{ "id": 5603975, "name": "CARLOTTA SHEHY, Adm'x of the Estate of Deborah Shehy, Deceased, Plaintiff-Appellee, v. FRANK BOBER et al., Defendants-Appellants", "name_abbreviation": "Shehy v. Bober", "decision_date": "1979-11-20", "docket_number": "No. 78-1440", "first_page": "1061", "last_page": "1071", "citations": [ { "type": "official", "cite": "78 Ill. App. 3d 1061" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "180 N.E.2d 505", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill. App. 2d 22", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5237902 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/34/0022-01" ] }, { "cite": "221 N.E.2d 121", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. App. 2d 88", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2576974 ], "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/76/0088-01" ] }, { "cite": "278 N.E.2d 404", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "3 Ill. App. 3d 437", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2835838 ], "year": 1966, "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0437-01" ] }, { "cite": "215 N.E.2d 236", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "34 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2880386 ], "year": 1972, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0367-01" ] }, { "cite": "315 N.E.2d 38", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill. App. 3d 562", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5343546 ], "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0562-01" ] }, { "cite": "46 S. Ct. 637", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "70 L. Ed. 1151", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1974, "opinion_index": 0 }, { "cite": "271 U.S. 685", "category": "reporters:federal", "reporter": "U.S.", "year": 1974, "opinion_index": 0 }, { "cite": "143 N.E. 866", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1926, "opinion_index": 0 }, { "cite": "312 Ill. 299", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5120427 ], "weight": 2, "year": 1926, "pin_cites": [ { "page": "304" }, { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill/312/0299-01" ] }, { "cite": "381 N.E.2d 383", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3331517 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0719-01" ] }, { "cite": "252 N.E.2d 406", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "114 Ill. App. 2d 241", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1588942 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-2d/114/0241-01" ] }, { "cite": "134 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "8 Ill. 2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716524 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-2d/8/0293-01" ] }, { "cite": "113 N.E.2d 585", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "350 Ill. App. 541", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5108122 ], "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/ill-app/350/0541-01" ] }, { "cite": "248 Ill. 455", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3393912 ], "opinion_index": 0, "case_paths": [ "/ill/248/0455-01" ] }, { "cite": "196 Ill. 526", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 841272 ], "opinion_index": 0, "case_paths": [ "/ill/196/0526-01" ] }, { "cite": "108 N.E. 724", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "267 Ill. 616", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2405006 ], "pin_cites": [ { "page": "620-21" } ], "opinion_index": 0, "case_paths": [ "/ill/267/0616-01" ] }, { "cite": "155 N.E.2d 338", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1915, "opinion_index": 0 }, { "cite": "20 Ill. App. 2d 73", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3411572 ], "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0076-01" ] }, { "cite": "356 N.E.2d 394", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 612", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2638792 ], "year": 1977, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0612-01" ] }, { "cite": "213 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 2d 134", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5291574 ], "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/66/0134-01" ] }, { "cite": "147 N.E.2d 373", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "12 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2780649 ], "year": 1965, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0483-01" ] }, { "cite": "376 N.E.2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 138", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3359675 ], "pin_cites": [ { "page": "140-41" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0138-01" ] }, { "cite": "170 N.E.2d 881", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "20 Ill. 2d 406", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2736981 ], "year": 1978, "pin_cites": [ { "page": "418-21" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0406-01" ] }, { "cite": "117 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill. 2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12121670 ], "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/2/0074-01" ] }, { "cite": "374 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "71 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448834 ], "year": 1954, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0126-01" ] }, { "cite": "373 N.E.2d 1354", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3419265 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0498-01" ] }, { "cite": "336 N.E.2d 374", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 563", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2796277 ], "weight": 3, "pin_cites": [ { "page": "569" }, { "page": "569-72" }, { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0563-01" ] }, { "cite": "326 N.E.2d 51", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 889", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2781387 ], "pin_cites": [ { "page": "892" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0889-01" ] }, { "cite": "329 N.E.2d 518", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 1022", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5408486 ], "year": 1975, "pin_cites": [ { "page": "1025" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/1022-01" ] }, { "cite": "210 N.E.2d 809", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 2d 382", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5298718 ], "weight": 2, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/62/0382-01" ] }, { "cite": "324 N.E.2d 238", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 1042", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2701430 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/1042-01" ] }, { "cite": "258 N.E.2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. App. 2d 156", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1581472 ], "weight": 2, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/122/0156-01" ] }, { "cite": "356 N.E.2d 575", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 644", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639679 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "647" }, { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0644-01" ] } ], "analysis": { "cardinality": 1361, "char_count": 27914, "ocr_confidence": 0.885, "pagerank": { "raw": 2.338188442873093e-07, "percentile": 0.7918733872129224 }, "sha256": "3421df1902cdf361bd3070d1f4fede7a01fc7a8e1567d567cc69b96b1c34503d", "simhash": "1:53499ef12ee8c714", "word_count": 4595 }, "last_updated": "2023-07-14T14:30:08.757403+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CARLOTTA SHEHY, Adm\u2019x of the Estate of Deborah Shehy, Deceased, Plaintiff-Appellee, v. FRANK BOBER et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. JUSTICE HARTMAN\ndelivered the opinion of the court:\nIn a wrongful death action plaintiff Carlotta Shehy, on behalf of herself and her minor son Anthony, sought to recover from defendants Frank and Irene Bober damages resulting from an accident in which her four-year-old daughter Deborah sustained fatal injuries in a fall from a window of their third-floor apartment located in a building owned by defendants. The trial court entered judgment upon a jury trial verdict of *150,000 and denied defendants\u2019 post-trial motions for judgment n.o.v. or, among other relief alternatively sought, a new trial upon all issues. Defendants appeal from the judgment order and the order denying the post-trial relief named, raising, inter alia, the sufficiency of the underlying complaint.\nFor the reasons hereinafter stated, we reverse the judgment orders of the circuit court and remand the cause for a new trial.\nPlaintiff\u2019s initial complaint was filed on December 3, 1973, and as finally amended contained four counts. Count I was brought under the provisions of the Illinois Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, pars. 1, 2) and alleged among other things that defendants \u201cat the inception\u201d of plaintiff\u2019s tenancy agreed to assume the ordinary upkeep, maintenance and repair of the apartment for its duration; at the time of the accident and for a considerable period prior thereto defendants had notice, knew or should have known that certain windowsills were rotten and falling apart, and that certain windows had no screens or other protective devices on them; defendants were under a duty to repair the premises and keep them in repair for the safety of tenants and children of tender years; on or about December 3, 1971, Deborah fell through a window at defendants\u2019 building, was precipitated three stories to the ground and consequently died, said occurrences being directly and proximately caused by dangerous and defective conditions and conduct ascribable to defendants\u2019 negligence, including failure to warn the plaintiff of rotten windowsills and to repair rotten windowsills. Count II was a claim for funeral expenses incorporating the factual allegations of count I. Count III added an allegation of pain and suffering undergone by Deborah from the date of the accident until the date of her death. Count IV alleged that defendants \u201cfor valuable consideration\u201d agreed to perform certain repairs to the windows and windowsills in her apartment. Sections 78 \u2014 11 and 78 \u2014 17.3 of the Chicago Housing Code were alleged to be in full force and effect at all relevant times, which defendants were claimed to have violated as a direct and proximate result of which the accident allegedly occurred. Defendants\u2019 answer consisted of general denials.\nThe case proceeded to trial on February 15,1978. At the conclusion of the opening statements and prior to the presentation of evidence, the court allowed defendants\u2019 motion to dismiss count III of the complaint on the ground that available information confirmed and plaintiff\u2019s counsel in his opening statement had just admitted that Deborah had been unconscious from the time of the accident until death and, therefore, no conscious pain and suffering occurred. The court also ordered \u201d that the plaintiff be and is hereby prohibited, warned and admonished from making any reference to conscious pain and suffering 0 0 *\u201d for the duration of the trial.\nPlaintiff called defendant Frank Bober (sometimes hereinafter \u201cBober\u201d) as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), who testified that he bought the building located at 739 S. Kostner about April of 1971 from a Mrs. Jesse Herman. Existing apartment leases remained in effect after the purchase. He inspected the building prior to purchase, and was in plaintiff\u2019s apartment on three or four occasions prior to December 2,1971. On the first occasion, he came to inspect it and on another to check the heat after plaintiff phoned him. He personally painted the window trim on the outside of the building. On the date of the accident, he was working in the basement when an unidentified person told him a little girl was playing on the window ledge. He went outside and found her beneath the window lying on the concrete and apparently bleeding. He then ran up to plaintiff\u2019s apartment, banged on the door, and receiving no answer, went down to the first floor to call the police. The girl\u2019s parents appeared after the police arrived. At this point in defendant\u2019s questioning by plaintiff\u2019s counsel the following exchange occurred regarding Deborah\u2019s condition after the fall and before she was removed:\n\u201cQ. Was she conscious?\nA. Was she conscious? She was moving, she was breathing.\nQ. Groaning?\nA. She was moving, yes.\nQ. Was she uttering any sound?\nA. Not anything that you know, understandable, maybe just grunting something.\nQ. Well, did she make the sound that she was obviously in pain?\nA. I don\u2019t know. She made a sound, I really would not go into that much detail. I am not a professional on whether she was in pain.\nQ. It was obvious that she was in pain?\u201d\nDefense counsel objected to the foregoing questions based upon the prior order prohibiting reference to conscious pain and suffering and on the opening statements of plaintiff\u2019s counsel. The court overruled the objection on the ground that it could not \u201c* * \u00b0 suppress the truth of a witness under oath.\u201d Counsel for plaintiff then asked defendant again if the girl was obviously in pain when he observed her on the ground and defendant responded affirmatively.\nDefendant was then questioned extensively about his understandings and course of conduct relating to repair and maintenance of apartments generally and plaintiff\u2019s specifically. He understood it to be his responsibility to keep the walls, windows, doors and \u201cpermanent\u201d parts of the building in good repair. While painting the outer window trim he was in a position to observe the two-part window latches on the inside. Apparently referring to the window from which Deborah fell, he found no rotten wood on the outside that needed replacing. Defendant also observed the latches on that window while he was painting. He did not think he would have had trouble getting permission to enter plaintiff\u2019s apartment to make a necessary repair. If he had observed that any window hardware was missing, he would have been interested in replacing it.\nDefendant was aware of the city ordinance requiring an apartment owner to keep windows in a sound state of repair, including the window hardware, part of which were the latches. He did not replace any hardware on the windows in plaintiff\u2019s apartment, but he did check them and see latches on them. Defendant acknowledged having testified at a prior deposition that he never checked the latches before the baby fell.\nPlaintiff then testified. She identified her Exhibit 13 as a copy of the lease applying to her apartment at 739 S. Kostner. Before she moved in she had an opportunity to examine the apartment\u2019s interior, including the windows on the side of the apartment facing Kostner, from one of which Deborah later fell. The condition of the window was \u201cpretty bad,\u201d with rotten wood over the sill and no noticeable lock. Before signing the lease plaintiff went to the real estate office to ask them to fix the windows and they agreed. After she moved in, however, the windows were not fixed.\nIn April of 1971 plaintiff was informed she should pay rent thenceforth to Bober. She discussed the windows with him on three occasions after he bought the building but he never fixed them. The only repair work done on the windows was the replacement of a pane broken in the middle window during a windstorm, to the right of which was the one from which Deborah fell. It was replaced from the inside of the apartment by defendant before Deborah\u2019s accident.\nOn December 2, 1971, sometime after 3:30 to 4 p.m., plaintiff and her son Anthony left the apartment to meet her husband, who had gone looking for Anthony when he had not returned from school at the usual hour. Deborah remained in the apartment alone, where she had been sleeping for 15 or 20 minutes before they left. They walked to the comer of the building toward Lexington and waited there for plaintiff\u2019s husband. After he had arrived and was talking to plaintiff and Anthony, defendant ran up and told her Deborah had fallen from the window. The window had been closed when she left the building, but when she returned it was just high enough for Deborah to have gotten through. Deborah remained in a coma until she died on December 8. Before the accident plaintiff had seen Deborah and Anthony playing around the windows on the side of the apartment facing Kostner and once had found them trying to let up the windows and look outside. Although she attempted to discipline them, plaintiff was unable to prevent the children from playing at the windows and therefore kept asking that they be fixed.\nOn cross-examination plaintiff testified that when the management failed to fix the window she tried to nail across the top part of the window, but the wood would not hold the nails. No other attempt was made to fix the window. She estimated she had been away from the apartment no longer than twenty minutes when she was told of Deborah\u2019s accident. She first said she frequently left Deborah alone in the apartment, later stating that she had never done so before the accident occurred. She had testified during a prior deposition that she frequently left Deborah in the apartment by herself, but indicated at the trial that she must have misunderstood this question.\nChicago Police Officer Robert Doelker, a homicide investigator, testified for plaintiff that he was routinely assigned to the accident at about 5:30 p.m. on December 2, 1971. About Hi hours later he arrived at the apartment and investigated the windows. He identified plaintiff\u2019s Exhibits 4 and 6 as accurately portraying the condition of the window through which Deborah fell at that time, and said that \u201c[o]ne of the pieces of hardware * \u00b0 e was missing\u201d from the window latch, the part normally attached to the upper half of the window. Asked whether \u00b0 \u00b0 the wood where the hardware should have been attached was in the same deteriorated condition as portrayed in Exhibits 4 and 6,\u201d Doelker answered over objection in the affirmative. On cross-examination he indicated his determination that the wood was in a deteriorated condition was based solely on his visual perception that the paint was chipped and coming off, a condition that can occur without the wood itself being deteriorated. There was a chair near the window with about one to 1?2 feet of distance between the top of the chair and the windowsill.\nOn his own behalf defendant testified that the picture comprising defendants\u2019 Exhibit 1 represented the condition of the window as of December 2, 1971. He scraped the window and painted its sash between the time of the accident and the time when the picture was taken. While painting the outside of the building in the fall of 1971, he observed that the window moved properly in its frame and the top of the lower sash was in good condition. He also saw the latches on the window at that time. He never received a complaint from plaintiff about the condition of the windows. Defendant made no repairs before the accident but did repair a window broken during a storm in January when plaintiff\u2019s husband notified him.\nWillie Mays, a resident of the apartment building at the time of the accident, testified for the defense that he saw the window the child was supposed to have fallen from shortly after the occurrence. It was opened \u201ca little\u201d and a chair was in front of it. A distance of about three feet separated the windowsill from the floor.\nDefendants contend initially that they are entitled to judgment as a matter of law, relying upon the principle that a lessor generally is not liable for injuries on premises leased to and under the control of a tenant. (Dapkunas v. Cagle (1976), 42 Ill. App. 3d 644, 647, 356 N.E.2d 575; Thorson v. Aronson (1970), 122 Ill. App. 2d 156, 258 N.E.2d 33.) Plaintiff\u2019s response is that the evidence involves the judicially recognized exception to this rule, that because both the original lessor before the lease was signed, and later, defendant, undertook to repair the window from which Deborah fell, a duty to repair the premises is recognized. (Looger v. Reynolds (1975), 25 Ill. App. 3d 1042, 324 N.E.2d 238; Thorson, 122 Ill. App. 2d 156, 160; Moldenhauer v. Krynski (1965), 62 Ill. App. 2d 382, 210 N.E.2d 809.) Plaintiff\u2019s testimony, however, was that the promise by the original lessor occurred prior to the signing of the lease; any obligation to repair thus undertaken would be merged in the later instrument, which recited that the tenant agreed both that she was satisfied with the condition of the premises and that there were no promises concerning their physical condition 6 * except those specifically set forth in [the] lease.\u201d (World Insurance Co. v. Smith (1975), 28 Ill. App. 3d 1022, 1025, 329 N.E.2d 518.) The alleged promise by defendant was made after the lease was entered into and therefore required consideration beyond its signing, evidence of which is wholly absent from the record. Ing v. Levy (1975), 26 Ill. App. 3d 889, 892, 326 N.E.2d 51; Moldenhauer, 62 Ill. App. 2d 382, 386.\nPlaintiff correctly asserts that the evidence nonetheless supports a further exception to the general rule of lessor\u2019s nonliability sufficient to contravene its effect. Plaintiff had pleaded in count IV that the violation of ordinance section 78 \u2014 17.3 by defendant was a proximate cause of the accident. The violation of an ordinance prescribing a duty for the protection and safety of persons or property may constitute negligence giving rise to a cause of action on behalf of one who suffers injury or damage as a result. (Dapkunas, 42 Ill. App. 3d 644, 647; Mangan v. F. C. Pilgrim & Co. (1975), 32 Ill. App. 3d 563, 569, 336 N.E.2d 374.) Section 78 \u2014 17.3, then in effect, read in relevant part as follows:\n\u201cEvery window, exterior door, and basement hatchway shall be substantially tight, and shall be kept in sound condition and repair.\n(a) Every window shall be fully supplied with window panes which are without open cracks or holes.\n(b) Every window sash shall be in good condition and fit reasonably tight within its frame.\n(c) Every window, other than a fixed window, shall be capable of being easily opened and shall be held in position by window hardware.\u201d\nDefendants deny the applicability of the ordinance generally and in particular, claiming that the term \u201cwindow hardware\u201d as it appears therein does not include a metal latch by which a window is locked shut.\nDefendants correctly maintain that the interpretation of a statute is generally a question of law for the court (Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 373 N.E.2d 1354); however, in personal injury cases where liability is grounded in a statutory or ordinance violation, questions of whether a plaintiff comes within the class of persons intended to be protected by the statute or ordinance and whether the injury is of the kind generally intended to be prevented have been dealt with in terms of proximate cause and, as such, are subject to the determinations of the triers of fact. (Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 130, 374 N.E.2d 203; Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 84, 117 N.E.2d 74; Mangan, 32 Ill. App. 3d 563, 569-72.) In Mangan, the plaintiff became frightened and fell when she opened the door of the oven in her apartment and a mouse jumped out. Suing the owner of the apartment building for damages resulting from the fall, she relied on, inter alia, a local ordinance prohibiting rodent infestation. On these facts the court found that the jury was presented with sufficient evidence to make a determination that the alleged ordinance violation proximately caused the injury. (32 Ill. App. 3d 563, 572.) Similarly in the present case, the evidence adduced was sufficient to authorize the jury to determine that plaintiffs decedent was within purview of the ordinance (Dini v. Naiditch (1960), 20 Ill. 2d 406, 418-21, 170 N.E.2d 881), and that the harm which befell Deborah was intended to be prevented by the presence of such \u201cwindow hardware\u201d as a latch. See, e.g., Jones v. Chicago Housing Authority (1978), 59 Ill. App. 3d 138, 140-41, 376 N.E.2d 26.\nDefendants alternatively claim that a new trial is required as a result of the combined effect of errors of the trial court and misconduct of plaintiffs counsel. Among a plethora of alleged errors and instances of misconduct we deem it necessary to discuss two in detail: the violation of the court\u2019s order prohibiting reference to conscious pain and suffering and the contradictory instructions given to the jury.\nDefendants aver that the violation of the order in limine prohibiting any reference to conscious pain and suffering had a potentially serious prejudicial effect. Plaintiff counters that the trial court effectively vacated its earlier order when it discovered that, contrary to prior representations of counsel for both sides, Deborah apparently was conscious when Bober found her after the fall from the window. Nothing in the court\u2019s remarks can fairly be construed as vacating the earlier order. Rather, the court seemed to indicate in response to defense counsel\u2019s objection to Bober\u2019s testimony regarding Deborah\u2019s pain and suffering that it was unsolicited by the questions of plaintiffs counsel and therefore unobjectionable. The record, however, reveals that his testimony was given in direct response to leading questions. Assuming arguendo the trial court did properly vacate that part of the order concerning reference to conscious pain and suffering, the same order struck and dismissed count III of the complaint, the only portion alleging pain and suffering, which plaintiff has at no time moved to reinstate. An issue cannot be sustained by evidence absent a corresponding pleading (Burke v. Burke (1957), 12 Ill. 2d 483, 487, 147 N.E.2d 373; Broberg v. Mann (1965), 66 Ill. App. 2d 134, 137, 213 N.E.2d 89). Significantly, that part of defendants\u2019 Instruction No. 15 which included a direction that the jury could not consider the decedent\u2019s pain and suffering in assessing pecuniary injuries was given without objection by plaintiff. These circumstances rebut plaintiff\u2019s claim that the order in limine was at any point properly vacated. Where the likelihood for prejudicial effect is great, the violation of a trial court\u2019s order entered pursuant to a motion in limine excluding certain testimony or statements is reversible error. Coleman v. Williams (1976), 42 Ill. App. 3d 612, 617, 356 N.E.2d 394; see also Clarquist v. Kirschenman (1977), 55 Ill. App. 3d 76, 79, 370 N.E.2d 840.\nThe potential for prejudice was heightened by the contradictory instructions given to the jury as to whether there was a presumption of substantial pecuniary loss by the decedent\u2019s brother Anthony, a collateral heir. Plaintiff\u2019s sole argument here, that defendants have waived this issue on appeal by failing to object to plaintiff\u2019s Instruction No. 12 at any point during the trial, is not supported by the record. Defense counsel challenged that instruction with his own No. 14, which explicitly denied the presumption as to Deborah\u2019s brother, and counsel for plaintiff conceded the point. Nevertheless, through an apparent misunderstanding, the trial court read both instructions to the jury. After this occurred defense counsel attempted to bring the error to the court\u2019s attention. Under these facts we do not regard the issue as waived for purposes of our substantive consideration, to which we now proceed.\nDuring the conference on instructions defense counsel initially indicated he had no objection to plaintiff\u2019s Instruction No. 12, identified as Illinois Pattern Jury Instructions, Civil, No. 31.01 (2d ed. 1971) (hereinafter cited as IPI Civil), which provided in relevant part that \u201c[t]he law recognizes a presumption that the mother and brother have sustained some substantial pecuniary loss by reason of the death.\u201d Subsequently and before the conference was concluded, defense counsel indicated \u201c[w]e are still arguing \u00b0 *' about whether that instruction or defendants\u2019 No. 14, identified as IPI Civil No. 31.03, was the correct statement of applicable law, the latter instruction providing in pertinent part that \u201c[wjhere a decedent leaves a mother the law recognizes a presumption that she has sustained some substantial pecuniary loss by reason of the death. There is no presumption of pecuniary loss to a brother of the decedent.\u201d Counsel for plaintiff withdrew his objection to defendants\u2019 No. 14 being given and the court in apparent agreement remarked, \u201cThere is no presumption of pecuniary loss to the brother of a decedent.\u201d Defense counsel then indicated his No. 14 was given. Notwithstanding the foregoing the court read both plaintiff\u2019s Instruction No. 12 and defendants\u2019 Instruction No. 14 to the jury. Shortly thereafter defense counsel approached the bench and pointed out that * c Plaintiff\u2019s Instruction Number 12 which he withdrew and which I substituted Defendants\u2019 Number 14 for was read when it should not have been * * The court responded, \u201cDidn\u2019t I pull it out yesterday?\u201d When defense counsel attempted to elaborate, counsel for plaintiff interjected, \u201cThat wasn\u2019t read. What was read, the one including the life table which you didn\u2019t object to. There was no discussion about it.\u201d Court and counsel then engaged in a discussion of a separate matter. Through apparent confusion, the question originally raised by defense counsel as to the foregoing instruction was never ruled on.\nThe cases cited by plaintiff in this regard are inapposite because they deal with instructions which overlap excessively or lack an evidentiary basis rather than contradict each other. (Dean v. Keith\u2019s & Ralph\u2019s Tavern, Inc. (1975), 25 Ill. App. 3d 970, 324 N.E.2d 7; Russo v. Kellogg (1962), 37 Ill. App. 2d 336, 185 N.E.2d 377; Onderisin v. Elgin, Joliet & Eastern Ry. Co. (1959), 20 Ill. App. 2d 73, 155 N.E.2d 338.) Where contradiction rather than overlapping occurs, jury confusion as to the applicable law is virtually inevitable. The supreme court stated in Bald v. Nuernberger (1915), 267 Ill. 616, 620-21, 108 N.E. 724:\n\u201cCounsel for appellee practically concede that the above instruction, taken by itself, incorrectly states the law, but they argue that it could have done no harm because the instructions must be taken as a series and several of those given for appellants stated the law correctly. This court has frequently held that instructions may supplement each other, but each one must state the law correctly as far as it goes, and they should be in harmony, so that the jury will not be misled. The jury are not able to select from contradictory instructions one which correctly states the law. (Illinois Iron and Metal Co. v. Weber, 196 Ill. 526; Ratner v. Chicago City Railway Co. 233 id. 169; People v. Lee, 248 id. 64; People v. Novick, 265 id. 436.) This instruction stated the law incorrectly, and even though there may have been correct instructions it is impossible to tell which ones the jury followed. An instruction no more harmful than this was held reversible error on a very similar question in Rich v. Naffziger, 248 Ill. 455.\u201d\n(Accord, Pappas v. Peoples Gas Light & Coke Co. (1953), 350 Ill. App. 541, 549, 113 N.E.2d 585.) In the case at bar the court read the erroneous instruction penultimately and concluded the substantive reading of the applicable law with plaintiff\u2019s Instruction No. 13, which detailed the factors to be considered in determining the measure of damages which repeated explicit reference to \u201cthe mother and brother,\u201d thus reinforcing the impression that both parties were entitled to a presumption of substantial pecuniary loss. These circumstances, counsel for plaintiff\u2019s repeated references in closing argument to the \u201csubstantial loss * * \u00b0 when a brother loses his sister\u201d and the amount of the verdict returned require us to find that the giving of the two instructions constituted reversible error.\nAlthough the errors hereinabove discussed relate directly to the question of damages rather than liability, defendants\u2019 other averments of error and misconduct of plaintiff\u2019s counsel, many of which bear upon the factual questions determinative of liability, require attention. These include extensive interrogation of Bober by him as to the construction of terms in the lease and the ordinance; his comments during trial and in closing argument misstating plaintiff\u2019s and defendants\u2019 respective\nobligations at common law, under the lease and according to the ordinance; his repetition of Bober\u2019s apparently unsolicited reference to \u201cthe insurance company\u201d during cross-examination; his leading question of Officer Doelker as to the \u201cdeteriorated condition\u201d of the window from which Deborah fell; his comment in closing argument that defendants had not undertaken to repair the broken window latch in the years since the occurrence; the court\u2019s refusal, based upon the requirements of the Illinois Dead Man\u2019s Act (Ill. Rev. Stat. 1977, ch. 51, par. 2), to allow defense counsel to question Irene Bober as to her reception of plaintiff\u2019s complaints about the broken latch; the misstatements of the law by the court during trial., Many of the incidents in question occurred without objection; defendants nevertheless argue that in the aggregate they denied defendants a fair trial, affected substantial rights and did not require preservation for purposes of appeal. Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249; Paulsen v. Gateway Transportation Co. (1969), 114 Ill. App. 2d 241, 252 N.E.2d 406; Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App. 3d 719, 381 N.E.2d 383.\nWhere, as here, the question of liability is sufficiently close so that a verdict might reasonably have been returned for either party, it is essential that the trial be so conducted that the jury will not be improperly influenced; otherwise, reversal is required. (Mattice v. Klawans (1924), 312 Ill. 299, 304, 143 N.E. 866, cert. denied (1926), 271 U.S. 685, 70 L. Ed. 1151, 46 S. Ct. 637; Ryan v. McEvoy (1974), 20 Ill. App. 3d 562, 565, 315 N.E.2d 38.) When, as in this case, it cannot be determined from a review of the record whether the combined effect of misconduct and evidentiary errors misled the jury and affected its verdict, the sole remedy is to grant a new trial. (Underwood v. Pennsylvania R.R. Co. (1966), 34 Ill. 2d 367, 371, 215 N.E.2d 236; Mattice, 312 Ill. 299, 310; Geisberger v. Quincy (1972), 3 Ill. App. 3d 437, 442, 278 N.E.2d 404; Mack v. Davis (1966), 76 Ill. App. 2d 88, 98, 221 N.E.2d 121.) Our examination of the entire record in light of the foregoing principles compels us to conclude that a new trial as to all issues is mandated.\nReversed and remanded for a new trial consistent with the views expressed herein.\nReversed and remanded.\nSTAMOS, P. J., and PERLIN, J., concur.\nPlaintiff does not contest defendants\u2019 assertion that the applicable law is correctly stated by their No. 14 instruction rather than by plaintiffs No. 12. See Dodson v. Richter (1962), 34 Ill. App. 2d 22, 180 N.E.2d 505.", "type": "majority", "author": "Mr. JUSTICE HARTMAN" } ], "attorneys": [ "Claussen, Miller, Gorman, Caffrey & Witous, P. C., of Chicago (James T. Ferrini, of counsel, on appeal), for appellants.", "William D. Maddux & Associates, of Chicago (Philip J. Rock and William P. Jones, of counsel), for appellee." ], "corrections": "", "head_matter": "CARLOTTA SHEHY, Adm\u2019x of the Estate of Deborah Shehy, Deceased, Plaintiff-Appellee, v. FRANK BOBER et al., Defendants-Appellants.\nFirst District (2nd Division)\nNo. 78-1440\nOpinion filed November 20, 1979.\nClaussen, Miller, Gorman, Caffrey & Witous, P. C., of Chicago (James T. Ferrini, of counsel, on appeal), for appellants.\nWilliam D. Maddux & Associates, of Chicago (Philip J. Rock and William P. Jones, of counsel), for appellee." }, "file_name": "1061-01", "first_page_order": 1083, "last_page_order": 1093 }