Cross v. Wells Fargo Alarm Services

• Decision Date: 29 September 1980
• Docket Number: 52530,Nos. 52455,s. 52455
• Citation: 45 Ill.Dec. 121,412 N.E.2d 472,82 Ill.2d 313
• Parties: , 45 Ill.Dec. 121 Willie CROSS et al., Appellants, v. WELLS FARGO ALARM SERVICES et al., Appellees.
• Court: Illinois Supreme Court

Page 472

412 N.E.2d 472

82 Ill.2d 313, 45 Ill.Dec. 121

Willie CROSS et al., Appellants, v. WELLS FARGO ALARM SERVICES et al., Appellees.

Nos. 52455, 52530.

Supreme Court of Illinois.

Sept. 29, 1980.

Rehearing Denied Nov. 26, 1980.

John D. Hayes & Associates, Ltd., Chicago (John D. Hayes and William L. Barr, Jr., Chicago, of counsel), for appellants.

Jacobs, Williams & Montgomery, Ltd., Chicago (Barry L. Kroll, Donald E. Stellato, and David A. Novoselsky, Chicago, of counsel), for appellee Chicago Housing Authority.

Frank Glazer, Ltd., Chicago (Frank Glazer, Chicago, of counsel), for appellees Wells Fargo-Baker Industries.

WARD, Justice:

On December 21, 1971, at about 1:15 a. m. plaintiff Willie Cross was severely beaten and injured by several unknown men as he was waiting for an elevator in the lobby of the Governor Henry Horner Housing Project located in Chicago. Cross and his wife filed suit in the circuit court of Cook County against the Chicago Housing Authority (CHA), a municipal corporation which owned and operated the project, and Wells Fargo Alarm Services, Inc., a security service that had contracted with the CHA to provide guard services at the project. The trial court dismissed the counts of the complaint against the CHA, holding that a cause of action was not stated, but denied a motion to dismiss as to Wells Fargo. The plaintiffs and Wells Fargo appealed, and the appellate court reversed as to both appellants. (74 Ill.App.3d 921, 30 Ill.Dec. 544, 393 N.E.2d 580.) This had the effect of reinstating the complaint against the CHA and dismissing the complaint as to Wells Fargo. We granted the plaintiffs' petition and the CHA's cross-petition for leave to appeal and consolidated the appeals. 73 Ill.2d R. 315.

On June 16, 1970, Wells Fargo and the CHA entered into an agreement which, in part, stated:

"WHEREAS, the Contractor is engaged in the business of furnishing armed guard watchmen and other protective services for the purpose of guarding the property and the protection of persons; and

WHEREAS, the Authority is desirous of securing such services for the purpose of guarding the property and protecting persons in the area located in and around the Henry Horner Homes, a housing development of the Authority;

THEREFORE, IT IS MUTUALLY AGREED by and between the parties hereto for the consideration stated herein and other good and valuable consideration as follows:

1. Contractor agrees to furnish uniformed and armed guards in and around the Henry Horner Homes in such numbers as set forth in Schedule "A" which is attached hereto and made a part of this Agreement, and as needed to meet the Authority's requirements at hours and with duty assignments consistent therewith. Authority shall have the right to increase or reduce any schedule of guard service within the limitations set forth in Schedule "A" or any Amendment thereto mutually agreed upon. * * *

5. The Contractor will evaluate the security needs of the Authority on a continuing basis and will assign a project supervisory officer who will maintain a liason between the Authority and the Contractor on a day to day basis. * * * " On the day of the attack on Cross, Wells Fargo was providing protection service at the project, as the CHA and it had agreed, between 9 a. m. and 1 a. m. When he was assaulted at 1:15 a. m., the guards had left the project.

The plaintiffs' complaint against the CHA alleged that having part-time security service at the project had the effect of substantially increasing the incidence of crime after 1 a. m., thereby increasing the personal danger to tenants and their guests; that the CHA was aware of the increased criminal activity but took no steps to inform Cross of this danger; and that the CHA's negligence in failing to provide other protective measures or adequate warnings to Cross was the proximate cause of his injuries.

The complaint made similar allegations against Wells Fargo. In addition, citing section 5 of the service contract, the complaint alleged that by failing to inform the CHA not only of the increased criminal activity in and around the housing project after 1 a. m. but also of the inherently dangerous situation which was generated by removing the guards at that hour, such omission on the part of Wells Fargo proximately caused the Cross' injuries.

The CHA states that the appellate court erred in imposing too broad a duty upon the CHA, and, citing this court's recent decision in Pippin v. Chicago Housing Authority (1979), 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596, argues that the only duty upon the CHA appearing under these facts was to exercise reasonable care in hiring Wells Fargo to guard the project's premises.

In support of the appellate court's judgment, Wells Fargo maintains that its duties were limited by the agreement and that since it had contracted to provide services only between 9 a. m. and 1 a. m. it had no duty to evaluate the security needs beyond that time. Even assuming such a duty, Wells Fargo points out that the CHA was under no obligation to follow any recommendation of Wells Fargo to expand the hours of service or to add to the security measures provided at the project and therefore had no liability under the provision for evaluation. At the time of the appellate court's decision this court had not handed down its decision in Pippin v. Chicago Housing Authority (1979), 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596. In that case a wrongful death action was brought against the CHA and Interstate Service Corporation for failure to protect the plaintiff's son from a criminal assault by a tenant in a housing development owned, operated, and maintained by the CHA. The tenant, Loretta Haywood, had initially requested the guards on duty to remove Pippin from her apartment but they refused, saying that only the Chicago Police Department had that authority. Several minutes later Haywood and Pippin started arguing in the lobby and, before the guards could separate them, Haywood had mortally wounded Pippin.

This court stated that while there is no duty in Illinois or at common law upon a landlord to protect tenants or social guests from the criminal acts of third parties (78 Ill.2d 204, 208, 35 Ill.Dec. 530, 399 N.E.2d 596), by contracting with a third party to provide protection services, the CHA had voluntarily assumed certain duties. It was held that the CHA was required to use reasonable care in hiring the protection agency and thus could be held liable for any negligence in hiring Interstate. The CHA argues that, as the plaintiffs here did not make an allegation of negligent hiring, the complaint should have been dismissed.

But Pippin is not to be so narrowly read. Pippin held that the CHA's voluntary undertaking to hire a protection agency required it to use reasonable care in hiring. The setting here is different, but the ground asserted for liability of the CHA is the same. A duty voluntarily assumed must be performed with due care or "such competence and skill as (one) possesses." (Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 85-86, 199 N.E.2d 769, 774.) The CHA undertook to provide part-time guard service at the project. In providing that service it was obligated to use reasonable care not to create increased dangers to persons lawfully on its property. The complaint here alleged that the providing of part-time guard service substantially increased the incidence of crime after 1 a. m., when the guards were removed. It further charged that the CHA was aware of this upsurge in criminal activity and negligently took no steps to provide protection from it, and that as a consequence of this greater incidence of crime in the project the danger to tenants and guests was increased.

This case is of course before us only on the question of whether the complaint was subject to a motion to dismiss and therefore the plaintiffs' allegations will be taken as true. (Johnson v. Franzen (1979), 77 Ill.2d 513, 522, 34 Ill.Dec. 153, 397 N.E.2d 825; Johnston v. City of Bloomington (1979), 77 Ill.2d 108, 111, 32 Ill.Dec. 319, 395 N.E.2d 549; Silver Manufacturing Co. v. General Box Co. (1979), 76 Ill.2d 413, 416, 30 Ill.Dec. 298, 392 N.E.2d 1343.) The complaint in substance asserted that the CHA had the duty to use reasonable care when it undertook to provide guard services to insure it did not thereby create increased dangers to persons lawfully on the CHA property. The appellate court correctly held that the trial court erred in dismissing the complaint as to the CHA.

We consider that the trial court erred, too, in denying the motion to dismiss made by Wells Fargo. The company contracted to provide protective...