Carrigan v. New World Enterprises, Ltd.

• Decision Date: 17 February 1983
• Docket Number: No. 82-221,82-221
• Citation: 68 Ill.Dec. 531,446 N.E.2d 265,112 Ill.App.3d 970
• Parties: , 68 Ill.Dec. 531 Brenda K. CARRIGAN, f/k/a Brenda K. Nunn, Plaintiff-Appellee, v. NEW WORLD ENTERPRISES, LTD., a Corporation; and Layco, Inc., a Corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 265

446 N.E.2d 265

112 Ill.App.3d 970, 68 Ill.Dec. 531

Brenda K. CARRIGAN, f/k/a Brenda K. Nunn, Plaintiff-Appellee, v. NEW WORLD ENTERPRISES, LTD., a Corporation; and Layco Inc., a Corporation, Defendants-Appellants.

No. 82-221.

Appellate Court of Illinois,

Third District.

Feb. 17, 1983.

Jeffrey W. Jackson and George D. Browning, Westervelt, Johnson, Nicoll & Keller, Peoria, for defendants-appellants.

Richard L. Steagall and John P. Nicoara, Peoria, for plaintiff-appellee.

SCOTT, Justice:

Brenda K. Carrigan, formerly known as Brenda K. Nunn, the plaintiff, filed suit against the defendants, New World Enterprises, Ltd., and Layco, Inc. The plaintiff's action against the defendants, who were her landlord and its agents, was for injuries received from being raped, which she alleged resulted from defendants' failure to repair a burglar alarm located in her apartment. After trial by jury the plaintiff was awarded $125,000 in compensatory damages and $50,000 in punitive damages.

The plaintiff entered into a one year lease of an apartment in a large (108 units) complex of apartments and condominiums. A provision of the lease provided that "the lessee shall give the lessor prompt notice of any defects in or accidents to the water or steam pipes, electric wiring, heating or air conditioning apparatus or any other part of the leased premises, in order that the same may be repaired with due diligence." Prior to signing the lease the plaintiff was shown the apartment and Gerald Law, principal shareholder and officer of Layco, and Carolyn Tindall, an officer of New World and an employee of Layco, emphasized inter alia that a burglar alarm was located in the apartment. A sales brochure distributed to prospective tenants or purchasers of the units in the complex emphasized that the units included a fire and smoke detector and an electronic security alarm system with an individual master control for each switch.

During the evening of July 25, 1980, plaintiff spent the evening with some girl friends in Peoria, celebrating the birthday of one of them. She left a downtown steakhouse at approximately 2:30 a.m. and arrived at her apartment complex at approximately 3:00 a.m. Upon opening her apartment door she heard some keys or tapping noise which she thought was caused by her then live-in boyfriend, Terry Carrigan, and who was later to be her husband. She called out to Terry Carrigan but received no response. Walking down the hallway leading to her bedroom she encountered her assailant. At gunpoint she was led to an automobile, put into the vehicle's trunk and taken to an unknown place where she was twice raped. In a manner not germane to the appeal the plaintiff made her way to her sister's house, where the Peoria Police were notified.

A removed screen and pry marks on a first floor window indicated that the assailant gained entry to the apartment through the window. At trial, everyone agreed that the burglar alarm in plaintiff's apartment was not operable at the time plaintiff was abducted. If operable it would have emitted an audible sound. Testimony regarding the time when the defendants knew that the alarm was inoperable was contradictory. On direct examination plaintiff testified that the alarm in her apartment had not worked for six months prior to the assault and that the defendants had knowledge of this fact. On cross examination plaintiff admitted submitting a note to Layco's resident manager, Carolyn Tindall, on June 26, 1980, or one month before the abduction, which stated:

"Carolyn, I finally checked my alarm last night and found it does not work. Do you remember when you told me there were parts taken out of a few of them and never put back? Maybe mine is one of them. Could you have someone look at it?"

The plaintiff testified that she would not activate the alarm every time she left the apartment. Terry Carrigan, who had moved in with the plaintiff in May or June of 1980, testified that he had set the alarm a couple of times but as a general rule he would not activate the alarm. He further testified that before moving in with the plaintiff neither he nor plaintiff normally activated the alarm.

Before directing attention to the issues presented in this appeal, we note that taken with the case was a pleading filed by the plaintiff entitled "Application to Amend Complaint to Conform to Proof." Objections to this pleading were filed by the defendants. We grant plaintiff's application or motion to amend complaint to conform to proof. The third complaint of the plaintiff as amended alleges that defendant had actual knowledge of the availability of repairs to the alarm system and that defendant had constructive knowledge of fifteen entities listed in the Peoria telephone book which related to burglar alarms. Secondly, the third amended complaint as amended alleges notice to the defendants that plaintiff's alarm was not working in late January, 1980, rather than in late May, and that defendants had more notice both orally and in writing of the inoperable alarm than which was alleged in the third amended complaint.

We first address the issue raised by the defendants, which is that the plaintiff's complaint as amended fails to state a cause of action since it attempts to impose a duty upon the defendants which is not recognized by the Illinois courts. Stated in the context of the facts as established by the evidence, it is plaintiff's theory that the defendants breached their duty to repair the burglary alarm thereby permitting the rapist to enter the plaintiff's apartment by prying open a window, after which he abducted the plaintiff and raped her.

Whether the plaintiff's theory should be rejected or accepted can only be determined after a careful examination of the case law relating to a landlord's duty to protect persons on his premises (in this instance a tenant) against criminal activities of third persons. The general rule in Illinois is that a landlord does not owe a tenant a duty to protect him from criminal acts. See Pippin v. Chicago Housing Authority (1979), 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596. In a case strikingly similar to the instant case, this general rule was applied. See Stelloh v. Cottage 83 (1964), 52 Ill.App.2d 168, 201 N.E.2d 672. In Stelloh a sixty-nine unit apartment building was involved and the landlord provided a private police force for the protection of the tenants. The police force was represented to the tenants "as giving a special and added protection to the security and safety of the occupants." (201 N.E.2d, 673.) The plaintiff Stelloh was a tenant in a first floor apartment. In the housing project there had been a series of break-ins, burglaries and rapes which were known to the defendant. On August 31, 1960, underneath the window of plaintiff's apartment, an individual was arrested for carrying a concealed knife. The defendant failed to warn the plaintiff of possible danger or provide protection for her and on September 23, 1960, the individual who had previously been arrested entered plaintiff's apartment through the window and raped her. Plaintiff Stelloh filed suit for damages on the theory that the defendant knew or should have known that plaintiff was in a position of danger and that by employing a private police force, defendant assumed a duty to warn plaintiff and to use reasonable care to protect her from criminal activities.

The appellate court affirmed the trial court's judgment dismissing the plaintiff's complaint. The reviewing court held that no duty was alleged in the complaint, stating:

"The undertaking alleged (that defendant's private police would give a special and added protection to the securing and safety of its tenants) cannot reasonably be construed as insurance of absolute protection against crime. Even the assignment of an armed personal bodyguard with full police authority (which defendant did not have) could not guarantee such a result." (201 N.E.2d 672, 673.)

In the instant case, like in Stelloh, we have a landlord who voluntarily provided burglary alarms and the presence of the device was emphasized to prospective tenants. Also in the instant case, like in the case of Stelloh, the plaintiff was raped and seeks to impose an absolute duty upon the defendants to protect her from such criminal act. The installation of burglary alarms cannot be construed as absolute protection against crime. Even if the alarm had been operable, it can only be speculated that the plaintiff would have made it operable on the night the crime occurred and again one must engage in speculation that when the rapist activated the alarm he would have fled.

It has been held that where plaintiff brought action against landlord to recover damages for injuries received when she was shot by an intruder who entered her apartment, robbed her and attempted to rape her, that the trial court's order dismissing the complaint for failure to state a cause of action was correct even though it alleged the landlord, after having knowledge of needed repairs, failed to repair door locks in common areas, to-wit, window locks and broken windows. See Martin v. Usher (1977), 55 Ill.App.3d 409, 13 Ill.Dec. 374, 371 N.E.2d 69.

In Martin the reviewing court relying on the case of Trice v. Chicago Housing Authority (1973), 14 Ill.App.3d 97, 302 N.E.2d 207, noted with approval from that case the statement, "To impose liability in the case before us would unjustly place upon defendant as a property owner a legal duty which is impossible of performance." (371 N.E.2d 69, 70.) In Martin the plaintiff sought recovery for alleged malfunctioning locks. Both a lock and a burglar alarm are used for protection and there is no basis for a different application of the law in such cases.

In a comparitively recent case the appellate court fifth district was confronted with a situation where a negligence action was brought against shopping mall owners by customers who were...