Figueroa v. Evangelical Covenant Church, 88-3201

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation879 F.2d 1427
Docket NumberNo. 88-3201,88-3201
Parties55 Ed. Law Rep. 55 Suzanne FIGUEROA and Luis Figueroa, Plaintiffs-Appellants, v. EVANGELICAL COVENANT CHURCH d/b/a North Park College, Defendant-Appellee.
Decision Date18 August 1989

Lee H. Russell, Northlake, Ill., for plaintiffs-appellants.

James W. Ford, Scott R. Britton, Braun, Lynch, Smith & Strobel, Chicago, Ill., for defendant-appellee.

Before CUDAHY, COFFEY, and MANION, Circuit Judges.

CUDAHY, Circuit Judge.

The central issue in this diversity case is whether, under Illinois law, North Park College ("North Park") owed Suzanne Figueroa a duty to protect her from criminal attack.

In this appeal Figueroa and her husband argue that material issues of fact exist as to the existence of such a duty, so that the district court's grant of summary judgment was premature. We conclude that none of the issues about which the parties remain in dispute are material issues of fact and that summary judgment was appropriate in this case.


Evangelical Covenant Church, doing business as North Park College, owns a parking lot that adjoins the Northeastern Illinois University Child Care Center ("Center"). 1 Parents dropping their children at the Center frequently used this parking lot, a practice apparently approved by North Park informally prior to 1982 and then formally recognized in a letter dated March 18, 1982. On the morning of May 12, 1983, Figueroa was abducted at gunpoint from North Park's parking lot after dropping her child off at the Center, and was subsequently sexually assaulted and slashed with a knife. She is suing North Park for its alleged negligent failure to provide adequate security in the parking lot. Her husband, Luis Figueroa, sues for loss of consortium in parallel counts.

North Park employed off-duty Chicago police officers to patrol its campus, including the parking lot. There was usually only one officer on duty at a time during the week. That officer patrolled the campus, reporting to particular buildings at designated times to lock and unlock doors. The security officers also concentrated on a foot bridge connecting the north and south campuses at times when the high school students from a neighboring school were likely to congregate there (morning, lunchtime and afternoon at the time high school classes ended). The college security office did make reports of any incidents that occurred on campus, but apparently did not keep records much longer than one or two years. 2 North Park security officers could recall only minor incidents occurring on campus before the time of the assault on Figueroa; the only incident occurring in the area of the parking lot involved "some kids" throwing bottles.

The district court granted summary judgment to the defendant, ruling that as a matter of law North Park owed no duty to Figueroa. 698 F.Supp. 1408. We affirm.


In reviewing a grant of summary judgment we construe facts and draw inferences in favor of the nonmoving party, resolving against the movant any doubts about the existence of a genuine issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). The moving party is entitled to summary judgment if it can be shown that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

Although the burden is on the moving party to demonstrate that no genuine issues of material fact remain, the nonmovant must go beyond the pleadings to affirmatively demonstrate the existence of genuine issues for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Smart v. State Farm Ins. Co., 868 F.2d 929, 931 (7th Cir.1989). If the moving party can demonstrate the absence of a genuine issue as to any necessary element of the nonmoving party's case, it is entitled to summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552 (moving party entitled to judgment if nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case"). While the nonmovant's burden in making this showing is clearly a light one, failure to meet the burden as to even one essential element (if the element is one upon which the nonmovant will bear the burden of proof at trial) may result in summary judgment. Plaintiffs' brief at times suggests that, if there is an issue remaining as to any fact, summary judgment is inappropriate. However--to take one example--if plaintiffs have to demonstrate both invitee status and foreseeability to prove their "invitee" claims (Counts I and II), then absence of a material issue of fact as to foreseeability alone is fatal to their case (as to those counts) even if an issue remains about invitee status. The burden is on the defendant to demonstrate that no material issue of fact remains as to at least one of these necessary elements. But if the defendant can succeed as to one essential element of the plaintiffs' case, plaintiffs cannot escape summary judgment by pointing to other elements.

As a general rule, Illinois does not impose a duty to protect others from criminal attacks by third parties. Boyd v. Racine Currency Exch., 56 Ill.2d 95, 97, 306 N.E.2d 39, 40 (1973); Gill v. Chicago Park Dist., 85 Ill.App.3d 903, 905, 41 Ill.Dec. 173, 175, 407 N.E.2d 671, 673 (1st Dist.1980). However, the Illinois courts have recognized exceptions to this rule where the criminal attack was reasonably foreseeable and the parties had a "special relationship:" (1) carrier-passenger, (2) innkeeper-guest, (3) business invitor-invitee, or (4) voluntary custodian-protectee. See Rowe v. State Bank of Lombard, 125 Ill.2d 203, 215-16, 126 Ill.Dec. 519, 525, 531 N.E.2d 1358, 1364 (1988); Pippin v. Chicago Hous. Auth., 78 Ill.2d 204, 208, 35 Ill.Dec. 530, 532, 399 N.E.2d 596, 598 (1979); Fancil v. Q.S.E Foods, Inc., 60 Ill.2d 552, 560, 328 N.E.2d 538, 540 (1975); Comastro v. Village of Rosemont, 122 Ill.App.3d 405, 408, 78 Ill.Dec. 32, 35, 461 N.E.2d 616, 619 (1st Dist.1984); Burks v. Madyun, 105 Ill.App.3d 917, 920, 61 Ill.Dec. 696, 699, 435 N.E.2d 185, 188 (1st Dist.1982); Martin v. Usher, 55 Ill.App.3d 409, 410, 13 Ill.Dec. 374, 375, 371 N.E.2d 69, 70 (1st Dist.1977); Trice v. Chicago Hous. Auth., 14 Ill.App.3d 97, 99, 302 N.E.2d 207, 208 (1st Dist.1973); O'Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 106, 255 N.E.2d 205, 207 (1970) (invitee); see Restatement (Second) of Torts Secs. 314A, 343, 448, 449 (1965). 3

Figueroa claims that North Park owed her a duty under both the "invitee" and "voluntary undertaking" exceptions. Whether or not North Park owed Figueroa a duty is a question of law to be resolved by the court. Ferentchak v. Village of Frankfort, 105 Ill.2d 474, 480, 86 Ill.Dec. 443, 447, 475 N.E.2d 822, 825 (1985); Fancil, 60 Ill.2d at 555, 328 N.E.2d at 540 (1975); Cunis v. Brennan, 56 Ill.2d 372, 374, 308 N.E.2d 617, 618 (1974); see Rankow v. First Chicago Corp., 870 F.2d 356, 359 (7th Cir.1989).


We consider first whether North Park owed Figueroa a duty as an invitee. In 1984 Illinois passed the Premises Liability Act ("Act"), which abolished the common law distinction between invitees and licensees. Ill.Rev.Stat. ch. 80, para. 302 (1985). The Act became effective as of September 12, 1984. The Illinois appellate courts have since ruled that the Act is not to be applied retroactively. Cerniglia v. Farris, 160 Ill.App.3d 568, 575, 113 Ill.Dec. 10, 14, 514 N.E.2d 792, 796 (4th Dist.1987); Grimwood v. Tabor Grain Co., 130 Ill.App.3d 708, 711, 86 Ill.Dec. 6, 8, 474 N.E.2d 920, 922 (3d Dist.1985). Because the events at issue in this case occurred in 1983, the Act is inapplicable.

Illinois courts have applied a three-part test in determining whether a person qualifies as a business invitee:

A person is an invitee if: (1) he enters the premises of another by express or implied invitation; (2) his entry is connected with the owner's business or with an activity the owner conducts or permits to be conducted on his land; and (3) there is a mutuality of benefit or a benefit to the owner.

Grimwood, 130 Ill.App.3d at 710, 86 Ill.Dec. at 8, 474 N.E.2d at 922 (quoting Madrazo v. Michaels, 1 Ill.App.3d 583, 586, 274 N.E.2d 635, 638 (1st Dist.1971)) (emphasis added); see also Cerniglia, 160 Ill.App.3d at 576, 113 Ill.Dec. at 14, 514 N.E.2d at 796. The district court concluded that Figueroa met none of these requirements. Although we find the first two parts of the test somewhat more problematic as applied to Figueroa's case than did the district court, we agree that there is no issue of material fact remaining for trial as to the final requirement (mutuality of benefit). Because this is a necessary element of Figueroa's case, the defendant is entitled to summary judgment as to the plaintiffs' "invitee" claims (Counts I and II). 4

In order to qualify as an invitee, Figueroa must first demonstrate that she entered North Park's property by express or implied invitation. The district court correctly notes that mere tolerance or acquiescence cannot under Illinois law constitute an invitation. Figueroa v. Evangelical Covenant Church, 698 F.Supp. 1408, 1411 (N.D.Ill.1988). However, the cases dealing with this issue have generally involved silent acquiescence on the part of property owners. In Grimwood, for example, the plaintiff was injured while visiting his father's worksite at the Tabor Grain Company. The court concluded that although the plaintiff had repeatedly visited his father at work, the company had not invited the plaintiff to visit his father: "The defendant may have permitted or acquiesced...

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