Richard v. Nederlander Palace Acquisition LLC
46 N.E.3d 820
Ill. App. Ct.2016Background
- On Jan. 15, 2010, stagehand Thomas Richard (employee of Broadway in Chicago) was struck by a falling pipe and fell into an uncovered orchestra pit while restoring the Oriental Theatre between shows.
- Richard sued multiple entities, including Laurence Chicago Ventures, LLC (owner/landlord) and Laurence Chicago, LLC (tenant/licensor), alleging negligent maintenance, failure to warn, failure to secure materials, and failure to cover/barricade the pit.
- Laurence Chicago Ventures acquired the landlord rights via merger; Laurence Chicago, LLC, had a license with Broadway in Chicago authorizing Broadway to use and operate the theater; Broadway operated, staffed, and managed the stagehands and day-to-day safety decisions (including use of a portable orchestra-pit net).
- Defendants moved for summary judgment, attaching lease and license documents; defendants admitted in discovery that those documents were accurate and in effect at the time of the accident.
- Trial court granted summary judgment for all defendants, concluding contractual terms governed and that (1) Laurence Chicago Ventures owed no duty under lessor-immunity principles and (2) Laurence Chicago, LLC’s contractual responsibility for structural repairs did not create a duty relating to the portable orchestra-pit net (and it did not exercise possession/control).
- Richard appealed; the Appellate Court affirmed, holding the documents were judicially admitted, lessor immunity applied to the landlord, and no contractual or premises-liability duty existed as to Laurence Chicago, LLC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the lease and license documents properly before the court and effective at the accident time? | Richard: unsigned copies raise factual dispute about their effect. | Defendants: admissions to requests to admit make the documents judicial admissions. | Held: defendants admitted the documents in discovery; court properly relied on them. |
| Is Laurence Chicago Ventures (landlord) liable despite lessor immunity? | Richard: landlord retained some contractual control over structural matters (consent to structural alterations) so owes a duty. | Laurence Chicago Ventures: lessor immunity applies; no contractual covenant to make repairs was assumed. | Held: lessor immunity applies; mere right to approve structural alterations does not create repair obligation; no duty. |
| Does Laurence Chicago, LLC. (licensor) owe a contractual duty for the injury (structural repair covenant)? | Richard: license covenant to repair/replace building structure (including orchestra pit) imposes duty. | Laurence Chicago, LLC: covenant limited to repair/replace structural elements; the net was portable and not a structural, repairable component; Broadway controlled operations. | Held: contractual duty did not encompass the portable pit net or its deployment; Richard made no allegation the structure was in disrepair; no duty imposed. |
| Were Nederlander Organization and Nederlander Palace Acquisition properly challenged on appeal? | Richard: contested liability generally. | Defendants: Richard failed to oppose summary judgment as to those two entities. | Held: Richard waived review for those two defendants by failing to litigate them in trial court and on appeal; summary judgment affirmed. |
Key Cases Cited
- Purtill v. Hess, 111 Ill.2d 229 (construing evidentiary materials for summary judgment in favor of nonmoving party)
- Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill.2d 90 (de novo review of summary judgment)
- Thompson v. Gordon, 241 Ill.2d 428 (duty is a question of law in negligence claims)
- Dardeen v. Kuehling, 213 Ill.2d 329 (summary judgment appropriate if any element lacking)
- Wright v. Mr. Quick, Inc., 109 Ill.2d 236 (exceptions to lessor immunity and landlord liability principles)
- Madden v. F.H. Paschen/S.N. Nielson, Inc., 395 Ill. App.3d 362 (possessor/occupier must have intent to control premises for §343-type duty)
- Klitzka v. Hellios, 348 Ill. App.3d 594 (lessor immunity and effect of landlord control)
- Gilley v. Kiddel, 372 Ill. App.3d 271 (landlord not liable for tenant-controlled premises absent exception)