Charles Enis and Jacqueline Enis, Minors by Sarah Enis, Their Mother and Next Friend v. Ba-Call Building Corporation, a Corporation
639 F.2d 359
7th Cir.
1980
Check Treatment

*1 respect to the ruling, with final state department has

question presented here position inconsistent

indicated a joinder is We plaintiffs. conclude plaintiffs can be accorded

thus so

complete here faced with relief relitigating the issue. prospect we do decide the ultimate

Of course applicant, individual

entitlement weeks

only that in no case are three 203(b).

to be excluded of the Court is directed Clerk reversing judgment ap- judgment

enter remanding the cause for

pealed from opin-

entry judgment consistent with

ion. Enis, Jacqueline minors

Charles ENIS Enis, and next Sarah their mother

friend, Plaintiffs-Appellants, CORPORATION,

BA-CALL BUILDING Defendant-Appellee.

corporation,

No. 79-2310. Appeals,

United States Court

Seventh Circuit.

Argued April 1980. Sept.

Decided

360 dispute

There is no about the in facts volved in this action. Defendant Ba-Call (Ba-Call), Building Corporation an Illinois multiple corporation, dwelling owned a unit Maywood, Illinois. Plaintiffs Charles Jacqueline Enis and Enis lived with their building mother Sarah Enis in in Octo ber and November of 1976. Sarah Enis had many in the for building years lived payments was current in her rent November, Al 1976. Plaintiffs now live in required by abama. Ba-Call local ordin 1 provide specified heat at ance times specified temperatures minimum year 1 May from October of each 1 of the succeeding year. for Counsel Ba-Call con argument ceded oral that Ba-Call was providing apartment Enis heat November, 1976, and was violation of Maywood provide ordinance. order to apartment, in the heat Sarah Enis made use heating method, of an alternative constant ly keeping boiling in a turkey water kettle on her kitchen stove. Defendant concedes it knew that tenants in unheated apartments would utilize various alterna heating tive such as methods the one em Woldman, Barry 111., Chicago, M. for Enis, ployed by Sarah the use space plaintiffs-appellants. heaters, or keeping open the stove hot and Fors, 111., Chicago, Judith E. for defend- long periods for Boiling of time. water ant-appellee. spilled the turkey kettle on the two injured Enis children and them. is There FAIRCHILD, Judge, Before Chief and no indication pleadings or at oral WOOD, PELL and Circuit Judges. argument precisely how this accident oc curred. FAIRCHILD, Judge. Chief action, Plaintiffs diversity filed this diversity action controlled Illi- claiming that failure defendant’s law, nois plaintiffs appeal from order of duty plaintiffs heat breached a owed to dismissing district court tort their ac- plaintiffs injured were proxi as a tion for failure to state upon breach; a claim result complaint mate of that relief granted. We reverse and sought damages on of negligence theories remand for further proceedings. and wilful and wanton conduct. The dis Village Maywood, Illinois, apartments day rooms Ordinance sec. first provides: 7.77 year day May October of each to the first succeeding year, occupants Heating houses, so apartment that the Sec. 7.77 fac- secure, may shops. thereof re- tories without such undue and work duty every person owning It strictions of proper sanitary as to shall be the ventilation interfere with house, conditions, any apartment temp- controlling a minimum heating plant sixty degrees the heat is furnished from a erature of A.M., Fahrenheit at 6:30 purpose sixty-eight degrees used in for common at 7:30 A.M. and apartments seventy-two degrees various rooms and therein at 8:30 A.M. and there- heating plant P.M., and such control averaged throughout under the until after 10:30 supervision apartment. of such owner or in con- building, trol of such to furnish heat such is, N.E.2d 33 The rule motion granted trict court defendant’s however, subject exceptions. for pleadings failure to to several judgment 647, 1 state cause of action. reached this Dapkunas Cagle, First, it held that 387, 389, result on two rationales. designed Maywood ordinance excep Pertinent *3 multiple dwellings renters of Mangan Pilgrim F.C. tion v. & discussed by against discomfort and illness caused 563, Co., 336 N.E.2d 374 Ill.App.3d 32 temperatures; maintenance of subnormal ordi (1975): “The violation of a statute or complained of involved injury because the protection the prescribing duty nance a for burns, type was not of the injury that may safety property con persons designed against which the ordinance was gives to a negligence such as rise stitute of the ordinance and therefore violation action on behalf of who cause of liability be in this could not a source damage by reason thereof injury or suffers Second, the court found that an action. 569, N.E.2d at 379. . . . .” Id. 336 intervening act broke the direct causal Mangan, elderly an wom plaintiff was provide to heat chain between the failure damages her landlord for aris an who sued injuries, proxi that and the so there was being by a ing her fall after scared from required recovery. for Because mate cause was found mouse in her oven. landlord might the court indicated “[i]t presence of responsible be for the the to the that the been foreseeable to defendant by the landlord to rodent because of failure plaintiffs an alternative means to would use rodents, by building required rid the Ba-Call, apartment,” v. heat their Enis No. held to local The ordinance was ordinance. (N.D.Ill., 15, 1979), 78 C June it is not 3480 the of the landlord duty create a on intervening clear whether cause the duty. whose acts constituted breach of the heat court meant the use alternative finding plaintiff the After was intend ing method or unknown act which some ordinance, protected by to ed be spill boiling caused the water to injury suffered inquired court whether the turkey to kettle. Plaintiffs’ motion set was was of the kind which the ordinance judgment aside and for leave to file an prevent. to It concluded enacted complaint was amended denied. Plaintiffs building gives rise presence of rodents appeal from two orders of the district dangers including to numerous foreseeable court. and that injury plaintiff suffered general In Illinois as a rule landlords the violation of ordinance therefore injuries premises are leased not liable for 569, injury. Id. at proximately caused to under tenant. the control 379, 572, N.E.2d at 381.2 336 1061, 1066, Bober, Shehy Ill.App.3d v. 78 34 the landlord 405, 409, 80, (1979), obvious that

Ill.Dec. 398 N.E.2d 84 failing 644, duty breached a to tenants in to citing Dapkunas Cagle, Ill.App.3d v. 42 647, 575, the ordinance. 387, required by heat as 1 Ill.Dec. 356 N.E.2d 577 Aronson, correctly indicated that (1976); Ill.App.2d 122 The district court Thorson v. Mangan building Appellee attempts distinguish of the breached and infestation that case, upon falling present Mangan injury plaintiff arguing from after presents frightened by being in her a much clearer line of causation. We a mouse oven persuaded sig- consequence of that that the differences foreseeable judg- may Mangan Subject lower nificant. found the court to other facts which breach. plaintiff trial, appropriate nothing brought for on two ration- ment ales. First in the record duty present was that the landlord’s the line of cau- case convinces us that building Mangan. under maintain the areas of the his In the not as sation is present clear as control free rodents made the landlord from chain causation is that plaintiff’s injury despite fact that liable for the land- ordinance breached violation place injury tenants, causing plaintiff area under her duty took in an lord’s 563, 569, Ill.App.3d control. 32 379 336 N.E.2d which some- methods use alternative Second was that the landlord’s injury plaintiffs. how led to the duty prevent rodent under the ordinance to 362 exist, liability plaintiff 267, 269,

“for must be Dec. 376 N.E.2d 268 protected persons within the class of to be Wright As this court observed in v. General harm be of must a kind (7th 1973): Corp., Motors 479 F.2d 52 Cir. protect.” statute was intended to law, Under before interven- Ba-Call, (N.D.Ill., Enis 78 v. No. C 3480 ing force will relieve a defendant from 15, 1979), citing Magnotti Hughes, June conduct, wrongful for his the in- 1000, 1004, 15 455, 458, 57 tervening must force itself outside of (1978); Mangan v. F.C. range anticipation of reasonable as a Pilgrim Ill.App.3d 563, 572, & consequence of the wrongful defendants’ (1975). Mangan strong conduct . . . . Where authority finding whether the force or event danger case the use alter was a consequence reasonable foreseeable *4 native of methods was one is defendants’ conduct one over harms was statute in differ, which reasonable men might event, protect. tended to Illinois proximate issue of cause is for ... courts treat as an issue of jury appropriate to decide under in- proximate cause which should be left structions. the trier of facts: Id. 53. The district court in this action personal injury liability cases where [I]n decided that proximate there was no grounded is in a statute or ordinance shown in of violation, this action because “an inde- questions plaintiff of whether a pendent plaintiff’s action on the of persons comes within of the class intend mother.” protected previously, ed As indicated we can- or statute ordi nance and not certain what whether the is of event the district court injury Nevertheless, generally referring kind was prevented appears intended to be to. have been dealt of proxi terms to us that the foreseeability inju- neither and, such, subject mate cause ry from use of of heating alternative means the determinations of the triers fact. nor the occurring immediately events be- (Felty Transit, v. New (1978), Berlin Inc. spilling fore the of the boiling water on the 126, 130, 768, 71 Ill.2d 15 Ill.Dec. 374 plaintiffs events so clear that 203; Ney N.E.2d v. Yellow Cab Co. issues should have been from taken (1954), 74, 84, 2 74; Ill.2d 117 N.E.2d province of the trier of fact. Mangan, 563, 569-72, 32 Ill.App.3d 336 Accordingly, appealed the orders from 374). N.E.2d are Reversed and Remanded. Bober, v. Shehy 1061, 1067, 78 34 405, 410, 80, (1979). 85 PELL, dissenting. Judge, Circuit courts have held inju that where an ry neg foreseen few, from Probably very any, if students who ligent omission, act or it is not graduated have law American schools precise which occurred during past years fifty have not been should have been v. foreseen. Blue St. made aware of the case of landmark Pals- Club, 364, Clair Country 359, 7 Ill.2d 131 v. graf Long Company, Island Railroad 248 31, (1955); N.E.2d 34 Ney v. Yellow Cab 339, 99 N.Y. 162 N.E. Co., 74, 2 Ill.2d 117 N.E.2d 74 Judge the then of Ap- Chief the Court York, peals Cardozo, Benjamin New public safety

Violation of a stat wrote: “One seeks who redress at law does ute prima is negligence facie evidence of make by showing out a cause of action and such violation is actionable when there damage without more that there been proximate shown to be has a direct causal person.” his relation N.E. at 101. inju between the violation Graduates ry. Ney v. of American Yellow Cab 2 Ill.2d law schools of the last decade 78-79, (1954); Ding or so would been necessarily have aware Kraemer, words, 59 Ill.App.3d 17 Ill. that these when seemed writ- Supreme Court of Illinois held that the accurately ten American The to summarize liability public safety measure and jurisprudential theories of with- was a statute fault, years subject force of the thief have of recent been believe, range anticipation erosion. I decline to substantial within the of reasonable however, personally might the law of Illinois has probability. While I point rendering opinion reached words regarded dissenting quoted meaningless above and without law, stating the better view of the legal significance; majority opin- if the but province present but it my in the ion correctly case is deemed the law simply is to determine what I think Illinois, it appears state law to me least, Ney is. of the state of Illinois At the result that has been is a virtual reached majority opinion analyzed at some liability irrespective state absolute length the incidence of serious havoc caused concepts statutorily-based traditional irresponsible juve by runaway thieves civil proximate cause. I there- motor vehicles niles stolen borrowed fore respectfully dissent. danger recognition probable resulting injury consequent permitting simple facts in this case are that the easily a motor vehicle to become available Village Maywood adopted had an ordi- through violation an unauthorized requiring person owning apart- nance words, question. of the statute in In other specified ment house to certain easily happened what there what could heat, plaintiffs’ minimal mother *5 and anticipated happening have been occupied apartment by an the de- owned to something legislature that the wanted fendant, pro- the to defendant failed put making it of the stop by to a violation heat, specified vide the minimal the the law to leave vehicles unattended with plaintiffs’ boiling water kept mother in a appar therein. The rationale ignition keys turkey pro- kettle on her kitchen to stove the ently seizing opportuni was that a thief heat, boiling vide and that the somehow the would ty presented by him situation spilled plaintiffs injured water on the and being the into a thief move car traffic and them. perhaps and speedily, would move it more outset, At the I the do not believe that fleeing or carefully, if he were not less than was harm suffered of the kind which the car, if it his own with the resultant were intended, general, was to pre statute in damage to likelihood of others. Torts, vent. Prosser on ch. 36 at et Co., 32 Pilgrim & Mangan In F.C. 1971). Prosser, seq. (4th ed. indi (1975), the 336 N.E.2d 374 is that cates the better view the accident majority opinion princi- case which the be only gen need included within same relies, of involved violation pally risks, eral risk class of at which the rodent prohibiting ordinances village some statute is directed. I must concede that dwelling units, the Illinois infestation of my position were doubts thrown on on the court, summarily and without rather present phase by subsequent of the case Ney, opined analysis appeared in that, “[tjhere statement in the text Prosser that, type in of determining whether are, however, occasional cases which have plaintiff was by suffered intended harm extreme, gone an apparently to ordinance, protected against by be to any included all risks which would occur to dwelling gives presence of rodents possible, following one as the violation.” array dangers. rise to an of foreseeable The supporting Ney footnote cited v. Yel pre- circumstances of that case Under the low Cab 2 Ill.2d N.E.2d 74 sumably one of the foreseeable this meant (1954). That case involved the violation of allowing run at dangers by mice to was prohibiting leaving a statute of a motor one would large it was foreseeable that ignition be vehicle unattended without the later into oven and would ing get somehow locked. thief had stolen an unattend A would frighten who jump cab ran into flight ed taxi and while in injure fall herself. plaintiff’s causing property damage. vehicle then place Appeals. of the United of during the course of that cuit States Court Some litigation might pointed seem that opinion court out that The court’s given recognition protect would have some was purpose of enactment to homeowner, eventually every fact that even due tenants from discomfort and illness to efforts, metropolitan areas, despite all tempera- the maintenance of subnormal periodic forays has of had mice. apartment buildings tures in where central event, Appellate gave the Illinois Court no heating provided and it is under the sole analysis more of preliminary That, course, of the landlord. control whether this type was harm which here and be no the situation there would protected was intended than seeking problem plaintiffs if the were dam- say that abatement the general threat pneumonia ages they because contracted of unsanitary and unsafe conditions caused temperatures. a result of the subminimal presence of such creatures as mice nor it the That was not the case here was no doubt the essential consideration Cook, I am the belief as case Village enacting the ordinance. The Hamley one of expressed Justice very simply court said that the “harm suf- purposes of the ordinance was validly fered here can be considered of necessity using obviate the tenants intended, kind which the ordinance was devices, auxiliary heating boiling here general, prevent,” citing Prosser. Man- water, danger any supposed in- because gan, supra, 336 other appliances. herent in use of such words, saying the court seems following the Restatement of Cook court mouse, gotten whenever who has pointed Torts out that the ordinance assertedly house because the owner’s not intended to an interest ordinance, noncompliance with the is some- appellant particular hazard how personal injury associated with a there space use heaters. I do take the jury is a case consideration. This has position that the defendants in nothing to purpose do with the of the stat- anticipate before this court had abating ute of unsanitary and unsafe condi- *6 particular might form heat auxiliary of be It tions. in essence is absolute Indeed, used. the who did not defendants which I do not believe is the law of Illinois. comply require- with the minimal Both present point on the the subse- anticipate well auxiliary ments could that quently proximate discussed causation is- heating purpose be the of would used. But sue, case is factually the most similar the ordinance was not to make liable a case under consideration that of landlord a tenant used and suffered because Seidenverg, Cook v. 36 Wash.2d 217 injuries a of result a device such as case, P.2d city ordi- boiling heating appli- water or electrical required specified nance minimal heats. inherently dangerous. ances which not provided. plaintiff The heats were not The be It should also noted that in the Cook provided and other of building tenants the Washington under the of case law violation themselves with plug-in movable electric negligence the ordinance was as a of matter heaters. The defendants familiar were in law whereas violation is mere- type with the and location of the electric ly of negligence. evidence I also note that being plaintiff’s heater in apart- used Hamley extensively Justice relied on both ment. morning, One as this electric heater points on the of Torts which Restatement being heat, supply used to by generally the Illinois courts also follow. required ordinance the to defendants were Mangan, supra, 336 N.E.2d at 381. See furnish, nightgown ignited, a child’s became plain in Here it me ordi- resulting permanent injuries. serious and seems to opinion protect to of Washington particular The unanimous nance was class of e., tenants, Supreme persons, Court was i. the more or written Justice hazard, e., Hamley long narrowly of i. type Frederick who later served a less restricted distinguished in of specified career the Ninth Cir- lack heat. As Restatement negligence Torts, have been due either to the of (1965) (Second) of 286 at states: so, will of the enactment in the heater in a placing “If the violation mother negligence knowingly using unless harm which or in position danger, not of exposure heater, failing super- results another is caused his or in to a defective pur- it from which was hazard or the vise the child’s use of heater him.” of enactment pose child, any negli- independent of act pro- words, the children were to other proximity gence, coming in too close the hazard of illness or discom- tected from heater; or a latent defect speci- temperatures under those fort from the child’s clothes to which caused heater ordinance, fied in The the ordinance. intervening circum- ignite; or some other Cook, was not pointed the court stance of like nature. hazard in- enacted with reference of opinion, any circum- In our heat, securing auxiliary of volved must, stances under facts usage every least forms day superseding cause be held constitute injuries were not such as the ordi- therefore meaning of that term of harm within 217 P.2d prevent. nance was intended to negli- as defined above. Instances portable gence such heaters in the use of Following proxi- Cookinto matter resulting injuries of the kind suf- with causation, upon again mate relies here, infrequent. relatively fered the Restatement as do the Illinois courts. heaters re- Cases where the use such Looking at what the court said in Cook but injuries independent in such sults substituting for a heater reference negligence more act of are even rare. cooking containing boiling common vessel Accordingly, charge- not respondents are liquid, appears to me that there was clear that, foreseeing they able with if failed to causation, if proximate it is heat, adequate resulting provide injuries Washington question. reach that Su- using negligence tenants preme as follows: Court stated matter heaters, resulting from other such alleged, plain to us From the facts it is independent negligence, would forces appel- the accident caused occur. injuries lant’s of a natural intervening or force is Where such act sequence beginning continuous foreseeable, it must be respondents’ failure to heat. regarded negating superseding as a was, instead, result of legal proximate the claim of cause. constituting act or force new cause Cook, supra, 217 P.2d at 803. independent respondents’ negli- act *7 this is not as in the analysis, On ultimate gence. where it was held Ney case a situation By we “intervening act or force” are foreseeable that the result of a defendant referring not of the to the mere act violating a or would be statute ordinance porta- obtaining utilizing mother in and a inju- resulting in of a crime commission may ble electric heater. That well be act ry person. to and to a third Here regarded as of a natural and contin- foreseeability permits the situation sequence resulting respon- uous from or, people space heaters in- will use small But dents’ failure to heat. we deed, put on the stove will a kettle know that there must have been some or will leave the oven door provide heat additional and or force in further act however, open. procedures, of these are All here, operation use since normal particularly That procedures. normal such appliances rarely electrical results very kettle. of the boiling true of the One pleadings kind. are accidents this heat foods purposes cooking of a stove is to exactly silent as to how the accident oc- germs are liquids point and curred, not and so are informed as to we Also, liquids similarly foods and act killed. precise nature inDay more edible. or it heated to make them force. But we do know that must 410, 405, out, cooking 80, day vessels are found on Proxi with heated of suf- may kitchen stoves contents cause be intertwined in the mate de produce injury ap- if temperature applicability ficient termination of the of the stat plied to skin of a human. While acci- particular ute ordinance in a case. can, do, happen any Nevertheless, dents most situ- step a first is that of constru conceived, does ation that could this not ing, Ney, done enactment mean doubt they are foreseeable. No giving protection. its intent determine many every times in home there have been Torts, (Second) Restatement See water, open boiling kettles with some (c) (d) Comment Clauses at 28 covered, some and if the in the defendant (1965). This of the statute construction re present be held case can to have foreseen mains, must, question of law. There injured by the children would be many regulatory dealing ordinances kitchen, process normal it would apartment houses which no one would seem cooking the manufacturer such ves- application present had contend similarly sels is also liable if someone is though injury case even an occurred while injured as children here were. they was in That do landlord violation. not is because the court would first deter prepared Unless we are amake violat- intent mine the of the enactment insofar as or of a liable for any statute risk which determining what pro interest to be anyone would occur to following viola from present tected what harm. tion, which I don’t think the Illinois courts construction ordinance do, have really prepared done or are then room, my leaves no for a opinion, factual I think the district court in the question. saying should be affirmed. I am emphasis

unmindful of the that the Illinois put upon proximate

decisions have

being ordinarily of fact for the

jury. willing Unless the courts are to abdi however,

cate their responsibility, there are

situations in which under the these are law longer questions of fact become but questions of law. The courts of Illinois GRAIN COMPANY and GARVEY United have so Merlo held. v. Public Service Petitioners, Company, Insurance Fire 381 Ill. Finally, I aspects note two other DIRECTOR, OF OFFICE WORKERS’ present type litigation. First, it is often COMPENSATION PROGRAMS and said in cases where injury Cuellar, Respondents. Max reasonably foreseen from act negligent omission, precise it is not that the No. 79-2498. injury which occurred should have been Appeals, United States Court quarrel foreseen. I do with this. Seventh Circuit. I say hornbook law. do that an cooking the use of a vessel on a stove Argued Oct. *8 functional manner for which was de- Decided Jan. signed does not a case where an foreseen. Secondly, I note the statement courts treated the matter of

what the statute was intended proximate issue of should See,

left for g., Shehy the trier of facts. e. Bober, Ill.App.3d 1061, 1067, 34