Grimm v. Arnold

JUSTICE WELCH delivered the opinion of the court: Defendants, Mark L. Arnold and Barbara A. Arnold, appeal from a verdict and judgment against them and in favor of plaintiff, George Grimm, following a bench trial held in the circuit court of Madison County on February 25, 1992. Plaintiff’s complaint against defendants alleged that defendants were the owners of certain property, a residence; that they had allowed a railroad tie bordering the driveway to protrude onto the public sidewalk in front of the house; and that plaintiff had tripped and fallen over the railroad tie while walking on the public sidewalk, suffering injuries. The evidence at trial revealed that, although defendants did own the property in question, they had leased it to a tenant, who had complete control over the premises. Prior to leasing the property, defendants had placed railroad ties along and bordering the driveway in order to keep the gravel inside the driveway boundaries. While the defendants resided in the premises, they discovered no problem with the railroad ties moving or becoming displaced. After the premises were leased, defendant Barbara Arnold walked by the premises every day. On two or three occasions per week Barbara would notice that one of the railroad ties would protrude perpendicularly onto the sidewalk, sometimes up to 8 to 12 inches. On each such occasion, Barbara would replace the railroad tie in its original position so that it did not protrude onto the sidewalk. She realized that the railroad tie created a hazard when it protruded onto the sidewalk. Barbara would place the tie behind one of the concrete blocks which lined the sidewalk. Defendants did not consider any further action to secure or remove the railroad ties, nor did they speak with their tenant about the situation. Plaintiff lived next door to the leased premises. While walking along the sidewalk late one evening, he tripped over the railroad tie which was protruding onto the sidewalk, falling to the ground and suffering injuries. Immediately following closing arguments, the trial court made an oral ruling on the issue of liability, reserving its ruling on the question of damages. The trial court held that, although defendants were under no legal duty to perform any repairs on the leased premises, once they undertook repairs, they were under a legal duty to perform them with ordinary care. The court further found that defendant Barbara Arnold’s act of replacing the railroad tie when she found it protruding onto the sidewalk constituted a repair and that this repair was not performed with ordinary care because defendants knew the action was ineffective to secure the tie and to prevent it from again slipping onto the sidewalk. The court found that defendants had a duty not only to replace the railroad tie in its original location but to take action to insure that it did not again protrude onto the sidewalk. The court found that defendants’ failure to prevent what was acknowledged to be a dangerous condition from recurring constituted negligence which was a proximate cause of plaintiff’s injuries. On March 2, 1992, the trial court entered judgment on the case, finding that plaintiff was contributorily negligent to the extent of 20% and awarding plaintiff damages in the amount of $84,000. Defendants appeal the finding of liability. The trial court correctly found that, absent a covenant to repair in a lease agreement or the landlord’s knowledge of latent defects on the premises, the landlord has no duty to repair premises demised to a tenant and he is not liable in negligence for his failure to do so. (Seago v. Roy (1981), 97 Ill. App. 3d 6, 8, 424 N.E.2d 640, 641.) However, as the trial court also correctly held, a landlord who voluntarily undertakes to make repairs upon the leased premises is under a duty to use ordinary care in carrying out the work even though he is not under a legal obligation to make the repairs. (Brewer v. Bankord (1979), 69 Ill. App. 3d 196, 198, 387 N.E.2d 344, 345.) As the trial court correctly held, when a landlord gratuitously makes repairs and fails to exercise reasonable care in doing so, he is generally liable for resulting injury. (Brewer, 69 Ill. App. 3d at 198, 387 N.E.2d at 345.) We find, however, that the trial court erred as a matter of law in failing to recognize in the instant case that while a duty voluntarily undertaken must be performed with due care, the scope of the duty is limited by the extent of the undertaking. Poelker v. Macon Community Unit School District No. 5 (1990), 212 Ill. App. 3d 312, 315, 571 N.E.2d 479, 480. In the instant case, the defendants never undertook to “repair” the railroad tie in such a way that it would never again protrude onto the sidewalk. Defendant Barbara Arnold merely replaced the tie in its original location whenever she found it protruding onto the sidewalk. There is no evidence that she performed this undertaking negligently, despite the fact that the tie continued to be displaced onto the sidewalk. Defendants never discovered the reason the railroad tie kept being displaced onto the sidewalk. Although defendant Barbara Arnold speculated as to several possible causes for displacement of the railroad tie, including neighborhood children playing with or around the tie or the tenant’s car or the tenant’s boyfriend’s 18-wheeler rolling over or into the tie, she was never able to confirm any cause. Consequently, defendants never undertook to control whatever the cause might be, nor did they undertake to “repair” the railroad tie in such a way that it could not be again displaced onto the sidewalk. Because the scope of defendants’ duty to exercise reasonable care is limited by the extent of defendants’ undertaking, that is, replacing the railroad tie in its original position, defendants had no further duty to remove or secure the railroad tie so that it could not move onto the sidewalk. We find this case to be similar to Frye v. Medicare-Glaser Corp. (1992), 153 Ill. 2d 26, 605 N.E.2d 557, in which our supreme court held that a pharmacy was not negligent in failing to warn of the dangers of consuming alcohol while taking a medication, although it did voluntarily undertake to warn of the risk of drowsiness while taking the medication. In that case, plaintiff argued that the extent of the defendants’ undertaking was to warn of all potential dangers involved in taking the medication. The supreme court found this to be an overly broad interpretation of the defendants’ undertaking, which extended only to warning of the danger of drowsiness. The supreme court pointed out: “Our narrow construction of defendants’ voluntary undertaking is supported by public policy. First, if we were to hold that by choosing to place the ‘drowsy eye’ label on Frye’s prescription container defendants were assuming the duty to warn Frye of all of Fiorinal’s side effects, we believe that pharmacists would refrain from placing any warning labels on containers. Thus, consumers would be deprived of any warnings which might be beneficial.” 153 Ill. 2d at 33, 605 N.E.2d at 560. Similarly, in the instant case, were we to hold that by simply replacing the railroad tie in its original position defendants were assuming the duty to insure that the tie could not move back onto the sidewalk, defendants and others would be discouraged from performing the beneficial task of removing a potentially hazardous obstruction from a public sidewalk. In Frye, plaintiff argued that the “drowsy eye” label was inadequate to warn of the “real” danger of drinking alcohol while taking the medication. The supreme court found that this contention begged the question because defendants did not intend that the “drowsy eye” label act as a warning of the danger of combining alcohol and the medication. The defendants undertook only to warn plaintiff that the medication may cause drowsiness. That was the extent of defendants’ undertaking, which they were obligated to perform with reasonable care. Similarly, in the instant case, defendants never undertook to remove or secure the railroad tie so that it could not be moved back onto the sidewalk. They undertook only to replace it in its original location when they found it displaced. This they were obligated to perform with reasonable care, which we find they did. We note in the instant case that the railroad tie posed no danger and constituted no defect while in its original and proper position alongside the driveway, and defendants’ actions of replacing the tie in its original location did not create a dangerous condition or increase the risk of harm to plaintiff, nor did it conceal a dangerous or defective condition which caused plaintiff’s injuries. We think this distinguishes the instant case from Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472, in which it was found that the Chicago Housing Authority’s voluntary undertaking of providing guard service from 9 a.m. until 1 a.m. actually increased the risk of harm to tenants after 1 a.m. Therefore, the housing authority could not argue that protection of its tenants after 1 a.m. exceeded the scope of its voluntary undertaking and that it had no duty to exercise reasonable care for the protection of its tenants between the hours of 1 a.m. and 9 a.m. Because we find that the trial court erred as a matter of law in finding that defendants’ duty extended beyond the scope of their voluntary undertaking, and because we further find that defendants did not act negligently in replacing the railroad tie in its original position alongside the driveway, we reverse the judgment of the trial court against defendants and in favor of plaintiff and hereby enter judgment for defendants. For the foregoing reasons, the judgment of the circuit court of Madison County is reversed, and judgment is hereby entered in favor of defendants. Reversed; judgment entered.