THIRD DIVISION
FEBRUARY 2, 2005

JUSTICE HARTMAN delivered the opinion of the court:

Plaintiff, Donna McCarthy, brought this premises liability action against defendants, VictorKunicki and Pam Averi, for injuries sustained by her daughter, Jessica McCarthy, when she slippedand fell on the basement stairs at defendants' home. Following trial, the jury returned a verdict infavor of defendants. On appeal, plaintiff contends the circuit court erred in: (1) striking her causesof action premised on public nuisance; (2) refusing to instruct the jury regarding defendants' violationof housing ordinances; (3) instructing the jury on Jessica's contributory negligence; and (4) prohibitingplaintiff from eliciting testimony from Kunicki that he was aware that city ordinance required thebasement stairway to be equipped with a handrail.

In the afternoon on January 1, 1999, Jessica and her parents attended a New Year's Day partyat the home of defendants, located at 3043 North Oketo Avenue in Chicago. Jessica, then 13 yearsof age, testified at trial that she learned that defendants had been caring for a stray kitten, which shespotted outside in defendants' yard. Fearing the impending snowstorm, Jessica brought the kitteninside. Upon her entrance, Jessica encountered Kunicki, who told her that the house cat, Zoe, likelywould fight with the kitten. Kunicki suggested that the basement would be the best place for thekitten, but said that she should ask Averi where to put it. Jessica testified that when she asked, Averitold her to go to the basement where there were rags she could use as a bed for the kitten.

Plaintiff testified that she overheard Averi tell Jessica to take the kitten to the basement. Averi, however, stated that she told Jessica to wait until she finished preparing the appetizers so shecould go with her, because she knew the stairs probably would be slippery, and she did not want thekitten to run into the yard. Jessica testified that Averi never told her to wait until she couldaccompany her outside. Averi denied ever having seen the kitten inside the house, or telling Jessicato bring the kitten to the basement. Averi claimed Jessica asked her at least three times if she couldgo to the basement, after which Averi told Jessica to ask plaintiff for permission to visit the kitten inthe basement. Jessica stated that plaintiff knew she was going down to the basement.

Jessica testified that after speaking with Averi, she went outside through the rear family room,and then down some wooden steps. When she reached the top of the stairs leading down to thebasement, Jessica noticed snow on the stairs and no handrail on the wall. The house was situated toher right, and a partial cement wall to her left. She did not go back inside to ask anyone for help. She stated that she exercised the same degree of caution she would use going down any outsidestairway. With the kitten in her left hand, she proceeded down the middle of the stairs. She walkedslowly down one step at a time. When she reached the second step, her right foot slipped out fromunderneath her. She twisted her body so she would not land on the kitten, holding it on her left side. She slapped her right hand against the wall in an unsuccessful effort to catch herself. Her right leghit the cement stairs, the kitten ran off, and she slipped again, this time falling to the bottom of thestairs.

Jessica was taken to the hospital where her leg was discovered to be broken. She was placedin a toe-to-thigh cast, which she wore for two months. After that cast was removed, she wore asecond cast, which extended from her toes to above her knee cap. One month later, she was placedin slightly smaller cast, which she wore for six weeks. Throughout the time of her injury, Jessicarequired the assistance of crutches and a wheelchair.

Averi testified that Jessica was a responsible, mature girl for her age. She believed that Jessicahad been wearing clog-style shoes on the day of her accident. Averi did not know whether Jessicahad asked plaintiff for permission to go down to the basement. Averi stated that she had used thebasement stairway two days before, and on the day of, Jessica's accident. She did not think using thebasement stairs was unreasonable, even under the snowy and icy conditions.

Kunicki testified that he is a self-employed carpenter, who also has done plumbing andelectrical work. He never built a house, but has put additions on homes including his own. He andAveri bought the house on Oketo Avenue in 1994. The house was built in the 1920's, and there wasno handrail on the basement stairs when they purchased it. Kunicki and Averi expanded the housefrom its original 888 square feet by adding a second floor, a back room, and a wrap-around porch. Kunicki also extended a portion of the roof and put siding on the house down to the ground. He hadtraversed the basement stairs throughout the year and was aware that they became "slippery anddangerous when it got icy and snowy out." He was aware that a handrail would have made the stairssafer. He had planned to install a handrail for the basement stairs sometime prior to Jessica's fall.

At some point after Jessica fell, Kunicki walked down the basement stairs. Although snow and iceremained on the stairs, he did not consider it unreasonable to use them. In contrast to Jessica'sversion, Kunicki testified that Jessica told him, "[w]hen I was coming up the stairs, I slipped." Healso denied that the kitten was ever inside the house, or that he directed Jessica to put the kitten inthe basement. He stated that other than himself and Averi, no one required access to the basement.

Plaintiff filed her second amended complaint on May 7, 2002. In count I, plaintiff set fortha cause of action for negligence based on, inter alia, defendants' violation of section 13-160-320 ofthe Municipal Code of Chicago (Code), which requires handrails on stairways. In count III, plaintiffstated a claim under section 7-28-060 of the Code governing public nuisances. Count V allegeddefendants' willful and wanton negligence. In Counts II, IV, and VI, plaintiff sought relief under theRights of Married Persons Act (750 ILCS 65/15 (West 2002)).⁽¹⁾

On October 23, 2002, defendants moved to dismiss counts III and IV containing claims forpublic nuisance. The circuit court previously had dismissed these counts on defendants' motion withrespect to plaintiff's first amended complaint; however, it reexamined the nuisance claims in limineprior to the commencement of trial. Relying on Young v. Bryco Arms, 327 Ill. App. 3d 948, 765N.E.2d 1 (2001), rev'd, Nos. 93678, 93685, 93728 (November 18, 2004), the court pronounced that"[a] public nuisance is an unreasonable interference with a right common to the general public," andconcluded that "the alleged failure to maintain this stairway is not a right common to the generalpublic." Plaintiff's counsel argued that contributory negligence was not a valid defense to a nuisanceclaim. In rejecting the argument, the court informed counsel it had considered that challenge whendeciding to dismiss the claims predicated on nuisance.

Prior to trial, plaintiff moved to bar testimony of defendants' expert, who would have testifiedthat section 13-160-320, which requires handrails on stairways, did not apply to the instant case. Thecircuit court determined that the Oketo house was erected in 1926, prior to the enactment of theCode's requirement for handrails, and ruled that section 13-160-320 did not apply as a matter of law. Based on this finding, the court prohibited from testifying defendants' expert and plaintiff's expert,who opined that the Oketo house was not beyond the purview of section 13-160-320. The issuearose again during trial, when plaintiff's counsel challenged the court's earlier ruling barring plaintiff'sexpert. The court renewed its previous ruling.

At trial, plaintiff moved in limine, seeking the circuit court's permission to elicit from Kunicki,that he was aware that under the Code, he was required to install a handrail on the basement stairway,as he had admitted in his deposition. Toward this end, plaintiff's counsel made an offer of proof asto Kunicki's testimony. The court, nonetheless, denied plaintiff's motion.

Following deliberations, the jury returned a verdict in favor of defendants. Plaintiff filed apost-trial motion, which the circuit court denied. Plaintiff timely appeals.

Plaintiff primarily contends the circuit court erred in dismissing her claim for public nuisancepremised on defendants' non-compliance with section 13-160-320, entitled "Stairways-Handrails."⁽²⁾ The relevant portion of section 13-160-320 provides:

"(a) All stairways shall have walls, railings or guards on both sidesand shall have handrails on both sides except as follows:

(1) Stairs less than 44 inches wide may have a handrail on one sideonly." Chicago Municipal Code