## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Hilgart v. 210 Mittel Drive Partnership , 2012 IL App (2d) 110943

Appellate Court Caption CAROL YN HI L GART, Plaintiff-Appellant, v. 210 MI TTEL DRI VE PARTNERSHI P; STEVEN L ETURNO, In dividually and d/b/a 210 Mittel Drive Partnership; and DANI EL L I SOWS KI
, Individually and d/b /a 2 1 0 M it

te l D riv e Pa

r tn e rship, Def

endants-A

ppellees (The Br ickman Group, Ltd., Def

endant and Third-Party Plaintiff, and AI T Worldwide L og istics, Inc., Third- Party Def endant)

.

District & N o. Second District Docke t No. 2-11-0943

Filed October 17, 2012

Held (N ote : This syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an ac tion for t he inj uries plainti ff suffere d when she fell on the stairs while leaving the building in which she worke d, summary judgme nt was proper ly enter ed for the partne rship t h at o wned the building and the i n dividual partne rs on the g round that defe ndants wer e immune fr o m liability under the exclusive reme dy pro v i s i on of the Workers’ Compensatio n Act, notwithstanding plaintiff’s contention that the dual
capa city doctrine applied beca use the partne rs wer e also the president and vice- president of plaintiff’s employ er, since their duties as owner s of the building we re r elated to their duties as plaintiff’s e mploy er.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County
, No. 08-L -171; the Hon. Kenne th L . Popejoy , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Steven A. Be rman and Michae l J

. Ray
, both of Anesi, Ozm an , Rodin, Novak & Kohen, Ltd., of Chicag o, for a ppellant.

Christopher J

. Dallavo and Christopher T. Buc kley
, both of Schueler
, Dallavo & Casieri, of Chica g o, for a ppellee.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion.
J ustices Z enoff

and B irkett conc urre d in the judgme nt and opinion.

OP INION

¶ 1 P l ai n t i ff, Caroly n Hilga rt, appea ls from an order gra n t i n g s u m m ary j u d gm en t t o defe ndants, 210 Mittel Drive Partnership (Mittel); Steven L eturno; and Daniel L isowski, in this neg lige nce action for injuries Hilga rt sustained when she fell on stairs while leaving

wo rk

. On appea l, Hilga

rt argues that the trial court err ed in g ranting summary jud gm en t , beca use there are g enuine issues of materia l fac t reg arding whether : (1) Mittel, L eturno, and L isowski ha d notice of the dang erous condition; a nd (2) L eturno a

nd L isowski can be held liable pursuant to the dua l capa city doctrine. We a ffirm.

¶ 2 I . BA CKGROUND ¶ 3 On t he m o rni ng of J anuar y 31, 2007, Hilga

rt was inj ured when she fell on the outdoor stairs leading to a parking lot while leaving the building of her place of employ ment, AI T Worldwide L og istics, Inc. (AI T). The stairs wer e installed by Th e Br i ck m an Group, L td. (B rickman) , in 1997. ¶ 4 On Dec ember 16, 2008, Hilga rt filed an amende d complaint seeking monetary damag es for injuries incurre d from her fall on the stairs. Hilga rt soug ht judgme nt ag ainst: (1) Mittel, the par tnership that owned the building; and ( 2) L eturno a nd L isowski, Mit tel’s individual partne rs. Hilga

rt alleg ed that Mittel, L eturno, and L isowski, and/or their ag ents, employ ees,

or serva nts, neg lige ntly : (1) opera ted, manag ed, maintained, and controlled the premises; (2) “[a]ll owed piece s of stone to protrude from the steps posing a tripping hazard” ; (3) failed to proper ly inspect the stairs when they should have known that inspection was nece ssary ; (4) fai l ed t o war

n Hilga rt of the dang erous stairs when they knew or should have known a

war ning was nece ssary ; (5) failed to provide a handra il; (6) allowed the trea d of the stairs to exis t in a dang erous condition; and (7) allowed the risers of the stairs to exis t in a dang erous condition. ¶ 5 H il g a

r t a ls o s o u g ht damag es ag ainst Br ickman. Hilga rt alleg ed that Br ickman neg lige ntly
constructe d, desig ned, supervised, or planned the construction of the stairs. On April 9, 2009,

-2-Br ickman filed a g ainst AI T a third-pa rty complaint for c ontribution. ¶ 6 At the t i m e o f t h e i n cident, Mittel owned AI T. L eturno and L isowski wer e individual partne rs of Mittel, share holders of AI T, and pres id e nt a nd vice president of AI T, respe ctively

. Mittel acquir ed the building in 1997. Shortly there afte r, AI T lease d the building for its fre ight logistics business. A lease
, dated J anuar y 21, 1997, and in eff

ect on the day of Hilga

rt’s fall,

was enter ed into betwee n AI T, as “L essee ,” and Mittel, as “L essor.” Paragraph two of the lease , entitled “Condition and Upkee p of Premises,” pr ovided:
“L essee has examined and knows the condit i o n s of the Premises and has rec eived the

same in g ood working order and repa ir, and acknow ledg es that no repr esentations as to the condition and repa ir there of have been made by L essor, or his ag ent, prior to or at the execution of this lease that are not here in expressed; L essee will keep the Premises including a ll appurtena

nces, in g ood workingrepa ir.” The lease was signe d by L eturno on behalf of AI T and by both L eturno and L isowski on behalf of Mittel. ¶ 7 Mittel, L eturno, and L isowski filed a motion for summary judgme nt , arguing that: (1) Mittel, as the lessor of the premises, was immune from Hilga rt’s neg lige nce suit beca

use the premises we re in the possession and control of Hilga rt’s employ er, AI T; (2) L eturno and L isowski, as ag ents of AI T, wer e immune from Hilga rt’s neg lige nce suit, pursuant to section 5(a) of the Workers’ Compensation Act (Ac t) (820 I L CS 305/5(a) (West 2006)) ; and (3) in 1 the alter native, Mittel, L eturno, a

nd L isowski did not have actual or constructive notice of
any defe ct in the stairs. ¶ 8 Hilga

rt filed a response , arguing that: (1) Mittel was not ent i t l ed t o lessor immunity beca use the lease applied only to the interior space of the AI T office ; (2) Mi t t el wa s n ot entitled to immunit y under the Act, beca use Mittel and AI T wer e separ ate leg al entities; and (3) Mittel, L eturno, and L isowski eac h had constructive notice of a defe ct in the stairs, which

wer e not construc ted in compliance with code r equire ments. ¶ 9 On J une 7, 2011, the trial court g rante d summary judgme nt in favor of Mittel, L eturno, and L isowski. The entire or der state s: “1) The motion for summary judgme nt filed by 210 Mittel Drive Partnership, Steven L eturno and Daniel L isowski is grante d for the rea sons stated on the rec ord by J udg e Kenne th Popejoy
, and judgme nt is here by enter ed in fav o r o f 210 Mittel Drive Partnership, Daniel L isowski and Steven L eturno and ag ainst Plaintiff, Caroly n Hilga rt. 2) There is no just rea son to delay enfor ceme nt or appea l of this order pursuant to I llinois Supreme Court Rule 304(a).” The transcr ipt of the hearing and of the trial court’ s oral rulingindicates that the trial court g rante d summary judgme nt in favor of Mittel based on lack of actua l or constructive notice. The trial court g rante d summary judgme nt in favor of L eturno and L isowski ba sed on their immunit y pursuant to the Act, citing Guerino v. Depot Place Partne rship , 273 I ll. App. 3d 27 (1995). The same day the t rial court g rante d summary judgme nt, Hilga rt filed a motion

Hil gart had fi le d a cl ai m agains t AI T und er th e Act. 820 I LCS 305/1 et seq

. (W est 2006 ). 1

-3-to rec onsider. On Septembe r 1, 2011, the trial c ourt denied Hilga rt’s motion to reconsider

. ¶ 10 The trial court entered a s econd order on J une 7, 2011, g ranting summary ju d gment in favor of Br ickman on Hilga rt ’s complaint. The trial court also dismiss ed with prejudice Br ickman’s third-par

ty complaint ag ainst AI T, “in light of the above enter ed summary judgme nt.” The order also stated, “This is a final order and there is no just cause to delay the enfor ceme nt or appe al of this order pursuant to [R] ule 304(a ).” ¶ 11 On Septemb er 2 2
, 2 0 1 1
, Hilga rt filed a notice of appea l from the J une 7, 2011, order
g ranting summary judgme nt in favor of M i t t el
, L eturno, and L isowski, and from the September 1, 2011, or der de nying H ilga rt’s motion to reconsider

.

¶ 12 I I . ANALYSI S ¶ 13 A. Jurisdiction ¶ 14 L eturno and L isowski contest this court’s jurisdiction to hear the ap p ea l o f t he trial court’s g rant of summary judgme nt in their favor

. Specifica lly
, L eturno and L isowski argue that, beca use Hilga rt’s motion to rec onsider failed to prov i d e an y basis to rec onsider the judgme nt enter ed in their favor
, it did not extend the time Hilgart h ad to file her notice of
appea l as to them. Hilgart fa i l ed t o file the notice of appea l within 30 day s of the order
g ranting summary judgme nt; rather, she waited until her motion to rec onsider was denied. Thus, acc ording to L eturno and L isowski, Hilga rt’s notice of appea l was untimely as to the
g rant of summary judgme nt in their favor and we have no jurisdiction to revie w the judgme nt as to them. We disag ree

. ¶ 15 In its first order enter ed on J une 7, 2011, the trial court g rante d summary judgme nt as to few er than all the parties and, there fore
, the order was not appea lable without a fi n d i n g pursuant to I llinois Supreme Court Rule 304(a) (ef f. Fe b. 26, 2010). The trial court included languag e pursuant to Rule 304(a)
, which provides that the time for filing a notice of appea l shall be as provided in I llinois Supreme Court Rule 303 (ef f. May 30, 2008). Rule 303(a) (1) provides that a notice of appea l must be filed within 30 d ay s af t er the entry of the final judgme nt. Howeve r, the rule states that a timely filed motion direc ted ag ainst the judgme nt tolls t he time for a

ppeal until the orde r disposing of the motion is entered. ¶ 16 Her e, Mittel, L eturno, and L isowski moved for summary judgme nt by fi l i n g a sing le motion. The trial court gra nted t he mot ion in a si ng le orde r and in a si ng le paragraph. The order included Rule 304(a) languag e and is unambiguous. The order did not sever the parties. Counsel for Mit tel, L eturno, and L isowski draf ted t he order that he n o w argue s is actua lly
two separ ate order s. “De fense counsel cannot argue that it means something other than what it say s.” Hemm inger v. Nehring
, 399 I ll. App. 3d 1118, 1122 (2010). Hilg art timely filed a single motion to reco n sider a single order g ranting summary judgme nt. See id. Thus, Hilga rt’s motion to rec onsider tolled the time for filing a notice of appea l with respe ct to the order as to L eturno a

nd L isowski, as well as Mittel. ¶ 17 In addition, althoug h Hilga rt’s motion to rec onsider did not include a basis to attack the judgme nt in favor of L eturno and L isowski, it was sufficie n t

. Ac cording to the I llinois Supreme Court in Kingbrook, Inc. v. Pupurs
, 202 I ll. 2d 24 (2002), a postjudgment motion in a nonjury case is sufficie nt even if it consists mere ly of a single sentenc e. Id. at 26-27, 33.

-4-In Kingbrook
, the court held that a single sentenc e moving the court to rec onsider its decision

was proper

. Id. In this case , Hilga rt’s motion to rec onsider was more specific than the motion in Kingbrook

. Hilga

rt’s motion included both L eturno and L isowski. Her motion provided: “Plaintiff seeks rec onsideration of the Court Orde r enter ed in this case on J une 7, 2011, in which this Honora

ble Court g rante d Def

endants’ Motion for Summary J udg ment and dismiss ed Plaintiff’s Complaint ag ainst Def enda n t s , 210 MI TTEL DRI VE PARTNERSHI P (He reina fter ‘Mittel’), S TEVEN L ETURNO (He reina fter ‘L eturno’) and DANIEL L I SOWS KI (He reina fter ‘L isowski’) in its entirety
, pursuant to 735 I L CS 5/2-1005.”
I f t he I llinois Supreme Court held i n K i ngbrook that a si ng le s entenc e was sufficie nt, then Hilga rt’s motion to rec onsider is cer tainly sufficie nt. Acc ording ly
, this court has jurisdiction
to hear Hilga

rt’s appea l of the order g ranting summary judgme nt in fav o r o f L eturno and L isowski, as well as Mittel.

¶ 18 B. Summary J udg ment ¶ 19 On appea l, Hilga rt argues t h at t h e t ri al co u rt err ed by g ranting summary judgme nt, beca use there wer e g enuine issues of materia l fac t. Summary judgme nt is appropr iate wher e “the pleading s, depositions, and admissions on file, toge ther with the aff idavits, if any , show that there is no g enuine issue as to any materia l fac t a nd that the moving party is e ntitled to

a judgme nt as a matter of law.” 735 I L CS 5/2-1005(c) (West 2010); Adames v. Sheahan
, 233 I ll. 2d 276, 295 (2009). We revie w de novo the trial court’s g rant of summary judgme nt. Id.
at 296. When deter

mining whether a g enuine issue of mat er i al fa ct exis ts, the court must construe all pleading s and attac hments strictly ag ainst the m ovant and liberally in favor of the nonmovant. Barnett v. Ludwi g & Co.
, 2011 I L App (2d) 101053, ¶ 33. We must view all the pleading s and attachme nts in the light most favor able to the nonmovant. Keating v. 68th & Paxton, L.L.C

. , 401 I ll. App. 3d 456, 470 (2010). “A g enuine issue of m at eria l fac t prec luding summary judgme nt exis ts wher e the materia l fac ts are disputed, or, if the materia l fac ts are undisputed, r e a s o n a b le persons might draw differ ent infere nces from the undisputed fac ts.” Adames , 233 I ll. 2d at 296.

¶ 20 1. L eturno a nd L isowski ¶ 21 Hilga

rt argues that there is a g enuin e issue of materia l fac t as to whether L eturno a nd L isowski had constructive notice beca use, if they wer e exercising ordinary car e, they should have known of the dang erous condition of the stairs. L eturno and L isowski argue that, as ag ents of Hilg art’s e mploy er, unde r the Ac t they are immune from Hilg art’s c laims.

¶ 22 a. Workers’ Compensation I mmunity ¶ 23 Section 5(a) of the Act (820 I L CS 305/5(a) (West 2006)) prohibits a common-law a ction by an employ ee ag ainst an employ er and his ag ents wher e an acc idental injury arises out of and in the course of employ ment. Lawson v. Schmitt Boulder Hill, Inc.
, 398 I ll. App. 3d 127, 134 (2010). An employ ee’ s injuries are deeme d to arise in the course of employ ment when

-5-the employ ee sustains the injuries on the emplo y er ’s premises within a rea sonable time

befor e or afte r work. Id. Fur ther, an empl o y ee ’s i n

j u ri es are deeme d to arise out of her employ ment when the employ ee is injured in an are a on the “usual route” to the employ er’ s premises. Id. at 134-35. ¶ 24 In this case , Hilga rt was empl o y ed b y AIT. L eturno and L isowski wer e individual partne rs of the partne rship that owned AI T, wer e share holders of AI T, and serve d as AI T’s president and vice president, respe ctively

. Fur ther, Hilga

rt’s injury occur

red while she was leaving work. Thus, pursuant to section 5(a) of the Act L eturno and L isowski are immune from Hilga

rt’s neg lige nce action. See Guerino v. Depot Place Partnership
, 273 I ll. App. 3d 27, 31-32 (1995)

.

¶ 25 b. Dual Capa city Doctrine ¶ 26 Hilga

rt argues that there is a g enuine issue of materia l fac t as to whether L et urno and L isowski can be held liable pursuant to the dual capa city doctrine. Hilga rt notes that L eturno and L isowski admitted that they wore separ ate hats as landlords on the on e h an d an d as employ ers, tenants, and lessees on the other hand. There fore
, acc ording to H il g a r t, the motion for summary

judgme nt should have bee n denied a s to L eturno a nd L isowski. W e disagree

. ¶ 27 Under the dual capa city or dual persona doctrine, one who is protec ted by the exclusivereme dy provision of the Act may become liable in tort if he operates in a second capa city that

cre ates obliga

tions independe nt of those imposed upon him as an employ er. Id. at 32. A plaintiff must establish that: (1) the second capa city g ener ates obligations unrelated to those flowi n g fr om the first, that of the employ er; and (2) the employer was acting as a distinct leg al persona of the employ er. Id. A plaintiff cannot satisfy the elements of the test when the defe ndant’s duti es are so intertwined that his conduct in t h e second role does not g ener ate any obligations that are unrela ted to the duties flowing from his first role as the employ er or ag ent of the e mploy er. Id. ¶ 28 In this case , Hilga rt cannot establish liability under the dual capa city doctrine. This case is simil ar to Guerino
, 273 I ll. App. 3d 27. In Guerino
, the plaintiff was injured b y the
entra nce g ate to his employ er’ s place of business. Id. at 29. The proper ty wher e the plaintiff

was injured was owned by a partne rship that lease d the premises to the plaintiff’s employ er. Id. Th e p re s i d ent and vice president of the plaintiff’s employ er wer e partne rs in the partne rship that owned the premises. Id. The plaintiff argued that the indi v id u a l p artne rs wer e not immune from liability
, beca use the individual partners had duties as landowner s that

wer e unrelated to their roles as employ ers. Id. at 3 2

. T h i s court reje cted the plaintiff’s
argument. Id. ¶ 29 In addition, the fac ts of this case ar e s i m ilar to those in Reynolds v. Clarkson
, 263 I ll. App. 3d 432 (1994), in which the appellate court held that the dual capa city doctrine did not apply to a defe ndant who was the plaintiff’s boss as well as the owner of the premises wher e the plaintiff was injured. Id. at 435. The defe ndant in Rey nolds lease d the premises to the plaintiff’s employ er. Id. at 434. The defe ndant was also the president, the chief operating office r, and a salarie d employ ee of the plaintiff’s employ er. Id. at 433-34. The appellate court held that the defe ndant’s du ties as the plaintiff’s boss and as landowner wer e simil ar: to

-6-furnish the plaintiff with a safe place to work and to ensure that t h e p re m i s es wer e safe
,

respe ctively

. Id. at 435. Acc ording ly
, the court held t hat the defendant’s duties under both
capa cities wer e re lated; there fore , the def endant wa s immune from suit. Id. ¶ 30 In this case , the s ame analy sis applies. L eturno’s and L isowski’s duties as m ember s of the partne rship that lease d the premises to Hilga rt’s employ er wer e related to their duties as president and vice president of Hilga rt’s employ er. See Guerino
, 273 I ll. App. 3d at 32 (the dual persona doctrine did not apply to a plaintiff’s employ er’ s president and vice president, who wer e also members of the partne rshi p that lease d the premises to the employ er)

. As president an d v i ce p resident of Hilga rt’s employ er, L eturno’s and L isowski’s duty was to furnish Hilga

rt with a safe place to work, a du t y re lated to the common-law duty of a landowner to provide safe premises. See Reynolds
, 263 I ll. App. 3d at 435. Acc ording ly
, the dual capa city or dual perso n a d octrine does not apply to L eturno and L isowski and the immunit y provision of section 5(a) of the Act does. Thus, the trial court proper ly g rante d
summary judgme nt in favor of

L eturno a

nd L isowski. ¶ 31 Hilgart ar gu es t h at L et u rno’s and L isowski’s duties as landlords wer e separ ate a nd distinct from their duties as tenants or as age n ts of Hilga rt’s employ er. Hilga

rt notes the following in support of her argument. Mittel paid property taxes for the land on which the building was located, AI T paid rent to Mittel, L eturno and L isowski signe d a lease agree ment

on behalf of Mittel and AI T, AI T’s rent was only for the phy sical space within the building, and Mittel was respon s i b l e fo r the exterior of the building and paid for installation of the stairs at issue. These fac ts are le g ally immaterial. ¶ 32 Hilga

rt has failed to establish that L eturno’s and L isowski’s duties as ag ents of Hilga rt’s employ er wer e differ ent from their common-law duties as landowner s to keep the premises safe

. Acc ording ly
, the dual capac ity doctrine doe s not apply . See Stewart v. Jones
, 318 I ll. App. 3d 552, 565-66 (2001) (this court reje cted simil ar arguments made by a p l aintiff attempting to a ssert the dua l capa city doctrine)

. ¶ 33 Hilga

rt also argues that, due to the ter ms of the lease agree ment, AI T had no leg al duty to H ilga rt reg arding the stairs at issue. Hilga rt fails to r ecognize that the lease agree ment is
a contr act be tween A I T and Mittel. Hilga rt has fa iled to e stablish how the lease agree ment relieve s AI T from its leg al duties as an employ er. Be cause Hilga rt’s injuries occur

red on her “usual route” to AI T’s premises, her i n j u ri es arose in the course of her employ ment. See Lawson , 398 I ll. App. 3d at 134-35. Ther efor e, pursua nt to section 5(a) of the Ac t, AI T, as Hilga rt’s employ er, and L isowski and L eturno, as AI T’s ag ents, are immune from commonlaw liability

. Lawson , 398 I ll. App. 3d at 135. ¶ 34 In addition, Hilga rt cites Marcus v. Gree n , 13 I ll. App. 3 d 6 9 9 (1 9 7 3 ), to support her 2

I n Ma rcu s , an employee was inj ure d whil e working on a sca ff old on pre m is es owned by a 2
par tne rs hip of whic h the employer was a m ember. Ma rcu s , 13 I ll

. App. 3d at 701-02. T he employee

re covere d unde r “t he Wo rkm en’ s Com pen sat ion Act (I ll

. Rev. Sta t. 1965
, ch. 48, sec

. 138 et seq

. ),” and the n fi le d agains t the employer as par tne r an act ion unde r “t he Struct u r a l W ork Act (I ll

. Rev. Sta t., ch. 48, sec

. 60)
, comm onl y re fe rr ed to as the Sca ff old Act .” Id. T he cou rt hel d tha t the act ion

was not bar re d by t h e Wo rkers ’ Com pen sat ion Act
, re aso nin g tha t the act ion was bas ed on the

-7-argument. The pre cede ntial value of Marcus is doubtful. In Incande la v. Giannini
, 250 I ll.

App. 3d 23 (1993), this court declined to follow Marcus

. In addition, other courts have called Marcus i n t o d o ubt. See Hyman v. Sipi Metals Corp.
, 156 I ll. App. 3d 207, 209 (1987) (“Case s following in the wake of Marcus v . Gree n declined to f ollow its reasoning***.”); Sago v. Amax Aluminum Mill Products, Inc.
, 67 I ll. App. 3d 271, 275 (1978) (“A lthough the
court in Marcus applied the ‘dual capa city ’ do c trine, subsequent case s have expressly limit ed Marcus to its fac ts and have interpre ted Marcus as not involving the ‘dual capa city ’ doctrine ***.”); Profilet v. Falconite
, 56 I ll. App. 3d 168, 171 (1977) (“the Marcus case h as since been sever ely limit ed”) ; Kim v. Raymond
, 44 I ll. App. 3d 37, 38 (1976) (“The prec edential value of this decision is doubtful.”). Acc ording ly , to the extent that the ana ly sis in Marcus conflicts with that applied in Rey nolds
, Guerino
, and the instant c ase, we decline to f ollow Marcus

. We also note that Marcus is distinguishable from the case at bar beca use, in Marcus
, the duties of the defe ndant wer e not simi l ar o r re lated. The defe ndant was the plaintiff’s employ er and had separ ate and distinct duties as an owner o f t h e p re mises under the Structural Work A ct. Marcus , 13 I ll. App. 3d at 704-05. In contra st, in this c ase, L eturno’s and L isowski’s duties as ag ents of Hilga rt’s employ er wer e simil ar or rela ted to their duties

as landowner s. See Rey nolds
, 263 I ll. App. 3d at 435. Thus, Marcus is not controlling in this

case

.

¶ 35 2. Mittel ¶ 36 Hilga

rt arg ues that there is a g enuine issue of materia l fac t as to whe t h er M i t t el h ad constructive notice, beca

use, if it had been exercising ordinary car e, it would have known of the dang erous condition of the s t ai rs

. Mittel argues that the trial court properly g rante d
summary judgme nt in its favor , beca use due to lessor immunity it cannot be he ld liable. ¶ 37 Hilga

rt arg ues that Mittel has forf

eited this arg

ument on appea l, beca

use t he trial court did not base its decision to g rant summary judgme nt on this theory and Mittel did not file a

cross-a ppeal. We may aff

irm the trial court on any basis war rante d by the rec ord. See Evans

v. Lima Lima Flight Team, Inc.
, 373 I ll. App. 3d 407, 418 (2007). Thus, Mittel did not need
to file a cross-a

ppeal to argue an alterna

tive rea son for aff

irming the trial court’s judgme nt. See id. ¶ 38 The basic rationale for the doctrine of lessor immunit y is that a lease is a conveyance of
proper ty that ends the lessor’s control over the premises, a prer equisite of tort liability

. Fan

v. Auster Co.
, 389 I ll. App. 3d 633, 648 (2009). Only the party in control of the premises can be held liable for a defe ctive or dang erous condition on the premises. Gilley v. Kiddel
, 372 I ll. App. 3d 271, 275 (2007). Gene rally
, the lessee, who is in possession, and not the lessor, is liable for injuries sustained by a thi rd party cause d by the failure t o keep the proper ty in
repa ir. Fan , 389 I ll. App. 3d at 648. ¶ 39 In Gilley
, a tenant’s guest slipped on lo o s e ca rpeting on the s tairs i nside an apa rtment. Gilley
, 372 I ll. App. 3d at 272. Under the lease agree ment t h e l es s ee wa s responsible to

employer’ s cap aci ty as an owner and tha t the dut y of an owner is ent ir el y sep ar at e fr om the dut y of

an e m plo yer. Id. at707

- 08.

-8-“ ‘maintain and keep the [premises] in as g ood condition and repa ir as the same shall be upon

taking possession.’ ” Id. at 275. Even though the lease also authorized the landlord to inspect the premises and perf

orm any nece ssary repa irs, this court held that the landlord had no duty to maintain the premises. Id. at 276-77. We stated that the r eser vations in the lease did not “cha ng e the rule that it is the lessee, a s the party in posse ssion a nd control of the premises, who owes a duty to third parties and can be liable for injuries from defe ctive conditions on the pre mises.” (Interna l quotation marks omitted.) Id. at 277. ¶ 40 In this case , the lease agree men t p rovi ded that AI T, as lessee, “will keep the Premises including all appurte nance s, in g ood repa i r. ” An appurtenanc e is define d as “an incidental
proper ty right or privileg e *** belong ing to a principal rig ht and passing in possession with it.” Webster’s Third Ne w International Dictionary 107 (1993). The lease also provided:
“L essor shall not be obligated to incur any expense for repa iring any improvement upon said demised prem i s es or connec ted therewith
, and the lessee at his own expense will keep a ll improvements in good r epair .” (Empha sis added.)
Fur ther, the lease provided that Mittel “shall not be liable for any damag e occas i o n ed by failure to ke ep the Premises in repa ir.” In addition, AI T’s fac iliti es manag er testified that it

was his responsibility to maintain and repa ir the stairs and AI T’s safe ty committee included

a monthly revie w of the stairs. Thus, it is clea r that the parties intended the duty of repa ir of the stairs to rest o n AIT an d n o t on Mittel. See Gilley
, 372 I ll. App. 3d at 275. There fore
, Mittel was entitled to lessor immunit y from Hilga rt’s claims. Acc ording ly
, the trial court proper ly g rante d summary

judgme nt in favor of

Mittel. ¶ 41 Be cause we have deter mined t h at , o n t h e b as i s o f immunit y , Mittel, L eturno, a nd L isowski wer e entitle d to summary judgme nt, we need not addre ss Hilga rt’s argument reg ardingnotice.

¶ 42 I I I . CONCLUSI ON ¶ 43 For

these re asons, the judg ment of the c ircuit court of Du Pag e County

is affirme d.

¶ 44 Affir

med.

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