Trice v. Chicago Housing Authority

Mr. JUSTICE HAYES specially concurring:

I concur in the opinion of Stamos, P. J. I wish to add some additional reflections of my own.

1. The trial judge dismissed plaintiffs complaint in this wrongful death action for failure to state a cause of action. In reviewing the dismissal, therefore, we must accept as true all well-pleaded facts in the complaint. The complaint consistently alleged that the television set was thrown by an unidentified co-tenant or third party from an upper story into and upon a portion of the retained premises then being properly used by plaintiff-tenant’s minor son. In formulating the key issue presented by the complaint, we have characterized that alleged act of throwing as a criminal or criminally reckless act. I cannot conceive of a situation in which the throwing of a television set under the circumstances alleged in the complaint could be a mere act of ordinary negligence on the part of the thrower. I note also that plaintiffs brief describes the incident as a criminal attack on the child and again as a criminal act. For these reasons, I think our formulation of the key issue presented by the complaint is accurate. Nothing in our opinion deals with the issue of whether a landlord has any common law duty to protect his tenants against danger, in their use of the retained premises, from a known pattern of acts of negligence on the part of unidentified co-tenants or third parties.

2. Plaintiff points out that defendant was empowered by statute with “all powers necessary or convenient to carry out and effectuate the purposes and provisions of this Act” (Ill. Rev. Stat. 1969, ch. 67½, sec. 8 — 8), one of which was to provide safe and sanitary dwellings when there is found to be a shortage of such dwellings available to persons who lack the income necessary to enable them without financial assistance to live in such dwellings without over-crowding. Plaintiff pointed out this statutory authorization in order to demonstrate that the provision of security measures by defendant, in order to make the retained premises safe from the known danger posed by the pattern of criminal and criminally reckless aots of unidentified co-tenants or third parties, would not have been ultra vires the defendant Municipal Corporation; in that manner plaintiff distinguished the case of Goldberg v. Housing Authority of Newark (1962), 38 N.J. 578 , 186 A.2d 291 . But the key issue is not what acts defendant is empowered to perform, but rather what acts defendant is under a common law duty to perform. It is clear that the empowerment cannot itself create the essential duty (See New York Housing Authority v. Medlin (1968), 291 N,Y.S.2d 672, aff’d, 316 N.Y.S.2d 149 ), and there is no statutory or contractual duty involved in this case. I note in passing that, even as to empowerment, the New York court in Medlin construed the statutory adjective “safe” to extend only to structural and Building Code requirements for safety.

3. The specific facts in Kline v. 1500 Massachusetts Avenue Apartment Corp. (1970), 439 F.2d 477 , to which reference is made in the opinion of this court, are that, at the time defendant had leased an apartment to plaintiff, defendant had voluntarily undertaken to provide lobby security twenty-four hours a day, owing to a known hazard of criminal assault by unidentified third parties upon tenants using the common hallways. Defendant, thereafter, had significantly reduced the lobby security, and the assault rate in the building had increased. Having voluntarily undertaken to provide plaintiff, when plaintiff became a tenant, with a specific level of security against the criminal acts of unidentified third parties, defendant was held negligent in having failed to restore that level of security in the face of a known significant increase in the hazard after defendant had reduced the security level. While it is not clear that the holding in Kline was based on this negligent omission by defendant, still the holding must be read in the light of its facts, and there are no similar facts in the instance case.

4. It has been suggested by plaintiff in this case that the duty recognized and imposed on a lessor by reason of an implied warranty or habitability established in Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351 , 280 N.E.2d 208 , is available to plaintiff as the common law duty upon which to predicate her case. Defendant, however, calls our attention to the fact that the scope of the implied warranty of habitability established in that case was carefully limited to compliance by the lessor with the provisions of the applicable Building Code, and that def@idant herein is not alleged to have violated any such provisions. I note in addition that the breach of the lessor’s duty recognized and imposed in that case was being used as a shield by a tenant in an action of forcible entry and detainer brought against the tenant when the tenant withheld rent. The case, therefore, does not necessarily establish that the same duty would be recognized and imposed, where, as here, the tenant paid the rent and then sued the lessor for money damages for wrongful death; and is, where the tenant sought to use the implied warranty of habitabiHty as a spear for unliquidated damages rather than as a shield. Hence, even if we were of a mind to expand the scope of the imphed warranty of habitabiHty established in Jack Spring, Inc. v. Little to encompass the fact situation involved in the instant case, there would still remain the question of its availability as a spear rather than as a shield.

I would not hestiate by judicial decision to expand the scope of the impMed warranty of habitabiHty to encompass the fact situation alleged in the instant complaint in a case in which that expanded warranty was being used as a shield by the tenant to justify the withholding of rent (or even to establish a constructive eviction), because in such situations the economic consequences to the lessor are limited to his loss of rent. But where the expanded warranty is sought to be used as a spear in an action for money damages for wrongful death, I think that the economic and social consequences to our society and to tenants themselves, which would be involved in the judicial imposition of such an enlarged duty, are so incalculable as to make any such action appropriate solely for the legislature.

I leave open the situation in which the identity of the throwing tenant or third party is known to the lessor, who then fails to exercise a power which he has to evict the known throwing tenant or to control the access to the retained premises of the known throwing third party so as to prevent the repetition of the danger.