*1 believe the defendant entitled to an his evidentiary hearing on unconstitutionally claim that he was deprived his jury trial.
Reversed and remanded. P.J.,
CERDA, SOUTH, J., concur. ABBASI, Minor, By Through SANA JAMIL Her and Next Mother Friend, Abbasi, Plaintiff-Appellant, Jamil v. PANAGIOTIS PARASKEVOU al., Defendants-Appellees.
LAKOS et (4th Division) First District No. 1 — 97—1965 Opinion Rehearing denied June 1998.— *2 WOLFSON, J., concurring part dissenting part. in specially and Kahn, Much, Shelist, Freed & Anthony Wendy and B. both of C. Valiulis Denenberg, Chicago, appellant. for Resis, Harrow, Ltd., Querrey Ellen Martin Michael both of & S. and Chicago, appellees. of the court: opinion JUSTICE SOUTH delivered the Plaintiff, Abbasi, minor, by through and her mother Sana Jamil friend, Abbasi, eight-count next filed an first amended and Jamil ingested living complaint alleging that the minor tenant lead while defendants, managed Panagiotis dwelling in a unit owned and/or I were and Katina Paraskevoulakos. Counts and V Paraskevoulakos Paraskevoulakos, respec- against Panagiotis directed and Katina sounding negligence alleging negligence and tively, proof (the Act) (410 Poisoning Illinois Lead Prevention Act violations of the (West 1996)) Code, and seq. ILCS 45/1 et Code, 4, 12, 4, (Chicago Municipal chapters and 13 —196 5— 5— 7— (1990)). counts, 12, 4, remaining In the 4, 13 —196 chs. 5— 7— Chicago Munici- action under private rights plaintiff asserted (counts VIII) (counts III II, IV, and under VI and pal VII). IV, II, III, counts appeal arises out of the dismissal of and This VI, VII VIII first amended plaintiff’s 1996, claiming complaint April on five-count poisoning ingested minor while suffered from lead from managed by defendants residing a rental owned property January 1990 until 1996. 280 complaint pursuant
Defendants moved dismiss this to section (West 2—615 the Code Civil Procedure ILCS 5/2 —615 1994)). dismiss, Instead responding to the motion to filed a first amended complaint. This complaint eight counts; contained I through counts IV against Panagiotis, were directed and counts V through VIII were against directed Katina. Counts I and V sounded claiming negligence, that each defendant was the owner and/or managing agent apartment where the minor had lived between 1990 and breached duties to the evidenced Chicago Municipal Code, violations of the Act and the titles and 13. private
Counts II and VI stated action for nuisance under section 5—4—090 of the Chicago Municipal Chicago Code. Mu- nicipal Code 5—4—090 III Counts and VII stated action under Act. Counts IV and VIII stated a cause of action under titles V, I Defendants answered counts two counts, nuisance, and moved to dismiss the Act and pursuant Code counts to section 2—615. Plaintiff filed a memoran- dum opposition dismiss, of law in to the motion to and defendants replied. 6, 1997,
On January the trial court dismissed II counts and VI of plaintiffs first amended complaint. Defendants moved to reconsider *3 the denial of their motion to dismiss remaining the counts on Febru- ary 21, responded 1997. Plaintiff replied. defendants 16, April 1997, granted
On the trial court defendants’ motion to II, III, VI, IV, reconsider and dismissed counts VII and VIII. trial specifically court’s order found that the Act recognizes a that, cause of therefore, action and it not necessary was imply private a of cause action to remedy order a violation of the Act the Chicago Municipal Code. The trial court further found that Code, and sections of chapters 4, 4, 196, 5—12 give did not rise to private a 5— 7— action their provisions
but could be the basis for a negligence pled cause of action was in this Plaintiff a ap- case. notice of peal.
A motion to dismiss under of section 2—615 the Code of Civil 615(b) (West 1994)) challenges Procedure ILCS the legal 5/2 — sufficiency Marketers, v. of the Zekman Direct American (1997). Inc., 462, 469, 994, A Ill. 675 998 trial App. 286 3d N.E.2d a of grant court should a motion to dismiss cause action when it clearly no of can apparent set facts that will entitle proven Joliet, a plaintiff Surgicare Inc., App. Doe v. 268 Ill. recover. 3d of
281 (1994). order 1200, review an 795, Upon 1202 793, N.E.2d 643 taken as motion, facts are well-pleaded 2—615 all a granting section 188, 267 Co., 2d 652 N.E.2d Ill. Insurance 166 Boyd v. Travelers true. (1995). order dismissal de the trial court’s novo This court reviews Consolidated & Trust v. Zion State Bank 2—615. Mt. under section (1995); Zek 110, 863 Communications, 660 N.E.2d Inc., 169 Ill. 2d 469-70, N.E.2d at 999. 3d at 675 man, App. 286 Ill. 12—110(e) Residential section argues Code 5—12— (Chicago Tenant Ordinance Landlord and 1991)) 110(e) (amended 6, tenants gives injured expressly November landlords who violate damages against a private right of action implied right that she an the ordinance. Plaintiff also asserts as well as section lead-bearing under the ordinance sue substances 196(d) the remedies because sufficient relief to those in these ordinances do afford specified Defendants contend injured by violation of ordinances. necessary aim of the stat- private right of action is not to achieve the ute or ordinances.
Implication
of a
of action on the basis
a statute
private
(1)
if:
is a
appropriate
ordinance
member
(2)
enacted;
it is
for whose
the statute was
consistent
class
benefit
(3)
underlying
statute;
plaintiffs
purpose
injury
with the
one
(4)
necessary
prevent;
provide
statute
it is
remedy
adequate
Corgan
for violations of the statute.
v. Mueh
(1991).
312-13,
602,
296,
143
ling,
Ill. 2d
574 N.E.2d
609
When a
individuals,
protect
statute is enacted to
class of
courts
particular
imply
for violation of that
al
statute
though
remedy
provided. Sawyer Realty Group,
no
been
express
had
(1982);
v.
Ill. 2d
432
849
Corp.,
Inc.
Jarvis
N.E.2d
Galinski v.
Kessler,
Ill.
3d
480 N.E.2d
Where the
App.
enacting
protection
had as
a statute
legislature
its
public,
inquire
it is
in such cir
segment
proper
substantial
is a remedial one and whether
cumstances whether
statute
provided
statutory
for within
certain
remedies are
private right
of action
framework in order
determine whether
Inn, Inc.,
App.
Mill
126 Ill.
3d
was intended. Rhodes v.
Race
supports
Consideration of these factors
“Damages Injunctive Relief. If there is material agreement or with Section by the landlord the rental ance with relief, 12—070, may injunctive obtain and/or re- the tenant 5— damages by cover claim or defense. This subsection doés not preclude obtaining tenant from other relief to which he chapter.” be entitled under this ChicagoMunicipal Code 5—12— § 110(e)(amended 1991). November Section 5—12—070 states:
“The landlord shall premises maintain the in compliance with applicable all provisions of the municipal code and promptly shall make repairs necessary and all obligation.” to fulfill this (amended § Code 5—12—070 November 1991). 12—110(e) It would appear from a plain reading of section 5— injured that an tenant has an independent to sue the landlord damages for for material violation of Here, section 5—12—070. where plaintiff alleges that multiple there were violations premises ordinance that led to the being not in a condition, habitable as a lawful tenant has a private right against landlord. argument
Defendants’ that the landlord/tenant ordinance does not apply this instance allege because failed to that the premises comprised more than six units and owner-occupied were not been waived failure to this argument raise in the lower court.
Analysis of this case in terms four factors the court has used to determine whether a of action exists leads to following In results. the case of the Residential Landlord and Ordinance, Tenant is “to protect promote public health, safety and welfare” by requiring of tenants landlords “to improve housing.” maintain and the quality Chicago Municipal Code 5—12—010 While penalties criminal exist compel landlords to property, penalties maintain their these fall short ad dressing importantly, penalties tenants. More such do impel landlords to fulfill their obligations under the In ordinance. so, order to do a civil of action would be needed in order for ten ants to enforce their rights.
The lead-bearing substances ordinance not bars landlords using lead-bearing from maintaining substances or hazards property, obligates residential also them property but to maintain so safely as to abate such hazards. Code 4—020, 4—030, goal 7—4—110 13— chapter §§ 7— keep compliance 196 is to ensure that landlords leased premises flaking, chipped and “free of requirements peeling, Code loose paint, plaster or structural material.” §§ 196—540(d) (1990). Plaintiff is within the class protected by intended to Landlord persons Residential *5 written or oral by is “a entitled person since she Tenant Ordinance sufferance, to by the landlord or approved by subtenancy agreement, of others.” unit to the exclusion dwelling occupy 12—030(h) (1992). substances lead-bearing the Under Code § 5— the ordinance class for which ordinance, is within the plaintiff was between premises on while she since she lived provides are younger” and years age six of “[Piersons and ages of one six. 4—010(2) (1994)). (Chicago Municipal shielded specifically apartment an located occupant a lawful is Since by chapter be Chicago, protected the class intended to she is within safety of integrity and ensure the structural designed to Municipal Code building every Chicago. §§ residential seq. 196—340 et laws the kind that these suffered are injuries
The ordinance was prevent. lead-bearing The substances were intended injuries that the designed prevent very lead-poisoning 196—540(d) injuries Section suffered. flaking peeling paint plaster. and and The by that could be caused designed to prevent Residential Landlord and Tenant Ordinance was habitable, premises leased are not such as occur when when a lead hazard exists. adequate remedy final for violation factor is whether Tenant
the statute exists. The Residential Landlord and Ordinance al- carry penalty does not a criminal for violations that the are, however, provided in section 7—4—120 leges. Criminal sanctions ordinance. lead-bearing This provides: substances section any any chapter section of this failure to “Violation pursuant chapter comply order authorized to this shall punishable by incarceration not to exceed six months and be less than nor more than for each offense. $50.00 $500.00 fine not day noncompliance Each that such violation or exists shall be separate Chicago Municipal considered a offense.” Code 7—4—§ could since penalties While the under this ordinance be substantial violation, compliance a new day each the landlord is not subject still be to misdemeanor. landlord would factors, private right analysis on the above of the four Based and Tenant under the Residential Landlord appropriate Ordinance, chapter 13—196 of the
lead-bearing substances ordinance. action, argues that without implemented effectively cannot be purpose
central products lead-bearing enforced. That is to curtail use intoxication, in order to diminish the incidence of particularly lead (West 1996). children six and under. ILCS 45/1 Defendants statute, contend that the purpose ordinances, as the well give the state and municipal boards of health the authority identify paint specify hazards and to the method which lead paint hazards should be abated. Defendants assert under the Act, the landlord no duty to inspect paint; for lead this is the responsibility department Thus, of health. according defen- dant, landlord can responsible punished held if he actively placed lead-bearing premises substances on the or for failure mitigate or abate the lead hazard receiving after notice.
Applying the four factors to determine whether a action on the basis of the Act is appropriate, we find that it is. Plaintiff is a member of the class whose benefit the statute was enacted, namely, children six and exposed under who are to lead *6 intoxication.
According legislative to Act, history it is after child been lead-poisoned that the state can in step require landlord to If the purpose abate. the Act is to lead poison- ing, then asserting is correct in that of the drafters legislation right must have intended that a private of action be avail- able not injuries redress children encourage suffered but to to actively landlords eliminate buildings lead substances from their or not injuries use them at all. poisoning Plaintiff’s due are precisely the type injury prevent. that Clearly, of action implied by is this statute.
Finally, if plaintiff action, a private right denied her will not adequately be redressed. While under section 12 Act (410 (1996)) ILCS 45/12 reported violations are to the State’s At- torney, who is authorized to the owner with A charge a Class misde- meanor withheld, and to insure that rent is this be an in- appears to adequate of redressing Here, method lead-poisoning injuries. where lead-poisoned families, children often belong low income a criminal conviction probably would do little ameliorate their condition. To quote supreme Corgan our Muehling: court v. unlikely patients, injured by
“It
unqualified
unregistered psychologists,
complaints
will initiate or
their
pursue
through
justice system
criminal
the administrative or
without a
***
potential
tangible
for a
A private
reward.
of action
is the
only way
aggrieved plaintiff
that an
can be made whole ***.”Cor
gan,
Defendants that a negligence adequate action to address However, action, plaintiff’s prevail injury. negligence agree We satisfy requirement. must the notice actual and never receive in the sand” “hide his head landlord could reason, a For this building. his lead hazard in notice of a constructive remedy. adequate not alone would action negligence court’s dismissal reasons, the lower we reverse foregoing For action. to state a complaint failure plaintiffs and remanded. Reversed
McNAMARA, J., concurs. dissenting WOLFSON, concurring part specially JUSTICE part: a private Code creates agree I s alleged in the of landlord conduct of action for the kind of action liability a strict agree I am unable (410 Act Poisoning Prevention in the Illinois Lead be found (West 1994)). ILCS et seq. 45/1 evi- being “prima facie The Act to certain landlord conduct refers (West 1994)). Since the Act cre- 45/15 negligence” dence of ILCS sorts, Assembly I did believe the General ates a li- intend, silence, broader, easier-to-prove strict its to create a part majority’s I dissent from that ability respectfully action. opinion. *7 CHICAGO, INC., at, Plaintiffs-Appellants, J. v. GEORGE
ST. et GEORGE ASSOCIATES, LTD., al., Defendants-Appellees. et AND MURGES (5th Division) No. 1 — 96—3417 First District Rehearing Opinion denied June 1998.—