O'Brien v. Colonial Village, Inc.

• Decision Date: 22 January 1970
• Docket Number: Gen. No. 69--98
• Citation: 255 N.E.2d 205,119 Ill.App.2d 105
• Parties: Charlene O'BRIEN, Plaintiff-Appellant, v. COLONIAL VILLAGE, INC., a corporation, East Towne Shopping Center, Inc., a corporation, and the Chas. V. Weise Co., a corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 205

255 N.E.2d 205

119 Ill.App.2d 105

Charlene O'BRIEN, Plaintiff-Appellant, v. COLONIAL VILLAGE, INC., a corporation, East Towne Shopping Center, Inc., a corporation, and the Chas. V Weise Co., a corporation, Defendants-Appellees.

Gen. No. 69--98.

Appellate Court of Illinois, Second District.

Jan. 22, 1970.

Berry, Simmons & Coplan, Rockford, for appellant.

Edwin T. Powers, Jr., Robert K. Clark, Rockford, for appellees.

SEIDENFELD, Justice.

Appeal is from a final order dismissing the amended complaint of Charlene O'Brien against the owners and operators of a shopping center, Colonial Village, Inc., and East Towne Shopping Center, Inc., and one of the tenants of the center, The Chas. V. Weise Co. The single issue is whether the complaint states a cause of action for injuries resulting from a criminal assault by a third person which occurred in the parking area.

The amended complaint alleged, in material substance, that plaintiff drove her car to the shopping center at about 4:30 P.M. on June 18th, 1966, parked it, and went to the Weise Co. store where she made a purchase; that upon her return, when her car would not start, an unknown male offered to help and thereby gained entrance to her car; then assaulted her and drove her from the scene.

The shopping center is described as consisting of twenty-seven business establishments, 'so large as to be a small city or village', with a ten acre parking lot. The duty to exercise reasonable care to protect customers from unlawful attacks and to warn of dangers is charged. Breach of duty is alleged in the failure to provide security personnel to police the premises coupled with the fact that the city does not police the parking area. ¹

We conclude that the trial court properly dismissed the complaint for failure to allege facts sufficient to create a duty on the part of defendants to the plaintiff, as a matter of law.

There is a duty of an owner or occupier of land, which the public is invited to patronize, to maintain the premises in a reasonably safe condition for anticipated use; and there may be circumstances which extend this responsibility to protect a patron against a criminal attack by a third person. See Anno. 10 A.L.R.3d 619, 630--635.

The plaintiff argues that the city-like presence of thousands of people daily on the premises raised a duty to anticipate and guard against criminal action. However, the liability at common law is not that of an insurer, but is based on fault. See Shelton v. City of Chicago, 42 Ill.2d 468, 475, 248 N.E.2d 121 (1969); and Miller v. Chicago Transit Authority, 78 Ill.App.2d 375, 383, 223 N.E.2d 323 (1966). Obviously, every risk which is foreseeable does not create a duty to an injured person. In addition, the likelihood of injury, the magnitude of the burden of guarding against it, and the desirability of placing the burden upon a defendant must also be considered. Lance v. Senior, 36 Ill.2d 516, 518, 224 N.E.2d 231 (1967); Lorang v. Heinz, 108 Ill.App.2d 451, 454, 248 N.E.2d 785 (1969).

Plaintiff relies principally on Neering v. Illinois Cent. R.R. Co., 383 Ill. 366, 50 N.E.2d 497 (1943). While the sufficiency of the complaint was not the issue in Neering, the facts are entirely dissimilar. There the defendant was charged with knowledge that the area was infested with...