B.C. v. J.C. Penney Co., Inc., 1-88-0453

• Decision Date: 18 September 1990
• Docket Number: No. 1-88-0453,1-88-0453
• Citation: 150 Ill.Dec. 3,205 Ill.App.3d 5,562 N.E.2d 533
• Court: United States Appellate Court of Illinois
• Parties: , 150 Ill.Dec. 3 B.C. and C.C., Plaintiffs-Appellants, v. J.C. PENNEY COMPANY, INC., J.C. Penney Properties, Inc., Maggio Construction Company, Urban Investment and Development Company, River Oaks Center Management Company, Urban/JMB Group II, and Urban Investment & Development Management Company, Defendants-Appellees.

Page 533

562 N.E.2d 533

205 Ill.App.3d 5, 150 Ill.Dec. 3

B.C. and C.C., Plaintiffs-Appellants, v. J.C. PENNEY COMPANY, INC., J.C. Penney Properties, Inc. Maggio Construction Company, Urban Investment and Development Company, River Oaks Center Management Company Urban/JMB Group II, and Urban Investment & Development Management Company, Defendants-Appellees.

No. 1-88-0453.

Appellate Court of Illinois First District, Second Division.

Sept. 18, 1990.

Rehearing Denied Nov. 16, 1990.

Donald A. Shapiro, David A. Statham, Donald A. Shapiro, Ltd., Chicago, for plaintiffs-appellants.

Kiesler & Berman, Chicago (Edward L. Cooper, of counsel), for defendant-appellee, Maggio Const. Co.

Keevers and Hittle, Chicago (Dawn A. Himley, of counsel), for defendants-appellees.

Justice SCARIANO delivered the opinion of the court:

Plaintiff B.C. was abducted from the parking lot of the River Oaks Shopping Center in Calumet City and taken to a nearby construction site within the center, where she was beaten and raped. She filed a complaint charging defendants with negligence, after which the trial court granted motions to dismiss filed by defendants-appellees J.C. Penney Company, Inc., J.C. Penney Properties, Inc. (collectively, Penney), and Maggio Construction Company (Maggio). We affirm.

B.C. was shopping in a store in the River Oaks Shopping Center at approximately 8:00 p.m. on March 8, 1985. On returning to her car in the parking lot, she was threatened by a man with a knife, who forced her to drive to a construction site within the shopping center. Defendant J.C. Penney Properties, Inc., had leased the property from the shopping center, and defendant J.C. Penney, Inc., was the owner of the store under construction pursuant to a contract with defendant Maggio Construction Company. A wire fence surrounded the construction area, but the gate had been left unlocked. Plaintiff was forced inside and assaulted.

Plaintiff filed an original and four amended complaints. Count I of the Fourth Amended Complaint charges all defendants with negligence in failing to maintain proper security in the parking lot and at the construction site. The complaint further alleges that defendants knew or should have known of a history of prior violent attacks in the shopping center parking lot, and that defendants had negligently failed to lock the gate of the construction site and to provide adequate lighting at the site. Count III contends plaintiff was a third-party beneficiary to the construction contract between Maggio and Penney, which required that Maggio take measures to properly secure the construction site. Counts II and IV are loss of consortium claims asserted by plaintiff's husband. ¹

On June 18, 1987, the trial court granted Penney's motion for judgment on the pleadings and Maggio's motion to dismiss, basing her ruling on the absence of foreseeability, and making no reference to plaintiff's third-party beneficiary argument. The order included a Supreme Court Rule 304(a) finding (107 Ill.2d R. 304(a).) Plaintiff's motions for reconsideration and for leave to file a Fifth Amended Complaint were denied on January 8, 1988. This appeal was taken from the orders of June 18, 1987, and January 8, 1988.

I. The Case As To Penney

Our standard of review is well-defined and well-established: in ruling on the propriety of a grant of judgment on the pleadings, all well-pleaded facts in the complaint are assumed to be true. (Walker v. State Board of Elections (1976), 65 Ill.2d 543, 552-3, 3 Ill.Dec. 703, 707, 359 N.E.2d 113, 117.) Further, the motion "draws all fair inferences from the respondent's pleadings[,] and contemplates that the moving party is entitled to judgment as a matter of law." (Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill.App.3d 924, 927, 56 Ill.Dec. 237, 240, 427 N.E.2d 317, 319.)

Under Illinois law, the general rule is that one does not owe a duty to protect another from the criminal acts of third parties unless the plaintiff and defendant are in one of a small number of special relationships set forth in § 314A of the Restatement (Second) of Torts (1965): common carrier-passenger, innkeeper-guest, possessor of land-invitee, and custodian-person in lawful custody. Rowe v. State Bank (1988), 125 Ill.2d 203, 126 Ill.Dec. 519, 531 N.E.2d 1358; Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538; Zimring v. Wendrow (1985), 137 Ill.App.3d 847, 92 Ill.Dec. 667, 485 N.E.2d 478; Hosein v. Checker Taxi Co. (1981), 95 Ill.App.3d 150, 50 Ill.Dec. 460, 419 N.E.2d 568. We find that no special relationship exists between plaintiff and Penney in this case. Plaintiff argues the fact that she was a business invitee with respect to the shopping center means she must also be treated as Penney's invitee, but this does not logically follow, nor does plaintiff cite any authority to support such a theory. On the contrary, a business invitee has been defined as one who enters the land of another by express or implied invitation, in connection with the other's business or activities, with resulting mutual benefit to the other and the invitee. (Grimwood v. Tabor Grain Co. (1985), 130 Ill.App.3d 708, 86 Ill.Dec. 6, 474 N.E.2d 920.) None of these factors is present in this case.

Plaintiff contends in the alternative that Illinois decisions have deviated from a strict application of the special relationship rule, and argues that all persons are under a duty to refrain from any action which facilitates a foreseeable criminal act. (Duncavage v. Allen (1986), 147 Ill.App.3d 88, 100 Ill.Dec. 455, 497 N.E.2d 433, appeal denied (1987), 113 Ill.2d 573, 106 Ill.Dec. 46, 505 N.E.2d 352; Stribling v. Chicago Housing Authority (1975), 34 Ill.App.3d 551, 340 N.E.2d 47.) In Duncavage, the complaint alleged that a criminal's entry of an assaulted tenant's apartment was facilitated by the landlord's failure to properly light the exit area of the building, to remove a ladder stored by the landlord in the yard near the tenant's window, and to properly maintain a lock on the window used to gain access to the apartment. A prior unrelated burglary had occurred in the same apartment under the same circumstances, a fact alleged to have been known to the landlord. The court discussed the policy underpinnings of the duty concept (147 Ill.App.3d at 96, 100 Ill.Dec. at 459, 497 N.E.2d at 437), and noted that imposing a duty of care on these facts would not be unduly burdensome (147 Ill.App.3d at 97-8, 100 Ill.Dec. at 461, 497 N.E.2d at 439). While the court determined that a duty arose from a landlord's responsibility to maintain the common areas and from certain requirements of local building code ordinances, its holding that a duty could also be based on facilitating a reasonably foreseeable criminal act (147 Ill.App.3d at 97-9, 100 Ill.Dec. at 460-1, 497 N.E.2d at 438-9), although not strictly necessary to the opinion, would seem to depart from the special relationship rule.

A similar conclusion was reached in Stribling, where the plaintiffs' apartment was burglarized on three occasions by persons breaking through the wall of an adjacent vacant apartment. Plaintiffs complained of the first two incidents to the landlord, but it failed to seal off the vacant premises. The court imposed a duty to protect against the second and third burglaries based solely on the foreseeability of these crimes, again without reference to the special relationship rule.

However, we must reject this analysis in light of the supreme court's most recent third-party criminal assault case, which involved the issue of the defendant landlord's duty to protect employees of its commercial tenant from criminal attacks. (Rowe v. State Bank (1988), 125 Ill.2d 203, 126 Ill.Dec. 519, 531 N.E.2d 1358.) The court underscored the continued vigor of the special relationship rule, observing that it has "repeatedly held that the simple relationship between a landlord and a tenant, or a landlord and those on the premises with the tenant's consent, is not a 'special' one imposing a duty to protect against the criminal acts of others." (125 Ill.2d at 216, 126 Ill.Dec. at 525, 531 N.E.2d at 1364.) Plaintiffs in Rowe avoided the strictures of the special relationship rule only because they successfully argued that the landlord had negligently performed a voluntary undertaking to ensure that outstanding master keys were properly secured and accounted for. (125 Ill.2d at 221-3, 126 Ill.Dec. at 528-9, 531 N.E.2d at 1367-8.) Plaintiff argues the applicability of the voluntary undertaking theory with respect to the claim she asserts against Maggio, as will be seen in Section IIA of this opinion, but she does not advance it in connection with the case she pleads against Penney.

Although the Rowe court noted the broad-based policy considerations involved in determining the existence of a legal duty (125 Ill.2d at 227-8, 126 Ill.Dec. at 530-1, 531 N.E.2d at 1369-70), and cited both Duncavage and Stribling with approval (125 Ill.2d at 223, 126 Ill.Dec. at 529, 531 N.E.2d at 1368), we do not deem it the determinative announcement of the demise of the special relationship rule that plaintiff urges us to recognize. See also Petrauskas v. Wexenthaller Realty Management, Inc. (1989), 186 Ill.App.3d 820, 829, 134 Ill.Dec. 556, 562, 542 N.E.2d 902, 908, appeal denied (1990), 128 Ill.2d 671, 139 Ill.Dec. 521, 548 N.E.2d 1077 ("To impose a duty in this case would serve to greatly expand the scope of a landlord's duty almost to the point of abolishing the general rule that a landlord has no duty to protect his tenants from the criminal acts of third persons").

Moreover, even assuming that a policy-oriented duty analysis can override the special relationship rule in certain circumstances as suggested by Stribling and Duncavage, prior criminal activity in those cases had occurred on the defendant's property, thus enhancing foreseeability, an important consideration in finding...