Bourgonje v. Machev

• Decision Date: 05 December 2005
• Docket Number: No. 1-04-1873.,1-04-1873.
• Citation: 362 Ill. App. 3 d 984,841 N.E.2d 96
• Parties: Carla BOURGONJE, Plaintiff-Appellant, v. Luann MACHEV, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

841 N.E.2d 96

362 Ill. App. 3d 984

Carla BOURGONJE, Plaintiff-Appellant, v. Luann MACHEV, Defendant-Appellee.

No. 1-04-1873.

Appellate Court of Illinois, First District, First Division

December 5, 2005

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George B. Collins, Adrian Vuckovich, Collins & Bargione, Chicago, for Appellant.

David E. Neumeister, James S. Jendryk, Thomas M. Comstock, Querrey & Harrow, Ltd., Chicago, for Appellee.

362 Ill. App. 3d 986

Justice GORDON delivered the opinion of the court:

Plaintiff, Carla Bourgonje, appeals from the grant of summary judgment to her landlord, defendant, Luann Machev, in her claim for damages resulting from the criminal attack of a third party. For the following reasons, we affirm in part, reverse in part, and remand.

I. FACTUAL BACKGROUND

On October 29, 2001, Bourgonje filed a two-count complaint

362 Ill. App. 3d 987

against Machev seeking to hold her responsible for an attack that began as a robbery on the sidewalk outside the front gate of her apartment building, but concluded as a rape after the perpetrator forced her to the back of the apartment building. In the first count, Bourgonje alleged that Machev had assumed a duty to protect her against such attacks in that she

"undertook to provide the Plaintiff with a security lights [sic] to reduce the risk of criminal conduct at the property. The lights provided by Machev were security lights installed for the specific purpose of making the property safe and visible at night and to discourage criminals and not for identification of address signs or for aesthetic reasons."

The complaint further alleged that Bourgonje "relied upon the security lights provided by the Defendant in leasing the property, in using the property and for the purpose of safely entering and existing [sic] the property at night." She complained, however, that Machev failed to repair the exterior lights or otherwise maintain them, or to warn her that the lights were not repaired. She alleged that as a result of the lack of lighting she was subjected to the sexual assault. The second count alleged that Machev had assumed and breached a duty of providing security for Bourgonje through installing, but not maintaining, door buzzers, which also proximately caused her injuries.

Following the close of discovery, Machev moved for summary judgment. In her motion, she argued that she owed no duty to Bourgonje because the landlord-tenant relationship was not recognized as a "special relationship" imposing a duty to protect against third-party criminal attacks; the lights and door buzzers were not a voluntary undertaking to provide security, but were rather intended merely as conveniences; and because the attack was an independent, unforeseeable, superceding cause removing any causation of injury from any alleged acts or omissions of Machev.

The circuit court granted the motion, ruling:

"Plaintiff alleges that the defendant assumed the duty to provide security by providing the bells and the lights. * * * [H]aving doorbells on the outside of the gate is not an assumption of a duty. In addition, there is no evidence that the bells were defective. And that's a question of right.

* * *

Here the court finds that the placement of lights outside the building was not an assumption of duty to provide security. Almost all buildings provide * * * outside lighting. * * *

Next, the Court finds that * * * if there was negligence [on the] part of the defendant it was not the proximate cause of the injury. It's simply too speculative. The attack would have happened regardless

362 Ill. App. 3d 988

of defendant's negligence, and the defendant [presumably "plaintiff' was intended] would have been forced by the third party to enter the gate regardless of the lights. * * * It is simply too speculative * * * that ifthe lights would have been working, the third party would have stopped the attack, would have fled, or simply continued and gone to the south side of the building."

The circuit court also appeared to find it significant that the attack began outside of the actual grounds of the mansion, though it did not elaborate on the reasons why that fact was significant in its analysis.

In reaching its determination, the court had before it the depositions of Bourgonje and Machev; Charles Troche, the apartment building's handyman; Gabe Fajuri and Barry Bursak, other tenants of the building; Larry Ligas, a real estate developer in the Logan Square area and co-founder of Logan Square Concerned Citizens; plus Detectives Hart and Thaxton, who investigated the attack on Bourgonje. The parties likewise presented the court with a copy of the lease between Bourgonje and Machev, as well as their respective answers to the other's interrogatories. Finally, the court possessed the signed confession of Juan Delgado, who pled guilty to raping Bourgonje. From this evidence, the following facts appear to be undisputed.

Bourgonje, a cultural affairs officer for the Chicago office of the Ministry of Foreign Affairs of the Netherlands, responded to an advertisement for an apartment placed in the Chicago Tribune in August 2001. The advertisement stated: "Logan Square historic mansion on Boulevard. 1,700 square feet, two bedroom, two bath. Whirlpool, ornate woodwork and glass. Large balcony. Two blocks to the L. $1,600 HTD." She called a telephone number provided in the advertisement and spoke with the landlord, Machev. The two arranged to meet at the mansion, which was located at 2410 North Kedzie Avenue, in Chicago, on the following Saturday.

The mansion had single, large apartments on each of its three floors. There was a front door, facing east onto Kedzie, which allowed access to the second-floor apartment. There was also access to the apartments through a side door on the north side of the building. To access the grounds of the mansion, one had to pass through a locked gate. A path ran from the front gate alongside the north side of the mansion, passing through another gate just west of the northeast corner of the building. Adjacent and attached to the mansion was a theater at 2408 North Kedzie, formerly used by the fraternal order of the Knights Templar. The theater could be accessed through a door in a sunken alcove beyond the side door.

A panel for an intercom system was next to the gate. The intercom system was meant to allow visitors to notify the residents of their presence by sounding a buzzer inside their

362 Ill. App. 3d 989

apartments, but the residents could not remotely unlock the gate using the intercom system. The buzzer/intercom system was unreliable, however, and regularly in need of repair. The apartments' mailboxes were also outside the front gate.

In front of the building, parallel with and south of the front porch were two antique streetlights, holding three lamps each. There was an additional antique street lamp outside the gate. A set of two floodlights was on the north side of the balcony, which was over the front porch. There were two more sets of two floodlights attached to a turret farther west on the north side of the building. At least one of these sets was fitted with a motion detector. Another set of floodlights was placed farther west yet on the north side of the building, but short of the side door. Each of these sets of floodlights was attached between the second and third floors of the mansion. Another single floodlightwas placed in the ground pointing up onto the south side of the building. Finally, there was a light in a cone-shaped fixture immediately in front of and above the side door.

Bourgonje signed a lease and paid a security deposit for her apartment shortly after her initial visit to the mansion. The lease included the following provisions:

"6. LESSOR TO MAINTAIN

A. Tenant hereby declares that Tenant has inspected the Apartment, the Building and all related areas and grounds and that Tenant is satisfied with the physical condition thereof. Tenant agrees that no representations, warranties (express or implied) or covenants with respect to the condition, maintenance or improvements of the Apartment, Building, or other areas have been made to Tenant except (1) those contained in this Lease, the application or otherwise in writing signed by Lessor and (2) those provided under applicable law.

* * *

21. RESIDENT TO INSURE POSSESSIONS/LIMITATIONS OF LANDLORD LIABILITY: Lessor is not an insurer of Tenant's person or possessions. Tenant agrees that all of Tenant's person and property in the Apartment or elsewhere in the Building shall be at the risk of Tenant only and that Tenant will carry such insurance as Tenant deems necessary therefor. Tenant further agrees that, except as provided under applicable law and except for instances of negligence or willful misconduct of Lessor, its agents or employees, Lessor, its agents and employees shall not be liable for any damage to the person or property of Tenant or any other person occupying or visiting the Apartment or Building, sustained due to the Apartment or Building or any part thereof or any appurtenances

362 Ill. App. 3d 990

thereof becoming out of repair (as example and not by way of limitation), due to damage caused by water, snow, ice, frost, steam, fire, sewerage, sewer gas or odors; heating, cooling, and ventilating equipment, bursting leaking pipes, faucets and plumbing fixtures; mechanical breakdown or failure; electrical failure; the misuse of or non-operation of observation cameras or devices (if any), master or central television equipment and antennas (if any), cable television equipment (if any) or mailboxes; or due to the happening of any accident in or about the Building; or due to any act or neglect of any other tenant or occupant of the building or any other person. Further, except as provided by applicable law, Lessor shall not be liable to Tenant for any damage to the person or property of Tenant sustained due to, arising out of, or caused by the acts or omissions of any third party whether or...