SANCHEZ v. WILMETTE REAL EState

• Decision Date: 19 August 2010
• Docket Number: No. 1-08-0248.,1-08-0248.
• Citation: 404 Ill.App.3d 54,343 Ill.Dec. 426,934 N.E.2d 1029
• Parties: Robert SANCHEZ, Plaintiff-Appellant, v. WILMETTE REAL ESTATE AND MANAGEMENT, COMPANY, an Illinois Corporation, and BCH5900, LLC, an Illinois Limited Liability Company, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

404 Ill.App.3d 54

934 N.E.2d 1029

343 Ill.Dec. 426

Robert SANCHEZ, Plaintiff-Appellant,

v.WILMETTE REAL ESTATE AND MANAGEMENT, COMPANY, an Illinois Corporation, and BCH5900, LLC, an Illinois Limited Liability Company, Defendants-Appellees.

No. 1-08-0248.

Appellate Court of Illinois,First District, Fourth Division.

Aug. 19, 2010.

Amatore & Associates, P.C., Chicago (Roy P. Amatore, of counsel), for Plaintiff-Appellant.

Johnson & Bell, Ltd., Chicago (David M. Macksey, Garrett L. Boehm, Jr., of counsel), for Defendants-Appellees.

Justice NEVILLE delivered the opinion of the court:

The plaintiff, Robert Sanchez, was injured during an alleged attack by an unknown assailant at an apartment complex owned by one defendant, BCH5900, LLC (“BCH”), and managed by the other defendant, Wilmette Real Estate and Management Co. (“WREM”). The defendants filed a motion for summary judgment, and the trial court granted the defendants' motion. On appeal, the plaintiff contends that the trial court erred in granting the defendants' motion for summary judgment because the defendants owed various duties to the plaintiff. For the following reasons, we affirm the trial court's order granting the defendants' motion for summary judgment.

BACKGROUND

On February 10, 2005, the plaintiff filed a complaint and alleged that the defendants were negligent. The plaintiff alleged that he rented one of the 46 apartment units in a building owned by BCH and managed by WREM. The plaintiff further alleged that it was the defendants' policy to leave vacant apartment units unlocked. The plaintiff alleged that on November 28, 2004, at approximately 10:30 p.m., he heard a noise coming from vacant apartment B2. The plaintiff further alleged that he was “violently attacked” by an unknown individual who exited apartment B2 and followed him up the stairs.

On September 20, 2007, the defendants filed a motion for summary judgment and argued that there was no special relationship between the parties and that the alleged attack was not foreseeable. The defendants attached the complaint and the answer to their motion for summary judgment. The defendants also attached the depositions of the following persons to their motion for summary judgment: Roberto Sanchez, Vilnis Birnbaums, Cameel Halim, Dzemil Hameel Fejzulia, Kaydime Fejzulia, Elisa Wolter, Michael Z. Wolter, Alma Shero, and Artemio Villafana.

Sanchez testified at his deposition that in order to gain entry into the apartment building, a person had to walk through a courtyard and unlock the first door with a key. There was also a second door in the building, but it was not locked. A visitor to the building would have to be buzzed in. There was also a entryway in the back of the building, but the back door did not work most of the time. On November 28, 2004, at 12 a.m., he returned to the apartment building and as he walked through the courtyard, he observed someone standing in the window of one of the vacant apartments. The plaintiff walked to the building entrance, used his key to gain entry into the building, and began walking up the stairs to his apartment. The plaintiff heard noises coming from apartment B2 and, through the crack below the door, he observed someone standing behind the door looking out the peephole. The plaintiff testified that the door to apartment B2 opened and he observed a man exit apartment B2. When the plaintiff reached his apartment, he was hit on his head and body. The plaintiff began to scream and the attacker ran away.

Sanchez further testified at his deposition that his roommate exited the apartment, gave the plaintiff a towel, and called the police and the plaintiff's cousin. When the police arrived, they searched apartment B2 and found that the front and back entrances of the apartment were open. The plaintiff was taken to the hospital, where he remained for a couple of days.

Birnbaums testified at his deposition that he was the plaintiff's roommate. Birnbaums explained that in order to access the apartment building, you have to walk through the courtyard, through the unlocked exterior door, enter a small vestibule containing mailboxes and entrance buzzers, and insert your key into the second entrance door. Each unit also has a rear exit that is accessible by a wooden staircase. The rear entrance has a metal gate, which was often “propped open or the lock was malfunctioning.”

Birnbaums further testified at his deposition that on November 28, 2004, he heard the plaintiff return to the apartment between 10:30 and 11:30 p.m. Birnbaums opened the apartment door and observed the plaintiff with blood on him. Birnbaums testified that he observed the plaintiff and the police enter apartment B2 through an unlocked apartment door. Birnbaums testified that he did not observe the rear gate on November 28, 2004, and he did not recall that the front lock was malfunctioning on November 28, 2004.

Halim testified at his deposition that he is the president of WREM. WREM performs every aspect of managing the building, including hiring the janitors, managers, and staff of the buildings; collecting the rent; leasing the apartments; paying the bills; marketing the property to prospective tenants; and responding to the tenants' complaints. In October 2004, Kaydime Fejzulia became the on-site manager of the property and was responsible for living in the building, showing vacant apartments to prospective tenants, collecting the rent, preparing the units for rent, performing repairs, keeping the building clean, and cutting the grass. Halim testified that WREM does not have a written policy regarding leaving vacant units unlocked in order to allow easy access to prospective tenants.

Kaydime testified at her deposition that she has been the property manager since September 2004. She rents the apartments, cleans the apartments before and after a tenant moves, changes the locks, shows vacant apartments to prospective tenants, responds to the tenants' complaints, and checks the doors and gates. She also keeps unwanted people off the property. Kaydime testified that the people who work in the building lock the doors “all the time,” that the manager checks the locks on the doors to vacant apartments, and that her supervisor told her to keep the vacant units locked. She never told anyone that it was her policy to keep vacant units unlocked so that it was easier to show the apartments to prospective tenants. Kaydime testified that the locks on apartment B2 were changed on November 1, 2004, and that apartment B2 was vacant and locked on November 28, 2004.

Dzemil testified at his deposition that his wife is the building manager. They live onsite and are responsible for showing vacant apartments and maintaining the property in a safe condition by changing the locks, keeping the building clean, fixing leaks, and keeping unwanted people off the premises. Dzemil testified that the door was not broken. Dzemil testified that his wife does not believe that it is easier to keep vacant apartments unlocked. Rather, Dzemil testified that his wife is afraid of keeping the doors unlocked because she does not know who might be in the apartment. Dzemil instructed his wife to keep the vacant units locked.

Elisa Wolter testified at her deposition that she is a property manager for WREM and acts as the liaison to the onsite property managers. The on-site managers are responsible for maintaining the building, cleaning the building, performing repairs, getting vacant apartments ready for rent. answering the telephone, showing the apartment to prospective tenants, assisting outside work, being present for city inspections, keeping unwanted persons off the property, and maintaining the property in a safe condition.

Villafana testified at his deposition that he is the plaintiff's cousin. Villafana testified that the front entrance door to the plaintiff's apartment building was locked most of the time, although he could recall a couple of times that the door was not completely closed. On November 28, 2004, Villafana observed the plaintiff walk into the apartment building. Later that evening, he received a phone call from the plaintiff in which the plaintiff said he had been attacked and needed to be driven to the hospital. Villafana drove back to the plaintiff's apartment building and observed the plaintiff sitting in the hallway with blood on him. Villafana observed an officer open the door to the second floor apartment and enter the apartment. The officer then exited the apartment and said that it was empty and that the back door was open.

Villafana also testified that he returned to the apartment building, called the telephone number listed on a “for rent” sign on the apartment building, and a middle-aged woman exited the apartment building. Villafana informed the woman that the plaintiff was in the hospital and might be late on his rent. The woman asked what had happened, and Villafana replied that someone had come out of an empty apartment and that the police had found that the doors to the apartment were open.

The plaintiff filed a response to the defendants' motion for summary judgment. While plaintiffs response relied, primarily, on the depositions attached to the defendants' motion for summary judgment, he also attached to his response a letter he received in response to a Freedom of Information Act (5 ILCS 140/1 et seq. (West 2006)) FOIA document request; a table of 19 reported incidents from January 1, 2003, through December 31, 2004; and crime maps for the area where the property was located.

On January 9, 2008, the trial court held a hearing on the defendants' motion for summary judgment. The court found that there was no duty and no special relationship. Specifically, the trial court found no contractual basis, no reliance on a promise, no promise, no negligence, and no notice and negligent repair. Therefore, the trial court granted the defendants' motion for summary judgment.

ANALYSIS

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