Trice v. Chicago Housing Authority

Decision Date31 July 1973
Docket NumberNo. 56777,56777
Citation302 N.E.2d 207,14 Ill.App.3d 97
PartiesAlora TRICE, Administrator of the Estate of Ernest Trice, Deceased, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, a Municipal Corporation, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Harold A. Liebenson, Chicago, for plaintiff-appellant.

Canel & Canel, Chicago, for defendant-appellee; Jay A. Canel, Erwin I. Katz, Chicago, of counsel.

STAMOS, Presiding Justice.

Plaintiff initiated the instant wrongful death action alleging that defendant Chicago Housing Authority proximately caused the death of plaintiff's minor son by breaching its duty of due care in the operation, maintenance and control of the building in which decedent lived. Plaintiff appeals from an order of the Circuit Court granting defendant's motion to strike the amended complaint for failure to state a cause of action.

Plaintiff and her son, Ernest, were tenants in defendant's 15 story building located at 2245 West Lake Street, Chicago, Illinois. * Defendant owned and operated the building and was in control of various areaways and common passageways in and around the building. Each of these common areas and passageways were provided with railings. On December 12, 1968 Ernest, while in an areaway outside his sixth floor apartment, was fatally injured when a television set, allegedly thrown over a railing from above, struck him on the head.

The amended complaint alleged that defendant owned decedent the duty of exercising due care and caution in the operation, maintenance, control and design of the building and common areaways; and that defendant owed its tenants the duty of exercising reasonable care to protect the areas and the tenants while in these common areas. The amended complaint alleged breach of these duties in that defendant carelessly and negligently designed the fences so that objects could be thrown over the fences from various floors of the building; that defendant carelessly and negligently maintained, controlled and operated the premises; that defendant failed to protect its tenants from the known hazard of articles being thrown over the fences onto the common passageways; that defendant permitted this dangerous condition to exist for a long period of time; that defendant failed to take adequate precautions to protect the safety of the tenants in the common areas after defendant had due notice of the dangerous condition; that defendant negligently failed to erect higher fencing to protect against the danger of objects being thrown over the existing railings; and that as a direct and proximate result of these negligent acts, decedent was struck by an item thrown over the railing.

Both parties have devoted much time and effort to discussing the question of the duty to provide tenants with adequate police protection. Plaintiff contends that defendant is statutorily empowered to provide its own police force. We do not believe that this issue need be decided in this case. We also need not reach the issue of whether a duty exists to protect tenants from harm caused by negligent acts of third persons. The principal issue before us is whether a landlord has a duty to protect tenants from intentional or criminally reckless acts of other tenants or third persons.

In determining whether allegations state a cause of action, we must accept all properly pleaded facts as true. (Follett's Illinois Book & Supply Store, Inc. v. Isaacs, 27 Ill.2d 600, 190 N.E.2d 324.)

I.

The Restatement (Second) of Torts § 315 (1965) states that there is no duty to control the conduct of a third person to such a degree as to prevent him from causing physical harm to another, unless a special relationship exists between the actor and the other. Sections 314A and 320 of the Restatement enumerate certain special relationships, such as common carrier-passenger, business invitor-invitee and innkeeper-guest. In Illinois a duty has been found to exist when one of these special relationships has been shown. Neering v. Illinois Central R.R., 383 Ill. 366, 50 N.E.2d 497.

Plaintiff has cited no case in which the 'special relationship' has encompassed a landlord-tenant relationship. Plaintiff has alleged no facts of a contractual or statutory duty imposed on defendant to specially design its buildings to prevent injuries caused by criminally reckless acts of third persons. In effect, plaintiff urges us to create a new duty by expansion of tort liability.

Plaintiff argues that Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208, has departed from the traditional view and has brought the landlord-tenant relationship into this special relationship category. Our Supreme Court in Spring imposed a duty based on an implied warranty of habitability, but strictly limited its holding:

'(W)e hold that included in the contracts, both oral and written, governings the tenancies of defendants in the multiple unit dwelling occupied by them is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code.' 50 Ill.2d 351, 366, 280 N.E.2d 208, 217.

Nowhere in Spring did the court imply that a landlord has a duty to protect his tenants from injury caused by third persons. An implied warranty of habitability and an implied warranty against criminal or criminally reckless acts of third persons are not the same. On the basis of Spring alone, this court cannot expand the duty of a landlord.

II.

Plaintiff's principal allegation is that defendant owed a duty to protect its tenants in common areas from acts of third persons throwing objects over railings. These acts must be characterized as criminally reckless. In determining whether a duty exists, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on defendant must be taken into account. Imposition of a duty does not depend upon foreseeability alone. Lance v. Senior, 36 Ill.2d 516, 224 N.E.2d 231.

The cases cited by plaintiff are not persuasive. Plaintiff relies on Kline v. 1500 Massachusetts Avenue Apartment Corp., 141 U.S.App.D.C. 370, 439 F.2d 477 and Bass v. City of New York, 61 Misc.2d 465, 305 N.Y.S.2d 801, rev'd, 38 A.D.2d 407, 330 N.Y.S.2d 569, which held that a duty was imposed upon a landlord to provide adequate police protection for his tenants. Bass has been reversed by the New York Appellate Division which held that a municipal corporation providing police protection performs a governmental function, and cannot be charged with negligently performing that function. The special facts in Kline ** have been held to have been a major factor in that decision. See Williams v. William J. Davis, Inc., 275 A.2d 231 (D.C.C.A.); Dietz v. Miles Holding Corp., 277 A.2d 108 (D.C.C.A.).

It is a well recognized principle of tort law that a lessor who retains in his own control a part of the land which the lessee is entitled to use is liable to the lessee and others rightfully on the land for physical harm caused by dangerous conditions of the land under the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and could have made it safe. (Loveless v. Warner, 37 Ill.App.2d 204, 185 N.E.2d 392; Restatement (Second) of Torts § 360.) Customarily, the landlord's control of the common areas is associated with the obligation to maintain and repair, rather than with a duty to police. Loveless v. Warner, Supra; Heitz v. Hersheway, 347 Ill.App. 571, 107 N.E.2d 272.

In the instant case, the fact that risk of injury was known to defendant does not justify the imposition of this duty. In effect, a landlord would become an insurer against criminally reckless acts of third persons when some form of notice had been proved. Also, this duty would be imposed on all landlords, and would eventually be imposed on commercial and industrial landlords. Plaintiff's argument would not permit use of ordinary, usual and customary construction and arrangement of the premises. A duty to protect tenants from injuries caused by criminally reckless acts of third persons would be vague in that landlords would have no standard by which to determine which criminally reckless acts would come within this duty. Therefore, for these reasons, the amended complaint failed to state a cause of action and was properly dismissed. The order of the Circuit Court is affirmed.

Judgment affirmed.

HAYES, J., concurs and files a special concurring opinion.

LEIGHTON, J., dissents.

HAYES, Justice (specially concurring):

I concur in the opinion of Stamos, P.J. I wish to add some additional reflections of my own.

1. The trial judge dismissed plaintiff's complaint in this wrongful death action for failure to state a cause of action. In reviewing the dismissal, therefore, we must accept as true all well-pleaded facts in the complaint. The complaint consistently alleged that the television set was Thrown by an unidentified co-tenant or third party from an upper story into and upon a portion of the retained premises then being properly used by plaintiff-tenant's minor son. In formulating the key issue presented by the complaint, we have characterized that alleged act of throwing as a criminal or criminally reckless act. I cannot conceive of a situation in which the throwing of a television set under the circumstances alleged in the complaint could be a mere act of ordinary negligence on the part of the thrower. I note also that plaintiff's brief describes the incident as a criminal attack on the child and again as a criminal act. For these reasons, I think our formulation of the key issue presented by the complaint is accurate. Nothing in our opinion deals with the issue of whether a landlord has any common law duty to protect his tenants against danger, in their use of the retained premises, from a known pattern of acts of negligence on the part of unidentified co-tenants...

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