Petrauskas v. Wexenthaller Realty Management, Inc.

• Decision Date: 28 July 1989
• Docket Number: No. 1-87-2760,1-87-2760
• Citation: 542 N.E.2d 902,186 Ill.App.3d 820
• Parties: , 134 Ill.Dec. 556 Kathy PETRAUSKAS, Plaintiff-Appellant, v. WEXENTHALLER REALTY MANAGEMENT, INC., an Illinois corporation, and Briar Building Partnership, an Illinois general partnership, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 902

542 N.E.2d 902

186 Ill.App.3d 820, 134 Ill.Dec. 556

Kathy PETRAUSKAS, Plaintiff-Appellant, v. WEXENTHALLER REALTY MANAGEMENT, INC., an Illinois corporation, and Briar Building Partnership, an Illinois general partnership Defendants-Appellees.

No. 1-87-2760.

Appellate Court of Illinois First District, Fifth Division.

July 28, 1989.

[186 Ill.App.3d 823] [134 Ill.Dec. 558] Stephen E. Vargo, Chicago, for plaintiff-appellant.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Stephen R. Swofford, Steven M. Puiszis, Gregory B. Bolduc, and Robert G. Black, of counsel), for defendants-appellees.

Justice LORENZ delivered the opinion of the court:

Plaintiff, Kathy Petrauskas, appeals from the dismissal with prejudice of her amended three-count complaint for failure to state a cause of action. We address the issue of whether the allegations of plaintiff's complaint state a cause of action for negligence, wilful and wanton misconduct, and violation of the Consumer Fraud and Deceptive Business Practices Act (Ill.Rev.Stat.1985, ch. 121 1/2, par. 261 et seq.). We affirm.

The following facts are pertinent to our disposition of this appeal.

Plaintiff filed an amended complaint against defendants, Wexenthaller Realty Management, Inc. and Briar Building Partnership, for injuries she sustained when she was raped in her apartment. In count I for negligence, plaintiff alleged she rented an apartment from defendants for the period of November 15, 1984, through April 30, 1986, in a building located at 540 West Briar Place in Chicago, Illinois. Plaintiff alleged that on August 6, 1985, an individual, who was not a tenant, confronted her in a common hallway on the fourth floor of the building and forced her into her apartment. Inside the apartment, she was raped and beaten.

Plaintiff alleged the individual obtained access into the building as a result of defendants' negligence. The building had an exterior fire escape with a door at each floor and the base of the fire escape was at ground level. If the fire escape doors were closed, they could not be opened from the outside. The doors led directly into the common hallways of the building. The fourth-floor hallway was not well-lit and "was conducive to harboring trespassers and intruders." On August 5, 1985, and for an unspecified period of time before that date, defendants tied the fire escape doors at each floor in such a way that they would remain in an open position to ventilate the building. Defendants also left a window open in the laundry room located on the first floor of the building. For an unspecified period of time prior to August 5, 1985, a tenant or tenants of the building complained to defendants that the fire escape doors and the laundry room window were repeatedly left open but should have been kept closed.

Plaintiff alleged that the building was located in a "high crime" area. On information and belief, plaintiff alleged that defendants knew or should have known of an incident one month prior to the attack when a person was fatally shot across the street from the building. Plaintiff also alleged on information and belief that at sometime prior to the attack, an unauthorized person gained access into the building and was escorted from the premises by defendants. Plaintiff did not allege how the person entered the building.

Plaintiff alleged defendants violated sections 39-1, 39-2, 61-19, 61-19.1, 78-43, 78-55, 78-59, 78-61, 96-2, and 99-4 of the Municipal Code of Chicago. Chicago Municipal Code §§ 39-1, 39-2, 61-19, 61-19.1, 78-43, 78-55, 78-59, 78-61, 96-2, 99-4 (1984).

As a direct and proximate result of defendants' negligent conduct, plaintiff was physically and mentally injured.

In count II for wilful and wanton misconduct, plaintiff added allegations that defendants acted in reckless disregard for plaintiff's safety.

In count III, plaintiff alleged defendants violated the Consumer Fraud and Deceptive Business Practices Act when they made certain misrepresentations of material Defendants filed a motion to dismiss the amended complaint for failure to state a cause of action under section 2-615 of the Code of Civil Procedure. Ill.Rev.Stat.1985, ch. 110, par. 2-615.

[134 Ill.Dec. 559] fact to her and concealed material facts from her.

At the hearing on the motion, the trial court dismissed counts I and II because plaintiff did not allege facts which would impose a duty on defendants. The court dismissed count III because plaintiff did not sufficiently allege that defendants' misrepresentations and concealments proximately caused her injury. Plaintiff now appeals.

OPINION

In reviewing the dismissal of an action under section 2-615, the court must accept all well-pled facts and reasonable inferences as true and must interpret the allegations of the complaint in a light most favorable to the plaintiff. (Duncavage v. Allen (1986), 147 Ill.App.3d 88, 100 Ill.Dec. 455, 497 N.E.2d 433.) The dismissal should be affirmed if it appears that no set of facts from the complaint could be proven that would entitle plaintiff to relief. Turner v. Rush Medical College (1989), 182 Ill.App.3d 448, 130 Ill.Dec. 561, 537 N.E.2d 890.

To plead a cause of action for negligence or wilful and wanton misconduct, plaintiff must allege sufficient facts to establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Rowe v. State Bank (1988), 125 Ill.2d 203, 126 Ill.Dec. 519, 531 N.E.2d 1358; Rabel v. Illinois Wesleyan University (1987), 161 Ill.App.3d 348, 112 Ill.Dec. 889, 514 N.E.2d 552.) Whether defendant owed plaintiff a duty of reasonable conduct is a question of law for the court to determine. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill.2d 496, 117 Ill.Dec. 47, 520 N.E.2d 37.) In determining whether a duty exists, reasonable foreseeability of harm is the primary concern but the court must also consider the likelihood of injury, the magnitude of the burden to guard against the injury, and the consequence of placing the burden on defendant. Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387.

The Illinois Supreme Court has recently re-stated the general rule that a landlord does not have a duty to protect tenants from the criminal acts of third persons on the premises. Rowe, 125 Ill.2d 203, 126 Ill.Dec. 519, 531 N.E.2d 1358.

Initially in support of counts I and II for negligence and wilful and wanton misconduct, plaintiff argues that defendants' conduct created or substantially enhanced the risk of criminal activity inside the apartment building, relying on Phillips v. Chicago Housing Authority (1982), 89 Ill.2d 122, 59 Ill.Dec. 281, 431 N.E.2d 1038 and Cross v. Wells Fargo Alarm Services (1980), 82 Ill.2d 313, 45 Ill.Dec. 121, 412 N.E.2d 472. Phillips and Cross state that a landlord who voluntarily assumed a duty to provide security measures, will be liable if he performed negligently and the negligence was the proximate cause of plaintiff's injury. "[T]he duty of care imposed upon a landlord in a voluntary undertaking to provide guard service includes a duty not to create a condition of increased danger to tenants." (Phillips, 89 Ill.2d at 129, 59 Ill.Dec. at 284, 431 N.E.2d at 1041 (discussing Cross, 82 Ill.2d 313, 45 Ill.Dec. 121, 412 N.E.2d 472).) Neither Phillips nor Cross supports a general duty on the part of a landlord not to create a condition of increased danger. Phillips, 89 Ill.2d 122, 59 Ill.Dec. 281, 431 N.E.2d 1038.

In the present case, plaintiff alleged defendants left the fire escape doors and the laundry room window open. These allegations do not reasonably support a theory of liability that defendants voluntarily assumed a duty to provide security measures. Accordingly, the duty not to create a condition of increased danger found in Phillips and Cross is not applicable to the present case.

A landlord may also be held liable for the criminal acts of third persons when he fails to keep the common areas of his building in a reasonably safe condition. (Duncavage, 147 Ill.App.3d 88, 100 Ill.Dec. 455, 497 N.E.2d 433.) "Customarily, the landlord's control of the common areas is associated with the obligation to maintain and repair." Trice v. Chicago Housing Authority (1973), 14 Ill.App.3d 97, 100, 302 N.E.2d 207, 209.

In Duncavage, plaintiff filed an action on behalf of his decedent who was a tenant in defendant's apartment building. Plaintiff alleged that a man concealed himself in an unlit area and in the high weeds outside the building. The area was unlit because the lights had either burned out or were inoperable. He chose to enter that particular building because of its dilapidated condition. The man used a ladder defendant stored in the yard to enter decedent's apartment through a window which was incapable of being locked. The man repeatedly raped and sodomized decedent and then killed her. Plaintiff also alleged that previously, the ladder was used to enter the same window in the same apartment in a burglary. Defendant knew of the burglary from tenant complaints, a personal inspection, and a citation he received from the Department of Inspectional Services of the City of Chicago. Plaintiff also alleged that the building was in violation of several sections of the building code. The trial court dismissed the complaint for failure to state a cause of action. On review, however, the appellate court focused on the allegations that the lights were burned out or inoperable, that the weeds were high enough for a person to hide in, and that the ladder remained accessible in the yard even though the landlord knew it was used in a previous burglary to enter the same apartment through the same unlockable window. The court found that plaintiff alleged sufficient facts to establish "that defendant breached his duty to reasonably maintain areas of the building under his...