Abbasi v. Paraskevoulakos
Annotate this Case
FOURTH DIVISION
May 7, 1998
No. 1-97-1965
SANA JAMIL ABBASI, a Minor, ) APPEAL FROM THE
By and Through Her Mother and ) CIRCUIT COURT OF
Next Friend, Jamil Abbasi, ) COOK COUNTY.
)
Plaintiff-Appellant, )
)
v. )
)
PANAGIOTIS PARASKEVOULAKOS and ) THE HONORABLE
KATINA PARASKEVOULAKOS, ) JOSEPH N. CASCIATO,
) JUDGE PRESIDING.
Defendants-Appellees. )
JUSTICE SOUTH delivered the opinion of the court:
Plaintiff, Sana Jamil Abbasi, a minor, by and through her
mother and next friend, Jamil Abbasi, filed an eight-count first
amended complaint alleging that the minor tenant ingested lead
while living in a dwelling unit owned and/or managed by
defendants, Panagiotis Paraskevoulakos and Katina
Paraskevoulakos. Counts I and V were directed against Panagiotis
and Katina Paraskevoulakos, respectively, sounding in negligence
and alleging as proof of negligence violations of the Illinois
Lead Poisoning Prevention Act (the Act) (410 ILCS 45/1 et seq.
(West 1997)) and the Chicago Municipal Code, chapters 5-4, 5-12,
7-4 and 13-196 (Chicago Municipal Code, ch. 5-4, 5-12, 7-4, 13-
196 (1990)). In the remaining counts, plaintiff asserted private
rights of action under the Chicago Municipal Code (counts II, IV,
VI and VIII) and under the Act (counts III and VII). This appeal
arises out of the dismissal of counts II, III, IV, VI, VII and
VIII of plaintiff's first amended complaint.
Plaintiff filed a five-count complaint on April 16, 1996,
claiming that the minor plaintiff suffered from lead poisoning
ingested while residing in a rental property owned or managed by
defendants from May 1990 until January 1996.
Defendants moved to dismiss this complaint pursuant to
section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 1994)). Instead of responding to the motion to dismiss,
plaintiff filed a first amended complaint. This complaint
contained eight counts; counts I through IV were directed against
Panagiotis, and counts V through VIII were directed against
Katina. Counts I and V sounded in negligence, claiming that each
defendant was the owner and/or managing agent of the apartment
where the minor plaintiff had lived between 1990 and 1996 and
breached duties to the plaintiff evidenced by violations of the
Act and the Chicago Municipal Code, titles 5, 7 and 13.
Counts II and VI stated a private cause of action for
nuisance under section 5-4-090 of the Chicago Municipal Code.
Chicago Municipal Code 5-4-090 (1992). Counts III and VII
stated a private cause of action under the Act. Counts IV and
VIII stated a private cause of action under the Chicago Municipal
Code, titles 5, 7 and 13.
Defendants answered counts I and V, the two negligence
counts, and moved to dismiss the nuisance, the Act and Chicago
Municipal Code counts pursuant to section 2-615. Plaintiff filed
a memorandum of law in opposition to the motion to dismiss, and
defendants replied.
On January 6, 1997, the trial court dismissed counts II and
VI of plaintiff's first amended complaint. Defendants moved to
reconsider the denial of their motion to dismiss the remaining
counts on February 21, 1997. Plaintiff responded and defendants
replied.
On April 16, 1997, the trial court granted defendants'
motion to reconsider and dismissed counts II, III, IV, VI, VII
and VIII.
The trial court's order specifically found that the Act
recognizes a negligence cause of action and that, therefore, it
was not necessary to imply a private cause of action in order to
remedy a violation of the Act and the Chicago Municipal Code.
The trial court further found that the Act and sections of the
Chicago Municipal Code, chapters 5-4, 7-4, 5-12 and 13-196, did
not give rise to a private cause of action but that their
provisions could be the basis for a negligence cause of action as
was pled in this case. Plaintiff filed a notice of appeal.
A motion to dismiss under section 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615(b)(West 1994)) challenges the legal
sufficiency of the complaint. Zekman v. Direct American
Marketers, Inc., 286 Ill. App. 3d 462, 469, 675 N.E.2d 994, 998
(1997). A trial court should grant a motion to dismiss a cause
of action only when it is clearly apparent that no set of facts
can be proven that will entitle a plaintiff to recover. Doe v.
Surgicare of Joliet, Inc., 268 Ill. App. 3d 793, 795, 643 N.E.2d 1200, 1202 (1994). Upon review of an order granting a section 2-
615 motion, all well-pleaded facts are taken as true. Boyd v.
Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995).
This court reviews de novo the trial court's order of dismissal
under section 2-615. Mt. Zion State Bank & Trust v. Consolidated
Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863 (1995);
Zekman, 286 Ill. App. 3d at 469-70, 675 N.E.2d at 999.
Plaintiff argues that section 5-12-110(e) of the Residential
Landlord and Tenant Ordinance (Chicago Municipal Code 5-12-
110(e) (amended November 6, 1991)) expressly gives injured
tenants a private right of action for damages against landlords
who violate the ordinance. Plaintiff also asserts that she has
an implied right to sue under the lead-bearing substances
ordinance as well as section 13-196(d) of the Chicago Municipal
Code, because the remedies specified in these ordinances do not
afford sufficient relief to those injured by violation of the
ordinances. Defendants contend that a private right of action is
not necessary to achieve the aim of the statute or ordinances.
Implication of a private right of action on the basis of a
statute or ordinance is appropriate only if: (1) plaintiff is a
member of the class for whose benefit the statute was enacted;
(2) it is consistent with the underlying purpose of the statute;
(3) plaintiff's injury is one the statute was designed to
prevent; and (4) it is necessary to provide an adequate remedy
for violations of the statute. Corgan v. Muehling, 143 Ill. 2d 296, 312-13, 574 N.E.2d 602, 609 (1991). When a statute is
enacted to protect a particular class of individuals, courts may
imply a private cause of action for violation of that statute
although no express remedy had been provided. Sawyer Realty
Group, Inc. v. Jarvis Corp. 89 Ill. 2d 379, 432 N.E.2d 849
(1982); Galinski v. Kessler, 134 Ill. App. 3d 602, 480 N.E.2d 1176 (1985). Where the legislature had as its purpose in
enacting a statute protection of a substantial segment of the
public, it is proper to inquire in such circumstances whether the
statute is a remedial one and whether certain private remedies
are provided for within the statutory framework in order to
determine whether a private right of action was intended. Rhodes
v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 467 N.E.2d 915
(1984). Consideration of these factors supports implication of a
private right of action in this case.
Section 5-12-110(e) of the Residential Landlord and Tenant
Ordinance states the following:
"Damages and Injunctive Relief. If there is
material noncompliance by the landlord with the
rental agreement or with Section 5-12-070, the
tenant may obtain injunctive relief, and/or
recover damages by claim or defense. This
subsection does not preclude the tenant from
obtaining other relief to which he may be entitled
under this chapter." Chicago Municipal Code 5-
12-110(e) (amended November 6, 1991).
Section 5-12-070 states:
"The landlord shall maintain the premises in
compliance with all applicable provisions of the
municipal code and shall promptly make any and all
repairs necessary to fulfill this obligation."
Chicago Municipal Code 5-12-070 (amended November
6, 1991).
It would appear from a plain reading of section 5-12-110(e)
that an injured tenant has an independent right to sue the
landlord for damages for a material violation of section 5-12-
070. Here, where plaintiff alleges that there were multiple
violations of the ordinance that led to the premises not being in
a habitable condition, plaintiff as a lawful tenant has a private
right of action against the landlord.
Defendants' argument that the landlord/tenant ordinance does
not apply in this instance because plaintiff failed to allege
that the premises comprised more than six units and were not
owner-occupied has been waived for failure to raise this argument
in the lower court.
Analysis of this case in terms of the four factors the court
has used to determine whether a private right of action exists
leads to the following results. In the case of the Residential
Landlord and Tenant Ordinance, the purpose is "to protect and
promote the public health, safety and welfare" of tenants by
requiring landlords "to maintain and improve the quality of
housing." Chicago Municipal Code 5-12-010 (1992). While
criminal penalties exist to compel landlords to maintain their
property, these penalties fall short of addressing the injuries
to tenants. More importantly, such penalties do not impel
landlords to fulfill their obligations under the ordinance. In
order to do so, a civil right of action would be needed in order
for tenants to enforce their rights.
The lead-bearing substances ordinance not only bars
landlords from using lead-bearing substances or maintaining lead
hazards in residential property, but also obligates them to
maintain property so as to prevent and safely abate such hazards.
Chicago Municipal Code 7-4-020, 7-4-030, 7-4-110 (1994). The
goal of chapter 13-196 is to ensure that landlords keep leased
premises in compliance with Code requirements and "free of
flaking, peeling, chipped or loose paint, plaster or structural
material." Chicago Municipal Code 13-196-010, 13-196-540(d)
(1990). Plaintiff is within the class of persons intended to be
protected by the Residential Landlord and Tenant Ordinance since
she is "a person entitled by written or oral agreement,
subtenancy approved by the landlord or by sufferance, to occupy a
dwelling unit to the exclusion of others." Chicago Municipal
Code 5-12-030(h) (1992). Under the lead-bearing substances
ordinance, plaintiff is within the class for which the ordinance
provides since she lived on the premises while she was between
the ages of one and six. "[P]ersons six years of age and younger"
are specifically shielded (Chicago Municipal Code 7-4-
010(2)(1994)). Since plaintiff is a lawful occupant of an
apartment located in Chicago, she is within the class intended to
be protected by chapter 13-196, designed to ensure the structural
integrity and safety of every residential building in Chicago.
Chicago Municipal Code 13-196-340 et seq. (1990).
The injuries that plaintiff suffered are the kind that these
laws were intended to prevent. The lead-bearing substances
ordinance was designed to prevent the very lead-poisoning
injuries that the plaintiff suffered. Section 13-196-540(d) was
designed to prevent injuries that could be caused by flaking and
peeling paint and plaster. The Residential Landlord and Tenant
Ordinance was designed to prevent injuries that occur when leased
premises are not habitable, such as when a lead hazard exists.
The final factor is whether an adequate remedy for violation
of the statute exists. The Residential Landlord and Tenant
Ordinance does not carry a criminal penalty for violations which
the plaintiff alleges. Criminal sanctions are, however, provided
in section 7-4-120 of the lead-bearing substances ordinance.
This section provides:
"Violation of any section of this chapter and
any failure to comply with any order authorized
pursuant to this chapter shall be punishable by
incarceration not to exceed six months and by a
fine not less than $50.00 nor more than $500.00
for each offense. Each day that such violation or
noncompliance exists shall be considered a
separate offense." Chicago Municipal Code 7-4-
120 (1997).
While the penalties under this ordinance could be substantial
since each day that the landlord is not in compliance is a new
violation, the landlord would still only be subject to a
misdemeanor.
Based on the above analysis of the four factors, a private
right of action is appropriate under the Residential Landlord and
Tenant Ordinance, chapter 13-196 of the Chicago Municipal Code,
and the lead-bearing substances ordinance.
Plaintiff argues that without a private right of action, the
central purpose of the Act cannot be effectively implemented and
enforced. That purpose is to curtail the use of lead-bearing
products in order to diminish the incidence of lead intoxication,
particularly in children six and under. 410 ILCS 45/1 (West
1997). Defendants contend that the purpose of the statute, as
well as the ordinances, is to give the state and municipal boards
of health the authority to identify lead paint hazards and to
specify the method by which lead paint hazards should be abated.
Defendants assert that under the Act, the landlord has no duty to
inspect for lead paint; this is the responsibility of the
department of health. Thus, according to defendant, the landlord
can only be held responsible and punished if he actively placed
lead-bearing substances on the premises or for failure to
mitigate or abate the lead hazard after receiving notice.
Applying the four factors to determine whether a private
right of action on the basis of the Act is appropriate, we find
that it is. Plaintiff is a member of the class for whose benefit
the statute was enacted, namely, children six and under who are
exposed to lead intoxication.
According to the legislative history of the Act, it is only
after a child has been lead-poisoned that the state can step in
and require a landlord to abate. If the purpose of the Act is to
prevent lead poisoning, then plaintiff is correct in asserting
that the drafters of the legislation must have intended that a
private right of action be available not only to redress injuries
suffered by children but to encourage landlords to actively
eliminate lead substances from their buildings or not use them at
all. Plaintiff's injuries due to lead poisoning are precisely the
type of injury that the Act was designed to prevent. Clearly, a
private right of action is implied by this statute.
Finally, if plaintiff is denied a private right of action,
her injuries will not be adequately redressed. While under
section 12 of the Act (410 ILCS 45/12 (1996)) any violations are
reported to the State's Attorney, who is authorized to charge the
owner with a Class A misdemeanor and to insure that rent is
withheld, this appears to be an inadequate method of redressing
lead-poisoning injuries. Here, where lead-poisoned children
often belong to low income families, a criminal conviction would
probably do little to ameliorate their condition. To quote our
supreme court in Corgan v. Muehling:
"It is unlikely that patients, injured by
unqualified and unregistered psychologists, will
initiate or pursue their complaints through the
administrative or criminal justice system without
a potential for a tangible reward. A private
right of action***is the only way that an
aggrieved plaintiff can be made whole." Corgan,
143 Ill. 2d at 315, 574 N.E.2d at 610.
Defendants argue that a negligence action is adequate to
address plaintiff's injury. However, to prevail in a negligence
action, plaintiff must satisfy the notice requirement. We agree
with plaintiff that a landlord could "hide his head in the sand"
and never receive actual or constructive notice of a lead hazard
in his building. For this reason, a negligence action alone
would not be an adequate remedy.
For the foregoing reasons, we reverse the lower court's
dismissal of plaintiff's complaint for failure to state a cause
of action.
Reversed and remanded.
McNAMARA, J., concurs.
WOLFSON, J., specially concurs in part and dissents in part.
May 7, 1998
No. 1-97-1965
SANA JAMIL ABBASI, a Minor, ) APPEAL FROM THE
By and Through Her Mother and ) CIRCUIT COURT OF
Next Friend, Jamil Abbasi, ) COOK COUNTY.
)
Plaintiff-Appellant, )
)
v. )
)
PANAGIOTIS PARASKEVOULAKOS and ) THE HONORABLE
KATINA PARASKEVOULAKOS, ) JOSEPH N. CASCIATO,
) JUDGE PRESIDING.
Defendants-Appellees. )
JUSTICE SOUTH delivered the opinion of the court:
Plaintiff, Sana Jamil Abbasi, a minor, by and through her
mother and next friend, Jamil Abbasi, filed an eight-count first
amended complaint alleging that the minor tenant ingested lead
while living in a dwelling unit owned and/or managed by
defendants, Panagiotis Paraskevoulakos and Katina
Paraskevoulakos. Counts I and V were directed against Panagiotis
and Katina Paraskevoulakos, respectively, sounding in negligence
and alleging as proof of negligence violations of the Illinois
Lead Poisoning Prevention Act (the Act) (410 ILCS 45/1 et seq.
(West 1997)) and the Chicago Municipal Code, chapters 5-4, 5-12,
7-4 and 13-196 (Chicago Municipal Code, ch. 5-4, 5-12, 7-4, 13-
196 (1990)). In the remaining counts, plaintiff asserted private
rights of action under the Chicago Municipal Code (counts II, IV,
VI and VIII) and under the Act (counts III and VII). This appeal
arises out of the dismissal of counts II, III, IV, VI, VII and
VIII of plaintiff's first amended complaint.
Plaintiff filed a five-count complaint on April 16, 1996,
claiming that the minor plaintiff suffered from lead poisoning
ingested while residing in a rental property owned or managed by
defendants from May 1990 until January 1996.
Defendants moved to dismiss this complaint pursuant to
section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 1994)). Instead of responding to the motion to dismiss,
plaintiff filed a first amended complaint. This complaint
contained eight counts; counts I through IV were directed against
Panagiotis, and counts V through VIII were directed against
Katina. Counts I and V sounded in negligence, claiming that each
defendant was the owner and/or managing agent of the apartment
where the minor plaintiff had lived between 1990 and 1996 and
breached duties to the plaintiff evidenced by violations of the
Act and the Chicago Municipal Code, titles 5, 7 and 13.
Counts II and VI stated a private cause of action for
nuisance under section 5-4-090 of the Chicago Municipal Code.
Chicago Municipal Code 5-4-090 (1992). Counts III and VII
stated a private cause of action under the Act. Counts IV and
VIII stated a private cause of action under the Chicago Municipal
Code, titles 5, 7 and 13.
Defendants answered counts I and V, the two negligence
counts, and moved to dismiss the nuisance, the Act and Chicago
Municipal Code counts pursuant to section 2-615. Plaintiff filed
a memorandum of law in opposition to the motion to dismiss, and
defendants replied.
On January 6, 1997, the trial court dismissed counts II and
VI of plaintiff's first amended complaint. Defendants moved to
reconsider the denial of their motion to dismiss the remaining
counts on February 21, 1997. Plaintiff responded and defendants
replied.
On April 16, 1997, the trial court granted defendants'
motion to reconsider and dismissed counts II, III, IV, VI, VII
and VIII.
The trial court's order specifically found that the Act
recognizes a negligence cause of action and that, therefore, it
was not necessary to imply a private cause of action in order to
remedy a violation of the Act and the Chicago Municipal Code.
The trial court further found that the Act and sections of the
Chicago Municipal Code, chapters 5-4, 7-4, 5-12 and 13-196, did
not give rise to a private cause of action but that their
provisions could be the basis for a negligence cause of action as
was pled in this case. Plaintiff filed a notice of appeal.
A motion to dismiss under section 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615(b)(West 1994)) challenges the legal
sufficiency of the complaint. Zekman v. Direct American
Marketers, Inc., 286 Ill. App. 3d 462, 469, 675 N.E.2d 994, 998
(1997). A trial court should grant a motion to dismiss a cause
of action only when it is clearly apparent that no set of facts
can be proven that will entitle a plaintiff to recover. Doe v.
Surgicare of Joliet, Inc., 268 Ill. App. 3d 793, 795, 643 N.E.2d 1200, 1202 (1994). Upon review of an order granting a section 2-
615 motion, all well-pleaded facts are taken as true. Boyd v.
Travelers Insurance Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995).
This court reviews de novo the trial court's order of dismissal
under section 2-615. Mt. Zion State Bank & Trust v. Consolidated
Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863 (1995);
Zekman, 286 Ill. App. 3d at 469-70, 675 N.E.2d at 999.
Plaintiff argues that section 5-12-110(e) of the Residential
Landlord and Tenant Ordinance (Chicago Municipal Code 5-12-
110(e) (amended November 6, 1991)) expressly gives injured
tenants a private right of action for damages against landlords
who violate the ordinance. Plaintiff also asserts that she has
an implied right to sue under the lead-bearing substances
ordinance as well as section 13-196(d) of the Chicago Municipal
Code, because the remedies specified in these ordinances do not
afford sufficient relief to those injured by violation of the
ordinances. Defendants contend that a private right of action is
not necessary to achieve the aim of the statute or ordinances.
Implication of a private right of action on the basis of a
statute or ordinance is appropriate only if: (1) plaintiff is a
member of the class for whose benefit the statute was enacted;
(2) it is consistent with the underlying purpose of the statute;
(3) plaintiff's injury is one the statute was designed to
prevent; and (4) it is necessary to provide an adequate remedy
for violations of the statute. Corgan v. Muehling, 143 Ill. 2d 296, 312-13, 574 N.E.2d 602, 609 (1991). When a statute is
enacted to protect a particular class of individuals, courts may
imply a private cause of action for violation of that statute
although no express remedy had been provided. Sawyer Realty
Group, Inc. v. Jarvis Corp. 89 Ill. 2d 379, 432 N.E.2d 849
(1982); Galinski v. Kessler, 134 Ill. App. 3d 602, 480 N.E.2d 1176 (1985). Where the legislature had as its purpose in
enacting a statute protection of a substantial segment of the
public, it is proper to inquire in such circumstances whether the
statute is a remedial one and whether certain private remedies
are provided for within the statutory framework in order to
determine whether a private right of action was intended. Rhodes
v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 467 N.E.2d 915
(1984). Consideration of these factors supports implication of a
private right of action in this case.
Section 5-12-110(e) of the Residential Landlord and Tenant
Ordinance states the following:
"Damages and Injunctive Relief. If there is
material noncompliance by the landlord with the
rental agreement or with Section 5-12-070, the
tenant may obtain injunctive relief, and/or
recover damages by claim or defense. This
subsection does not preclude the tenant from
obtaining other relief to which he may be entitled
under this chapter." Chicago Municipal Code 5-
12-110(e) (amended November 6, 1991).
Section 5-12-070 states:
"The landlord shall maintain the premises in
compliance with all applicable provisions of the
municipal code and shall promptly make any and all
repairs necessary to fulfill this obligation."
Chicago Municipal Code 5-12-070 (amended November
6, 1991).
It would appear from a plain reading of section 5-12-110(e)
that an injured tenant has an independent right to sue the
landlord for damages for a material violation of section 5-12-
070. Here, where plaintiff alleges that there were multiple
violations of the ordinance that led to the premises not being in
a habitable condition, plaintiff as a lawful tenant has a private
right of action against the landlord.
Defendants' argument that the landlord/tenant ordinance does
not apply in this instance because plaintiff failed to allege
that the premises comprised more than six units and were not
owner-occupied has been waived for failure to raise this argument
in the lower court.
Analysis of this case in terms of the four factors the court
has used to determine whether a private right of action exists
leads to the following results. In the case of the Residential
Landlord and Tenant Ordinance, the purpose is "to protect and
promote the public health, safety and welfare" of tenants by
requiring landlords "to maintain and improve the quality of
housing." Chicago Municipal Code 5-12-010 (1992). While
criminal penalties exist to compel landlords to maintain their
property, these penalties fall short of addressing the injuries
to tenants. More importantly, such penalties do not impel
landlords to fulfill their obligations under the ordinance. In
order to do so, a civil right of action would be needed in order
for tenants to enforce their rights.
The lead-bearing substances ordinance not only bars
landlords from using lead-bearing substances or maintaining lead
hazards in residential property, but also obligates them to
maintain property so as to prevent and safely abate such hazards.
Chicago Municipal Code 7-4-020, 7-4-030, 7-4-110 (1994). The
goal of chapter 13-196 is to ensure that landlords keep leased
premises in compliance with Code requirements and "free of
flaking, peeling, chipped or loose paint, plaster or structural
material." Chicago Municipal Code 13-196-010, 13-196-540(d)
(1990). Plaintiff is within the class of persons intended to be
protected by the Residential Landlord and Tenant Ordinance since
she is "a person entitled by written or oral agreement,
subtenancy approved by the landlord or by sufferance, to occupy a
dwelling unit to the exclusion of others." Chicago Municipal
Code 5-12-030(h) (1992). Under the lead-bearing substances
ordinance, plaintiff is within the class for which the ordinance
provides since she lived on the premises while she was between
the ages of one and six. "[P]ersons six years of age and younger"
are specifically shielded (Chicago Municipal Code 7-4-
010(2)(1994)). Since plaintiff is a lawful occupant of an
apartment located in Chicago, she is within the class intended to
be protected by chapter 13-196, designed to ensure the structural
integrity and safety of every residential building in Chicago.
Chicago Municipal Code 13-196-340 et seq. (1990).
The injuries that plaintiff suffered are the kind that these
laws were intended to prevent. The lead-bearing substances
ordinance was designed to prevent the very lead-poisoning
injuries that the plaintiff suffered. Section 13-196-540(d) was
designed to prevent injuries that could be caused by flaking and
peeling paint and plaster. The Residential Landlord and Tenant
Ordinance was designed to prevent injuries that occur when leased
premises are not habitable, such as when a lead hazard exists.
The final factor is whether an adequate remedy for violation
of the statute exists. The Residential Landlord and Tenant
Ordinance does not carry a criminal penalty for violations which
the plaintiff alleges. Criminal sanctions are, however, provided
in section 7-4-120 of the lead-bearing substances ordinance.
This section provides:
"Violation of any section of this chapter and
any failure to comply with any order authorized
pursuant to this chapter shall be punishable by
incarceration not to exceed six months and by a
fine not less than $50.00 nor more than $500.00
for each offense. Each day that such violation or
noncompliance exists shall be considered a
separate offense." Chicago Municipal Code 7-4-
120 (1997).
While the penalties under this ordinance could be substantial
since each day that the landlord is not in compliance is a new
violation, the landlord would still only be subject to a
misdemeanor.
Based on the above analysis of the four factors, a private
right of action is appropriate under the Residential Landlord and
Tenant Ordinance, chapter 13-196 of the Chicago Municipal Code,
and the lead-bearing substances ordinance.
Plaintiff argues that without a private right of action, the
central purpose of the Act cannot be effectively implemented and
enforced. That purpose is to curtail the use of lead-bearing
products in order to diminish the incidence of lead intoxication,
particularly in children six and under. 410 ILCS 45/1 (West
1997). Defendants contend that the purpose of the statute, as
well as the ordinances, is to give the state and municipal boards
of health the authority to identify lead paint hazards and to
specify the method by which lead paint hazards should be abated.
Defendants assert that under the Act, the landlord has no duty to
inspect for lead paint; this is the responsibility of the
department of health. Thus, according to defendant, the landlord
can only be held responsible and punished if he actively placed
lead-bearing substances on the premises or for failure to
mitigate or abate the lead hazard after receiving notice.
Applying the four factors to determine whether a private
right of action on the basis of the Act is appropriate, we find
that it is. Plaintiff is a member of the class for whose benefit
the statute was enacted, namely, children six and under who are
exposed to lead intoxication.
According to the legislative history of the Act, it is only
after a child has been lead-poisoned that the state can step in
and require a landlord to abate. If the purpose of the Act is to
prevent lead poisoning, then plaintiff is correct in asserting
that the drafters of the legislation must have intended that a
private right of action be available not only to redress injuries
suffered by children but to encourage landlords to actively
eliminate lead substances from their buildings or not use them at
all. Plaintiff's injuries due to lead poisoning are precisely the
type of injury that the Act was designed to prevent. Clearly, a
private right of action is implied by this statute.
Finally, if plaintiff is denied a private right of action,
her injuries will not be adequately redressed. While under
section 12 of the Act (410 ILCS 45/12 (1996)) any violations are
reported to the State's Attorney, who is authorized to charge the
owner with a Class A misdemeanor and to insure that rent is
withheld, this appears to be an inadequate method of redressing
lead-poisoning injuries. Here, where lead-poisoned children
often belong to low income families, a criminal conviction would
probably do little to ameliorate their condition. To quote our
supreme court in Corgan v. Muehling:
"It is unlikely that patients, injured by
unqualified and unregistered psychologists, will
initiate or pursue their complaints through the
administrative or criminal justice system without
a potential for a tangible reward. A private
right of action***is the only way that an
aggrieved plaintiff can be made whole." Corgan,
143 Ill. 2d at 315, 574 N.E.2d at 610.
Defendants argue that a negligence action is adequate to
address plaintiff's injury. However, to prevail in a negligence
action, plaintiff must satisfy the notice requirement. We agree
with plaintiff that a landlord could "hide his head in the sand"
and never receive actual or constructive notice of a lead hazard
in his building. For this reason, a negligence action alone
would not be an adequate remedy.
For the foregoing reasons, we reverse the lower court's
dismissal of plaintiff's complaint for failure to state a cause
of action.
Reversed and remanded.
McNAMARA, J., concurs.
WOLFSON, J., specially concurs in part and dissents in part.
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