Fancil v. Q. S. E. Foods, Inc.

• Decision Date: 17 April 1974
• Docket Number: No. 73--280,73--280
• Citation: 311 N.E.2d 745,19 Ill.App.3d 414
• Parties: Jennie Rosemary FANCIL, as Administrator of the Estate of Jack Fancil, Deceased, and Rosemary Fancil, Plaintiffs-Appellants, v. Q.S.E. FOODS, INC., an Illinois corporation, d/b/a Big John's #3, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 745

311 N.E.2d 745

19 Ill.App.3d 414

Jennie Rosemary FANCIL, as Administrator of the Estate of Jack Fancil, Deceased, and Rosemary Fancil Plaintiffs-Appellants, v. Q.S.E. FOODS, INC., an Illinois corporation, d/b/a Big John's #3, Defendant-Appellee.

No. 73--280.

Appellate Court of Illinois, Fifth District April 17, 1974.

Rehearing Denied May 28, 1974.

Harlan Heller, Ryan & Heller, Ltd., Mattoon, and Robert L. Douglas, Robinson, for plaintiffs-appellants.

Edward Benecki of Gosnell, Benecki & Borden, Ltd., Lawrenceville, for defendant-appellee.

GEORGE J. MORAN, Presiding Justice.

Plaintiffs appeal from a judgment of the Circuit Court of Crawford County entered in favor of defendant and against plaintiffs after the dismissal of plaintiffs' complaint on defendant's motion.

Defendant was the owner and operator of a grocery store in Oblong, Illinois at which plaintiff's intestate, Jack Fancil, a member of the Oblong City Police force, was killed by a burglar on the night of June 1, 1970.

Plaintiff's complaint alleged that there had been several burglaries at the defendant's store prior to the night in question and that the defendant knew of them; that decedent and other members of the Oblong police force inspected defendant's premises each night for the purpose of protecting defendant's property and that defendant knew of these inspections; that defendant had added a wire enclosure at the rear of the building for storing merchandise; that with knowledge of prior burglaries the defendant disconnected a vapor light that had been used to light the enclosure; that the enclosure was therefore dark; that defendant knew that danger to decedent and other officers was enhanced because of the unlighted entrance; that defendant

'(a) Negligently and carelessly failed and omitted to provide a suitable and adequate light in the area of the enclosure added to the Defendant's premises when it knew that the premises had been the subject of burglaries.

(b) Negligently and carelessly disconnected the power to the light erected near the enclosure when it knew or in the exercise of ordinary care should have known that the safety of invitees was thereby imperiled.

(c) Negligently and carelessly disconnected the power to the light erected near the enclosure when it knew, or in the exercise of ordinary care should have known that its action would thereby provide an area of darkness in which burglars could conceal themselves from the view of officers of the law.

(d) Negligently and carelessly failed and omitted to keep the light provided within the interior of the enclosure lighted in the nighttime when it knew or in the exercise of ordinary care should have known that failure to light an area of darkness would be created within which burglars could conceal themselves.

(16) On June 1, 1970, the Plaintiff's intestate went to the Defendant's premises for the purposes of performing a security check.

(17) At the said time and place, and as a direct and proximate result of Defendant's negligent and careless acts as aforesaid, burglars concealed themselves upon the premises on the south side of the Defendant's building.

(18) As a direct and proximate result of the negligent and careless acts or omissions of Defendant, Plaintiff's intestate was ambushed and attacked by the burglars while in the process of conducting a security check at the rear of Defendant's premises.'

To impose liability for negligence upon a defendant, a plaintiff must show a duty, negligence, foreseeability, and proximate cause. The complaint alleged that the defendant knew of past burglaries, knew that police officers patrolled the building at night, knew that there was no access to the rear of the building by motor vehicle, and knew that if a mercury vapor light at the rear of the building was unlighted at night, areas of darkness would be created in which burglars could conceal themselves and endanger the safety of patrolling police officers, but nevertheless failed to light or disconnected the power to the light at the rear of the building.

In Neering v. I.C.R.R. Co., 383 Ill. 366, 50 N.E.2d 497, our Supreme Court held that a railroad company owed a duty to a passenger waiting on defendant's platform for a train to protect her from criminal assault by a tramp or hobo. The decision was based on a requirement to exercise 'ordinary care' to keep station buildings and appurtenances in a reasonably safe condition for use, coupled with a finding that the risk of assault by loitering tramps or hoboes was within the ambit of that requirement. The court described the duty as requiring defendant to afford protection to passengers from dangers to which it had knowledge or which, in the exercise of due care and diligence, it could have reasonably anticipated and provided against.

In Neering the court said at 374--375, 377, 50 N.E.2d at 501--502:

'Defendant contends that it is not required to guard against injuries resulting from unusual or unexpected occurrences which could not have been reasonably anticipated, while plaintiff declares that she does not contend that defendant was required to guard against injuries resulting from unusual occurrences which could not be reasonably anticipated, but insists that it was a question of fact for the jury to determine whether or not,...