                                        2014 IL App (3d) 130667

                                        Opinion filed July 16, 2014


                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2014

     JAMES HART,                               )     Appeal from the Circuit Court
                                               )     of the 13th Judicial Circuit,
            Plaintiff-Appellant,               )     La Salle County, Illinois
                                               )
                                               )
                    v.                         )     Appeal No. 3-13-0667
                                               )     Circuit No. 12-L-59
     CENTURY 21 WINDSOR REALTY,                )
     ALLIANCE REALTY, INC., and KIM            )
     CAMERON, Individually and d/b/a Cameron   )
     Property Preservation,                    )
                                               )     Honorable Troy D. Holland,
            Defendants-Appellees.              )     Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Justices McDade and Schmidt concurred in the judgment and opinion.
     ______________________________________________________________________________

                                                OPINION

¶1          On July 5, 2011, Century 21’s real estate agent was showing plaintiff a property, subject

     to a listing agreement between Century 21 and the owner. During the showing, plaintiff was

     injured while walking down a basement staircase that collapsed. Plaintiff filed a complaint

     alleging negligence against multiple defendants, including Century 21, the owner’s real estate

     agent. The trial court granted summary judgment in favor of Century 21 after finding the listing

     agreement between the property owner and Century 21 did not create a contractual duty for
     Century 21 to inspect the premises for safety hazards to protect potential buyers. On appeal,

     plaintiff contends summary judgment was not proper because genuine issues of material fact

     related to Century 21’s duty to inspect the property for safety hazards. We affirm.

¶2                                                  FACTS

¶3          Plaintiff, James Hart, filed a two-count “First Amended Complaint” against multiple

     defendants, including Century 21 Windsor Realty, Alliance Realty, Inc., and Kim Cameron,

     individually and d/b/a Cameron Property Preservation, directing only count I, alleging

     negligence, against Century 21. 1 Count I alleged Century 21 “possessed, operated, managed,

     maintained, and controlled or had a duty to possess, operate, manage, maintain, and control” the

     property located at 3 Saratoga Street in Streator, Illinois. According to plaintiff’s complaint, on

     July 5, 2011, Century 21’s agent was showing the property to plaintiff, a prospective buyer. As

     plaintiff attempted to descend the basement stairs, the stairs collapsed. Plaintiff suffered injuries

     to his back, legs, arms, and elbows as a result of the fall.

¶4          Plaintiff’s complaint alleged:

                    “[Century 21] committed one or more of the following careless and

            negligent acts and/or omissions:

                            a) Allowed and permitted a potential buyer to be exposed to an

                    unsafe condition.

                            b) Failed to properly and adequately inspect property for safety

                    before allowing potential buyers on the property.




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      Although plaintiff’s complaint names Century 21 Windsor Realty and Alliance Realty as two
     separate defendants, the pleadings reveal Alliance Realty, Inc. does business as Century 21
     Windsor Realty. Therefore, we will refer to Alliance Realty, Inc. d/b/a Century 21 Windsor
     Realty as “Century 21” throughout this opinion.
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                             c) Failed to make a reasonable inspection of the aforesaid

                     premises, when the Defendants knew or should have known that said

                     inspection was necessary to prevent injury to the Plaintiff.

                             d) Failed to warn the Plaintiff of the dangerous condition of said

                     property, or in the exercise of ordinary care should have shown, that said

                     warning was necessary to prevent injury to the Plaintiff.

                             e) Improperly operated, managed, maintained, and controlled the

                     aforesaid premises, such that as a direct and proximate result thereof, the

                     Plaintiff was injured.”

¶5           On March 15, 2013, Century 21 filed a motion for summary judgment asserting Century

     21, acting as the listing agent for the property owner, did not have a duty to inspect the property

     for safety hazards. Century 21 argued this “duty belonged to Cameron Property Preservation,”

     the company hired by Fannie Mae, the property owner, to clean, inspect, and repair the property.

     Further, Century 21 claimed it did not have reason to know of the hazardous condition of the

     stairs prior to the accident.

¶6           In support of the motion for summary judgment, Century 21 attached the deposition

     transcript of Greg Cameron, a former employee of Cameron Property Preservation. Cameron

     testified he visually inspected the basement staircase on April 15, 2011, and found no defects,

     after walking up and down the staircase several times that day.

¶7           Century 21 attached the “Fannie Mae Broker/Asset Manager Responsibilities” and

     Fannie Mae’s “Broker Signoff Checklist” as an exhibit to its request for summary judgment.

     Pursuant to the “Broker Signoff Checklist,” Century 21 was responsible for cleaning and wiping

     down ceiling fan blades, sinks, appliances, floors, walls, baseboards, light fixtures, and windows.



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¶8            On May 21, 2013, plaintiff filed a response to Century 21’s motion for summary

       judgment along with the deposition testimony of Bette Pearlman, the owner of Century 21.

       Pearlman’s testimony included her statement that she believed it was her responsibility to

       ascertain whether there was a safety issue on the property. In addition, plaintiff included a copy

       of the “Master Listing Agreement” between Fannie Mae and Century 21, section (4)(G)(1)(e) of

       which provided:

                      “(e) Health and Safety. Broker [Century 21] agrees to take prudent action

              in an emergency to protect each Property and notify Seller [Fannie Mae]

              immediately of the emergency. Broker agrees to take all appropriate precautions

              to ensure the health and safety of Broker, Broker Personnel and Vendors. Broker

              must use reasonable judgment in dealing with any issues that give cause for

              concerns including risks related to physical damage to the Property, criminal

              activity and environmental concerns, including discoloration and hazardous

              substances. Broker must not enter the Property if Broker believes that doing so

              will pose a health or safety risk.”

¶9            On July 29, 2013, the trial court heard arguments on Century 21’s motion for summary

       judgment and took the matter under advisement. On August 23, 2013, the trial court entered its

       written “Opinion and Order.”

¶ 10          The trial court found Century 21 “had no interest in the ownership, operation,

       maintenance or control of the premises except to the extent provided by the listing agreement.”

       The trial court considered the language of section (4)(G)(1)(e) of the “Master Listing

       Agreement” between Century 21 and Fannie Mae and found the listing agreement did not create




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       a contractual duty for Century 21 to inspect the basement staircase for hazards to potential

       buyers.

¶ 11             Citing Musser v. Libertyville Realty Ass’n, 44 Ill. App. 3d 195 (1976), the trial court

       determined Century 21 was not paid to inspect the premises and did not have an independent

       duty to do so. The court observed that in the absence of contractual language placing the burden

       of performing structural inspections on listing real estate brokers, like Century 21, the court was

       unwilling to impose such a duty on a broker that would be both substantial and unreasonable.

       Based on the pleadings and attached exhibits, the court found there was no disputed evidence

       suggesting Century 21 had actual notice of the structural instability of the staircase prior to the

       date of this occurrence. The court granted Century 21’s motion for summary judgment,

       dismissed count I of plaintiff’s complaint with prejudice, and included Rule 304(a) language in

       its order. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). Plaintiff appeals.

¶ 12                                                   ANALYSIS

¶ 13             On appeal, plaintiff contends the trial court erred when it granted summary judgment in

       favor of Century 21 because genuine issue of material fact exists concerning Century 21’s duty

       to inspect the property. Century 21 responds the trial court properly granted summary judgment

       as a matter of law because the pleadings reveal no genuine issue of material fact and the contract

       language controls the outcome in this case.

¶ 14             Summary judgment is appropriate when the pleadings, depositions, and admissions on

       file, together with the affidavits, if any, show there is no genuine issue as to any material fact and

       that the moving party is entitled to judgment as a matter of law. Rexroad v. City of Springfield,

       207 Ill. 2d 33, 38-39 (2003). This court reviews de novo the trial court’s order granting summary

       judgment. Lake v. Related Management Co., 403 Ill. App. 3d 409, 411 (2010). When reviewing



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       a grant of summary judgment, this court should construe the pleadings, depositions, admissions,

       and affidavits strictly against the moving party and liberally in favor of the nonmoving party.

       Turner v. Northern Illinois Gas Co., 401 Ill. App. 3d 698, 705 (2010). The construction of

       undisputed contractual language is also a matter to be determined by the court as a question of

       law and amenable to a motion for summary judgment. Premier Title Co. v. Donahue, 328 Ill.

       App. 3d 161, 164 (2002).

¶ 15          In an action for negligence, the plaintiff must set out sufficient facts establishing the

       existence of a duty owed by defendant to plaintiff, a breach of that duty, and an injury

       proximately resulting from the breach. Turner, 401 Ill. App. 3d at 704. Unless plaintiff can

       demonstrate the existence of defendant’s duty to plaintiff, plaintiff cannot recover for injuries as

       a matter of law and summary judgment in favor of defendant is proper. Id. at 705.

¶ 16          In the case at bar, plaintiff claims the language of the “Master Listing Agreement”

       created Century 21’s duty to plaintiff to inspect the premises for safety hazards. The pleadings

       demonstrate the parties disagree about the legal interpretation of the undisputed language

       incorporated into the “Master Listing Agreement” between Fannie Mae and Century 21.

¶ 17          In order to determine what duties, if any, Century 21 owed to plaintiff by contract, we

       carefully examine the undisputed contractual language of the “Master Listing Agreement.”

       Section (G)(1)(e) of the “Master Listing Agreement” provides:

                      “(e) Health and Safety. Broker [Century 21] agrees to take prudent action

              in an emergency to protect each Property and notify Seller [Fannie Mae]

              immediately of the emergency. Broker agrees to take all appropriate precautions

              to ensure the health and safety of Broker, Broker Personnel and Vendors. Broker

              must use reasonable judgment in dealing with any issues that give cause for



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              concerns including risks related to physical damage to the Property, criminal

              activity and environmental concerns, including discoloration and hazardous

              substances. Broker must not enter the Property if Broker believes that doing so

              will pose a health or safety risk.” (Emphasis added.)

       Based on this plain language, we conclude Century 21 had a duty to “take all appropriate

       precautions to ensure the health and safety of the “Broker, Broker Personnel and Vendors”

       (emphasis added). Here, the parties agreed Century 21 would accept the risk of liability for

       injuries to this small group of people without accepting liability for injuries to any other person

       present on the property such as plaintiff, a potential buyer.

¶ 18          The Premises Liability Act provides that the owner of premises has a duty of reasonable

       care under the circumstances to those persons, including potential buyers, lawfully on the

       premises. Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249, 256 (2010); 740 ILCS

       130/2 (West 2010). In this case, the parties to the “Master Listing Agreement” could have, but

       did not, incorporate language expanding Century 21’s contractual duty to conduct its own safety

       inspections to protect all persons lawfully on the seller’s property.

¶ 19          According to plaintiff, since Century 21 agreed to assume a duty to inspect for hazards

       potentially affecting the safety of a small group of persons involved in the real estate business,

       specifically the broker, the broker’s personnel, and vendors, Century 21 had a sufficient

       proprietary interest to warrant holding Century 21 liable for plaintiff’s injuries. Therefore,

       plaintiff argues the trial court erroneously relied on Musser v. Libertyville Realty Ass’n, 44 Ill.

       App. 3d 195 (1976), when allowing summary judgment in favor of Century 21.

¶ 20          However, our careful review of the contract language reveals the parties specifically

       agreed Century21 did not acquire any proprietary interest in the property by contract. Section



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       (H) of the “Master Listing Agreement” provides that “Broker [Century 21] shall not acquire any

       ownership or other interest in any of the Properties as a consequence of entering into this

       Agreement.” Hence, plaintiff’s argument that the court improperly relied on Musser must fail.

¶ 21           Finally, plaintiff argues the deposition testimony of Greg Cameron and Bette Pearlman

       reveal the existence of disputed material facts concerning Century 21’s duty to inspect the

       premises for hazards to any person lawfully present on the property. We disagree. The language

       of the contract itself, rather than the perception of these witnesses, controls whether a contractual

       duty to this plaintiff exists as a matter of law.

¶ 22           We, therefore, conclude Century 21 did not have a contractual obligation to inspect the

       owner’s property, subject to the “Master Listing Agreement,” for structural defects in order to

       protect prospective buyers, such as plaintiff. Further, after carefully reviewing the record, there

       is no evidence establishing Century 21 had actual knowledge the staircase was unstable.

       Therefore, we conclude summary judgment in favor of Century 21 was proper as a matter of law.

¶ 23                                           CONCLUSION

¶ 24           For the foregoing reasons, the judgment of the circuit court of La Salle County is

       affirmed.

¶ 25           Affirmed.




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