Abbasi Ex Rel. Abbasi v. Paraskevoulakos , 187 Ill. 2d 386 ( 1999 )

CHIEF JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Sana Abbasi, through her father, Jamil Abbasi, brought an action in the circuit court of Cook County against defendants, Panagiotis Paraskevoulakos and Katina Paraskevoulakos. Plaintiff sought damages for injuries that she received from ingesting lead-based paint.

The circuit court struck those counts of the complaint that alleged private causes of action based on defendants’ violations of the Lead Poisoning Prevention Act (Act) (410 ILCS 45/1 et seq. (West 1996)) and several chapters of the Chicago Municipal Code (City Code) (Chicago Municipal Code, chs. 5—4, 5—12, 7—4, 13—196 (1990)). The appellate court reversed the dismissal. 296 Ill. App. 3d 278.

We allowed defendants’ petition for leave to appeal. 177 Ill. 2d R. 315(a). We hold that neither the Act nor the City Code supports a private cause of action. We reverse the appellate court and remand the cause to the circuit court for further proceedings.

BACKGROUND

In determining whether to allow a motion to dismiss, a court must take as true all well-pled allegations of fact contained in the complaint and construe all reasonable inferences therefrom in favor of the plaintiff. Vernon v. Schuster, 179 Ill. 2d 338, 341 (1997).

Plaintiffs first-amended complaint alleged as follows. From May 1990 through January 1996, plaintiff was approximately two through six years old. During that time, plaintiff and her family were tenants in an apartment in Chicago; defendants owned and managed the building. Surfaces in the apartment were covered with deteriorated paint containing a dangerously high level of lead. Plaintiff ingested the lead-based paint in the form of dust, flakes, or chips, and was thereby injured.

Counts I through IV of the eight-count complaint were directed against Panagiotis, and counts V through VIII repeated those claims against Katina. Plaintiff pled three general theories of recovery: common law negligence evidenced by violations of the Act and of the City Code, a private cause of action under the Act, and a private cause of action under various chapters of the City Code.

Counts I and V stated a cause of action for negligence. Those counts alleged that defendants owed duties to plaintiff, which defendants breached. Defendants owed plaintiff a duty to maintain the building in a habitable and safe condition, and to exercise reasonable care in owning, managing, and maintaining it. Further, defendants owed plaintiff a duty based on defendants’ actual or constructive knowledge that: (1) the building’s surfaces were covered with lead-based paint; and (2) plaintiff may ingest the paint in the form of dust, flakes, or chips, thereby rendering the paint dangerous to children. See Garcia v. Jiminez, 184 Ill. App. 3d 107, 109-12 (1989).

Defendants knew or should have known about the presence of lead-based paint in the building because, inter alia, in 1992, with defendants’ knowledge, the Chicago Department of Health inspected the building for lead-based paint, and notified defendants that the building contained such paint; the City of Chicago sued defendants for lead-based paint violations; and plaintiffs family complained to defendants about the condition of the building and, after plaintiff was diagnosed as being lead-poisoned, complained to defendants about the presence of lead paint.

Defendants breached these duties, i.e., were negligent, by violating several provisions of the Act and of the City Code. As a proximate result of this breach, plaintiff was injured. Plaintiff sought, inter alia, damages and injunctive relief.

Counts III and VII alleged a private cause of action under the Act. Those counts contained the identical allegations as to duty, and allegations that defendants breached their duty to plaintiff. However, instead of characterizing defendants’ violations of the Act as negligence, those counts simply stated that defendants violated the Act.

Counts II and VI alleged a private cause of action for nuisance under section 5—4—090 of the City Code (Chicago Municipal Code § 5—4—090 (1990)). Counts IV and VIII alleged a private cause of action under titles 5, 7, and 13 of the City Code. Similar to counts III and VII, these counts all state that defendants violated various sections of the City Code, without characterizing those violations as negligence.

Defendants answered the negligence counts and moved to dismiss the remaining counts that alleged private causes of action under the Act and the City Code. The circuit court granted defendants’ motion to dismiss. The court found that the Act and the City Code did not give rise to private causes of action, but that their violation could serve as evidence of negligence. The circuit court also found no just reason to delay an appeal of the decision. See 155 Ill. 2d R. 304(a).

The appellate court reversed the dismissal. With one justice dissenting, the appellate court recognized a private cause of action for violation of the Act. 296 Ill. App. 3d at 283-85. The court unanimously recognized a private cause of action for violation of the City Code. 296 Ill. App. 3d at 281-83.

Defendants appeal. We granted the Illinois Trial Lawyers Association leave to file an amicus curiae brief in support of plaintiff; we also granted the Illinois Association of Realtors leave to file an amicus curiae brief in support of defendants. 155 Ill. 2d R. 345.

DISCUSSION

This case is before us following the dismissal of plaintiffs claims pursuant to section 2—615 of the Code of Civil Procedure (735 ILCS 5/2—615 (West 1996)). A section 2—615 motion attacks the legal sufficiency of a complaint. The question presented by a section 2—615 motion to dismiss is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. Review is de novo. Vernon, 179 Ill. 2d at 344.

I. Private Right of Action Under the Act

Defendants contend that the appellate court erred in recognizing a private right of action for violation of the Act. The Act restricts the sale and use of lead-bearing products, specifically providing in pertinent part:

Ҥ 3. Lead bearing substance use. No person shall use or apply lead bearing substances:

(a) In or upon any exposed surface of a dwelling or dwelling unit;

(c) In or upon any fixtures or other objects used, installed, or located in or upon any exposed surface of a dwelling or residential building, or child care facility, or intended to be so used, installed, or located and that, in the ordinary course of use, are accessible to and chewable by children;

***

(e) Within or upon a residential building or dwelling, child care facility, school, playground, park, or recreational area, or other areas regularly frequented by children.” 410 ILCS 45/3 (West 1996).

The Act requires that health care providers or officers report verified cases of lead poisoning to the Illinois Department of Public Health (Department). 410 ILCS 45/7 (West 1996). The Act establishes the responsibilities of the Department in investigating buildings occupied by persons who screen positive for lead poisoning. 410 ILCS 45/8 through 8.2 (West 1996). If the inspection report identifies a lead hazard, the Act requires the building owner to remove, cover, or otherwise deny children access to the leaded surface. 410 ILCS 45/9 (West 1996). Further, the Act specifically requires that all mitigation of lead hazards “shall be accomplished in a manner which will not endanger the health or well-being of residential building or dwelling unit occupants, and will result in the safe removal from the premises, and the safe disposition, of flakes, chips, debris, dust, and other potentially harmful materials.” 410 ILCS 45/11 (West 1996).

The Act provides that its violation, except for the reporting obligation of health care providers, is punishable as a Class A misdemeanor. 410 ILCS 45/12 (West 1996). The Act also provides in pertinent part:

“§ 15. Other relief. Nothing in this Act shall be interpreted or applied in any manner to defeat or impair the right of any person *** to maintain an action or suit for damages sustained or for equitable relief, or for violation of an ordinance by reason of or in connection with any violation of this Act. The failure to remove lead based substances within the time prescribed by this Act shall be prima facie evidence of negligence in any action brought to recover damages for injuries incurred after the expiration of that period. This Act shall not prohibit any city *** or other political subdivision from enacting and enforcing ordinances establishing a system of lead poisoning control which provide the same or higher standards than those set forth in this Act.” 410 ILCS 45/15 (West 1996).

The controlling legal principles are quite established:

“Implication by a statute of a private right of action is appropriate when: ‘(1) plaintiff is a member of the class for whose benefit the Act was enacted; (2) it is consistent with ■ the underlying purpose of the Act; (3) plaintiffs injury is one the Act was designed to prevent; and (4) it is necessary to provide an adequate remedy for violations of the Act.’ Corgan v. Muehling (1991), 143 Ill. 2d 296, 312-13.” Rodgers v. St. Mary's Hospital, 149 Ill. 2d 302, 308 (1992).

Accord Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379, 391 (1982).

It is unnecessary to analyze in detail all four of these factors as they apply to the Act and to these parties. As this court observed in Board of Education v. A, C & S, Inc., 131 Ill. 2d 428, 471 (1989): “Sawyer was clear that we will ‘imply a private remedy where there exists a clear need to effectuate the purpose of an act.’ (Emphasis added.) (89 Ill. 2d at 389.) In this case there does not exist a clear need.” An application of the fourth factor to this case leads to the same conclusion.

We agree with the circuit court that a private right of action under the Act is not appropriate because it is not necessary to provide an adequate remedy for violation of the Act, i.e., to uphold and implement the public policy behind the Act. Cf. Corgan v. Muehling, 143 Ill. 2d 296, 314-15 (1991); Sawyer Realty, 89 Ill. 2d at 391. A private cause of action under the Act would be identical to plaintiffs common law negligence action pending in the circuit court.

Section 15 of the Act expressly provides that the Act does not affect the right of an injured person to seek the full range of available judicial relief. Further, the section also provides that the “failure to remove lead based substances within the time prescribed by this Act shall be prima facie evidence of negligence in any action brought to recover damages for injuries incurred after the expiration of that period.” 410 ILCS 45/15 (West 1996). This section reflects settled law. In a common law negligence action, a violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence; the violation does not constitute negligence per se. Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434-35 (1991) (and cases cited therein).

Plaintiff (with her supporting amicus) contends that a private right of action under the Act is necessary to implement the public policy behind the Act. Plaintiff argues as follows. Section 3 of the Act constitutes an unequivocal, broad prohibition of the application or use of lead-based substances. The prohibition stands whether landlords “applied” lead paint to the walls of a premises, or whether they “used” it by allowing it to remain exposed on premises walls, i.e., employing it for the purpose of covering walls. This duty that section 3 imposes on landlords is self-actuating and does not require the Department’s involvement. “How or why the lead-bearing substance got there or whether defendant knew about its existence or condition, or the presence or activity of the children is not involved.”

Plaintiff characterizes the issue of defendants’ notice of the lead hazard as a “critical” difference between her common law negligence action and her asserted private right of action under the Act. According to plaintiff: “Although prior notice of the lead hazard is a relevant concern under [plaintiffs] negligence claims, it is not an element of liability under the [Act].”

Despite plaintiffs arguments to the contrary, such an interpretation of the Act would render a private cause of action thereunder one for strict liability. Indeed, “strict liability” means “liability that is imposed on an actor apart from *** a breach of a duty to exercise reasonable care, i.e., actionable negligence.” W. Keeton, Prosser & Keeton on Torts § 75, at 534 (5th ed. 1984). However, as we stated, the violation of a statute is not negligence per se, which refers to strict liability (W. Keeton, Prosser & Keeton on Torts § 36, at 227 (5th ed. 1984)), but rather only prima facie evidence of negligence (Kalata, 144 Ill. 2d at 434-35), unless the legislature clearly intends to impose strict liability. See Barthel v. Illinois Central Gulf R.R. Co., 74 Ill. 2d 213, 221 (1978); Bybee v. O'Hagen, 243 Ill. App. 3d 49, 54 (1993); W. Keeton, Prosser & Keeton on Torts § 36, at 227-28 (5th ed. 1984).

In this case, the General Assembly declined to draft the Act to impose strict liability in tort. The plain language of the Act, read as a whole, does not evince such legislative intent. Cf. 815 ILCS 320/2(5) (West 1996) (Consignment of Art Act) (“The art dealer shall be strictly liable for the loss of or damage to the work of fine art while it is in the art dealer’s possession”). Rather, the Act plainly states that a failure to remove a lead hazard within the specified time frame constitutes prima facie evidence of negligence. 410 ILCS 45/15 (West 1996). Thus, if we were to create a private cause of action under the Act, it would be a negligence action and not a strict liability action. See, e.g., Bybee, 243 Ill. App. 3d at 54-55. However, plaintiff already has a negligence action based on violation of the Act pending in the circuit court, which operates exactly as would a private cause of action.

This court has implied a right of action under a statute only in cases where the statute would be ineffective, as a practical matter, unless a private right of action were implied. In this case, however, a common law negligence action effectively implements the public policy behind the Act. The threat of liability is an efficient method of enforcing a statute. See Rodgers, 149 Ill. 2d at 309. Further, a common law negligence action serves to make an injured plaintiff whole when a defendant fails to comply with a statute. See Corgan, 143 Ill. 2d at 315. The remedy of a common law negligence action is in addition to the several remedies contained in the Act, which include the withholding of rent, relocation of the occupants of a dwelling unit containing a lead hazard, and criminal sanctions against the building owner. 410 ILCS 45/10 (West 1996).

In this case, both the common law and the Act itself provide incentives for plaintiffs to pursue remedies. We therefore conclude that the implication of a private right of action under the Act is not necessary to implement the public policy behind the Act, and that plaintiff has an adequate remedy without creation of a private cause of action under the Act. See Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 1027-28 (1984).

Since the' fourth factor of the Sawyer Realty test is not present, we do not recognize a private cause of action under the Act. Therefore, we uphold the circuit court’s dismissal of counts III and VII. Accordingly, we reverse the appellate court, which reversed the circuit court.

II. Private Right of Action Under the City Code

Defendants contend that the appellate court erred in recognizing a private right of action for various violations of the City Code. Defendants argue that, based on the home rule provisions of our state constitution, the City Code cannot support a private right of action.

However, this court need not decide if the City Code can, based on the Illinois Constitution, support a private right of action if we conclude that the City Code does not support a private right of action. We take this path. “A court will consider a constitutional question only where essential to the disposition of a case, i.e., where the case cannot be determined on other grounds.” Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 396 (1994).

We agree with the circuit court that, as with the Act, a cause of action should not be implied under the City Code because it is not necessary to provide an adequate remedy for violations of the Code. Plaintiffs common law negligence action pending in the circuit court constitutes an adequate remedy without need to create a private cause of action under the City Code. See, e.g., Thompson v. Tormike, Inc., 127 Ill. App. 3d 674 (1984) (applying Sawyer Realty test, court held that private cause action under ordinance not necessary to achieve ordinance’s purpose). Therefore, we uphold the circuit court’s dismissal of counts II, IV, VI, and VIII. Accordingly, we reverse the appellate court, which reversed the dismissal.

CONCLUSION

For the foregoing reasons, the judgment of the appellate court is reversed, the judgment of the circuit court of Cook County is affirmed, and the cause is remanded to the circuit court for consideration of plaintiffs remaining claims.

Appellate court judgment reversed; circuit court judgment affirmed; cause remanded.