Jackson v. Shell Oil Co.

• Decision Date: 16 May 1995
• Docket Number: No. 1-94-2064,1-94-2064
• Citation: 272 Ill.App.3d 542,650 N.E.2d 652,208 Ill.Dec. 958
• Parties: , 208 Ill.Dec. 958 Calvin JACKSON, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 652

650 N.E.2d 652

272 Ill.App.3d 542, 208 Ill.Dec. 958

Calvin JACKSON, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.

No. 1-94-2064.

Appellate Court of Illinois,

First District, Second Division.

May 16, 1995.

Knight, Hoppe, Fanning & Knight, Ltd., Des Plaines, (Patrick J. Fanning, Colleen C. Coburn, of counsel), for appellee.

A. Boddie, Chicago, for appellant.

Justice DiVITO delivered the opinion of the court:

In this premises liability action against defendant Shell Oil Company (Shell Oil), plaintiff Calvin Jackson (Jackson) sought damages for personal injuries suffered as a result of a gunshot wound inflicted by an unknown assailant. At the time of his injury, Jackson was acting within the scope of his employment as a gas station attendant on the premises which was being leased to his employer by Shell Oil. The circuit court dismissed Jackson's first amended complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)) on the basis of its finding that there was no special relationship between Shell Oil and Jackson as alleged in the complaint. Jackson now appeals the dismissal of his complaint. For reasons that follow, we affirm.

At approximately 4:20 a.m. on July 23, 1993, Jackson was shot and wounded by an unknown assailant. At the time of the shooting, Jackson was working and in the scope of his employment as a service station attendant for Frank Curry and Curry's company, June Way, Inc. (June Way). Just prior to the shooting, Jackson had left the service station attendant's booth to use the rest room, because the booth did not have such a facility.

Shell Oil was neither the owner of the service station nor in the possession or control of the service station at the time of the shooting. Jackson was not employed by Shell Oil at the time of the shooting, nor has he ever been employed by Shell Oil.

Frank Curry was an authorized Shell dealer, operating a gasoline service station at 7740 N. Sheridan Road in Chicago known as June Way Shell pursuant to a motor fuel station lease and a dealer agreement with Shell Oil. The premises of the service station were wholly demised to Curry under the lease agreement, in effect from January 1, 1991, through December 31, 1995. Shell did not own the leased real estate; it leased that property and in turn leased it to Curry.

The leased premises included the land, buildings, improvements, and equipment. The lease further provided that upon termination or expiration of the lease, the lessee shall surrender possession of the leased premises in good condition. Under the terms of the lease, Shell Oil as lessor was specifically prohibited from exercising control over or directing Curry, the lessee's business, or any person performing lessee's duties. While the dealer agreement set forth the standards and requirements for preserving the public's confidence in and acceptance of Shell Oil's products, Curry was an independent businessman and Shell Oil had no right to control or direct his business.

Under the dealer agreement, Curry was expressly responsible for maintenance and safety conditions. No separate agreement was in effect between Shell Oil and Curry which imposed any responsibility on Shell Oil for the maintenance, housekeeping, or safety of the leased premises. Further, Shell Oil had no knowledge of anyone ever being shot at the leased premises except for the incident complained of by Jackson.

The lease required Curry to operate the service station 24 hours a day. The lease stated that Shell Oil has

"the right from time to time, without liability to lessee, to make alterations to the Premises. Shell's right to make such alterations shall include, but not be limited to, modernization, reconstruction or remodeling of or adding to any building, equipment or other facilities on the Premises and may involve the complete demolition and rebuilding of any and all such facilities."

Curry could not "make any alterations to the Premises * * * without Shell's prior written consent, which consent shall not be unreasonably withheld." The lease granted Shell Oil the right to "enter the Premises at any time for the purpose of inspecting the same (including the pump meters), gauging and testing tanks, performing maintenance and making alterations," and required Curry to maintain "bullet-resistant glass or plastic." The lease also provided Shell Oil the option to terminate the lease on the ground of "failure by Lessee to comply with any provision of this Lease."

On July 29, 1993, Shell Oil displayed a sign in public view on the window of the attendant's booth which stated: "REWARD. Shell Oil Company may contribute up to $20,000 as a reward for information leading to the arrest and conviction of any individual committing a violent crime against personnel of this station."

Jackson filed a premises liability action against Shell Oil, June Way, and Curry on December 3, 1993, alleging negligence in failing to maintain the business premises in a reasonably safe condition. He voluntarily dismissed both June Way and Curry pursuant to a stipulation and agreement with those defendants on April 28, 1994. In response to the complaint, Shell Oil filed a motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)). Instead of responding to the motion to dismiss, Jackson filed a first amended complaint on May 2, 1994. The first amended complaint was a premises liability action against Shell Oil only, alleging negligence with regard to the following:

"(a) failing to maintain the Premises in a reasonably safe condition for use by the PLAINTIFF.

(b) failing to protect PLAINTIFF from an unsafe condition on the Premises which was known to SHELL and not known to PLAINTIFF.

(c) failing to protect PLAINTIFF from an unsafe condition on the Premises which was known to SHELL and which SHELL knew or should have expected that PLAINTIFF would fail to protect himself against it.

(d) failing to protect PLAINTIFF from an unsafe condition on the Premises which was known to SHELL and which SHELL knew or should have known that PLAINTIFF would fail to protect himself against it.

(e) failing to protect PLAINTIFF from an unsafe condition on the Premises which was known to SHELL and which SHELL knew or should have known that PLAINTIFF would be unable to protect himself against it.

(f) failing to warn PLAINTIFF of an unsafe condition on the Premises which was known to SHELL and which was not open and obvious to PLAINTIFF.

(g) failing to employ security guards."

In response to the first amended complaint, Shell Oil adopted its motion to dismiss the original complaint and reasserted the arguments set forth therein. After hearing oral argument on May 24, 1994, the circuit court granted the motion to dismiss and gave Jackson leave to file a second amended complaint. Rather than doing so, however, Jackson filed a timely notice of appeal on June 22, 1994. Jackson and Shell Oil are the only parties to the appeal.

When a party appeals from a circuit court's order granting a section 2-619 motion to dismiss, this court conducts a de novo review. (Owens v. Midwest Tank & Manufacturing Co. (1989), 192 Ill.App.3d 1039, 1042, 140 Ill.Dec. 123, 125, 549 N.E.2d 774, 776, appeal denied (1990), 131 Ill.2d 560, 142 Ill.Dec. 883, 553 N.E.2d 397.) Jackson's complaint should not have been dismissed unless it was clear from the pleadings that no set of facts could have been proved which would have entitled him to relief. Owens, 192 Ill.App.3d at 1042, 140 Ill.Dec. at 125, 549 N.E.2d at 776.

Jackson asserts that, pursuant to section 2 of the Illinois Premises Liability Act (740 ILCS 130/2 (West 1992)), the common-law distinction between invitees and licensees in regard to the duty of care owed by a landowner or occupier was abolished and replaced by a duty of reasonable care under the circumstances regarding the state of the premises or acts done on them. He argues that the duty of a premises owner or occupier encompasses a duty to invitees on the premises to exercise reasonable care for their protection against injury arising out of the criminal activities of third parties. He further argues that the key inquiry as to whether such a duty exists is whether, under the particular circumstances of the case, the third-party criminal acts were reasonably foreseeable. In this case, according to Jackson, Shell Oil voluntarily undertook to provide a secure service station attendant's booth in which Jackson (or anyone in his position) would work. Further, according to Jackson, Shell Oil retained control over the design and construction of any alterations to the booth. Consequently, Jackson argues that Shell Oil had a duty to use ordinary care in maintaining the booth in a reasonably safe condition. But for Shell Oil's negligent failure to design or construct the booth with adequate rest room facilities, it would not have been necessary for Jackson to leave the secure booth and expose himself to the harm of a third party's criminal acts.

Shell Oil responds that the motor fuel station lease and dealer agreement clearly indicate that it assumed neither obligation nor responsibility for providing safety or security to employees of the lessee. It argues that it therefore had no duty to guard against the criminal acts of third persons. It further argues that any liability that might arise from its voluntary undertaking to provide a secure booth is limited by the extent of that undertaking, and since there is no evidence in the record that the booth was not secure in and of itself, and because Jackson was not shot while in the booth, it has no liability as a matter of law.

As a general rule, Illinois does not impose a duty to protect others from criminal acts by third persons; however, an exception is recognized where the parties had a special relationship and where the criminal attack was reasonably...