Chicago tenant gets second chance to argue danger posed by landlord's broken concrete floors

By D.M. Herra | Mar 6, 2019

CHICAGO - A woman suing her landlord over the degraded floors in her building’s parking garage will have another chance to argue her case in court, after a state appeals panel reversed a lower court’s decision in favor of the property owner.

In her complaint, Sue Bohm alleged she had tripped and fallen while walking to the parking space she rented in the garage attached to her apartment building on North Dearborn in Chicago. Both the building and garage are owned by Planned Property Management Inc., Planned Realty Group Inc. and Planned Realty Management Inc.

At trial, Bohm and maintenance staff from the property company testified that the concrete floors in the parking garage are badly degraded, with cracks, chips and holes at frequent intervals. Bohm said although she took the shortest route to her car, there was no route that would have completely avoided areas of degraded concrete. She testified that she was not using her phone or distracted at the time and was looking at both the ground in front of her and the car she was approaching when she caught her toe against a crack and fell, injuring her hip.

The property management group had been cited multiple times with code violations over the condition of the floor, which was replaced about a year after Bohm fell. The group maintained, however, that the danger of the cracked floor was an “open and obvious” risk and it was Bohm’s responsibility to exercise due care.

Cook County Judge John P. Callahan Jr. granted summary judgment to the landlords, finding that the defect was open and obvious and that Bohm should have been aware of the risk, since she had lived in the building about five years, and the floor had been defective the entire time she had lived there. 

Bohm appealed, arguing that the law was improperly applied and that there are questions of material fact about whether the danger was open and obvious.

A three-justice panel of the Illinois First District Appellate Court found that summary judgment was too hastily applied given the questions of material fact. 

Whether a condition is open and obvious depends on the objective knowledge of a reasonable person, not the plaintiff’s subjective knowledge,” Justice Bertina E. Lampkin wrote in the court's opinion.

In specially concurring opinions, Justice Mary K. Rochford and Justice Thomas E. Hoffman both also agreed with the thrust of the court’s finding, but sought to distance themselves from sections of the majority opinion they felt went too far.

Rochford and Hoffman objected to the majority’s including an analysis of whether the plaintiff had a traditional duty of care in the case. Although that is a question of law to be determined by an appellate court, it was not argued at the trial court level and its determination was not necessary for the court to reverse the summary judgment, Rochford wrote, and it should not be addressed by the appellate court.

Hoffman added an objection to the notions that the open and obvious hazard or deliberate encounter exception arguments should be treated as a matter of law. They are disputed questions of fact that should be decided at the trial court level, he wrote.

The case was remanded for further proceedings.

According to Cook County court records, Bohm has been represented in the case by attorneys with the firm of Alberts Curran & Eiler P.C., of Chicago.

The defendants have been represented by the firm of SmithAmundsen LLC, of Chicago.

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Organizations in this Story

Alberts Curran & Eiler, PC. Circuit Court of Cook County Illinois First District Appellate Court SmithAmundsen

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