Mitchell v. Archibald & Kendall, Inc.

• Decision Date: 28 April 1978
• Docket Number: No. 77-2216,77-2216
• Citation: 573 F.2d 429
• Parties: Lawrence MITCHELL and Algerie Mitchell, Plaintiffs-Appellants, v. ARCHIBALD & KENDALL, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 429

573 F.2d 429

Lawrence MITCHELL and Algerie Mitchell, Plaintiffs-Appellants, v. ARCHIBALD & KENDALL, INC., Defendant-Appellee.

No. 77-2216.

United States Court of Appeals, Seventh Circuit.

Submitted Dec. 12, 1977.

Decided March 2, 1978.

Rehearing Denied April 28, 1978.

Melvin Gaines, Chicago, Ill., for plaintiffs-appellants.

James R. Quinn, Chicago, Ill., for defendant-appellee.

Before FAIRCHILD, Chief Judge, PELL and WOOD, Circuit Judges.

PELL, Circuit Judge.

Plaintiffs-appellants Lawrence and Algerie Mitchell appeal from the judgment of the district court in dismissing their cause against Archibald & Kendall, Inc. (A & K) for failure to state a claim for which relief can be granted. The major legal question presented in this diversity case is whether the owner or occupier of land has a duty of reasonably guarding an invitee against criminal attacks that take place beyond the boundaries of his premises and on a public thoroughfare. ¹

The complaint sets forth the following facts. Lawrence Mitchell, accompanied by his wife and two grandchildren, drove a truckload of A & K's products from New Jersey to Chicago and tendered the cargo for delivery to A & K's employees at its warehouse on Fulton Street at 9:30 a. m. on November 12, 1973. At the time when the Mitchells arrived, A & K's employees were already loading a truck in the receiving area. Because A & K's receiving dock area allowed only one truck to be unloaded at a time, A & K's employees directed and ordered Lawrence Mitchell to remain in his truck and to park it on the area of Fulton Street immediately opposite A & K's warehouse and adjacent to its driveway until they could unload it.

The complaint alleged that it was A & K's practice, custom and habit over a period of several years openly and visibly to use the area directly in front of and immediately surrounding the receiving area of its warehouse as an extension of the receiving dock area and a parking area for trucks waiting to unload deliveries to and for A & K at its place of business. After Mitchell parked his tractor-trailer on Fulton Street as ordered by A & K's employees and while sitting in the cab with his family, two unknown males approached him and demanded his money. When Mitchell refused this unlawful demand, one of the men produced as 12-gauge shotgun and, from a distance of approximately three feet, fired it directly into Mitchell's face. The shotgun blast caused permanent injuries to Mitchell.

A & K's employees had experience on repeated occasions prior to November 12, 1973, of various criminal acts on and about A & K's premises. The complaint alleges that A & K knew or should have known of the high risk of drivers being subjected to a criminal attack and assault while waiting in the cab of a truck parked in the area. A & K allegedly knew that some three weeks earlier an armed robbery was perpetrated against another truck driver "while parked on defendant's premises waiting to make a delivery at said private warehouse dock." The Mitchells had no knowledge or means of becoming aware of the inherent risk, dangers and probabilities of a criminal assault associated with attempting to make deliveries at A & K's warehouse or in parking on the area of Fulton Street as directed by A & K's employees.

The complaint set forth five duties which A & K assertedly breached. According to the complaint, it was A & K's duty to exercise ordinary care to maintain its premises and the adjacent areas in a reasonably safe condition so as to avoid leading Mitchell into a dangerous and perilous risk of injury by the criminal conduct of third persons of which A & K was aware. A & K further owed Mitchell the duty to exercise reasonable care to provide a reasonably safe means of ingress and egress, both within the confines of the premises owned and controlled by A & K and beyond the precise boundaries of such premises. A & K owed the Mitchells the duty to exercise reasonable care to protect them from criminal acts of third persons while on A & K's premises and beyond the precise boundaries of such premises and to provide a reasonably sufficient number of servants or employees to afford reasonable protection to invitees. A & K owed Mitchell the duty to give adequate and timely notice and warning of latent or concealed perils which were known to A & K but not to the Mitchells. Finally, according to the complaint, it was A & K's duty towards the Mitchells to keep its premises and the immediate adjacent area reasonably well policed and to exercise reasonable care to see that its invitees were protected from injury from criminal acts of third persons and to take reasonable steps to prevent injury to invitees.

I. Claimed Error in District Court's Use of Rule 12(b)(6)

An initial issue in the present appeal is whether dismissal under Rule 12(b) (6), Fed.R.Civ.P., was procedurally proper. The plaintiffs-appellants contend that the district court found that plaintiff Mitchell's injuries occurred neither on an ingress nor an egress to A & K's premises and that the criminal act occurred on a public street instead of on A & K's premises. They assert that the issues decided by the district court's opinion involved one of a material fact, i. e., did the attack on Mitchell take place on A & K's premises? The plaintiffs-appellants assert that their complaint alleges extensive and sufficient facts to support the allegation that the area of Fulton Street is a part of A & K's premises, noting that under Illinois law the word "premises" does not have one precise and fixed meaning in law and that its definition is dependent on the underlying factual circumstances and the context in which the term arises. ² They insist that through the habit and practices of A & K, the public way in question has become an integral adjunct of A & K's business at its Fulton Street address and that a jury might determine that the accident occurred on A & K's premises. The plaintiffs-appellants thus read the district court's memorandum opinion as suggesting that an affirmative answer to the question whether the attack occurred on A & K's "premises" would require denial of the motion to dismiss. They argue that the district court erred in granting A & K's motion because factual disputes cannot be resolved by a motion under Rule 12(b)(6).

Where the pleadings raise a contested issue of material fact, a Rule 12(b)(6) motion must be denied. Carroll v. Morrison Hotel Corp., 149 F.2d 404, 408 (7th Cir. 1945). In reviewing the grant of a motion to dismiss a complaint for failure to state a claim, it is elementary that all material facts well pleaded in the complaint must be taken as true. City of Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir. 1976). However, the court is required to accept only well-pleaded facts as true in deciding whether the motion to dismiss was properly granted and is not required to accept legal conclusions that may be alleged or that may be drawn from the pleaded facts. Id., citing Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971).

We think that the district court properly relied upon Rule 12(b)(6) in disposing of the present case. The plaintiffs-appellants' complaint itself distinguished carefully between A & K's "premises" and the adjacent area on Fulton Street which A & K assertedly used as a warehouse parking area. Their present argument that a jury could find that the street area was a part of A & K's "premises" sets forth a new theory of liability. The allegations actually incorporated into the drafted complaint were not sculpted in such a fashion as to articulate that theory. The district court judge in dismissing the cause was in effect ruling that the complaint as drafted was legally insufficient.

The specious character of the plaintiffs-appellants' argument of procedural irregularity is highlighted by their filing of a notice of appeal. In this litigation originally the court's order merely dismissed the complaint and no final judgment was entered. ³ As noted in the margin this case is presently before us for the second time. When the order dismissing the complaint was entered in the district court under Rule 15(a), Fed.R.Civ.P., as construed by this court, the plaintiffs would have had an absolute right to file an amended complaint embodying the claimed theory that a public street was part of the defendant's premises. See Fuhrer v. Fuhrer, 292 F.2d 140, 142 (7th Cir. 1961). By appealing, the plaintiffs-appellants elected to stand on their original complaint and thereby relinquished the legal theory they now assert. It is clear that the district court completely determined that the plaintiffs-appellants had no right of action for a criminal attack in a public street. See Asher v. Ruppa, 173 F.2d 10, 11-12 (7th Cir. 1949). That was the issue framed by the pleadings, and the court's summary of the allegations of the complaint was not a determination of fact but merely a narrative recital of the pleaded facts bearing upon the issue of A & K's duty.

Finally, and in any event, it appears to us that despite the flexibility which has been accorded by the cases to the term "premises," the proper view is that surrounding streets and sidewalks are beyond the meaning of the term. Acton v. Wymore School District, 172 Neb. 609, 111 N.W.2d 368, 371 (1961); Amos v. City of Fond du Lac, 46 Wis. 695, 1 N.W. 346, 349 (1879). The underlying rationale appears to lie in the fact that there is no right of control over the public thoroughfare. Joyce v. United States, 329 F.Supp. 1242, 1245 (W.D.Pa.1971); Flodin v. Henry & Wright Mfg. Co., 131 Conn. 244, 38 A.2d 801, 803 (1944).

II. Duty to Protect Against Criminal Acts of Third Persons on a Public Street

Under Illinois law, a complaint must allege the breach of a duty owed by the defendant to the plaintiff in order to state a cause of action for negligence. Boyd v. Racine Currency Exchange, Inc., 56 Ill.2d 95, 97, 306 N.E.2d 39, 40 (1973). The existence of a...