018)) provides that a

defendant may move to dismiss an action based on “other affirmative matter avoiding the legal

5 effect of or defeating the claim.” Id. We review de novo a circuit court’s decision to grant a

section 2-619 motion to dismiss. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352

(2008).

¶ 21 Section 2-619 of the Code “furnishes a mechanism for the disposition of issues of law

and easily proved issues of fact” (Davis v. Chicago Police Board, 268 Ill. App. 3d 851, 854

(1995)). As stated by the First District:

“[A] section 2-619 motion should be granted by the trial

court, if after construing the documents supporting the motion in

the light most favorable to the opposing party, it finds no disputed

issues of fact [citation] and concludes that the affirmative matter

negates the plaintiff’s cause of action completely or refutes critical

conclusions of law or conclusions of material, unsupported fact

[citation].” [Citations.] Once a defendant satisfies [its] initial

burden going forward on the section 2-619(a)(9) motion to dismiss

[by demonstrating entitlement to judgment], the burden shifts to

plaintiff, who must establish that the affirmative defense asserted

either is unfounded as a matter of law or requires the resolution of

an essential element of material fact before it is proven.

[Citations.]” (Internal quotation marks omitted.) Turner v. 1212

South Michigan Partnership, 355 Ill. App. 3d 885, 892 (2005).

¶ 22 Significantly, the circuit court can weigh evidence and resolve factual disputes when

ruling on a section 2-619 motion to dismiss as long as the non-moving party has not filed a jury

demand. Id. Because John did not file a jury demand in this case, the circuit court was not

6 prohibited from determining issues of fact when ruling on the defendants’ motion to dismiss.

See 735 ILCS 5/2-619(c) (West 2018); 735 ILCS 5/2-1105(a) (West 2018) (stating that “[a]

plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the

action is commenced”).

¶ 23 “Generally, landlords[1] are not liable for injuries occurring on premises leased to a tenant

and under the tenant’s control.” Betts v. Crawshaw, 248 Ill. App. 3d 735, 738 (1993). However,

Illinois has long recognized exceptions to this general principle. See, e.g., Gridley v. City of

Bloomington, 68 Ill. 47, 51 (1873) (recognizing an exception that “[w]here the landlord has, by

an express agreement between the tenant and himself, agreed to keep the premises in repair so

that, in case of a recovery against the tenant, he would have his remedy over; then, to avoid

circuity of action, the party injured by the defect and want of repair may have his action in the

first instance against the landlord, but such express agreement must be distinctly proved”). In

Alaimo v. Du Pont, 4 Ill. App. 2d 85, 90 (1954), the First District cited to Section 357 of the

Restatement (First) of Torts (1934) and Illinois cases when it described this exception to the

general rule as follows:

“Thus in Illinois the landlord may be liable in tort for

damages resulting from his breach of the covenant to repair; (a) if

the covenant carries the obligation to maintain the premises in a

safe or reasonably safe condition, or (b) if the covenant is made

under circumstances which indicated that tort damages were to be

1 A landlord-tenant relationship may be found in even the loose and casual dealings of the parties in this case. “The relationship of landlord and tenant may be defined generally as that which arises from a contract [an agreement] by which one person occupies the real property of another with his or her permission and in subordination to the other person’s rights.” 52 C.J.S. Landlord & Tenant § 1 (2020). 7 recoverable for injuries resulting from a breach of the covenant, or

(c) if there is a duty to repair apart from the contract.”

¶ 24 Subsequently, Illinois courts adopted this principle as it appeared in section 357 of the

Restatement (Second) of Torts (1965). See Betts v. Crenshaw, 248 Ill. App. 3d 735, 738 (1993)

(citing Looger v. Reynolds, 25 Ill. App. 3d 1042, 1044 (3d Dist. 1975)). Section 357 provides, in

relevant part:

“A lessor of land is subject to liability for physical harm

caused to his lessee *** by a condition of disrepair *** arising

after the lessee has taken possession if

(a) the lessor, as such, has contracted by a covenant in the

lease or otherwise to keep the land in repair, and

(b) the disrepair creates an unreasonable risk to persons

upon the land which the performance of the lessor’s agreement

would have prevented, and

(c) the lessor fails to exercise reasonable care to perform

his contract.” Restatement (Second) of Torts § 357 (1965).

¶ 25 In this case, the fourth amended complaint alleged, in relevant part, that (1) around 2005,

Crystal and Catherine entered into a leasehold agreement with Marlene in which they

“covenanted to keep the premises in good repair for the duration of the leasehold;” (2) during the

time Marlene lived in the residence, Crystal and Catherine regularly maintained the premises;

and (3) prior to Marlene’s trip-and-fall, Crystal had agreed to repair the raised board. For

purposes of the motion to dismiss, we take these allegations as true.

8 ¶ 26 The defendants claim that Crystal’s deposition testimony defeated the complaint’s

allegations. Specifically, Crystal testified that the oral “lease agreement” was simply that

Marlene was allowed to reside in the house rent-free as long as she paid the utility bills.

¶ 27 However, it is too facile to conclude that the deposition testimony definitively defeated

the complaint’s allegations. The depositions indicated that there may have been some sort of

agreement regarding repairs. Crystal stated that while Marlene was responsible for minor

repairs, “[i]f it was a bigger thing, they called me or [John].” Crystal further stated that she had

hired a plumber several times to perform repairs. Under these circumstances, construing the

supporting materials in the light most favorable to the plaintiff, we hold that the defendants did

not meet their burden of establishing that no agreement existed regarding repairs but merely

created a material factual dispute as to the existence of a covenant. See Turner, 355 Ill. App. 3d

at 892. We emphasize that our ruling is not to be construed as a comment on the merits of count

I. Rather, we merely hold that the defendants did not meet their burden of establishing an

affirmative matter entitling them to the dismissal of count I under section 2-619.

¶ 28 John’s second argument on appeal is that the circuit court erred when it dismissed count

II pursuant to section 2-615 of the Code.

¶ 29 A motion to dismiss filed pursuant to section 2-615 of the Code attacks the legal

sufficiency of a complaint based on facial defects. Marshall v. Burger King Corp., 222 Ill. 2d

422, 429 (2006). When reviewing the sufficiency of a complaint, a court must accept as true all

well pled facts and all reasonable inferences arising from those facts. Bell v. Hutsell, 2011 IL

110724, ¶ 9. The allegations in the complaint are construed in the light most favorable to the

plaintiff. Id. In general, a court considers only the pleadings when ruling on a section 2-615

motion to dismiss. Mutual Tobacco Co. v. Halpin, 414 Ill. 226, 231 (1953). We review de novo

9 a circuit court’s decision to grant a section 2-615 motion to dismiss. Berry v. City of Chicago,

2020 IL 124999, ¶ 25.

¶ 30 When a plaintiff alleges negligence via a voluntary undertaking theory of liability,

Illinois courts look to section 323 of the Restatement (Second) of Torts (1965) for guidance.

Section 323 provides:

“One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as necessary

for the protection of the other’s person or things, is subject to

liability to the other for physical harm resulting from his failure to

exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of

such harm, or

(b) the harm is suffered because of the other’s reliance

upon the undertaking.” Restatement (Second) of Torts § 323

(1965).

An essential element in a negligence allegation of nonfeasance is reliance on the alleged

tortfeasor’s promise. Bell, 2011 IL 110724, ¶ 23. In addition, we note that “[c]ourts narrowly

construe the voluntary-undertaking theory.” Buerkett v. Illinois Power Co., 384 Ill. App, 3d 418,

427 (2008).

¶ 31 In this case, count II of the fourth amended complaint alleged, in part, that (1) Irene told

Crystal about the raised board and Crystal agreed to fix it, and (2) Marlene reasonably relied on

that promise and forwent any other efforts to get the board fixed. Not only did the complaint fail

to allege that Marlene was the recipient of a promise to repair, but also it contained no allegation

10 that Marlene was unaware of the continued existence of the raised board. Regarding the latter, it

has been stated that

“Reliance may reasonably be placed where there is a deceptive

appearance that performance had been made, or where a

representation of performance has been communicated to plaintiff

by defendant, or where plaintiff is otherwise prevented from

obtaining knowledge or substitute performance of the undertaking.

But, to justify reliance, plaintiff must be unaware of the actual

circumstances and not equally capable of determining such facts.”

Chisholm v. Stephens, 47 Ill. App. 3d 999, 1007 (1977).

In other words, “where the tenant knew the repairs were not adequate or proper, no recovery can

be had for any injuries caused thereby.” Id. at 1008. Significantly, the fourth amended

complaint failed to allege that Marlene knew there was need for a repair; that she knew of

Crystal’s alleged agreement to make a repair; that she had reason to believe that the repair had

been made and changed her position accordingly; or that she had no way of ascertaining whether

the repair had been made. Under these circumstances, we hold that count II failed to state a

claim for voluntary undertaking. Accordingly, we hold that the circuit court did not err when it

dismissed count II with prejudice pursuant to section 2-615 of the Code.

¶ 32 III. CONCLUSION

¶ 33 The judgment of the circuit court of La Salle County is affirmed in part and reversed in

part and the cause is remanded for further proceedings.

¶ 34 Affirmed in part and reversed in part; cause remanded.

¶ 35 JUSTICE HOLDRIDGE, specially concurring:

11 ¶ 35 I join the majority’s judgment as to both counts of the plaintiff’s complaint. I agree with

the majority that the trial court erred by dismissing count I of the complaint because it stated a

claim against the defendants for the breach of an express promise to repair. The plaintiff alleged

facts supporting each element of such a claim by pleading that: (1) the defendants contracted to

keep the premises in repair; (2) the disrepair created an unreasonable risk to Marlene which the

performance of the defendants’ agreement would have prevented; and (3) the defendants failed

to perform their contract, which caused fatal injuries to Marlene. I write separately to share my

thoughts regarding the defendants’ argument that the “de minimis” rule preludes the plaintiff

from establishing that the defendants had a duty to repair the raised board in the boardwalk.

¶ 36 Absent evidence of aggravating circumstances, an owner of land “has no duty to repair de

minimis defects on his property.” St. Martin v. First Hospitality Group, Inc., 2014 IL App (2d)

130505, ¶ 13; Hartung v. Maple Investment and Development Corp., 243 Ill. App. 3d 811, 815

(1993). In determining whether a defect is de minimis, “each case must be examined as to its

own particular facts.” Warner v. City of Chicago, 72 Ill.2d 100, 104 (1978). There is no

mathematical formula or bright-line test for determining when a defect is so minor as to not be

actionable (id.; see also Hartung, 243 Ill.App.3d at 814; Birck v. City of Quincy, 241 Ill. App. 3d

119, 122 (1993)) and no per se rule as a matter of law based on the size of the defect (Arvidson v.

City of Elmhurst, 11 Ill. 2d 601 (1957)). The surrounding circumstances must be taken into

consideration (Birck, 241 Ill. App. 3d at 122), and if aggravating circumstances are present, even

very small defects may be actionable (see, e.g., Bartkowiak v. City of Aurora, 2018 IL App (2d)

170406 (holding that the presence of aggravating circumstances rendered an otherwise de

minimis defect of approximately 1.5 inches actionable)).

12 ¶ 37 In this case, it is not clear that the de minimis rule should apply as to Count 1 because the

defendants’ duty to maintain the premises allegedly arose from a contractual obligation (i.e., the

defendants’ promise to make repairs for the lessee) rather than from ordinary rules of premises

liability. The de minimis rule is normally applied in premises liability cases to determine the

duty that an owner or occupier of land owes to an invitee. The defendants have cited no cases

applying the rule outside of the premises liability context. Nor has my research uncovered any

such cases. Accordingly, there is no basis to conclude that the de minimis rule may abrogate a

contractual promise to repair contained in a lease.

¶ 38 In any event, even assuming arguendo that the de minimis rule could apply to count 1 of

the plaintiff’s complaint in this case, I do not believe that the trial court could properly dismiss

the complaint on that basis as a matter of law. As noted above, the application of the rule

depends upon the facts of a particular case, and the existence of aggravating circumstances

precludes the application of the rule. Here, the plaintiff has arguably alleged certain aggravating

factors, including the defendants’ contractual agreement to make all necessary repairs,

defendants’ history of making such repairs, Crystal’s express representation that she would

repair the defect at issue, Marlene’s reliance on that representation, and the defendants’ failure to

repair the defect. Moreover, in their motion for summary judgment, the defendants stated that

Marlene was 82 years old and the time of the accident, which Crystal confirmed in her

deposition (portions of which the defendants attached to their motion to dismiss count 1 of the

plaintiff’s complaint).