The Illinois Appellate Court ruled on a premise liability claim involving a building owner’s duty to maintain clear sidewalks and driveways. At issue was whether or not the plaintiff’s amended complaint raised new issues of fact in Kristopher McCarthy v. R&M Holdings & Quality, No. 1-10-2778 (February 2, 2012). While the trial court held that it did not, the appellate court found that it did and remanded the case to the trial court for further proceedings.
McCarthy was brought after the plaintiff slipped and fell on the way to his parked car. McCarthy had just finished his shift at the Harwood Heights Cosco on an icy December day. His car was parked in the parking lot next to Cosco’s parking lot. According to McCarthy, he was walking through the snow and did not realize that there was a layer of ice underneath; he fell and dislocated his right shoulder and right knee.
McCarthy brought his premise liability lawsuit against R&M Holdings & Quality, the owner of the commercial building and property. In his complaint he alleged that the icy patch he fell on was part of the run-off from the building’s roof and gutters. There was a downspout that ran directly into the parking lot; McCarthy alleged that this downspout was the source of the water that formed the ice that he fell on and therefore was caused by the building owners and not a natural hazard.
In his first complaint, McCarthy cited ordinary negligence and per se negligence under the Harwood Heights Municipal Code, §15.24.100. While ordinary negligence requires a party to prove that someone acted in an unreasonable or wanton manner, per se negligence simply requires a party to show that an entity violated an established law or code. In response, the defendant property owner filed a motion for summary judgement on the basis that the case could be decided without a trial. The judge dismissed the plaintiff’s original claims, but allowed the plaintiff to file an amended complaint.
In his second amended complaint, McCarthy filed per se negligence claims based on an additional section of Harwood Heights Code, §15.24.010(A), which was based on the BOCA National Property Maintenance Code. BOCA is an organization of the building community that includes written building safety provisions. In addition, McCarthy’s premise liability complaint included statements by a building expert that the defendant’s premises had violated several provisions of the BOCA Code.
In response, the defendant filed another motion to dismiss the plaintiff’s claims, this time arguing that they were barred by the legal principle of res judicata, i.e. that the court had already entered a ruling barring the claims. And even though the plaintiff argued that these were in fact new claims that now included the BOCA Code, the trial judge agreed with the defendant. The judge held that there was no new factual basis for the plaintiff’s claims and granted the motion to dismiss. McCarthy disagreed and appealed the trial court’s decision.
In its review of McCarthy, the appellate court first established that it would not be reviewing the trial court’s decision to dismiss the plaintiff’s first complaint. While McCarthy had 30 days to appeal the original dismissal order, he had not done so. Instead, he had filed a second amended complaint. The appellate court did not consider this amended complaint to be a post-judgment motion attacking the original judgment, and therefore did not qualify as a means of granting a stay on the appeal.
However, the appellate court was able to review the trial court’s rulings on the second amended complaint. After examining the circumstances surrounding that dismissal, the appellate court found that the trial court had erred in dismissing McCarthy’s BOCA Code violation claims. In explaining its decision, the trial court stated that the trial court should not have relied on res judicata as a means of dismissing those claims because it had not previously ruled on those specific allegations.
Furthermore, the Illinois Appellate Court held that the second amended complaint did in fact adequately bring a new cause of action under the BOCA Codes. As a result, McCarthy’s second claim stands and is now being remanded to the trial court for further handling.
Kreisman Law Offices has been handling Illinois personal injury matters for individuals and families for more than 36 years in and around Chicago, Cook County, and surrounding areas, including Forest Park, Des Plaines, Summit, Stickney, Glenview, Hanover Park, Buffalo Grove, and Chicago’s Little Italy.
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