Gartley v. Chicago Housing Authority

• Decision Date: 29 April 1975
• Docket Number: No. 60218,60218
• Citation: 28 Ill.App.3d 705,329 N.E.2d 252
• Parties: Verlean Ann GARTLEY, a minor, by Willie Jean Gartley, her mother and next best friend, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, a Municipal Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 252

329 N.E.2d 252

28 Ill.App.3d 705

Verlean Ann GARTLEY, a minor, by Willie Jean Gartley, her mother and next best friend, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, a Municipal Corporation,

Defendant-Appellee.

No. 60218.

Appellate Court of Illinois, First District, Second Division.

April 29, 1975.

Jacobson & Sorkin, Chicago (Milton C. Jacobson, Chicago, of counsel), for plaintiff-appellant.

Wildman, Harrold, Allen & Dixon, Chicago (Howard T. Brinton, Thomas M. Harvick, Chicago, of counsel), for defendant-appellee.

DOWNING, Presiding Justice.

Verlean Ann Gartley (plaintiff) filed suit against the Chicago Housing Authority (defendant) seeking damages for personal injuries suffered while on a playground of the Henry Horner Housing Project (Project) located in the City of Chicago. Plaintiff alleged defendant was negligent in its function as owner and controller of the Project, and that this negligence resulted in injuries to the plaintiff. Defendant filed a motion to strike and dismiss the complaint for failure to state a cause of action, and because defendant had no duty to protect plaintiff in this situation. The circuit court of Cook County granted defendant's motion and dismissed plaintiff's complaint with prejudice. Plaintiff appeals from this dismissal.

On August 16, 1972, plaintiff, a 17 1/2-year-old minor, was allegedly injured by a soft drink bottle thrown from an eleventh floor apartment of the Project. As a result of this alleged incident, plaintiff, by her mother and next best friend, brought a personal injury action against defendant.

Plaintiff alleged in her complaint that defendant owned, operated, maintained and controlled the Project, and that it was defendant's duty to maintain and manage said premises so that hey would be in a safe and proper condition for persons legally and lawfully on these premises. Plaintiff further alleged she was sitting on a bench in the playground when struck by a bottle thrown from an eleventh floor apartment; that defendant had actual prior knowledge that objects were being thrown from the window of apartment 1108, by its occupants, Martha Harris and other members of her family. It was allegedly through defendant's failure to do anything about this dangerous activity that plaintiff was injured.

Plaintiff specifically alleged defendant was negligent in hat it carelessly and negligently: a) maintained, managed and controlled the premises, passages, areaways and appurtenances; b) failed to effectively control and/or estop children from throwing objects from the windows after having received actual knowledge of this dangerous activity; c) failed to take proper action to remedy the situation; d) failed to specify windows and window screens or coverings which would prevent the throwing of objects from the windows; e) failed to provide adequate security forces; f) failed to provide play/park areas protected from objects being thrown from apartment windows; and g) failed to provide adequate playground supervision.

Plaintiff stated she was injured as a direct and proximate result of this negligence and requested damages in the amount of $500,000 to compensate her for brain injury, paralysis, and other injuries requiring medical care which resulted from this accident.

Defendant filed a motion to strike and dismiss plaintiff's complaint on the grounds that it failed to state a cause of action; that plaintiff was injured by unknown individuals; and that defendant had no duty to protect plaintiff from the unlawful misconduct of others.

The circuit court of Cook County granted defendant's motion and entered an order dismissing the action against the defendant. This order cited Trice v. Chicago Housing Authority (1st Dist.1973), 14 Ill.App.3d 97, 302 N.E.2d 207 to support its dismissal of the case.

I.

On appeal, the only issue before this court for review is whether the complaint stated a cause of action. A motion to dismiss for failure to state a cause of action admits all facts well pleaded and reasonable inferences to be drawn therefrom; and the motion should not be granted unless it clearly appears '* * * no set of facts could be proved under the pleadings which would entitle the plaintiff to relief.' (Courtney v. Board of Education (1st Dist. 1972), 6 Ill.App.3d 424, 425, 286 N.E.2d 25, 26.) Section 33 of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 33) requires that the pleadings be '* * * liberally construed with a view to doing substantial justice between the parties.' But even liberal construction will not overcome the requirement that sufficient facts be alleged to state a cause of action. See Church v. Adler (3rd Dist.1953), 350 Ill.App. 471, 478, 113 N.E.2d 327.

In order for an allegation of negligence to be sufficient under Illinois law, facts must be alleged showing a duty on the part of the defendant to protect the plaintiff from the injury of which he complains, a breach of that duty, and injury to the plaintiff as a result of that breach. (Bahr v. National Safe Deposit Company (1908), 234 Ill. 101, 84 N.E. 717; Church v. Adler, Supra; Anderson v. Davis Development Corp. (3rd Dist.1968), 99 Ill.App.2d 55, 241 N.E.2d 222; 28 I.L.P. Negligence § 182.) On the motion to dismiss, accepting all facs properly pleaded as admitted (Follett's Illinois Book & Supply Store, Inc. v. Isaacs (1963), 27 Ill.2d 600, 190 N.E.2d 324; Trice v. Chicago Housing Authority, 14 Ill.App.3d at 99, 302 N.E.2d 207), we must determine if plaintiff's complaint sets forth a cause of action. Before reaching the circuit court's reliance on...