Henderson v. Lofts at Lake Arlington Towne Condo. Ass'n

2018 IL App (1st) 162744

105 N.E.3d 1

Steven A. HENDERSON, Plaintiff–Appellant,

v.LOFTS AT LAKE ARLINGTON TOWNE CONDOMINIUM ASSOCIATION, Building Maintenance Systems, Inc., Property Specialists, Inc., Defendants–Appellees,

(Karen Popke, Third–Party Defendant–Appellee).

No. 1–16–2744

Appellate Court of Illinois, First District, SIXTH DIVISION.

MARCH 16, 2018

Norman J. Lerum, P.C., of Chicago (Norman J. Lerum and Catherine E. Lerum, of counsel), and James M. Messineo, of Inverness, for appellant.

Dana Crowley & Associates, of Barrington (Dana C. Crowley, of counsel), for appellees Lofts at Lake Arlington Towne Condominium Association and Property Specialists, Inc.

The Hunt Law Group, LLC, of Chicago (Brian J. Hunt and Sierra N. Hagl, of counsel), for appellee Building Maintenance Systems, Inc.

Doherty & Progar, LLC, of Chicago (Michael T. Sprengnether, of counsel), for other appellee.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 Plaintiff-appellant, Steven A. Henderson, challenges an order of the circuit court of Cook County dismissing his negligence action upon granting summary judgment to the defendants, which consist of the Lofts at Lake Arlington Towne Condominium Association (Lofts), Property Specialists, Inc., (PSI) and Building Maintenance Systems, Inc. (BMS). In the same order, the trial court also granted summary judgment dismissing BMS's contribution claim against third-party defendant Karen Popke. For the following reasons, we reverse the order of the circuit court of Cook County to the extent it granted summary judgment to the defendants, but we affirm the circuit court's order to the extent it dismissed BMS's contribution claim against Popke.

¶ 2 BACKGROUND

¶ 3 The Lofts is an association of owners of condominium units in Arlington Heights, Illinois. PSI serves as the Lofts' property manager. BMS is an independent contractor that was hired by Lofts to perform work in 2008 that allegedly caused Henderson to be injured in a slip-and-fall incident. At all relevant times, Henderson resided with Popke, his girlfriend, at a condominium unit owned by Popke (the condominium), which was part of the Lofts.

¶ 4 In September 2011, Henderson filed a complaint pleading negligence counts against the Lofts, PSI, and BMS. Henderson alleged that, when he attempted to enter the condominium on the evening of October 2, 2009, he slipped and fell on a "stoop and stairs" just outside the condominium entrance. He sustained severe injury to his left ankle and knee, which led to multiple surgeries.

¶ 5 The complaint alleged that the "stoop and stairs" were "common property owned, operated and managed by" the Lofts. Henderson pleaded that the Lofts owed a common law duty to maintain this area, both under the common law and pursuant to section 18.4 of the Condominium Property Act (Act) ( 765 ILCS 605/18.4(a) (West 2010) (providing that the "powers and duties of the board of managers" include providing for the "care, upkeep, maintenance, replacement and improvement of the common elements"). Henderson further alleged that the Lofts owed duties to maintain and repair the "Common Elements" under the Lofts' declaration and bylaws.

¶ 6 The complaint pleaded that PSI was hired by the Lofts to "maintain the common areas including the stairs and stoop" and that BMS was hired by the Lofts, "either directly or through [PSI] to apply a special concrete epoxy sealant and co-efficient of friction to the stoop and stairs." Henderson alleged that the defendants received but failed to respond to "numerous complaints" from Popke and Henderson "regarding the slippery condition of the stoop and stairs" before his October 2009 injury. The complaint alleged that the defendants negligently failed to, inter alia , maintain and inspect the property or to warn of the dangerous condition, proximately causing his injuries.

¶ 7 On October 25, 2011, the Lofts and PSI jointly filed an answer, admitting that the Lofts "owns the subject stairs and stoop" at Popke's condominium but denying any negligence. They also filed affirmative defenses, including assertions that Henderson failed to use reasonable care and "[f]ailed to avoid the obvious condition of the stoop and stair."

¶ 8 On April 24, 2012, the Lofts and PSI filed a counterclaim for contribution against BMI, alleging that the Lofts "engaged [BMI] to apply a concrete epoxy sealant" to certain common elements. The counterclaim alleged that BMI "failed to properly apply the epoxy concrete sealant so as to provide a sufficient cohesion of friction."

¶ 9 In June 2012, BMS filed an answer denying allegations of liability. As an exhibit to its answer, BMS submitted a proposal dated May 21, 2008, which was directed to George Pierce of PSI. BMI's proposal quoted prices for "the installation of an epoxy coating on the front entry steps and stoops" of several condominium addresses, including a price quote of $848 for work at Popke's condominium. Under the heading "Acceptance of Proposal," Pierce signed the proposal as "agent for Lofts" on May 22, 2008. In addition to its answer, BMS pleaded an affirmative defense of "comparative negligence" in which it asserted that Henderson "failed to avoid an open and obvious hazard."

¶ 10 In August 2013, BMS filed a third-party complaint for contribution against Popke. BMS alleged that Popke owed a duty to maintain the "front stoop and stairs" in a reasonably safe condition for invitees, citing provisions of the Lofts' declaration and bylaws concerning "Limited Common Elements." BMS alleged that Popke negligently breached her duty by, inter alia , permitting a dangerous condition to remain on the premises, which proximately caused Henderson's injuries. BMS thus pleaded "If [Henderson] prevails against [BMS] then [BMS] is entitled to receive contribution" from Popke "based on the percentage to which the liability of fault of Karen Popke, caused * * * [Henderson's] injuries or damages pursuant to the Joint Tortfeasors Contribution Act."

¶ 11 In February 2014, Popke moved to dismiss BMS's third-party complaint. She argued that only the Lofts had a duty to maintain and repair the area where Henderson slipped because it fell within the definition of "Common Elements" under the Lofts' declaration and bylaws. BMS's response contended that the area fell within the definition of "Limited Common Elements" under other provisions, such that Popke maintained a duty of care. On October 3, 2014, the trial court denied Popke's motion to dismiss the third-party complaint.

¶ 12 The parties engaged in discovery, including depositions of Henderson and Popke. Both testified that Henderson had resided at the condominium for a number of years, and both described two entrances to the condominium: a front entrance and a garage entrance. The front entrance area includes a sidewalk leading from the driveway to a single step and a front porch, which abuts the front door. The condominium was also accessible through an entrance in an adjacent garage. Henderson testified that he used the front entrance the "majority" of the time, and that he entered or exited the condominium on a daily basis. Asked about the garage entrance, Henderson testified, "It's a tight area. We got a lot of stuff in our garage."

¶ 13 Henderson recalled that, before his injury, he learned that the Lofts hired a maintenance company to apply epoxy to the front step of the condominium. After the epoxy treatment, he noticed the front step was "real slippery" when wet. Henderson recalled that he slipped at the site on two prior occasions before his October 2009 injury. After the first incident, he told Popke that the front porch was "real slippery when wet" and that he was concerned Popke's mother was "going to break her hip." Popke told him that she would "make a complaint."

¶ 14 Henderson testified about a second incident where "[i]t was wet, and I slipped" but "caught myself." He recalled that he and Popke "walked over, and I know we talked to George [Pierce]." They told Pierce that the "front steps are real slippery," and Pierce said he would "look into it." Henderson acknowledged that, prior to the October 2009 incident, he was generally aware that the step and porch were slippery when wet but that "[i]t wasn't etched in my mind."

¶ 15 On the evening of the incident, Henderson drove to the condominium by himself after attending a football game with his daughter. Popke was out of town at that time. He recalled that it was raining. When asked how hard the rain was, he answered, "Raining enough I wanted to get out of the rain. I don't know how hard." Asked if he "knew that the step was going to be wet" when he arrived at the condominium, Henderson testified, "I didn't think about it, to tell you the truth." Henderson recalled, "I left my car, came around the car, stepped on the front step. My foot slid into the upper riser when I was coming across. My foot slipped, and I fell back." He found himself "laying on the ground." He felt pain in his lower left leg and was unable to stand up, so he "crawled" into the condominium. The next day, he drove himself to a hospital.

¶ 16 At her deposition, Popke testified that Henderson resided with her at the condominium since 2005 or 2006. She testified that the Lofts maintains common areas of the condominiums, including driveways and the "exterior or the porches."

¶ 17 Popke testified that, prior to Henderson's incident, she went to Pierce's office to complain that "once they put this epoxy stuff down, it was slippery; they needed to fix it." She testified that she complained in 2008, "right after that epoxy was placed." She recalled, "I said, ‘George, whatever you guys did to my front stoop is very slippery, dangerous.’ " She testified that she complained to Pierce "about three or four times" before Henderson's October 2009 incident. After her second complaint, Pierce "said he would get somebody out there," and Popke recalled that some work was done, but she testified that "it was not...