{ "id": 3024245, "name": "LOLA DIAL, Plaintiff-Appellant, v. MARIO MIHALIC, Defendant-Appellee", "name_abbreviation": "Dial v. Mihalic", "decision_date": "1982-06-29", "docket_number": "No. 81-1530", "first_page": "855", "last_page": "864", "citations": [ { "type": "official", "cite": "107 Ill. App. 3d 855" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "401 N.E.2d 973", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3230976 ], "pin_cites": [ { "page": "1054" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/1050-01" ] }, { "cite": "167 N.E.2d 14", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 2d 285", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5786365 ], "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/25/0285-01" ] }, { "cite": "151 Ill. App. 404", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2634373 ], "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/ill-app/151/0404-01" ] }, { "cite": "123 N.E.2d 583", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1909, "opinion_index": 0 }, { "cite": "4 Ill. App. 2d 85", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5130595 ], "year": 1909, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/4/0085-01" ] }, { "cite": "247 N.E.2d 877", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. 2d 345", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2846570 ], "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0345-01" ] }, { "cite": "13 N.E.2d 652", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "294 Ill. App. 206", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3241167 ], "opinion_index": 0, "case_paths": [ "/ill-app/294/0206-01" ] }, { "cite": "310 N.E.2d 809", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "280 N.E.2d 803", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "4 Ill. App. 3d 483", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2910922 ], "weight": 3, "pin_cites": [ { "page": "485" }, { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0483-01" ] }, { "cite": "210 N.E.2d 809", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1972, "opinion_index": 0 }, { "cite": "62 Ill. App. 2d 382", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5298718 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "388" }, { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/62/0382-01" ] }, { "cite": "356 N.E.2d 575", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 644", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639679 ], "weight": 2, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0644-01" ] }, { "cite": "404 N.E.2d 842", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1976, "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 724", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5553899 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "726" }, { "page": "727-728" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0724-01" ] }, { "cite": "177 A. 262", "category": "reporters:state_regional", "reporter": "A.", "year": 1971, "opinion_index": 0 }, { "cite": "119 Conn. 398", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1624815 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/conn/119/0398-01" ] }, { "cite": "324 N.E.2d 238", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "239" } ], "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 1042", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2701430 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/1042-01" ] } ], "analysis": { "cardinality": 892, "char_count": 23231, "ocr_confidence": 0.883, "pagerank": { "raw": 1.8452108957923508e-07, "percentile": 0.7227268848492712 }, "sha256": "4a353e46c4d5de16e8c247c02f08db978e7cfd05b24b7265b0ef1a2ab588764a", "simhash": "1:4a67359293e1e9de", "word_count": 3859 }, "last_updated": "2023-07-14T19:24:47.401260+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LOLA DIAL, Plaintiff-Appellant, v. MARIO MIHALIC, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nPlaintiff, Lola Dial, appeals the trial court\u2019s order dismissing with prejudice her third amended complaint filed against defendant, Mario Mihalic. The issue presented for review is whether plaintiff\u2019s complaint states a cause of action. For the reasons which follow, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.\nPlaintiff\u2019s lawsuit arose out of an accident which occurred on the evening of March 1, 1977. At the time of the accident plaintiff was the tenant of apartment 501 in a building owned by defendant and was visiting another tenant in apartment 504 of the same building. Plaintiff\u2019s third amended complaint alleged that plaintiff was standing in the kitchen preparing food in the oven of an electric stove supplied for the apartment by defendant when the oven door suddenly and unexpectedly fell open from a closed vertical position to an open horizontal position due to a failure of the oven door securing mechanisms to hold the door in a closed position. The opening of the door startled plaintiff, who tripped and fell backwards onto the hot surface of the opened door causing her to suffer severe and permanently disfiguring burns. Plaintiff brought a tort action against defendant, landlord and lessor of the apartment in which plaintiff was injured, alleging that defendant had breached his duties under the terms of a lease which defendant had entered into with the tenant in whose apartment the accident had taken place. In an affidavit attached to her complaint plaintiff averred that she was not able to secure a copy of the lease for apartment 504 and therefore submitted her own lease (for apartment 501) which, except for certain details not relevant here, contained the same provisions. Paragraph 6 of the lease (Exhibit I) states in part:\n\u201cC. Lessor covenants that at all times during the Term hereof, the Lessor shall maintain the Apartment and the Building to the following minimum standards:\n# # e\n(5) Gas and/or electrical appliances which are supplied by Lessor in good working order, appropriate gas piping and electrical wiring system to the extent existing in the Building maintained in good working order and safe condition.\u201d\nPlaintiff claimed that by virtue of this covenant, \u201cdefendant expressly assumed the duty to maintain the aforesaid stove, which defendant as Lessor had supplied, in good working order and safe condition\u201d and that defendant breached this duty, which breach resulted in serious injuries to plaintiff. Paragraph 10 of the complaint alleged that \u201cprior to said occurrence, defendant had been notified that said stove was not in good working order and was not in safe condition, but notwithstanding said notice, defendant had failed and refused to repair and maintain said stove in violation of said express covenant to do so.\u201d Paragraph 11 asserted that defendant was guilty of one or more of the following \u201ccareless and negligent acts and/or omissions:\u201d\n\u201c(a) Failed to properly and adequately maintain the appliances provided in the apartment;\n(b) Failed to advise plaintiff or post any notice of the defective condition of the stove;\n(c) Failed to heed complaints that said stove was not in good working order and was not in safe condition, and failed and refused to repair and maintain said stove in violation of express covenant to do so.\u201d\nIn subparagraph (d) plaintiff advanced a res ipsa loquitur theory of recovery. Paragraph 12 claimed that plaintiff\u2019s injuries were directly and proximately caused by defendant\u2019s acts and/or omissions. Plaintiff sought more than $15,000 in damages.\nDefendant filed a motion to dismiss the third amended complaint alleging that (1) the lease agreement imposed no duty of repair which would give rise to an action for damages arising out of personal injuries; (2) plaintiff lacked standing to pursue an action for breach of an alleged covenant in the lease; (3) the complaint failed to allege compliance with the written notice requirements of the lease; (4) the lease imposed no duty to maintain the stove in a safe condition; and (5) defendant did not owe plaintiff any common law duty of ordinary care with respect to the appliance in question.\nOn February 25, 1981, a hearing was held on defendant\u2019s motion to dismiss the third amended complaint. The trial court asked the parties to brief the issue of the requirement of written notice. After a final hearing, plaintiff\u2019s complaint was dismissed with prejudice in an order entered May 29, 1981.\nUnder paragraph 6C(5) of the lease, defendant covenanted to maintain the electrical appliances in good working order \u201cat all times during the Term\u201d of the lease. Plaintiff\u2019s first argument on appeal is that damages for personal injuries are recoverable for breach of this covenant. Plaintiff relies principally upon the decision in Looger v. Reynolds (1975), 25 Ill. App. 3d 1042, 324 N.E.2d 238, where the court adopted section 357 of the Restatement (Second) of Torts (1965). Section 357 states:\n\u201cA lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if\n(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and\n(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor\u2019s agreement would have prevented, and\n(c) the lessor fails to exercise reasonable care to perform his contract.\u201d Restatement (Second) of Torts sec. 357 (1965).\nAs set forth in Looger, three rationales have been advanced in support of acceptance for the Restatement rule:\n\u201c(1) The landlord, by the agreement to repair, reserved a privilege to entry and supervision of the premises by virtue of which he retained \u2018control\u2019 of the premises and ought to be liable as an occupier of the land; (2) the lessor by his promises, induced the tenant to forego repairs of his own, and so by his misleading undertaking has made himself responsible for the consequences; and (3) the landlord stands in a special relation to the tenant and, by entering into the covenant to repair, undertakes an additional responsibility which extends the relationship.\u201d (Looger v. Reynolds (1975), 25 Ill. App. 3d 1042-43, 324 N.E.2d 238, 239. See also Dean v. Hershowitz (1935), 119 Conn. 398, 177 A. 262; Prosser, Law of Torts sec. 63 (4th ed. 1971).\nDefendant questions the precedential value of Looger on a number of grounds none of which has merit. Defendant first states that \u201cdespite the fact that [Looger] purported to adopt what was a radical change in Illinois law, defendant has not been able to find any other decisions in which another Illinois court actually applied Section 357 of the Restatement.\u201d We note, however, that subsequent to Looger, two other decisions apparently have accepted section 357 as a valid statement of Illinois law. (See Hurt v. Pershing Mobile Home Sales, Inc. (1980), 83 Ill. App. 3d 724, 726, 404 N.E.2d 842; Dapkunas v. Cagle (1976), 42 Ill. App. 3d 644, 647, 356 N.E.2d 575.) Although neither opinion found section 357 applicable to the facts of the particular case, both acknowledged that a cause of action for personal injuries may be based on section 357.\nMoreover, we cannot agree with defendant that Looger effected \u201ca radical change in Illinois law.\u201d In adopting section 357 of the Restatement (Second) of Torts (1965), the Looger court relied in part on Moldenhauer v. Krynski (1965), 62 Ill. App. 2d 382, 210 N.E.2d 809, where a tenant was allowed to recover damages in tort for personal injuries proximately caused by the landlord\u2019s failure to perform a promise to repair and Lulay v. South Side Trust & Savings Bank (1972), 4 Ill. App. 3d 483, 280 N.E.2d 803, where a tenant\u2019s daughter was permitted to recover damages in tort occasioned by the landlord\u2019s failure to abide by a covenant to repair given in his lease. In Lulay the court stated, \u201cA growing number of courts adhere to the rule that a landlord who has covenanted to keep premises in repair is hable for injuries received by the tenant, his family, servants, invitees or sub-tenants, because of his failure to do so. [Citations.]\u201d Lulay v. South Side Trust & Savings Bank (1972), 4 Ill. App. 3d 483, 485, 280 N.E.2d 803.\nDefendant next argues that Looger is distinguishable on its facts because the complaint in Looger indicated that the landlord \u201cspecifically undertook\u201d with his tenant an obligation to repair the defective porchway on which the plaintiff, the tenant\u2019s guest, was ultimately injured. Thus, the alleged defect appeared to have been present at the time the lease was entered into. While defendant\u2019s observation regarding the facts in Looger may be correct, section 357 provides that liability may exist for \u201ca condition of disrepair existing before or arising after the lessee has taken possession * * *.\"(Emphasis added.)\nDefendant also purports to distinguish Looger on the ground that in Looger there was an undertaking by the lessor to make a specific repair, as opposed to a general covenant to repair. Section 357, however, does not limit liability to agreements to make specific repairs but extends to \u201ca covenant in the lease or otherwise to keep the land in repair, * * In Moldenhauer v. Krynski (1965), 62 Ill. App. 2d 382, 388, 210 N.E.2d 809, a case decided before section 357 of the Restatement was adopted, the court rejected \u201ca distinction between contracts involving a continuing duty to repair and those involving a duty to make specific or single repairs.\u201d\n\u201cThere appears to be no substantial reason for making the distinction made by the defendants. The gravamen of an action to recover damages for personal injuries resulting from a breach of a covenant to repair is the breach of a covenant itself; if the landlord is to be held liable it is only because he negligently failed to perform his duty. [Citation.] Whether the contract calls for the landlord to keep the premises in repair or simply to put the premises into repair has no bearing on whether he has negligently failed to make such repairs.\u201d Moldenhauer v. Krynski (1965), 62 Ill. App. 2d 382, 390, 310 N.E.2d 809.\nContrary to defendant\u2019s argument, a landlord may be liable for injuries proximately caused by breach of a general covenant to repair. See Farmer v. Alton Building & Loan Association (1938), 294 Ill. App. 206, 13 N.E.2d 652.\nFinally, defendant suggests that the defective porchway in Looger may have been a common area used by other tenants and he notes that a landlord\u2019s duty to maintain common premises for the use of tenants and their guests traditionally has been recognized. (See, e.g., Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 350, 247 N.E.2d 877.) Again, the applicability of section 357 is not limited to common areas. While it is not clear from the Looger opinion whether the porchway was a common area, the briefs filed in that case indicate that it was not. In any event, it seems improbable that the court would have adopted section 357 of the Restatement if the landlord\u2019s liability for personal injuries could have been predicated on a well-established tort theory. We also point out that the cases decided after Looger which have recognized the adoption of section 357 in Illinois have not relied upon the distinction between demised premises and common areas in determining whether a cause of action had been stated under section 357. (See Hurt v. Pershing Mobile Home Sales, Inc. (1980), 83 Ill. App. 3d 724, 404 N.E.2d 842; Dapkunas v. Cagle (1976), 42 Ill. App. 3d 644, 356 N.E.2d 575.) In our judgment Looger is not distinguishable on any of the grounds raised by defendant. Based on the foregoing, we conclude that a cause of action for personal injuries may be based on section 357 of the Restatement (Second) of Torts (1965).\nDefendant next contends that plaintiff lacks standing to sue for an alleged breach of the covenant to repair because she was not a party to the lease. We must reject this contention. Under section 357 of the Restatement, a lessor of land is subject to liability for \u201cphysical harm caused to his lessee and others upon the land with the consent of the lessee\u201d where the lessor has negligently breached a contractual agreement to keep the land in repair and where the breach creates an unreasonable risk to persons upon the land which performance of the lessor\u2019s agreement would have prevented. The lessor\u2019s duty under the rule \u201cis not merely contractual, although it is founded upon a contract. It is a tort duty. It extends to persons on the land with the consent of the lessee, with whom the lessor has made no contract.\u201d (Restatement (Second) of Torts sec. 357, comment d (1965); see also Lulay v. South Side Trust & Savings Bank (1972), 4 Ill. App. 3d 483, 485, 280 N.E.2d 803.) Paragraph 21 of the lease provides, in part:\n\u201cTenant further agrees that except for instances of negligence or willful misconduct of Lessor, its agents or employees, Lessor, its agents or employees shall not be liable for any damage to the person or property of Tenant or any other person occupying or visiting the Apartment or Building, sustained due to the Apartment or Building or any part thereof or any appurtenance thereof becoming out of repair * * *.\u201d (Emphasis added.)\nThis provision implies that the lessor may be liable for personal injuries sustained by a guest of a tenant where those injuries are proximately caused by the lessor\u2019s negligent failure to keep the demised premises in repair. We conclude that plaintiff has standing to bring this action.\nDefendant further contends that even if section 357 is \u201cpotentially applicable,\u201d plaintiff\u2019s third amended complaint fails to allege facts showing a failure on defendant\u2019s part to use due care. Section 357(c) requires, as an element of liability, that \u201cthe lessor fails to exercise reasonable care to perform his contract.\u201d Comment d to the section states:\n\u201cSince the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty. Unless it provides that the lessor shall inspect the land to ascertain the needs of repairs, a contract to keep the premises in safe condition subjects the lessor to liability only if he does not exercise reasonable care after he had had notice of the need of repairs. In any case his obligation is only one of reasonable care.\u201d\nThe parties dispute whether, in the absence of actual notice, defendant was under an affirmative duty to inspect the demised premises to ascertain the needs of repairs. Assuming, however, that there was no duty to inspect, plaintiff\u2019s complaint specifically alleged that defendant was given notice that the \u201cstove was not in good working order and was not in safe condition\u201d but \u201cfailed and refused to repair and maintain said stove * * * .\u201d Defendant maintains that since the complaint did not set forth facts indicating that defendant had a reasonable opportunity to repair the alleged defect, there were no facts suggesting a failure to use due care. While the complaint did not recite, in so many words, that defendant had had a reasonable opportunity to repair the alleged defect, that inference reasonably may be drawn from the language of the complaint and thus would withstand defendant\u2019s motion to dismiss.\nDefendant\u2019s principal argument regarding section 357 is that even if it is found applicable, plaintiff\u2019s complaint was properly dismissed because it failed to allege that defendant was given written notice of the asserted need of repairs. Subparagraph (c) of section 357 of the Restatement posits as one element of liability that \u201cthe lessor fails to exercise reasonable care to perform his contract.\u201d Comment (d) to this section, quoted above, notes that since the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty. Defendant submits that a cause of action has not been stated because the lease, by its express terms, requires written notice of alleged defects.\nPlaintiff responds that no notice was necessary because under the lease defendant had a continuing duty to keep the demised premises in a constant state of repair. Plaintiff also relies on paragraph 11 of the lease which states, in part, that \u201cLessor reserves the right in accordance herewith to enter the Apartment in order to inspect same, make necessary or agreed repairs, * * * [or] supply necessary or agreed services \u00b0* * *.\" Plaintiff argues that where the lessor has covenanted to keep the demised premises in a state of repair, an intention that the lessor shall take notice of the need of repairs from his own observation may be implied from the lessor\u2019s reservation in the lease of a right to enter and inspect the premises. (See Hurt v. Pershing Mobile Home Sales, Inc. (1980), 83 Ill. App. 3d 724, 727-728, 404 N.E.2d 842; Alaimo v. Du Pont (1954), 4 Ill. App. 2d 85, 92, 123 N.E.2d 583; Cromwell v. Allen (1909), 151 Ill. App. 404, 408.) In the alternative, plaintiff argues that the written notice provision is unenforceable as a matter of public policy (Ill. Rev. Stat. 1975, ch. 80, par. 91) and is inapplicable to anyone other than the party who signed the lease. See Valentin v. Swanson & Co. (1960), 25 Ill. App. 2d 285, 289, 167 N.E.2d 14.\nIn our view it is unnecessary to decide whether plaintiff had a continuing duty to keep the demised premises in a constant state of repair irrespective of any notice from the tenant. A lessor\u2019s liability under section 357 of the Restatement may be based on the lessor\u2019s failure to exercise reasonable care after he has had notice of the need of repairs. (Restatement (Second) of Torts sec. 357, comment d (1965).) Here plaintiff\u2019s third amended complaint alleged that defendant was given notice of the defective stove oven door and \u201cfailed and refused to repair and maintain said stove * * *.\" While the complaint did not allege that the notice was in writing, the Restatement does not predicate liability upon written notice nor, in our opinion, do the lease provisions involved in this case require such notice.\nParagraph 23 of the lease states in part that if the lessor defaults in his duty to maintain the apartment or in his agreements to perform repairs as set forth in paragraph 6 and such default is not cured by the lessor within 30 days after notice from the tenant (unless such default involves a hazardous condition or failure to furnish heat, hot water or essential services, which shall be cured forthwith), the tenant may treat such event as a breach of the lease and, in addition to all other rights and remedies provided at law or in equity, may, by giving lessor not less than 10 days\u2019 prior written notice, terminate the lease. Contrary to defendant\u2019s argument, paragraph 23 does not define the lessor\u2019s duty of repair (which duty is contained in paragraph 6 of the lease and furnishes the basis of liability under section 357 of the Restatement) but merely determines the circumstances under which the tenant may terminate his lease after the landlord has defaulted in his obligation under paragraph 6 to maintain the apartment or perform repairs. Termination of the lease upon not less than 10 days\u2019 prior written notice is an option the tenant has \u201cin addition to all other rights and remedies provided at law or in equity\u201d which are \u201cdistinct, separate, and cumulative.\u201d Paragraph 22.\nDefendant seemingly argues that there can be no actionable breach of the landlord\u2019s covenant to repair unless the tenant first complies with the notice provisions of paragraph 23. Even if we accept this argument, we note that while paragraph 23 specifies that the notice of termination must be in writing, subparagraph 23(1) does not impose such a requirement on the notice of default where the default relates to the lessor\u2019s duty to \u201cmaintain the Apartment * * * or in its agreements to perform repairs, * * * as set forth in Paragraph 6 * * *.\u201d In contrast, subparagraph 23(2) explicitly requires \u201cwritten notice\u201d of default \u201cin the performance of any other covenant or agreement\u201d of the lease as a condition precedent to termination. Although paragraph 19 of the lease, denominated \u201cNOTICES,\u201d states that \u201cNotices, * * * shall be in writing,\u201d we do not believe that this general requirement of written notice was intended to apply to subparagraph 23(1) which, unlike subparagraph 23(2), makes no mention of written notice of default. Indeed, it is strained to suggest that no liability attaches to the landlord\u2019s failure to cure a default regardless of its seriousness merely because the landlord was not given written notice of it. We conclude that the notice alleged in plaintiff\u2019s third amended complaint was sufficient and hold that plaintiff\u2019s complaint states a cause of action under section 357 of the Restatement (Second) of Torts (1965).\nIn her reply brief plaintiff also argues that the facts set forth in her third amended complaint would support a res ipsa loquitur theory of recovery. This argument was not raised in her original brief and will not be considered here. Ill. Rev. Stat. 1981, ch. 110A, par. 341(e)(7); Herman v. Hambler (1980), 81 Ill. App. 3d 1050, 1054, 401 N.E.2d 973.\nFor the foregoing reasons the order of the circuit court of Cook County is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.\nAffirmed in part; reversed in part; and remanded for further proceedings.\nDOWNING and HARTMAN, JJ., concur.\nParagraph 23 of the lease, \u201cTENANT\u2019S REMEDIES,\u201d provides in part that if Lessor:\n\u201c(1) defaults in its duty to maintain the Apartment \u00b0 \u00b0 \u201c or in its agreements to perform repairs, * * * as set forth in Paragraph 6 and such default is not cured by Lessor within 30 days after notice from Tenant to Lessor (unless such default involves a hazardous condition or failure to furnish heat, hot water or essential services, which shall be cured forthwith); and provided Lessor\u2019s failure to cure is not excused on account of one or more of the defenses set forth in Paragraph 6(C) [the lease apparently means to refer to Paragraph 6(D), which is not applicable here] * * *\nTenant may: treat such event as a breach of this Lease and, in addition to all other rights and remedies provided at law or in equity * * * may, by giving Lessor not less than 10 days prior written notice, terminate the Lease and the Term created hereby by setting forth the date of said termination in the said 10 days\u2019 notice and vacating on or before said date, with rent paid to said termination date. Prepaid rent and Security Deposit, if any, shall be promptly refunded to Tenant.\u201d\nParagraph 19, entitled \u201cNOTICES,\u201d provides that \u201cNotices * * * shall be in writing * * *.\"", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "Henslee, Monek & Henslee, of Chicago (John J. Naughton and Daniel J. Downes, of counsel), for appellant.", "Rooks, Pitts, Fullagar & Poust, of Chicago (John G. Poust and Christine M. Wheelock, of counsel), for appellee." ], "corrections": "", "head_matter": "LOLA DIAL, Plaintiff-Appellant, v. MARIO MIHALIC, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 81-1530\nOpinion filed June 29, 1982.\nHenslee, Monek & Henslee, of Chicago (John J. Naughton and Daniel J. Downes, of counsel), for appellant.\nRooks, Pitts, Fullagar & Poust, of Chicago (John G. Poust and Christine M. Wheelock, of counsel), for appellee." }, "file_name": "0855-01", "first_page_order": 877, "last_page_order": 886 }