Stelloh v. Cottage 83

• Citation: 52 Ill.App.2d 168,201 N.E.2d 672
• Decision Date: 09 September 1964
• Docket Number: Gen. No. 49186
• Parties: Betty STELLOH, Plaintiff-Appellant, v. COTTAGE 83, a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 672

201 N.E.2d 672

52 Ill.App.2d 168

Betty STELLOH, Plaintiff-Appellant, v. COTTAGE 83, a Corporation, Defendant-Appellee.

Gen. No. 49186.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 9, 1964.

Horace N. Lund, Chicago, for plaintiff-appellant.

Lord, Bissell & Brook, Chicago, Forrest L. Tozer, Richard E. Mueller, Chicago, of counsel, for defendant-appellee.

ENGLISH, Presiding Justice.

Plaintiff appeals from the dismissal of Count Two of her Second Amended Complaint for failure to state a cause of action and the entry of final judgment in favor of defendants. ¹

The complaint alleges that defendant operated a private housing project containing about 69 apartment buildings, in one of which plaintiff was a tenant in a first-floor apartment. ² Defendant maintained a private police force which was represented to the tenants of the project 'as giving a special and added protection to the security and safety of the occupants.' In the housing project there had been a series of breakins, burglaries and rapes which were known to the defendant. (It is not alleged that plaintiff was unaware of these crimes.) On August 31, 1960, underneath the window of plaintiff's apartment, a David Hudson was arrested for carrying a concealed knife. (It is not alleged that defendant knew of this incident nor it is alleged that plaintiff was unaware thereof.) Defendant failed to warn plaintiff and to provide protection for her. As a direct result of this alleged negligence, on September 23, 1960, the same David Hudson entered plaintiff's apartment through a window and assaulted and forcibly raped her. Plaintiff sustained injuries as a result, and she seeks damages of $200,000.

Defendant filed a motion to strike, and, after hearing, the court entered the order from which this appeal has been taken.

Plaintiff's theory is that defendant knew or should have known that plaintiff was in a position of danger; that by employing a private police force defendant assumed a duty to warn plaintiff and to use reasonable care to protect her from criminal activities.

The liberal construction which we believe must be afforded to a litigant in determining the sufficiency of his pleading (Kita v. YMCA of Metropolitan Chicago, 47 Ill.App.2d 409, 198 N.E.2d 174; Haymes v. Catholic Bishop of Chicago, Ill.App., 201 N.E.2d 675), does not help plaintiff here, as she states no cause of action at all.

To state a cause of action for a breach of duty, the duty must first be alleged, and, in a case such as this, the undertaking of defendant must be set forth if there is to be actionable negligence for its Corp., 39 Ill.App.2d 73, 121, 187 N.E.2d 425; Corp., 39 Ill.App.2d 73, 121, 187 N.E.2d 421; Murphy v. Cory Pump & Supply Co., 47 Ill.App.2d 382, 401, 197 N.E.2d 849. While it is true that liability may be based on a voluntary undertaking (Nelson v. Union Wire Rope Corp., 39 Ill.App.2d 73, 121, 187 N.E.2d 425), the allegations of duty and breach must mesh, and the pleading must show on its face that the negligence alleged falls within the scope of the alleged undertaking. The complaint does not do this in the case at bar.

The undertaking alleged (that defendant's private police would give a special and added protection to the security and safety of its tenants) cannot reasonably be construed as insurance of absolute protection against crime. Even the assignment of an armed personal bodyguard with full police authority (which defendant did not have) could not guarantee such a result.

The heart of plaintiff's complaint appears to be that when Hudson was...