Opinion
2-22-0339
08-21-2023
ISMAEL DE AQUINO, Plaintiff-Appellant, v. MARK HALL and ASHOK PARIDA, Defendants (Mark Hall, Defendant-Appellee).
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Kane County. No. 18-L-334 Honorable Robert K. Villa, Judge, Presiding.
JUSTICE KENNEDY delivered the judgment of the court. Justices McLaren and Birkett concurred in the judgment.
ORDER
KENNEDY, JUSTICE
¶ 1 Held: Defendant, as the landlord and property manager of the building in which plaintiff was injured, did not owe plaintiff a duty of care to maintain the tenant's automotive lifts, nor he did he assume a duty to maintain the automotive lifts. Moreover, the trial court did not err in its consideration of plaintiff's expert affidavits. Therefore, we affirm the trial court's grant of summary judgment in favor of defendant.
¶ 2 Plaintiff, Ismael De Aquino, appeals from the trial court's entry of summary judgment in favor of defendant, Mark Hall, on plaintiff's claim of negligence. Defendant was the landlord of the building where plaintiff was injured. The trial court granted summary judgment in favor of defendant on the basis that defendant did not owe plaintiff a duty of care.
¶ 3 Plaintiff advances several arguments that the trial court erred in granting summary judgment. He argues that defendant owed him a duty to inspect and maintain the automotive lift that caused plaintiff's injury under several theories: a duty under the Will County Building Ordinance § 150.001 et seq., a duty arising from defendant's position as the property manager, and a duty that defendant voluntarily undertook. In addition, plaintiff argues that the trial court erred in disregarding his expert affidavits. We affirm.
¶ 4 I. BACKGROUND
¶ 5 Plaintiff was employed as an automotive technician at Sparks Complete Car Care (Sparks) located at 24125 111th Street, Naperville, in Will County, Illinois (the premises). Plaintiff's employer, Ashok Parida, operated Sparks on the premises, and he leased the premises from defendant.
¶ 6 On October 28, 2017, plaintiff was changing the oil of a Volkswagen Jetta on the premises. He used one of the hydraulic automotive lifts on the premises to suspend the vehicle. After he had changed the oil, he was about to inspect the vehicle when it fell from the lift onto him. Plaintiff sustained multiple injuries, including to his back and hip, and underwent several surgeries as a result of his injuries.
¶ 7 Plaintiff filed his original complaint on June 18, 2018, against defendant and Parida. The three-count complaint directed two counts against defendant: count one alleged premises liability, and count two alleged negligence. The third count against Parida alleged conversion, in that, while plaintiff was receiving treatment at the hospital for his injuries, Parida took possession of plaintiff s cellphone and never returned it. Plaintiff filed an amended complaint on September 26, 2018, alleging the same three counts.
¶ 8 Both amended counts against defendant alleged that, at all times material, defendant owned, operated, managed, maintained and/or controlled the premises, including six hydraulic lifts located on the premises. Plaintiff alleged that defendant had voluntarily undertaken a duty to inspect and maintain the lifts. The amended complaint alleged several ways that defendant was negligent, including that he failed to inspect and maintain the lifts and that he violated several standards and codes that were adopted by Will County. The counts concluded that, as a result of defendant's negligent acts and omissions, plaintiff suffered injuries when the lift failed.
¶ 9 Defendant moved to strike count one of the amended complaint, arguing that the count was duplicative of count two and that the Premises Liability Act (740 ILCS 130/1 et seq. (West 2018)) did not create a cause of action. The trial court did not rule on the motion to strike, instead ordering on November 29, 2019, that plaintiff had voluntarily dismissed count one without prejudice.
¶ 10 Thereafter, defendant answered count two of the amended complaint. He admitted that he was the landlord of the premises but denied that he owned, operated, controlled, or managed Sparks or any of its equipment on the premises. He specifically denied owning, maintaining, installing, or inspecting lifts on the premises.
¶ 11 On May 30, 2019, Parida moved to dismiss count three. Once again, the trial court ordered the count voluntarily dismissed.
Plaintiff testified at his August 20, 2019, discovery deposition that he had received his phone back.
¶ 12 Defendant moved for summary judgment on August 4, 2021. He argued that he did not owe plaintiff a duty of care because plaintiff was injured while working at Sparks, which was leasing the premises, and which had purchased and installed the lifts. He contended that the lifts were not conditions of the premises but instead were trade fixtures that could be removed by Sparks if or when it ended its lease. He argued that, as the landlord, he had relinquished control of the premises to Sparks through their lease, and, therefore, he was not liable for a Sparks' employee's injury incurred on the premises in the operation of Sparks' equipment.
¶ 13 Plaintiff responded that defendant owed him a duty of care even though defendant was the landlord. Specifically, plaintiff argued that defendant was responsible for plaintiff's injuries because his injuries were the result of violations of an ordinance, which was an exception to the general rule that landlords are not liable in tort. Plaintiff argued that, under the terms of the original lease for the premises, defendant was the owner of the lift, and the relevant ordinance made the owner liable for failures to maintain or repair the lift.
¶ 14 Defendant replied that the lift was not a condition of the premises and thus was not defendant's property. He argued that, instead, the lift was a part of Sparks' business operations. Further, he argued that a subsequent lease for the premises controlled this litigation, and Sparks was the owner of the lift under the relevant lease.
¶ 15 A. Summary Judgment Materials
¶ 16 The parties provided various materials for and against defendant's motion for summary judgment, including depositions of plaintiff, defendant, and Parida; copies of the leases for the premises dating back to 2001; and plaintiff's two expert affidavits. We recite the relevant positions herein.
¶ 17 1. Discovery Depositions
¶ 18 Plaintiff testified at his discovery deposition as follows. Plaintiff was 36 years old at the time of his deposition (he was 34 years old at the time of his injury). He had attended high school but did not graduate. Prior to working at Sparks, he had worked at Velasquez, an automotive repair business in Aurora. At Velasquez, he was trained initially as a welder and later trained to diagnose and repair automobiles.
¶ 19 Parida hired plaintiff in May 2017 as a "car technician," but plaintiff did not have a formal title. Parida was the owner of Sparks and was plaintiff's boss. Plaintiff worked at Sparks six days a week at an hourly rate of $7.50. Plaintiff performed all types of automotive repairs: "Everything that came in the door, I never said no to or I can't do it."
¶ 20 Plaintiff recalled that Sparks had six automotive lifts. Nobody at Sparks trained him in the operation of the lifts, but he was permitted to use the lifts. The lift where his injury occurred was the lift closest to the secretary's desk. The lift had blue and yellow forks, and it was the type of lift "[w]here you move the pads to raise the car."
¶ 21 Plaintiff's injury occurred on a Saturday afternoon at Sparks in October 2017. At the time of his injury, only he and Raquel Cazares, the secretary at Sparks, were present. Raquel was at her desk. Plaintiff performed an oil change on Raquel's car, a black Volkswagen Jetta, and spilled some oil when draining the oil. He retrieved Oil-Dri to clean the spill, and after he applied the Oil-Dri, the car fell on him. He was underneath the middle of the car when it fell. After the car fell, the next thing he remembered was waking up at the hospital. Plaintiff estimated that the vehicle was on the lift for 15 to 20 minutes before the lift failed. He did not know why the vehicle fell from the lift.
¶ 22 As a result of his injury, plaintiff claimed continuing pain in his lower back, right hip, right foot, and both shoulders. He also complained of new headaches and pain when taking deep breaths. He used a walker or a cane to help him walk.
¶ 23 Plaintiff described overhearing a conversation between defendant and Parida in Parida's office. The conversation took place maybe two months before plaintiff's injury. On that day, plaintiff saw defendant "just looking at one of the lifts." Afterward, he heard defendant tell Parida about the lift in the corner, saying that it was not safe and looked "crooked" at the top. That day or the next, based on the conversation he overheard, plaintiff told Parida that the lifts needed to be inspected, but Parida said no, the lifts were okay.
¶ 24 Defendant testified at his discovery deposition as follows. He had personally owned the premises since approximately 2003 and had leased it before that. "Mark Hall Properties," which he used on the leases involved in plaintiff's lawsuit, was not incorporated. He explained that it was "just a sole proprietorship, it's just me."
¶ 25 Defendant served as the property manager of the premises since 2003. He did not charge tenants for maintenance that he performed in his role as the property manager because he maintained only the roofs, structures, and parking lots.
¶ 26 Defendant testified that Parida was the owner of Sparks, and defendant visited his business on the premises once a month to collect the rent checks. Parida made maintenance requests for the furnace, air conditioning, garage door, and some roof leaks, but not for anything else.
¶ 27 Defendant continued that Parida installed the lifts on the premises. Defendant did not know where the lifts came from. Parida did not obtain written consent to install them, but defendant said that was because the lifts were not an alteration to the premises.
At another point in his deposition, defendant denied knowing who installed the lifts.
¶ 28 Parida testified at his discovery deposition as follows. He owned Sparks and had operated it since 1992. Sparks began its operation in Aurora before moving to the premises in 2002. Sparks had three leases with defendant during its time on the premises.
¶ 29 When Parida moved the business to the premises, he brought Sparks' equipment, including some of the automotive lifts. In addition to the lifts he brought from Aurora, he purchased new lifts for a total of six lifts on the premises. The lifts he moved from Aurora were originally bolted to the floor and connected to an electrical circuit panel, and they were unbolted and disconnected for the move. All the lifts on the premises were installed at or around the same time, and they were bolted to the floor like the lifts had been at the Aurora location. The new lifts were installed by a vendor. None of the lifts on the premises had any hydraulics that went beneath the floor. Parida could not say which lifts on the premises were newly installed and which were brought from Aurora.
¶ 30 Plaintiff began working at Sparks around the summer of 2017. When he began, he was not yet a permanent employee. Parida hired plaintiff as a service writer because he was bilingual. Parida wanted him in the office area to interact with customers. In addition, plaintiff was trained in installing Smart Start systems into vehicles. Plaintiff "may have on and off" performed oil changes, but he did not do so regularly. However, plaintiff was not a repair technician.
¶ 31 On October 28, 2017, the day of plaintiff's injury, Parida stated that Sparks was not open for business. He was at Sparks in the morning but left to do community work. He saw plaintiff and Raquel at the premises, but he did not know why Raquel was there, because she did not work on Saturdays. He did not know Raquel was having her car serviced. Plaintiff did not have permission to service any vehicles that day, and he was not trained to operate lifts by himself. Parida did not know how the lift failed; it was in "perfect shape."
¶ 32 Parida maintained the lifts. He had outside contractors inspect them, and he repaired the lifts himself, if necessary. Defendant was the property manager, but Parida did not rely on defendant to inspect, repair, or maintain the lifts.
¶ 33 Parida was aware that plaintiff had made a workers' compensation claim against Sparks. He was unaware whether the claim was open or ongoing. Plaintiff had not offered to come back to work at Sparks.
¶ 34 2. Leases for the Premises
¶ 35 The first lease for the premises was executed on November 7, 2001 (the 2001 lease), by defendant, d/b/a Mark S. Hall Properties, and Parida, representing Sparks. The base term of the 2001 lease was five years, commencing on February 1, 2002, with the option for tenant to extend the lease for two additional terms of three years. Parida extended the lease at least once, writing defendant in August 2006 of this intent to extend the lease three years.
The 2001 lease listed Sparks as "SPARKS COMPUTERIZED CAR CARE," instead of as Sparks Complete Car Care.
The record does not appear to contain a second notice of extension of the 2001 lease, which likely would have been necessary to extend the 2001 lease until defendant and Parida executed their new lease agreement in 2011.
¶ 36 The 2001 lease defined several terms, including "alteration," and "tenant's trade fixtures." Alteration meant "[a]ny addition or change to, or modification of, the premises made by tenant after any initial fixturing period, including, without limitation, the installation of fixtures, tenant S trade fixtures, and tenant's improvements as defined in this lease." (Emphasis added.) Tenant's trade fixtures were defined as "[a]ny property installed in or on the premises by tenant for purposes of trade, manufacture, ornament or related use."
¶ 37 Section 7 of the 2001 lease addressed alterations to the premises. It provided that the tenant was not to make any alterations without first obtaining the landlord's written consent, and "[a]ny alteration immediately becomes a part of the realty and belongs to landlord subject, however, to landlord's right to require removal and restoration," as provided in the lease.
¶ 38 Section 17 of the 2001 lease provided for the restoration of the premises. It read, in relevant part, that "[p]rior to the expiration of the term of the lease, *** tenant will leave the premises in the same condition as when received, *** and if tenant made any alteration or improvement of the premises, *** tenant will in all cases restore the premises substantially to their original condition, *** unless landlord has expressly set forth in writing that a particular alteration or improvement not be removed." Consistent with section 17 of the 2001 lease, section 21 provided that, at the expiration or termination of the lease, the tenant may remove all trade fixtures, or, upon request by the landlord, must remove all trade fixtures.
¶ 39 Section eight of the 2001 lease provided the work to be performed by the landlord. It read that the landlord was "not required to perform any work on the premises of any type or nature unless a special agreement to that effect is expressed in a rider attached to and forming a part of this lease ***." No such rider expressing a special agreement is found in the record. Further, section 16 of the lease, entitled "REPAIR," provided that "[t]enant, at tenant's sole cost and expense, will keep the premises and every part of it in good condition and repair."
¶ 40 Defendant and Parida, d/b/a Mark Hall Properties and representing Sparks, respectively, executed a new lease on May 17, 2011 (2011 lease). The 2011 lease was for a five-year term, beginning in May 2011 and ending in April 2016.
Unlike in the 2001 lease, the name of defendant's sole proprietorship listed in the 2011 lease does not include his middle initial. Also, Sparks was listed as "SPARKS AUTOMOTIVE" instead of as Sparks Complete Car Care or Sparks Computerized Car Care.
¶ 41 Under the terms of the 2011 lease, defendant was responsible for repairing only the following parts of the premises: the roof, foundation, driveways, water and sewer lines, sewer ejector pumps, hot water heaters, natural gas and electric lines, and the structural soundness of the interior demising walls and exterior walls. Unlike the terms of the 2001 lease, alterations to the premises by the tenant would remain the property of the tenant during the term of the 2011 lease. Furthermore, the 2011 lease provided that the tenant's trade fixtures "shall remain the property of the Lessee."
¶ 42 Parida and defendant executed a third lease on April 27, 2016 (2016 lease), which, as relevant to this litigation, was substantially the same as the 2011 lease. Like the 2011 lease, the 2016 lease was for a five-year term, commencing on May 1, 2016. The scope of defendant's duty to repair the premises was the same as it was in the 2011 lease. Finally, as in the 2011 lease, the lessee's alterations and trade fixtures remained the property of the lessee.
¶ 43 3. Affidavits
¶ 44 In opposition to defendant's motion for summary judgment, plaintiff produced expert affidavits of William Hudson and Frederick Heath. Hudson averred as follows. He was certified as a Master Code Professional by the International Code Council. He was licensed in Florida and California as a building inspector, and he had also served as Chief Property Inspector in Oak Park, Illinois, and as a maintenance inspector and housing rehabilitation specialist in Evanston, Illinois. ¶ 45 Hudson averred that Will County had adopted various codes, including the 2012 International Building Code (IBC), https://codes.iccsafe.org/content/IBC2012, the 2012 International Property Maintenance Code (IPMC), https://codes.iccsafe.org/content/IPMC2012, and the 2011 National Electrical Code (NEC), available at https://link.nfpa.org/free-access/publications/70/2011, and he recited various provisions of those codes. Based on Hudson's review of these codes, he opined, inter alia, that automotive lifts were within the scope of the codes adopted by Will County, that a permit was required for the installation of the automotive lifts, and that the owner of the premises was responsible under the adopted codes to maintain the premises and equipment in a safe condition.
¶ 46 Hudson further opined that defendant was an owner under the IBC and IPMC, and thus he was subject to their provisions. He continued that defendant was also subject to the NEC. Hudson opined that defendant was required to obtain both a building permit and an electrical permit for the lifts on the premises. Finally, Hudson opined that the lift in question was not maintained in good repair, as it was defective and in violation of Will County law. Hudson attached portions of the three codes referenced in his affidavit.
¶ 47 Heath was the founder and principal of a forensic engineering and consulting firm, Heath and Associates, based in North Carolina. He opined that, under the terms of the 2001 lease, defendant was the owner of the six automotive lifts on the premises and that the lift that injured plaintiff likely had not been properly inspected or maintained from July 2015 until April 2016. He further opined that defendant was responsible under the IBC and IPMC for the inspection, maintenance, and repair of the lifts, that defendant failed to comply with the codes, and that his failures caused plaintiff's injuries.
¶ 48 B. Summary Judgment Order
¶ 49 On August 25, 2022, the trial court granted summary judgment to defendant. The court began by determining that the 2016 lease controlled the dispute, explaining that the 2016 lease was in force on the day of plaintiff's injury and that no provision of the 2001 lease survived the execution of the 2016 lease.
¶ 50 The trial court determined that, pursuant to the terms of the 2016 lease, there was no genuine issue of material fact regarding who owned the lifts: Parida retained ownership of the lifts on the premises, and therefore Parida had to comply with all applicable laws, ordinances, and other requirements regarding the lifts. Although defendant could enter the premises to perform repairs upon request from Parida, there was no evidence that Parida ever requested lift repairs from defendant. Rather, Parida testified that he had no expectation that defendant would inspect or repair the lifts. Accordingly, the trial court found that defendant did not owe plaintiff a duty of care with respect to the condition and maintenance of the lifts on the premises.
¶ 51 Turning to plaintiff's expert affidavits, the trial court first found that, in violation of Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013), neither expert affidavit attached sworn or certified documents relating to the alleged ordinance violations. The trial court continued that, even assuming that the affidavits met the requirements of Rule 191, neither affidavit supported a denial of summary judgment. It explained that Hudson's affidavit failed to establish a question of fact under the cited ordinances because Parida unquestionably had exclusive control of the premises and the lifts thereon, and Heath's affidavit was "more conclusion than fact," and was not consistent with the relevant language of the leases for the premises.
¶ 52 This timely appeal followed.
¶ 53 II. ANALYSIS
¶ 54 This is an appeal from a grant of summary judgment which involves the interpretation of a lease and ordinance. We review a grant of summary judgment de novo. Seymour v. Collins, 2015 IL 118432, ¶ 42. Summary judgment is appropriate where the pleadings, depositions, admissions, and affidavits on file, viewed in the light most favorable to the nonmoving party, reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill.2d 307, 315 (2004). Where a reasonable person could draw divergent inferences from undisputed facts, summary judgment should be denied. Seymour, 2015 IL 118432, ¶ 42. We may affirm a grant of summary judgment on any basis appearing in the record. Home Insurance Co., 213 Ill.2d at 315.
¶ 55 The interpretation of a contract, such as a lease, presents a question of law that we review de novo. U.S. Bank N.A. v. Gold, 2019 IL App (2d) 180451, ¶ 7. In construing a contract, our primary goal is to give effect to the intent of the parties, and when the words of the contract are clear and unambiguous, they must be given their plain, ordinary, and popular meaning. Ritacca Laser Center v. Brydges, 2018 IL App (2d) 160989, ¶ 15.
¶ 56 Likewise, the interpretation of an ordinance is a question of law reviewed de novo. Hawthorne v. Village of Olympia Fields, 204 Ill.2d 234, 254-55 (2003). When construing an ordinance, we apply the familiar canons of statutory construction. Village of Downers Grove v. Village Square III Condominium Association, 2022 IL App (2d) 210098, ¶ 51. Our primary concern is to ascertain the effect of the legislator's intent, and the best indicator of the legislature's intent is the plain language of the ordinance. Id.
¶ 57 A. Duty of Care
¶ 58 Plaintiff argues that the trial court erred in granting summary judgment for defendant because defendant owed him a duty of care. Plaintiff advances three theories under which defendant owed him a duty to maintain and inspect the lifts on the premises: (1) a duty under the Will County Building Ordinance § 150.002 (amended May 17, 2018); (2) a duty as the property manager of the premises; and (3) a voluntary assumption of a duty. We address his theories in turn.
¶ 59 1. Duty under the Will County Building Ordinance
¶ 60 Plaintiff argues that the Will County Building Ordinance § 150.002 (amended May 17, 2018), adopted several codes that applied to owners and defined their duties, including the IBC, IPMC, and NEC. He contends that defendant, as the owner of the lifts under the 2001 lease, had a nondelegable duty under these codes to maintain the lifts in a safe and good working condition but failed to do so. He also contends that, solely by virtue of defendant's ownership of the premises, he had a duty under the same three codes to maintain the lifts. Last, plaintiff argues that defendant had a duty under IBC § 105.1 to obtain a permit before the lifts were installed and that his failure to do so was a "catastrophe waiting to happen."
¶ 61 Defendant responds that the operative lease was the 2016 lease, and under the terms of the 2016 lease, his maintenance responsibilities were limited to the building's structure and systems and did not include trade fixtures like the automotive lifts. He argues that there is no dispute that the lifts were trade fixtures, that Parida purchased and installed the lifts on the premises after the parties entered into the 2001 lease, and that the lifts were equipment used in Sparks' business operations. Moreover, defendant emphasizes the general rule that a landlord is not liable for injuries caused by dangerous or defective conditions under a tenant's control, including injuries sustained by an employee while operating a tenant's machinery. Finally, defendant argues that imposing a broad duty on landlords to inspect and maintain all equipment in a tenant's leasehold would place an unreasonable burden on landlords. For the following reasons, we reject plaintiff's arguments based on the Will County Building Ordinance.
¶ 62 To prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty, that the defendant breached that duty, and that the defendant's breach was the proximate cause of the plaintiff's injury. Bell v. Hutsell, 2011 IL 110724, ¶ 11. Unless the defendant owes a duty, the plaintiff cannot recover. Id. Whether a duty exists is a question of law for the court to decide (id.), and the decision necessarily involves considerations of public policy (Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 17).
¶ 63 The law in Illinois is clear that landlords generally do not owe a duty of care for injuries sustained on leased property: "[A] landlord is not liable for injuries caused by a defective condition on the premises leased to a tenant and under the tenant's control." Rowe v. State Bank of Lombard, 125 Ill.2d 203, 220 (1988); see also Klitzka ex rel. Teutonico v. Hellios, 348 Ill.App.3d 594, 597 (2004) ("[A] lessor who relinquishes control of property to a lessee owes no duty to a third party who is injured while on the leased property."). The rationale for landlord immunity is that the lease conveys control of the property, which is a prerequisite to tort liability, to a tenant. Gilley v. Kiddel, 372 Ill.App.3d 271, 275 (2007). Thus, the tenant, who is in possession and control of the property, is the party who is generally liable for injuries sustained by a third party that are caused by the failure to keep the property in repair. Hilgart v. 210 Mittel Drive Partnership, 2012 IL App (2d) 110943, ¶ 38.
¶ 64 Nevertheless, the law recognizes several exceptions where a landlord may be liable: (1) the latent defect exists at the time the lease is entered, and the landlord should have known of the defect; (2) the landlord fraudulently conceals the dangerous condition; (3) the defect amounts to a nuisance; (4) the landlord is contractually bound to maintain or repair the premises; (5) the landlord violates a statute, and the tenant is in the class that the statute seeks to protect; and (6) the landlord voluntarily undertakes a duty to render a service. Gilley, 372 Ill.App.3d at 275. Plaintiff's argument rests on the fifth exception, specifically, a violation of the Will County Building Ordinance.
¶ 65 Fatal to plaintiff's argument is that defendant did not violate the Will County Building Ordinance. In order to violate the ordinance, the provisions of either the IBC, IPMC, and NEC had to apply to defendant. The codes did not apply to defendant because (a) he was not the owner of the lifts under the terms of the 2001 lease, and even if he was, he had relinquished control of the lifts to his tenant, Sparks; (b) none of the codes imposed a general duty on landlords to inspect or maintain leased property not under the landlord's control; and (c) defendant was not required to obtain a permit for the lifts.
¶ 66 a. No Duty as an Owner
¶ 67 Plaintiff's argument that defendant owed a duty as the owner of the lifts turns on section 7 of the 2001 lease. Section 7 provides that alterations to the premises immediately become "a part of the realty and belong[] to landlord subject, however, to landlord's right to require removal and restoration." (Emphasis added.) Even if we assume that all trade fixtures are automatically alterations under the 2001 lease-a questionable assumption, as any trade fixture would still be required to add to, change, or modify the premises, pursuant to the definition of alteration under the lease-any alterations to the premises were subject to the landlord's right to require removal and restoration of the premises.
¶ 68 In section 17 of the 2001 lease, if the tenant made alterations to the premises, the tenant was required to restore the premises to their original condition by the expiration of the lease, unless the landlord expressly set forth in writing that a particular alteration not be removed. Section 17 evinced a clear intent to keep alterations from becoming a permanent part of the premises by requiring Sparks to automatically remove any alterations to the premises at the end of the lease. This intent was echoed in section 21 of the 2001 lease, which provided that, at the end of the lease's term or upon renewal of the lease, Sparks had the right to remove all trade fixtures it installed on the premises. Accordingly, defendant's ownership of the alterations was limited to the term of the 2001 lease unless he expressly wrote otherwise.
¶ 69 The record contains no writing of defendant demanding that the lifts remain on the premises. Instead, the only writings we have are the 2011 and 2016 leases, which provide in their respective section 8 s that alterations shall remain the property of Sparks throughout the term of the lease. They also provide in their respective section 33s that all trade fixtures and equipment installed by Sparks shall remain the property of Sparks. Therefore, we disagree with plaintiff's assertion that any of Sparks' installed property remained a part of the premises, and thus belonged to defendant, beyond the expiration of the 2001 lease (if it ever belonged to him at all).
¶ 70 In sum, the terms of the 2001 lease expressed a clear intent to limit defendant's ownership interest in Sparks' alterations to the term of the lease, and the subsequent leases explicitly provided that Sparks retained ownership of any alternations and trade fixtures. We therefore have no basis under the Will County Building Ordinance to impose a duty on defendant as the owner of the lifts, because he was not the owner of the lifts at the time of plaintiff's injury.
¶ 71 Even if we construed the 2001 lease so that defendant was deemed to own the lifts beyond the expiration of the lease, plaintiff's argument would still fail because defendant was leasing the premises, which included the lifts, to Sparks. Under the IPMC, the owner is responsible for maintaining structures and exterior properties, whereas the occupant is responsible for the safe condition of the parts of the premises under their control. IPMC § 301.2 (2012); see also id. § 102.2 ("[T]he owner *** shall be responsible for the maintenance of buildings, structures and premises."). The IPMC is consistent with the general rule in Illinois that, when a landlord leases property to a tenant, the landlord does not owe a duty to third parties who are injured on the leased property that is not under the landlord's control. E.g., Klitzka, 3 48 Ill.App.3d at 597. Here, Sparks was the occupant of the premises, and the lifts were under its control. Therefore, even if defendant owned the lifts, he did not owe plaintiff a duty to inspect or maintain the lifts under the Will County ordinance.
¶ 72 Plaintiff spends a significant portion of his brief discussing the application of Lombardo v. Reliance Elevator Co., 315 Ill.App.3d 111 (2000), to this case. However, Lombardo does not support imposing a duty on defendant as the owner of the automotive lifts. In Lombardo, the plaintiff was injured when riding a lift that conveyed people from the basement to the parking lot at Avenue National Bank in Oak Park. Id. at 113. When riding the lift that elevated persons from the basement to the parking lot, it failed around sidewalk level, dropping the plaintiff back into the basement, and causing injuries to his feet. Id.
¶ 73 Importantly, a section of Oak Park's building code specifically provided that the owner of the building was responsible for the care, maintenance, and safe operation of elevators and lifts. Id. at 116. The appellate court rejected the defendant's argument that it had delegated its duties to maintain the lift, explaining that "[w]e cannot ignore the plain language of the ordinance," which imposed a nondelegable duty on the defendant landlord to maintain the lift, even though the premises was in the control of a tenant. Id. at 119.
¶ 74 In contrast to the circumstances in Lombardo, plaintiff here has identified no law imposing a specific duty on defendant to maintain the automotive lifts on the premises. Absent a law imposing such a duty, the general rule applies that landlords do not owe a duty to third parties injured on the leased property. Gilley, 372 Ill.App.3d at 275.
¶ 75 b. No Duty as the Landlord
¶ 76 Next, none of the codes adopted by Will County and cited by plaintiff impose a general duty on landlords to maintain portions of a leased premises not under their control. As already stated, the IPMC echoes the general rule that landlords are not liable in such situations: "The owner of the premises shall maintain the structures and exterior property ***. Occupants *** are responsible for keeping in a clean, sanitary and safe condition that part of the *** premises which they occupy and control." IPMC § 301.2 (2012); see id. § 102.2 ("Except as otherwise specified herein, the owner *** shall be responsible for the maintenance of buildings, structures and premises."). The IBC, on the subject of property maintenance, defers to the IPMC. See IBC § 101.4.4 (2012) ("The provisions of the International Property Maintenance Code shall apply to existing structures and premises; equipment and facilities; *** responsibilities of owners, operators and occupants; and occupancy of existing premises and structures." (Emphasis added.)). ¶ 77 As to the NEC, plaintiff presents no argument explaining how the NEC imposes a duty on landlords to maintain a tenant's electrical equipment, and, in fact, he does not even provide a citation to the actual NEC. This court was able to take notice of a free copy of the 2011 NEC from the National Fire Protection Association's website at nfpa.org, and the NEC does not appear to delineate who is responsible for safeguarding against electrical hazards but instead provides for how to safeguard against those hazards. See NEC § 90.1 (2011) ("The purpose of this Code is the practical safeguarding of persons and property from hazards arising from the use of electricity."). Thus, even if plaintiff properly developed an argument based on the NEC, which he has not, it likely would fail.
Occupants are defined by the IPMC as "Any individual *** having possession of a space within a building." IPMC § 202 (2011).
¶ 78 Moreover, we agree with defendant's public policy argument. If we were to impose a duty on defendant in this case, we would be placing a great burden on other landlords to inspect and maintain all manner of equipment that a business might use on a leased property. Such a holding would also contravene the rationale for landlord immunity that a lease relinquishes control of property to a lessee and therefore removes a necessary prerequisite for tort liability. Gilley, 372 Ill.App.3d at 275. For all these reasons, we hold that defendant did not have a duty to maintain the lifts on the premises by virtue of his position as the landlord.
¶ 79 c. No Duty to Obtain a Permit
¶ 80 Last, we reject plaintiff's argument that defendant was liable because he failed to obtain permits for the lifts. The requirement to obtain permits under the IBC applies to "[a]ny owner or authorized agent who intends to *** alter *** a building or structure, or to *** install *** [a] mechanical system." (Emphasis added.) IBC § 105.1 (2012). Assuming, arguendo, that the 2012 version of the IBC was in effect at the time the automotive lifts were installed and that the automotive lifts were an alteration to the premises under the IBC, defendant never intended to install the lifts; Parida did. The record contains no factual dispute on this point: Parida installed the lifts and did not obtain defendant's written consent before doing so.
¶ 81 Even if we were to assume that IBC § 105.1 (2012) imposed a duty on defendant to obtain permits, the lifts were installed in 2002, and the injury occurred in 2017. Any initial inspection to obtain a permit would have occurred 15 years before the lift failed. At oral argument, plaintiff argued that the initial permit process would have triggered annual code enforcement inspections by the permitting authority. However, it is speculation to argue that an inspection of the lifts in 2002 or thereafter would have revealed the specific defect, if any, that caused plaintiff's injury in October 2017.
¶ 82 2. Duty as the Property Manager
¶ 83 In addition to arguing that defendant had a duty under the Will County Building Ordinance, plaintiff argues that defendant had a duty to inspect and maintain the lifts as the property manager of the premises. Without citation to any legal authority, plaintiff argues that defendant owed him a duty of care as the property manager because a jury could have found that defendant's role as the property manager included maintaining the lifts. Plaintiff has forfeited this argument.
¶ 84 Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) requires that argument be supported with citation to authority, and the failure to comply with Rule 341(h)(7) results in forfeiture. People ex rel. Illinois Department of Labor v. E.R.H. Enterprises, 2013 IL 115106, ¶ 56." 'Contentions supported by some argument but by absolutely no authority do not meet the requirements of Supreme Court Rule 341(h)(7).'" Vilardo v. Barrington Community School District 220, 406 Ill.App.3d 713, 720. A reviewing court is not a depository into which a party may dump the burden of argument and research (E.R.H. Enterprises, 2013 IL 115106, ¶ 56), and where an appellant has failed to support argument with citation to authority, this court will not conduct its research for them (Gakuba v. Kurtz, 2015 IL App (2d) 140252, ¶ 19). Here, defendant's argument is devoid of any citation to legal authority, violating Rule 341(h)(7) and resulting in forfeiture.
¶ 85 Even if not forfeited, plaintiff's argument misses the mark. Plaintiff argued that there was a genuine issue of material fact whether defendant's duties as the property manager included maintaining the lifts on the premises. In a negligence action, a defendant's duty of care is a legal question for the court. Curatola v. Village of Niles, 154 Ill.2d 201, 207 (1993); see also Jakubowski v. Alden-Bennett Construction Co., 327 Ill.App.3d 627, 635 (2002) (rejecting argument that the existence of the defendant's duty could be a question of fact). Although the existence of a duty is a question of law, where a duty depends on the existence of disputed facts, the existence of those facts presents a question of fact for the factfinder. Jones v. O Brien Tire and Battery Service Center, Inc., 374 Ill.App.3d 918, 933 (2007).
¶ 86 Here, there simply was no factual dispute as to the scope of defendant's duties as the property manager. The evidence of defendant's duties as the property manager was defendant's testimony that he maintained roofs, structures, and parking lots, and the terms of the 2016 lease that he was responsible for the roof, foundation, driveways, water and sewer lines, sewer ejector pumps, hot water heaters, natural gas and electric lines, and the structural soundness of the interior demising walls and exterior walls. Plaintiff argues that defendant's repair of the garage door evinced a duty to maintain the entirety of the premises, but that repair was merely consistent with defendant maintaining the premises' structure.
¶ 87 Furthermore, defendant's monthly visits to the premises, when he collected the rent checks, did not create a reasonable dispute that he was required to maintain and repair any and all equipment, including tenant's trade fixtures such as the lifts. Rather, the same adopted code that plaintiff relied on, the IPMC, supports that Parida had a duty to maintain the lifts because he possessed and controlled them. See IPMC § 301.2 (2012) ("Occupants *** are responsible for keeping in a clean, sanitary and safe condition that part of the *** premises which they occupy and control."). Finally, absent any contractual duty regarding the lifts, we see no reason why defendant's duties as the property manager would be greater in scope than his duties as the landlord, and we have already determined his duties as the landlord of the premises did not extend to the lifts.
¶ 88 3. Voluntary Assumption of Duty
¶ 89 Plaintiff also argues that defendant assumed a duty to both maintain the lifts and warn others on the premises of defects in the lifts. He argues that defendant assumed this duty on his monthly visits to the premises. Plaintiff directs us to one particular occurrence that he testified to at his discovery deposition, where he saw defendant "looking at" a lift and thereafter tell Parida that the lift was unsafe and crooked.
¶ 90 Defendant responds that plaintiff failed to raise the issue before the trial court and has thus forfeited it. He continues that, even if not forfeited, he did not assume a duty to inspect or maintain the lift in question.
¶ 91 Issues not raised in the trial court are forfeited and may not be raised for the first time on appeal. Bank of New York Mellon v. Rogers, 2016 IL App (2d) 1150712, ¶ 72. Defendant's complaint did allege, albeit in a conclusory fashion, that defendant voluntarily assumed a duty to inspect and maintain the lifts. Regardless of forfeiture, however, plaintiff's argument fails on the merits.
¶ 92 When a defendant voluntarily undertakes a duty, the duty of care is limited to the extent of the undertaking. Bell, 2011 IL 110724, ¶ 12. The theory of a voluntary assumption of duty is narrowly construed. Id. Illinois courts look to the Restatement (Second) of Torts, §§ 323, 324A to define the parameters of liability pursuant to this theory, and the Restatement requires that a defendant undertake some action to for the protection of another or a third party. Id. ¶¶ 12-13, 26. ¶ 93 Here, plaintiff presented facts that, during one of defendant's monthly visits to the premises, he was "looking at" one of the lifts and told Parida that the lift looked crooked. Defendant's monthly visits were for the purpose of picking up the monthly rent check, and "looking at" a lift during a visit for another purpose did not reasonably amount to an inspection. Furthermore, such a casual observation can hardly amount to an affirmative undertaking to render services. See id. ¶ 26 (mere "monitoring" of underage drinkers, without some affirmative action to prohibit possession and consumption of alcohol, was insufficient to establish an undertaking of duty).
¶ 94 Even if we were to construe defendant's observation of one lift as an assumption of a duty to inspect all the lifts on the premises, which is quite a stretch, we certainly could not construe his observations as amounting to an assumption of a duty to maintain the lifts. And assuming, arguendo, that defendant undertook a duty to warn of defects he observed in the lifts, the facts show he would have satisfied that duty. Plaintiff testified that the one time he saw defendant notice a problem with a lift, defendant informed Parida, the person with control and possession of the lifts, about the lift looking "crooked" on top.
¶ 95 Last, we note that plaintiff's own testimony was that he was not injured by the lift that defendant observed as "crooked" approximately two months earlier. Therefore, even if defendant were to have breached a duty to warn of the "crooked" lift, the record is devoid of evidence that defendant's breach could have caused plaintiff's injury.
¶ 96 B. Expert Witness Opinions
¶ 97 Last, plaintiff argues that the trial court erred in disregarding the expert witness affidavits of Hudson and Heath. He contends that their opinions were not predicated on their interpretations of the 2001 lease, and that they were not required to produce certified copies of the Will County Building Ordinance and its adopted codes.
¶ 98 Defendant responds that the affidavits failed to comply with Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013) by attaching certified copies of the documents relied upon, and therefore should not be considered on summary judgment. He argues that the affiant's opinions were speculative and also improperly made legal conclusions about the lease and various adopted codes. ¶ 99 At the outset, we note that the trial court did not disregard Hudson's and Heath's affidavits. Although it found that the affidavits did not strictly comply with Rule 191, it went on to consider the substance of the affidavits in its summary judgment order.
¶ 100 Regardless of whether the affidavits strictly complied with Rule 191 by attaching certified copies of the all documents relied upon, including the provisions of the IBC, IPMC, and NEC (see Robidoux v. Oliphant, 201 Ill.2d 324, 336, 343-44 (2002) (explaining that strict compliance with Rule 191 is necessary to ensure decisions are based on valid evidentiary facts and affirming the trial court's striking of the affidavit for failure to attach certified copies of the documents relied upon)), Hudson's and Heath's affidavits did not support denying defendant's motion for summary judgment. Although the affidavits offered opinions that defendant was the owner of the lifts under the 2001 lease and that he had a responsibility to maintain the lifts under the Will County Building Ordinance, these opinions were flawed in multiple ways.
¶ 101 First, the opinions were not based on all relevant portions of the 2001 lease. See Brettman v. Virgil Cook &Son, Inc., 2020 IL App (2d) 190955, ¶ 63 (a Rule 191 affidavit may offer an expert's conclusions and opinions, but only if the expert provides specific factual support). In particular, Heath's conclusion that defendant owned the lifts under the 2001 lease did not discuss sections 17 and 21 of the lease, which we examined supra ¶ 68.
¶ 102 In addition, Hudson's opinions were inconsistent with the plain language of the adopted codes. To wit, Hudson's interpretation of section 105.1 of the IBC as requiring defendant to obtain a permit overlooked the language of an owner "who intends" to alter property. See supra ¶ 80. Furthermore, Hudson's opinion that defendant violated section 301.2 of the IPMC is at odds with that section's plain language the occupants are responsible for the safe condition of the premises they occupy and control.
¶ 103 Although an expert affidavit can opine on an ultimate issue to be decided by a trier of fact (Brettman, 2020 IL App (2d) 190955, ¶¶ 82-83), the existence of a duty under a particular set of circumstances is a question of law for the court. Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 23. Here, Hudson's and Heath's opinions do not support the existence of a duty as they are rebutted by the very materials upon which they rely. Accordingly, because the circumstances in this case, including the expert's opinions, do not support the existence of a duty, we have no basis to find the trial court erred in its consideration of the expert affidavits.
¶ 104 III. CONCLUSION
¶ 105 For the reasons stated, we affirm the judgment of the Kane County circuit court.
¶ 106 Affirmed.