Rowe v. State Bank of Lombard

• Decision Date: 24 March 1987
• Docket Number: No. 1535,No. 492,Nos. 86-0159,Nos. 1209 and 1270,Nos. 10 and 70,86-0160,M-2,s. 10 and 70,492,s. 1209 and 1270,1535,s. 86-0159
• Citation: 153 Ill.App.3d 788,505 N.E.2d 1380
• Parties: , 106 Ill.Dec. 589 Lori ROWE, Plaintiff-Appellants, v. STATE BANK OF LOMBARD, as Trustee under Trusts; West Suburban Bank, as Trustee under Trust; DuPage Trust Company, as Trustee under Trusts; Gary Wheaton Bank, as Trustee under Trust; Glen Hill Rental Investments, Inc., a corporation, P.D.C. Insurance Consultants, Inc., Todd Fennessey, individually and as agent; Paramount Group, Inc., a corporation; Paramount Development Company, a corporation; Paramount Equities, Ltd., a corporation; James Free, Jr.;Data Service Center, a division of Jay-Mar Enterprises, Inc.; Jay-Mar Enterprises, Inc., a corporation; May Speh Data Processing Center, Inc., a corporation; System Development Corporation, a corporation; Leland Stahelin and Gladys Stahelin, Defendants-Appellees. Linda Jean SERPICO, et al., Minors by their Father, Andrew Serpico, et al., Plaintiffs-Appellants, v. Todd FENNESSEY, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1380

505 N.E.2d 1380

153 Ill.App.3d 788, 106 Ill.Dec. 589

Lori ROWE, Plaintiff-Appellants, v. STATE BANK OF LOMBARD, as Trustee under Trusts Nos. 10 and 70; West Suburban Bank, as Trustee under Trust No. 492;

DuPage Trust Company, as Trustee under Trusts Nos. 1209 and

1270; Gary Wheaton Bank, as Trustee under Trust No. 1535;

Glen Hill Rental Investments, Inc., a corporation, P.D.C.

Insurance Consultants, Inc., Todd Fennessey, individually

and as agent; Paramount Group, Inc., a corporation;

Paramount Development Company, a corporation; Paramount

Equities, Ltd., a corporation; James Free, Jr.; M-2 Data

Service Center, a division of Jay-Mar Enterprises, Inc.;

Jay-Mar Enterprises, Inc., a corporation; May Speh Data

Processing Center, Inc., a corporation; System Development

Corporation, a corporation; Leland Stahelin and Gladys

Stahelin, Defendants-Appellees.

Linda Jean SERPICO, et al., Minors by their Father, Andrew

Serpico, et al., Plaintiffs-Appellants, v. Todd FENNESSEY, et al., Defendants-Appellees.

Nos. 86-0159, 86-0160.

Appellate Court of Illinois,

Second District.

March 24, 1987.

Walter P. Maksym, Jr., Oak Brook, for Linda Jean Serpico, et al.

O'Reilly, Cunningham Duncan & Huck, Thomas R. Weiler, John Edwin Norton, Wheaton, for Todd Fennessey, Paramount Group, et al.

Speer & Associates, Lloyd L. Speer, Scott D. Bromann, Wheaton, for Leland Stahelin.

Justice INGLIS delivered the opinion of the court:

Plaintiff, Lori Rowe, sought damages for personal injuries in her negligence action against defendants. Plaintiffs, Linda Serpico and Andrea Serpico, minors, by their father, Andrew Serpico, and Andrew Serpico individually and as administrator of the estate of Bonnie Lee Ann Serpico, commenced an action in the trial court for negligence under the Wrongful Death Act (Ill.Rev.Stat. 1979, ch. 70, par. 1 et seq.) and Probate Act (Ill.Rev.Stat. 1979, ck. 110 par. let seq. for damages resulting from the death of Bonnie Lee Ann Serpico, Andrew Serpico's late wife and the minors' mother. Their action, which was based on substantially the same theories of liability as were advanced by Lori Rowe, was consolidated in the trial court. The trial court granted summary judgment in favor of certain defendants, and this appeal has been brought to obtain reversal of these judgments. We affirm.

On April 24, 1978, at approximately 4 a.m., Bonnie Lee Ann Serpico (Bonnie) and Lori Rowe (Lori) were working the midnight to 8 a.m. shift at the offices of J-Mar Enterprises (J-Mar) in building number 1 of the Glen Hill Office Park (GHOP), located at 799 Roosevelt Road, Glen Ellyn, Illinois. These offices were leased from the Paramount Group (Paramount). That night, James Free, Jr. (Free), gained entrance to an office through an allegedly locked door to the room in which Bonnie and Lori were working. He was wearing a mask and holding a gun.

Bonnie attempted to run for help, but was shot in the back and died. Free then entered another room where he bound Lori, shot her, left her for dead, and fled. Lori crawled to a telephone and called the Glen Ellyn police. When the first police officer arrived on the scene, he kicked and broke down the door through which Free gained entry in order to obtain entry to the office and render assistance to Lori. Bonnie's minor daughters, husband and estate filed an action for wrongful death. Their amended complaint consisted of nine counts. Lori's action was only for her personal injuries.

Counts I, II, and III are not involved in this appeal.

Count IV sought damages against Paramount and Todd Fennessey (Fennessey), individually and as agent for the owners, operators and managers of GHOP who controlled building number 1 and were responsible for its security, maintenance, condition, and repair. That count alleged that the premises were not reasonably safe because, inter alia, the defendants voluntarily undertook and provided certain security measures for the benefit of its lessees and its lessee's employees yet failed to exercise reasonable care in the performance of said undertakings. They were guilty of: (a) negligently failing to provide adequate locks on the doors to the office; (b) negligently failing to change the locks on the doors to the office in the above described premises when new tenants occupied said office; (c) changing and rekeying the locks on the doors to the office when they knew or should have known that these locks could be opened by persons who had access to, or had otherwise obtained master keys to the locks; (d) negligently failing to secure keys from old tenants of the office; (e) negligently failing to maintain and control a list of all persons having possession of master keys; (f) negligently maintaining operational procedures which allowed unauthorized persons or other members of the general public to obtain or make copies of master keys; (g) negligently failing to control the number and allocation of master keys; (h) negligently failing to modify the lock and master key system maintained upon the premises when they knew or should have known that said system was unsafe; (i) negligently failing to install materials and other lock parts which would render unaccounted master keys inoperative; (j) negligently failing to provide sufficient and/or adequate security personnel for the above described premises; (k) negligently failing to provide an alarm system or adequate alarm system for the premises; and (l ) negligently failing to provide adequate protection for the decedent when they knew, or in the exercise of ordinary care should have known, that the decedent and other females were present upon the premises after normal working hours. Plaintiffs further alleged that as a direct and proximate result of one or more of the aforesaid negligent acts or omissions, defendant James P. Free, Jr., gained admittance to the office in the premises, shot and killed the decedent on April 24, 1978.

Count V was against the same parties. In this count plaintiffs further alleged, inter alia, that on the aforesaid date and place and prior thereto one or more or all of the following circumstances were known to the defendants: (a) that a person or persons had entered and gained access to locations supposedly secured by locked doors in buildings upon its premises; (b) that one person who had gained unauthorized entry to a GHOP building had attempted to entice women; (c) that recommendations by defendants' employees were made to change keys and locks to the existing doors; and (d) that prior crimes had been committed upon the defendants' premises.

Counts VII and VIII were actions brought against Fennessey and Paramount for damages including pain, suffering, and mental anguish and funeral expenses under section 27-6 of the Probate Act of 1975 (Ill.Rev.Stat.1979, ch. 110 1/2, par. 27-6). Counts VI and IX were brought against J-Mar, Bonnie's employer. Since summary judgment was denied as to them, these counts are not involved in this appeal.

An action was also brought against Leland Stahelin, the developer and prior owner of GHOP, and others, on substantially the same grounds as originally pleaded against Fennessey and Paramount. Stahelin had sold GHOP to Paramount in 1976.

On October 15, 1981, Fennessey and Paramount filed their motion for summary judgment. Attached was a comment made by Lori in her deposition that she personally had not been aware of any prior break-ins, threats by use of a gun or attempted rapes at GHOP, and Fennessey's affidavit which maintained that up to and including April 24, 1978, no tenant or employee of GHOP had been forcibly assaulted by an intruder with a gun, nor had any person been raped, sexually assaulted, or shot.

Plaintiffs responded to this motion on December 11, 1981, with numerous affidavits and depositions which stated, inter alia, that, on April 24, 1978, Lori observed Free as he appeared inside her office's locked door, and that after the shooting, the police had to break down the office door to reach her; that Robert Davis, chief of engineering and maintenance at the GHOP, tried to convince Stahelin to rekey the locks so that missing master keys would be ineffective; that Stahelin refused to do so because the cost was too high; that Davis saw Free with sets of master keys; and, that after the sale, Fennessey refused to change the locks. Fennessey's deposition stated that he was called at home and came to the complex as a result of two telephone calls made by a woman who worked at GHOP. She had told him that a man appeared inside the locked doors asking about carpets that needed to be cleaned. He went to the premises to see if any of his other tenants had contracted for such work. When he arrived, the individual had left. He, therefore, did not notify the police or alert the women working at J-Mar.

On January 1, 1982, the trial court denied Fennessey's, Paramount's, and J-Mar's motion for summary judgment. On January 8, 1982, the court granted Stahelin's motion for summary judgment on the ground that he did not own the premises at the time of Bonnie's death.

On July 6, 1984, per administrative order, this cause was reassigned to Judge William E. Black. He set the case for jury trial. On August 6, 1984, Fennessey and Paramount filed a motion for rehearing on the motion for summary judgment that had been previously denied by Judge Bowman. Since the motion to reconsider cited no new authorities or facts or changed circumstances, plaintiffs filed a motion to strike which the trial court denied.

Plaintiffs then filed several additional affidavits. The affidavits of several Glen Ellyn police officers reflected their investigations of various thefts and burglaries at GHOP. One employee at GHOP stated that on April 23, 1978, she received a suspicious telephone call requesting her presence in the lunch room. Another co-worker filed an affidavit stating that on April 23, 1976, she saw Free in her building at GHOP.

On October 5, 1985, after...