Campagna v. Cozzi

Citations: 207 N.E.2d 739; 59 Ill. App. 2d 208; 1965 Ill. App. LEXIS 838Docket: Gen. 49,755

Court: Appellate Court of Illinois; May 11, 1965; Illinois; State Appellate Court

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Nicholas Campagna, a minor represented by his father, Thomas Campagna, appealed a jury verdict from the Cook County Circuit Court that ruled in favor of defendant Paul A. Cozzi. The case stemmed from injuries Nicholas sustained after falling from the back porch of Cozzi's building, where the Campagna family resided in a third-floor apartment. The building, which housed an addressograph business on the first floor and apartments on the second and third floors, lacked a backyard, with a parking lot located directly behind it. 

The back porches, made of wood and running the entire length of the building, were accessible from the kitchens of the apartments and were surrounded by vertical wooden railings. Testimony indicated that Mrs. Campagna sought a rental with outdoor play space for her children and discussed using the porch as a play area and for drying laundry with the real estate agent, although he denied this conversation. Both the Campagna and Baumgarten families, who lived on the same floor, occasionally allowed their children to play on the shared porch. Mr. Baumgarten installed gates to prevent the children from falling down the stairs and to section off the porch. The Campagnas frequently used the porch for drying clothes, while the Baumgartens used it less often, preferring their kitchen dryer. The trial also involved the real estate agent, but a directed verdict was issued in his favor, with no appeal filed against that decision.

An accident occurred on August 14, 1959, involving the Baumgarten family's four-year-old son, who removed a slat from the railing on a porch shared with the Campagna family. The slat's nails had rusted out, leading to the child's fall through the opening. The case centers on whether the landlord had a duty to maintain the porch and railings, with the appellant arguing that the porch was a common area used by both families, thus imposing a duty of care on the landlord. Conversely, the landlord contends that the lease agreement allocated half of the porch to each tenant, negating his responsibility for repairs.

The lease's language is ambiguous, lacking clarity on the use of the porch, and does not confirm common use. A specific clause prohibits storage of items on the porch but does not imply landlord control. The court determined that the jury must decide the factual question of control over the porch, given the evidence is inconclusive. Additionally, the appellant sought to introduce evidence of the landlord's subsequent repairs to the railing not as proof of negligence but to demonstrate control over the porch. The court's refusal to admit this evidence was deemed an error, as it could significantly impact the case's outcome.

Defendant’s liability hinges on whether the landlord or tenant controlled the premises, allowing for the admissibility of evidence regarding control, including post-accident repairs. The court erred in excluding evidence of the landlord repairing the railing after the accident, which could have influenced the outcome. The appellant also contested an instruction on the landlord's repair duty, which required ordinary care to maintain common areas in a safe condition. The appellant argued that the term "reserved" implied a need for explicit evidence of the lease's reservation of the porch for common use. However, the plaintiff's evidence demonstrated that the porch was indeed commonly used by third-floor tenants, supporting the landlord's duty. The court rejected the appellant's proposed instruction which suggested that tenants’ use could impose duties on the landlord without clear intent from him. The court found that while the existing instruction was correct, the appellant deserved clarification that implied reservation could exist. Consequently, the Circuit Court's judgment was reversed, and the case was remanded for further proceedings consistent with this opinion.