Hill v. Chicago Housing Authority

• Decision Date: 07 August 1992
• Docket Number: No. 1-90-0512,1-90-0512
• Citation: 175 Ill.Dec. 104,233 Ill.App.3d 923,599 N.E.2d 1118
• Parties: , 175 Ill.Dec. 104 Mark HILL, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, a municipal corporation, and Triad Security, an Illinois Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1118

599 N.E.2d 1118

233 Ill.App.3d 923, 175 Ill.Dec. 104

Mark HILL, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, a municipal corporation, and Triad Security, an Illinois Corporation Defendants-Appellees.

No. 1-90-0512.

Appellate Court of Illinois First District, Fifth Division.

Aug. 7, 1992.

Moore and Maisel, Chicago, for plaintiff-appellant (Gary K. Moore and Thomas J. Branit, of counsel).

Sheldon Hodes, Chicago, for defendant-appellee Chicago Housing Authority.

Baal & O'Connor, Chicago, for defendant-appellee, Triad Sec. (Keith Haug and Robert B. Baal, of counsel).

Justice GORDON delivered the opinion of the court:

This case arises from the shooting of the plaintiff, Mark Hill, in the lobby of 1158 N. Cleveland, Chicago, Illinois, a building which is part of defendant Chicago Housing Authority's (hereinafter CHA) Cabrini Green Housing Project. Plaintiff brought a single count complaint against CHA and defendant Triad Security alleging negligence by the defendants. (Although Triad Security is now known as Guardian Security Services, Inc., this opinion shall refer to this defendant as Triad, which refers to its designation in the caption and in the notice of appeal.) The trial court granted CHA's motion for summary judgment and Triad's motion to dismiss, and plaintiff appeals. For the reasons set forth below, we affirm.

FACTS

On March 18, 1986, at approximately 12:30 a.m., plaintiff was shot by an unknown assailant when he walked into the lobby of the building at 1158 N. Cleveland in Chicago. Plaintiff's mother lived in that building.

On September 28, 1987, plaintiff filed a one count complaint against defendants. In that complaint, plaintiff alleged that the CHA had a duty to exercise reasonable care and diligence to keep the building at 1158 N. Cleveland in reasonably safe condition and to take necessary precautions to prevent loitering in the common areas of the building. Plaintiff further alleged that, in furtherance of that duty, CHA had retained the services of Triad to protect and patrol the building.

The complaint alleged that the defendants were negligent in allowing dangerous persons to loiter in the common areas and hallways, and in failing to have security personnel patrol those areas to prevent such loitering and assaults on the plaintiff and others who were rightfully using the common areas. Plaintiff also alleged that the assault was the direct and proximate result of the defendants' negligence.

CHA answered the complaint, admitting that it had a duty to maintain its property in a reasonably safe condition and that it had retained the services of Triad to protect the property. CHA denied the specific allegations of negligence.

Triad filed a motion to dismiss pursuant to section 2-619 (Ill.Rev.Stat.1987, ch. 110, par. 2-619). In support of its motion, Triad submitted the affidavits of George Sasek, its acting operations manager, and Winston Moore, director of security for the CHA. According to Sasek, the oral agreement between CHA and Triad required Triad to provide security services on a day-to-day basis as requested by the CHA. These services were limited to the protection of CHA property without any agreement to protect residents or guests of the buildings. At the time of the assault, no Triad personnel were located at 1158 N. Cleveland since none were assigned by the CHA to that unit at that time.

Triad contended that the complaint should be dismissed since it had no duty to provide security to the premises at the time in question and also that its duty was limited to the protection of property.

On May 3, 1988, CHA filed a motion for summary judgment (Ill.Rev.Stat.1987, ch. 110, par. 2-1005), supported by the affidavits of Sasek and Moore. CHA contended it had no duty to protect plaintiff, that it had no duty to provide security for the tenants of its housing units, and that it did not contract with Triad to provide such security. In addition, under section 4-102 of the Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1987, ch. 85, par. 4-102) (hereinafter the Tort Immunity Act), a municipal body is not liable for failure to provide adequate police protection or to prevent the commission of crimes.

On February 7, 1989, Triad filed an amended motion to dismiss. This motion was substantially the same as Triad's original motion to dismiss, but was supported by the affidavit of Kenneth Kotz, president of Triad, rather than that of Sasek.

On March 9, 1989, plaintiff filed an amended complaint. This complaint added an allegation that the defendants were negligent in failing to provide adequate lighting in the common areas and hallways so CHA also filed three affirmative defenses. The first alleged that plaintiff's injuries were caused by plaintiff's own negligence. The second affirmative defense was based upon section 3-102 of the Tort Immunity Act (Ill.Rev.Stat.1987, ch. 85, par. 3-102), which provided that defendant could not be held liable for injuries arising out of defects on its premises absent actual or constructive notice of such defect. CHA contended that it had no such notice.

[175 Ill.Dec. 107] as to ensure that tenants and others lawfully on the premises could see persons loitering in the area. CHA filed an answer to the amended complaint, again denying plaintiff's allegations. Triad adopted its amended motion to dismiss the original complaint as its motion to dismiss the amended complaint, and CHA adopted its original motion for summary judgment as its motion for summary judgment as to plaintiff's amended complaint.

As its third defense, CHA argued that under section 4-102 of the Tort Immunity Act, it was not liable for failure to prevent the commission of the crime here, and that this immunity was not waived by hiring the codefendant Triad. By agreed order entered June 8, 1989, the third affirmative defense was stricken. Although CHA was granted time to file an amended defense, the record does not indicate that it did so.

In opposition to the defendants' motions, plaintiff filed the affidavits of Jerry Weldon and Dwyne Sanford, former security guards employed by Triad and stationed at Cabrini Green. According to the affiants, their jobs were to patrol the complex, prevent loitering, report lights which were out in the common areas, and to report vandalism in order to keep the premises safe for the residents. Weldon and Sanford also stated that guards were to be stationed at Cabrini Green 24 hours a day.

Plaintiff also filed several depositions with the court. In his deposition, Winston Moore, director of security for CHA, stated that the CHA itself employed no security personnel, but engages private security contractors to provide security for the property. Triad had been a security contractor for the CHA since 1982, operating under an oral agreement. Under the agreement, Triad was to provide security services for the CHA on a day-to-day basis whenever requested by the CHA. The agreement was made between Moore and Jim Melanowski and Kenneth Koch, the owners of Triad.

Another deposition filed by plaintiff was that of Lt. Eddie King of the public housing authority unit of the Chicago police department. Lt. King estimated that in the two years prior to plaintiff's shooting, there had been ten shootings and three or four stabbings at Cabrini Green. It was the policy of the police department to inform the CHA about shootings, serious stabbings and unexplained deaths on its property.

Plaintiff also filed his own deposition in which he testified about the shooting. At about 12:30 a.m. on March 18, 1986, he was returning home after taking his girl friend home. As he approached 1158 N. Cleveland, he saw three individuals entering the building. Rather than enter the building directly, he first walked around it three times. Plaintiff explained that he did this because the building was dark, the lights in the lobby having been vandalized by the gangs. Plaintiff stated that it was his habit to not enter the lobby immediately when he saw unknown individuals enter before, but to wait and give them enough time to get upstairs before he would enter.

When he did enter the lobby, someone jumped out from behind a door, yelled, pulled a gun and started shooting. After being shot, plaintiff ran out the back of the building. His assailant did not follow.

Plaintiff also testified that one of his friends had been shot and killed in the same building. Plaintiff could not remember when that shooting occurred nor did he name the alleged victim. Plaintiff also stated that a female Jehovah's Witness whose name he did not know had been assaulted in a dark hallway of the building.

When questioned by his attorney, plaintiff stated that the lights in the lobby of 1158 N. Cleveland had been out for two or three weeks prior to the shooting, and that a week before, he had complained to the The deposition of Kenneth Kotz, president of Triad, was also filed by the plaintiff. Kotz testified that his company provided security services to the CHA under an oral agreement. Under that agreement, Triad was to provide protection for the property of the CHA, and had no responsibility to provide security for the residents. Their duties were to make vacant apartment checks, patrol the grounds and look to see if vandalism had been committed.

[175 Ill.Dec. 108] building janitor. The lights were not repaired or replaced.

According to Triad's records, it had guards assigned to Cabrini Green on the four-to-twelve shift on March 17, 1986, but no guards were located at 1158 N. Cleveland when the plaintiff was assaulted.

James Malinowski, co-owner of Triad, was also deposed by the plaintiff. He testified that from 1982 to some time after the plaintiff was shot, his company provided security services for the CHA under an oral agreement. The CHA would call Triad to request a specific number of guards and would specify which CHA properties they were to cover.

The...