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FIRST DIVISION
June 27, 2005

1-04-0835, 1-04-1257 (cons.)

JUSTICE GORDON delivered the opinion of the court:

Plaintiffs, Liane Kyles, individually and as special administrator of the estate of Emmanuel Williams, deceased, and Taurus Kyles, appeal the circuit court's grant of summary judgment to the defendant, Maryville Academy, and its denial of their motion to reconsider. For the following reasons, we reverse and remand.

FACTUAL BACKGROUND

Maryville converted the building that had housed Cuneo Hospital, at 810 West Montrose Avenue in Chicago, into a residential facility for troubled youths known as Columbus Maryville. Taurus resided there with her infant son Emmanuel, after being placed there by the Department of Children and Family Services (DCFS).

Across the hall from Taurus' room, what had been two patient rooms were consolidated into a single, large television (TV) room through the removal of a dividing wall. Each of the former rooms had its own restroom. One of the restrooms came to be used to store, at the very least, two mattresses.

On the afternoon of March 16, 1996, at least one other resident of the facility lit one of the mattresses stored in the TV room on fire. The fire and smoke ultimately spread throughout the TV room and into the hallway.

Around this time, Taurus opened the door to her room and felt heat. She decided to try to escape from the floor via the nearest available staircase; she started out with herself and Emmanuel under a blanket. Unfortunately, that staircase was in the direction of the fire, and they could not proceed. Taurus and Emmanuel returned to their room, where Taurus was shortly overcome by smoke. When Taurus awoke, she was being placed in an ambulance. Emmanuel was also rushed to a hospital, but died.

On February 28, 2001, the plaintiffs refiled a complaint, originally filed in 1996 and voluntarily dismissed on March 1, 2000.⁽¹⁾ The complaint alleged that Maryville had a duty "to use reasonable care to maintain [the building at 810 West Montrose] in a reasonably safe condition and [to] comply with applicable sections of the Chicago Building Code Section 13-196-010, et seq.,"⁽²⁾ but that it failed to do so, generally, by having inadequate fire and smoke detectors and alarms, and inadequate emergency and evacuation procedures. In particular, the complaint alleged that Maryville "Failed to provide proper fire detection as required for use in storage areas as required for the type of occupancy and use of the facility." The complaint contended that, as a result of the failure to provide warning, through inadequate fire detection and alarm systems, Taurus suffered injuries from smoke inhalation, and Emmanuel died from smoke inhalation and/or burns.

Maryville moved to strike portions of this complaint, noting that many of the paragraphs alleging its duties were duplicative in form and substance, and contending that plaintiffs' allegation of its duty to maintain sufficient emergency procedures was immaterial, since no breach of that duty was alleged to be the cause of the plaintiffs' injuries. In response to Maryville's motion, the plaintiffs moved to file a first amended complaint, which was granted.

The first amended complaint varied little from its predecessor, except that it created two separate counts for each plaintiff, one appearing to claim that Maryville's duties derived from the common law, the other alleging duties under "applicable sections of the Chicago Building Code Section 13-196-010, et seq." The amended complaint also did not limit its claim of causation to any particular breach of Maryville's alleged duties, instead claiming that the plaintiffs' injuries were a "proximate result of one or more of all of the foregoing acts and omissions on the part of the Defendant." In the statutory counts, plaintiffs maintained their allegation that Maryville "Failed to provide proper fire detection as required for use in storage areas as required for the type of occupancy and use of the facility."

Maryville moved to dismiss the common law counts of the first amended complaint, contending that precedent established that there was no common law duty for a landowner to anticipate fires on his land or to provide fire prevention equipment. In response to this motion to dismiss, plaintiffs sought leave to file a second amended complaint, which was also granted.

Plaintiffs' second amended complaint maintained the structure of the first amended complaint, alternating negligence claims based on alleged common law and statutory duties. In their common law claims, plaintiffs added allegations that Maryville knew, or should have known, that its DCFS wards were more likely to start fires and that it adopted internal regulations prohibiting their access to matches. In the statutory counts, plaintiffs continued to assert that the statutory duties would be found in chapter 13-196 of the Code, without referring to any particular section therein. Maryville moved to dismiss the common law counts of the second amended complaint on the same grounds it proffered in opposition to those counts in the first amended complaint. However, Maryville also moved to dismiss the statutory counts, arguing that, by only citing to the building code generally, plaintiffs were "intentionally obfuscating" the statutory basis "of the duty by reference to a large and notably mostly irrelevant municipal code." Maryville claimed that "As a result, the court cannot determine whether there is actually a provision in the code which would impose a duty on the Defendant." Plaintiffs, in their response to this motion to dismiss, merely argued general principles of premises liability in support of their common law claims. As to their statutory claims, instead of identifying the code sections on which they relied, plaintiffs only stated: "[T]his court may take judicial notice of any applicable codes or ordinances of the City of Chicago. *** Plaintiffs submit that their claim states violations of the ordinances." In reply, Maryville countered that notice could only be taken when the statute was readily accessible to the court and made of record, neither of which, it asserted, was true in this case. The circuit court dismissed the common law counts with prejudice, but dismissed the statutory counts with leave to amend.

On February 19, 2002, plaintiffs filed their third amended complaint. In this complaint, plaintiffs cited to specific provisions of the building code when alleging that certain fire detection and alarm systems were required. With regard to their allegation that Maryville "Failed to provide proper fire detection as required for use in storage areas as required for the type of occupancy and use of the facility," plaintiffs cited to Code sections 13-196-110 and 13-196-200. Section 13-196-110 requires that certain statutorily classified dwelling units have approved smoke detectors within 15 feet of rooms used for sleeping. Chicago Municipal Code