Figueroa v. Evangelical Covenant Church

• Decision Date: 07 October 1988
• Docket Number: No. 85 C 1916.,85 C 1916.
• Citation: 698 F. Supp. 1408
• Parties: Suzanne FIGUEROA and Luis Figueroa, Plaintiffs, v. EVANGELICAL COVENANT CHURCH, d/b/a North Park College, Defendant.
• Court: U.S. District Court — Northern District of Illinois

698 F. Supp. 1408

Suzanne FIGUEROA and Luis Figueroa, Plaintiffs, v. EVANGELICAL COVENANT CHURCH, d/b/a North Park College, Defendant.

No. 85 C 1916.

United States District Court, N.D. Illinois, E.D.

October 7, 1988.

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

John J. Treacy, Braun, Lynch, Smith & Strobel, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

MAROVICH, District Judge.

Suzanne Figueroa ("Figueroa") and her husband have filed this diversity suit against Evangelical Covenant Church, doing business as North Park College ("North Park"), arising out of injuries Figueroa sustained when she was allegedly abducted by two unknown assailants from a parking lot owned by the defendant. This matter is presently before the court on defendant North Park's motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated in this memorandum opinion, North Park's motion for summary judgment is granted.

I.

On the morning of May 12, 1983, Figueroa brought her child to the Northeastern Illinois University Child Care Center ("Center"), located at 5101 North Kimball Avenue, Chicago, Illinois. After dropping off her child at the Center, Figueroa was allegedly abducted at gunpoint by two individuals from a parking lot owned by North Park which was located north of and adjacent to the Center. The assailants left the premises in her automobile and then drove to a different location, where she was subsequently sexually assaulted for several hours. The assailants attacked her with a knife, slashing through her right hand and across her throat.

North Park permitted patrons of the Center to use the subject parking lot when they dropped off or picked up their children. (Edgar Swanson ("Swanson") Dep. 48.) However, there was no written agreement or lease between North Park and either Northeastern Illinois University, which leased the day care center, or the Yugoslavian Seventh Day Adventist Church, which owned the building, regarding the use of the North Park lot. (Id. 52.)

North Park employs in its security force off-duty Chicago police officers. (Harry Tannehill Dep. 19; Edgar Swanson Dep. 10.) The officers are required to patrol North Park campus, including the subject parking lot. (Harry Tannehill ("Tannehill") Dep. 24, 29.) Director of Security, Harry Tannehill ("Tannehill"), testified in his deposition that the North Park campus consists of approximately 25 acres. (Id. 24.) He also stated that some 800 to 900 students attend North Park College and that about 300 to 500 students live on campus. (Id. 26-27.) He further testified that there is generally never more than one officer on duty during the week other than himself unless there is some special event or need. (Id. 19-20.) Edgar Swanson, Vice President of Business and Finance of North Park, testified that additional security was given to particular groups known in advance to be coming on campus, but such security was usually done by way of contract. (Swanson Dep. 25-32.)

The Figueroas have filed a six-count third amended complaint against North Park, claiming negligence in allowing Figueroa to be abducted from a parking lot owned by North Park.¹ Counts I and II allege in pertinent part as follows:

Defendant was negligent in that defendant failed to keep its property reasonably safe for the use of persons, including the plaintiff, lawfully on the property.

Defendant was negligent in that the defendant failed to see that any tenants or lessees using its property kept said property reasonably safe for the use by persons, including the plaintiff, lawfully on the property.

Defendant failed to provide adequate security personnel or precautions to keep the premises safe for persons lawfully on the premises when the defendant knew, or should have known, that the premises and the surrounding vicinity had been the scene of previous criminal activities.

Defendant failed to discover the unlawful presence of the plaintiff's attackers when defendant knew, or should have known, that the attackers had been present on the premises for approximately one hour before they abducted the plaintiff.

Counts III, IV, V, and VI essentially allege that North Park voluntarily undertook to provide security for persons using the parking lot, including Suzanne Figueroa, and failed to exercise reasonable care in doing so.

North Park has moved for summary judgment, claiming that it does not owe a duty to protect the plaintiff Suzanne Figueroa from the criminal acts of third persons as a matter of law. North Park further maintains that plaintiffs' claims do not fall within any of the exceptions to the general rule that one has no duty to protect another from a criminal attack.

II. Analysis

Under Illinois law, which governs in this diversity action, the general rule is a person has no duty to protect another against criminal attacks by third persons. See Boyd v. Racine Currency Exchange, Inc., 56 Ill.2d 95, 97, 306 N.E.2d 39, 40 (1973); Comastro v. Village of Rosemont, 122 Ill. App.3d 405, 408, 78 Ill.Dec. 32, 35, 461 N.E.2d 616, 619 (1984). However, a recognized exception to the general rule is where a "special relationship" exists between the parties. Burks v. Madyun, 105 Ill.App.3d 917, 61 Ill.Dec. 696, 435 N.E.2d 185 (1982). In deciding whether a special relationship exists, Illinois courts have relied upon the Restatement (Second) of Torts, Section 314A. Id. 105 Ill.Dec. at 920, 61 Ill.Dec. 696, 435 N.E.2d 185. The Restatement (Second) of Torts Section 314A lists four special relationships that give rise to a duty to protect another from harm. They are: (1) carrier-passenger, (2) innkeeper-guest, (3) business inviter-invitee, and (4) one who voluntarily takes custody of another under circumstances as to deprive the other of his normal opportunities for protection. Id. In order to fall within the ambit of the "special relationship" exception, the Figueroas contend that Suzanne was a business invitee on North Park's premises at the time the abduction occurred.

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 that the owner conducts or permits to be conducted on his land; and (3) there is a mutuality of benefits or a benefit to the owner. Cerniglia v. Farris, 60 Ill. App.3d 568, 576, 113 Ill.Dec. 10, 14, 514 N.E.2d 792, 796 (1987); Burks v. Madyun, 105 Ill.App.3d 917, 920, 61 Ill.Dec. 696, 670, 435 N.E.2d 185, 189 (1982). A property owner owes a duty to protect his business invitee against criminal attacks of third persons on his premises only when the harm is reasonably foreseeable. Gill v. Chicago Park District, 85 Ill.App.3d 903, 905, 41 Ill.Dec. 173, 175, 407 N.E.2d 671, 673 (1980); O'Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 108, 255 N.E.2d 205, 207 (1970).

North Park argues that Figueroa was not a business invitee of North Park, but rather a licensee. The court agrees. A licensee is one who goes on the premises of another with the owner's express or implied consent, to satisfy his or her own purpose rather than for the mutual benefit of himself and the owner or a business purpose. Cerniglia, supra, 60 Ill.App.3d at 576, 113 Ill.Dec. at 14, 514 N.E.2d at 796; Grimwood v. Tabor Grain Co., 130 Ill. App.3d 708, 710, 86 Ill.Dec. 6, 8, 474 N.E.2d 920, 922 (1985).

In this case, North Park permitted those associated with the day care center to use the parking lot. (Swanson Dep. 48.) Mere tolerance or acquiescence does not constitute an invitation. Grimwood, supra, 130 Ill.App.3d at 711, 86 Ill.Dec. at 8, 474 N.E.2d at 922. Plaintiffs direct this court's attention to a letter dated March 18, 1982 from Edgar Swanson to the Yugoslavian Seventh Day Adventist Church, owner of the day care center building, which plaintiffs believe provides specific permission by North Park for the continued use by parents and guardians of the subject parking lot. (See Plaintiff's Statement p. 2; see also Defendant's Motion for Summary Judgment, Ex. 7.) However, the letter states, in part, that for the past two years, North Park has been pleased to share its parking facilities in the parking lot with the Church's tenants. (Defendant's Motion for Summary Judgment, Ex. 7.) We find that the letter merely expresses North Park's policy to permit the patrons of the day care center to use the subject parking lot, and does not constitute an invitation. Thus, Figueroa entered the parking lot at North Park's consent rather than at its invitation.

Suzanne Figueroa did not enter the parking lot in order to attend classes or any other activity conducted on North Park's premises. Rather, she used the parking lot as a convenient place to park while she dropped off her child at the day care center. North Park did not own the building or property housing the day care center. (Plaintiff's Response to Request to Admit Defendant's Motion for Summary Judgment, Ex. 3.) Thus, Suzanne Figueroa's entry onto the subject premises was not connected to North Park's business.

Nor do we find that North Park received any direct economic benefit from Suzanne Figueroa's presence on the parking lot. Plaintiffs argue that North Park's allowance of the use of the lot by non-North Park personnel provided a "public relations benefit" for North Park. (Plaintiffs' Response to Defendant's Motion for Summary Judgment, p. 6; Sprincz Dep. 12, Ex. F.) In addition, North Park's continued permission for the use of the parking lot created a favorable negotiations climate when North Park considered purchasing the day care center from 1981 through 1983. (Plaintiffs' Response, pp. 6-7.) However, plaintiffs have shown no more than remote, indirect, or non-economic benefits which are insufficient to establish the status of a business invitee. See Grimwood, supra, 130 Ill.App.3d at 711, 86 Ill.Dec. at 8, 474 N.E.2d at 922.

We hold, therefore, that there is no genuine issue as to any material fact...