*1 we consider whether inconsistent Finally, allegations against each of a of action preclude two defendants cause the Sku in It is in biaks this case. well settled Illinois that inconsistent plead ings permitted against are the same counts. separate case, in this the exist Clearly, 2— ence of different defendants allegations against inconsistent two does not separate require counts dismissal summation, II of we affirm the trial court’s dismissal of count I, of counts III and complaint and reverse IV. How- ever, the latent allegations regarding ga- count IV defects roof and must be stricken. rage drainage system with instruc- part; Affirmed reversed remanded tions. GREIMAN, JJ.,
CERDA and concur. HENSTEIN, Special Adm’r of the Estate SANDRA BUSCHBACH, Defend Minor, Deceased, JAMES Plaintiff-Appellant, v. HENSTEIN, Independent and as Adm’r Indiv. ant-Appellee. O. —BEN Henstein, Minor, Deceased, al., Plaintiffs-Ap et the Estate of Joshua A. PARK, as BANK OF EVERGREEN pellants, FIRST NATIONAL Trustee, al., Defendants-Appellees. et 91—2495,1—92—0647cons. (3rd Division) District Nos. First Rehearing denied31, 1993. August June Opinion filed 1993.
TULLY, P.J., concurring dissenting part. Nolan, Stohl, of Chicago (Joseph
Donald J. T. McGuire and Joan R. counsel), appellants. for Ltd., Kroll, Montgomery, Chicago (Barry & James K.
Williams L. Sliwinski, Williams, Jr., Horstman, Mary Lloyd Thomas H. A. E. Neuckranz, counsel), appellees. of the court: opinion
JUSTICE GREIMAN delivered This stems from an incident where a two- appeal consolidated minor, Henstein, from a fall injuries Joshua sustained fatal year-old The circuit court dismissed out of third-floor window. orders are and these dismissal separate filed actions complaints now on challenged appeal. finding that dismissing complaints, affirm the orders both
We Court decision in Lamkin v. Towner Illinois 510, 449, liability of the issues of landlord dispositive raised in these cases. son, Henstein, minor Joshua
Plaintiff, Sandra and her con- building in a owned or were of a third-floor apartment tenants 1989, defendant, James On October trolled Buschbach. screen contained a mismatched through Henstein fell a window which from the fall. insert and died On June Sandra Henstein filed a complaint against Buschbach, common law alleging negligence based on Buschbach’s promise to install “suitable aluminum screens” the "windowframes and the of a negligent installation screen insert that was not ade fastened to the frame. The of a quately complaint consists count each death, wrongful negligence, a survival action for and for family ambulance, expenses incurred from funeral and obligations. burial On August Buschbach filed a section 2—615 motion dismiss for failure to state cause of action Rev. .Stat. law, 615) and that under Illinois asserted landlords have no common law to furnish window screens. childproof
On
issued its
opinion
October
Lamkin, which held that a
has no common law
pro
vide window
sufficient to
of a
support
who
child
leans
them.
On June circuit Buschbach’s motion then prejudice. dismissed the with Sandra Henstein a motion vacate dismissal order and her In her amended Sandra Henstein proposed complaint, alleged: Plaintiff en- prior 1989],
“4. That to said date [October Defendant, into an Plaintiff agreement whereby tered *3 apartment year exchange to rent the in promised another mated with promise properly Defendant’s install frame so existing triple system track aluminum that her children would afforded whatever from protection falling out of the window such mated and fastened properly screens would them.” 18, 1991, the circuit court denied Sandra mo
On July Henstein’s tion and for leave to amend her com to vacate dismissal order notice of these two orders on plaint timely appeal and she filed a 26, 1991. July on a second was filed Octo- pending,
While was lawsuit appeal Henstein, i.e., Ben 29, 1991, plaintiffs of Joshua O. by parents ber Henstein, as administrator of estate individually independent Henstein, First and Sandra defendant Joshua legal trustee and Evergreen (Bank), National Bank of Park land defendants James and Joan building; owner óf the apartment of the land trust the bene- primary as the Buschbach beneficiaries Lopez and defendants Juan building; ficial of the apartment owners of the other named duly agents Fox as. the authorized and Keith this ap- is not a served and defendants. Keith Fox was never peal. as the first on the same event
The second was based complaint Henstein reason by injuries by lawsuit: the fatal installation of a win- alleged negligent in the negligence defendant’s of six counts: count The second consists complaint dow screen. count repair; II for covenant to assumption duty; count voluntary condition; remaining and the three dangerous III for unreasonably to the pursuant family expense counts "for and medical expenses burial statute. -619(a)(9) under section The Bank filed a motion to dismiss 2— 2—par. ch. (Ill.
the Code of Civil Procedure it a trustee of a land trust and 619(a)(9))asserting merely that was had no the" in manner. right property question any to control Buschbach, Buschbach, and Juan Lopez
Defendants James' Joan 619(a)(4) filed a motion to dismiss under section of the Code of 2— Civil Procedure Rev. Stat. assert 619(a)(4)) ing that the causes of action in the second were barred pled lawsuit i.e., aby prior judgment, the order entered on June which dismissed with Sandra prejudice by Henstein the first lawsuit for failure to action. state cause of
On motions to dismiss at a January granting two hearing, the circuit court reasoned that the issue considered first case the dis- was same issue raised the second case and missal causes of or ones that have might affects action asserted been asserted.
Ben and Sandra Henstein then filed an of the two orders appeal entered on January granting the Bank’s motion dismiss and granting remaining defendants’ motion to dismiss. appeals taken from the dismissal of first and second law-
suits were consolidated this court. controls the issue parties agree pre- that the Lamkin decision .
sented in the that the stated except plaintiffs argue first lawsuit applies set forth Lamkin here. out of two two minors suffered second floor of the different windows located on the on brought actions were apartment building. Negligence defendant’s *4 denied the defend injured behalf of the two minors. The trial court were judgment, interlocutory appeals ants’ motions for summary (107 Rule 308 2d granted in each case to Court pursuant Supreme trial court’s denial of 308). R. The court affirmed the appellate a motion to dismiss. judgment motions for as well as summary 1014
(Lamkin v. Towner
631,
190 Ill.
3d
1020.)
court
of the
and cir
supreme
judgments
appellate
reversed
Lamkin,
510,
cuit
courts.
In
following
addressed the
expressly
question:
certified
“Whether,
law,
as a matter of
a landlord is under any
to install and maintain screens in the win
duty
common-law
tenants,
he rents to his
apartments
sufficiently
dows
to
of a tenant’s
strong
support
weight
leaning against
child
the child from
out that
prevent
falling
such window screen and
Lamkin,
***.”
formed “with a series
Illinois
law,
matter of
there is no
of a landlord to maintain
duty
of an
he
to tenants a screen suffi
any
leases
minor
strong
leaning
to
tenant’s
child
ciently
support
(Lamkin,
(and
Plaintiffs’ reliance on Shaw misplaced undertaking alleged paragraph there, similar matter, counts or, for that amended of the tendered the action, not rise to an II of the second does doctrine.
1015 in Lamkin make it clear that win approved decisions Appellate any protection not to afford children expected dow screens are con regard. a restraint in that falling and do not serve as to defective win repair allegedly cludes that the landlord has no the of against possibility make them “safe dow screens or otherwise (L Chicago Housing aster v. the children out of window” 1185); that Authority (1982), 3d 432 N.E.2d App. 104 insecure, if the screen defec the landlord will not be liable even was (Gas exerted slight tive and to fall out when was likely pressure quoine v. 121); 135 and (1956), App. 10 2d N.E.2d Bornstein sup that no a screen sufficient the landlord has maintain if the parents of a minor even the minor’s notified port loose, and agent landlords and their that the screen was defective v. Orner & properly (Crawford not fit the dangerous and did window Shayne, Inc. 615). 331 Ill. 73 N.E.2d (1947), App.
Had the re- alleged agreement been to bars or other children, straints fit for the intended to restrain we would purpose light. have viewed this a different of
Assuming as we must for the a section 2—615 mo purpose tion that had parties agreement relating entered into an conditioned, which their lease under upon plaintiffs’ was even case, theory agreement that would not impose liability upon allegation since there no that the defendant undertook to provide the childproof screens or sufficient safeguards the child from a nothing alleged agreement would contemplate restraining introduction such a device.
The trial court its on the based the second complaint judicata, doctrine of res issues, that finding parties, same same and same agree. case were involved the first lawsuit. We judicata precludes doctrine of res of a second action filing (Downen v. that arises out of the same first action. controversy Country Mutual Insurance Co. (1989), 181 Ill. 3d 537 App. doctrine, N.E.2d 445.) Under this a final preclusion judgment merits a court competent jurisdiction rights is conclusive on the them parties privies their and as to constitutes an absolute claim, to a bar action the same demand or cause subsequent involving (Knodle v. Jeffrey (1989), action. 189 Ill. 3d App. judicata of res N.E.2d econ purpose promote judicial is to case, rights arising in one all out omy by requiring parties litigate, of the same operative unjust set of facts and also burden prevents if relitigate would result could forced to what is essen- Knodle, 885; Singer the same case. 189 Ill. 3d at see also
tially App. 1; v. App. Neuberg Brookman 217 Ill. Hospital Michael Reese & Medical Center 118 Ill. N.E.2d case, the facts of the we affirm the
Accordingly, present under dismissing complaints trial courts’ orders both lawsuits. Judgments affirmed.
CERDA, J., concurs. TULLY, concurring dissenting PRESIDING JUSTICE in part:
I the the regarding concur with the issue of trial court’s majority second judicata plaintiff’s of the doctrine of res lawsuit. application However, from the conclusions majority’s I must dissent respectfully to the of the trial court’s denial of respect propriety plaintiff’s motion the order and for leave to amend her com- to vacate plaint. notes, the the court’s decisions majority correctly appellate
As I it clear that (and sense) ordinary would add common make from the children reasonably expected protect screens cannot be and I majority of out of a window. Where the danger reading sufficiency I is its narrow of the is what believe company looks to the complaint. majority of amended plaintiff’s proposed and con- complaint 4 of the tendered amended language paragraph that, allege promised as it does not that defendant specifically cludes screen, of action under it fails to state a cause childproof to install a in Larrikin. I such the of believe voluntary assumption a too reading rigid. obliga an places of the Code of Civil Procedure -603(c)
Section 2— awith “liberally [pleadings] tion Illinois courts to upon construe[] parties.” to doing justice view substantial between when I it a fair inference 603(c).) believe to be failed to that defendant allegation 4 to find that its reading paragraph track alumi existing triple with the “install screens mated properly af children would be that [plaintiff’s] num frame window so system the use implies window” out of the forded protection Screens made protection. the needed capable providing of a screen for this pur available readily materials are steel and other stainless stated properly amended Thus, proposed I pose. believe exception. of action under a cause Academy v. S & S Loyola Court in Illinois Recently, 1211, clari 263, 586 N.E.2d Maintenance, 146 Ill. 2d Inc. Roof determining employ court must reviewing criteria a fied what of its broad discretion committed an abuse court has whether a trial our In that opinion, to amend pleadings. leave litigant in denying appellate factors established the four adopted 373, 437 App. court in Graham Kupianen them as follows: summarized N.E.2d cure the defective amendment would “(1) proposed whether or prejudice sustain parties other would .(2) whether pleading; amendment; (3) whether proposed of the by virtue surprise previous oppor -and whether (4) amendment is proposed timely; Academy, 146 Ill. 2d at (Loyola identified.” tunities could be fac- four Loyola Academy-Kupianen’s I believe that an application regard. erred in this that the trial court tors leads to conclusion states a cause complaint properly As the amended proffered Academy-Ku action, Loyola the first factor of it follows that Furthermore, preju I cannot perceive any met. pianen test has been allowing suffer as result dice or that defendant would surprise Nor do be amended plaintiff proceed proposed is a that timeliness stage litigation lieve at this early pretrial time for was a more opportune concern in this case or that there in relation to the timing opinion of the Lamkin given amendment Therefore, its discretion trial the trial court abused proceedings. Acad Loyola her complaint. refusing plaintiff to allow 1211; emy, Kupianen, 146 Ill. 2d 373, 437 N.E.2d County’s the circuit court of Cook I would reverse
Consequently, *7 order and for motion to vacate the dismissal plaintiff’s order denying pro- cause for further her and remand this this ceedings consistent with view.