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FOURTH DIVISION

Filed August 8, 2002

No. 1-01-2937

JUSTICE THEIS delivered the opinion of the court:

On January 1, 1992, Tewanda McCoy (Tewanda) was five years old and resided in anapartment with her mother, Edna Jones (Jones), and siblings in defendant Chicago HousingAuthority's (CHA) building at 5041 S. Federal in Chicago, Illinois. On that date, Tewanda surviveda seven-story fall to the ground from a window in the apartment. Tewanda filed suit by and throughher mother and next friend, Jones, against the CHA alleging that the CHA negligently causedTewanda's injuries. On CHA's motion, the circuit court granted summary judgment against plaintiff. 735 ILCS 5/2-1005 (West 2000). Plaintiff appeals arguing that there is a genuine issue of fact as towhether defendant owed Tewanda a duty under a voluntary undertaking theory of liability. For thefollowing reasons, we affirm.

Jones began leasing the apartment in question several years prior to the accident. When shemoved in, she filled out a report complaining of problems in the kitchen, holes in the walls, and theabsence of window screens and locks in the living room. She also had a problem opening andclosing her front door for lack of a knob. She stated that at that time, a CHA employee told Jonesthat someone would come out to fix the apartment. Jones stated, however, that CHA workmen "onlycame out one time to plaster the hole in the wall and around the bathroom. That was it. They didn'tcome out for my windows and it was the main thing that I need, my screens and the locks." Withregard to the window lock, Jones stated, "[t]hey didn't have no locks on it. They had the lock upthere, but you couldn't lock it. You could put it on lock, but it still slide open. So it was broke. Thelock was broke." She believed the absence of window locks constituted a dangerous condition toher children. She stated that after her initial report, she went to the building office one or moretimes a month to reassert her complaints. She also stated that on several occasions, a person in theCHA office told her that workmen would come out and fix the apartment. No workmen ever cameto make the repairs. She did receive help from her brother, however, including an instance wherehe helped with a rat problem emanating from holes underneath her sink. In December 1991, Jonescomplained again to CHA personnel about the locks and the screens. However, the CHA told herthat it would be unable to make the repairs. As Jones stated, "at the last one before my baby fell outof the window, they told me they had no more workers, they laid off some workers and nobody thereto come and fix my screen and my door."

Jones submitted an affidavit stating that she "relied on the promises of CHA to fix thewindow locks, the screens, the door to the apartment, and such other complaints which CHA,through its employees and agents promised to fix." Plaintiff also submitted a sworn statement fromGwendolyn Hinton, a former CHA employee, who stated, "[p]rior to Jan. 1, 1992 I recall severalcomplaints being made requesting that window locks be repaired and or replaced. It has been toolong for me to remember who has made the complaints. I would then direct the complaining partyto the maintenance department. I recall making out several work orders to have this task performedprior to January 1, 1992. It was common knowledge to the staff at 5041 S. Federal that the windowlocks were bad."

On the afternoon of January 1, 1992, Jones was watching television with Tewanda and herdaughter Gwendolyn. When her children fell asleep, she stated that she asked the neighbor next doorto watch the door of her apartment, while she went downstairs to visit her mother, who also livedin the building at 5041 S. Federal. Jones said she wanted to visit her mother to make furthercomplaints to the CHA about her apartment. Tewanda fell out of the window during Jones' absence. At her deposition, Tewanda states that she does not know how she fell out of the window. Tewandasuffered a severe injury to her left shoulder, dislocation of her right leg and hip, permanent scarring,and expected arthritis. The day after the incident, CHA workers arrived at the apartment to makerepairs.

Jones later moved from the apartment. When Jones was asked at her deposition why she left,she stated, "[w]hy did I leave it? Because they wasn't doing nothing and my baby fell out thewindow. They wasn't coming. I had complaints down there going about them fixes the holes andthe stuff in the wall, big rats coming in there and I wasn't going to take no chance of them biting mykids. They wouldn't come out there and do nothing for it."

The court granted defendant's motion for summary judgment. On appeal, plaintiff contendsthat the trial court erred in holding that the Chicago Housing Authority did not have a duty, as amatter of law, to prevent the injury to Tewanda by making appropriate repairs to the window.

The determination of the existence of a duty is a question of law to be resolved by the court. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411, 583 N.E.2d 538, 541 (1991); Rowe v.State Bank of Lombard, 125 Ill. 2d 203, 215, 531 N.E.2d 1358, 1364 (1988). Summary judgmentis appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits,if any, show that there is no genuine issue as to any material fact and that the moving party is entitledto a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2000). A defendant who moves forsummary judgment may fulfill its initial burden of production in two ways. 4 R. Michael, IllinoisPractice