Ventura v. Picicci

• Decision Date: 27 March 1992
• Docket Number: No. 1-90-2807,1-90-2807
• Citation: 592 N.E.2d 368,227 Ill.App.3d 865
• Parties: , 169 Ill.Dec. 881 Laura VENTURA, Plaintiff-Appellant, v. Chiari PICICCI, Indiv. and as Adm'r of the Estate of Michael Picicci, Deceased, Defendant-Appellee. First District, Fifth Division
• Court: United States Appellate Court of Illinois

Page 368

592 N.E.2d 368

227 Ill.App.3d 865, 169 Ill.Dec. 881

Laura VENTURA, Plaintiff-Appellant, v. Chiari PICICCI, Indiv. and as Adm'r of the Estate of Michael Picicci, Deceased, Defendant-Appellee.

No. 1-90-2807.

Appellate Court of Illinois,

First District, Fifth Division.

March 27, 1992.

[227 Ill.App.3d 866] [169 Ill.Dec. 882] John Thomas Moran, Jr., Chicago, for plaintiff-appellant.

Sanchez & Daniels, Chicago (George L. Acosta, William K. Mosca, Jr., and John D. Daniels, of counsel) for defendant-appellee.

Justice LORENZ delivered the opinion of the court:

Plaintiff, Laura Ventura, appeals from an order dismissing her amended complaint for failure to state a cause of action for negligence against defendant, Chiari Picicci. We consider whether plaintiff's complaint stated a cause of action when defendant allegedly took charge of her adult son knowing of his propensity for violence but failed to control him. For the following reasons, we affirm.

In her complaint, plaintiff sought recovery for personal injuries she sustained on January 18, 1988, when defendant's adult son, Michael Picicci, shot plaintiff in defendant's house. Plaintiff alleged that defendant allowed her son to live in the house, paid his living expenses, gave him money to buy cocaine, helped him buy a gun, and allowed him to keep ammunition in the house. Additionally, defendant paid her son's bond and attorney fees when he was arrested and charged with aggravated assault and a weapons violation. Further, defendant knew that her son shot the gun into the cemetery across the street from the house, pointed the gun at plaintiff pretending it was loaded, and waived the gun around recklessly. Defendant also knew that plaintiff was her son's friend and that she was often at the house. Plaintiff alleged that under these facts, defendant owed her a duty of reasonable care which defendant breached.

Defendant moved to dismiss the complaint under section 2-615 (Ill.Rev.Stat.1989, ch. 110, par. 2-615) for failure to state a cause of action.

The trial judge granted the motion finding that under the facts alleged in the complaint, defendant did not owe a duty to plaintiff. Plaintiff's amended complaint was dismissed for failure to state a cause of action and she was not given leave to amend. Plaintiff filed a timely notice of appeal.

OPINION

In considering a motion to dismiss under section 2-615 for failure to state a cause of action, the court must accept as true the well-pled allegations of plaintiff's complaint as well as any reasonable inferences that can be drawn from those facts. (Basler v. Webb (1989), 188 Ill.App.3d 178, 135 Ill.Dec. 703, 544 N.E.2d 60.) The complaint must be construed liberally and should only be dismissed when it appears that plaintiff could not recover under any set of facts. Basler, 188 Ill.App.3d 178, 135 Ill.Dec. 703, 544 N.E.2d 60.

A complaint for negligence must allege facts showing that defendant breached a duty he owed to plaintiff and that, as a proximate cause, plaintiff was injured. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill.2d 496, 117 Ill.Dec. 47, 520 N.E.2d 37.) Whether defendant owed a duty to plaintiff is a question of law for the court to determine considering the reasonable foreseeability of injury, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on defendant. (Heigert v. Riedel (1990), 206 Ill.App.3d 556, 151 Ill.Dec. 789, 565 N.E.2d 60.) Generally, a person does not have a duty to control the conduct of another to prevent harm to a third person unless a special relationship is shown. (Johnson, 119 Ill.2d 496, 117 Ill.Dec. 47, 520 N.E.2d 37.) The special relationships giving rise to such a duty are parent-minor child, master-servant, possessor of land-licensee, and a person in charge of another with dangerous propensities, as listed in sections 315 through 319 of the Restatement (Second) of Torts (1965). Johnson, 119 Ill.2d 496, 117 Ill.Dec. 47, 520 N.E.2d 37.

In this case, plaintiff argues that her complaint stated a cause of action because defendant was a person in charge of another with dangerous propensities as described in section 319:

"Duty of Those in Charge of Person Having Dangerous Propensities

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." (Restatement (Second) of Torts § 319 (1965).)

To illustrate, a private hospital for contagious diseases and a private sanitarium for the insane have a duty to control their patients from injuring third parties. Restatement (Second) of Torts § 319, Illustrations at p. 130 (1965).

The only Illinois case that plaintiff relies on that considered a person's duty to control the actions of another adult under section 319 is Kosrow v. Smith (1987), 162 Ill.App.3d 120, 113 Ill.Dec. 104, 514 N.E.2d 1016. In Kosrow, plaintiffs alleged that defendant was negligent in failing to control the actions of a houseguest who drove a car while intoxicated and caused an accident. Defendant allegedly knew that the houseguest's driver's license was suspended for driving under the influence of alcohol and that the houseguest had a propensity to become intoxicated. The appellate court stated that even assuming defendant knew of his houseguest's dangerous propensity, the complaint did not state a cause of action under section 319 of the Restatement because there were insufficient allegations that defendant took charge of the houseguest. The court found that defendant's provision of shelter to the houseguest was insufficient to show that defendant took charge of the houseguest. The complaint did not sufficiently allege that defendant assumed a duty to protect third parties from the houseguest's actions.

Plaintiff argues that unlike Kosrow, the allegations of her complaint specifically allege that defendant took charge of her son. However, the allegations of the complaint that relate to whether defendant took charge of her son were that she allowed him to live with her and she paid his living expenses. These allegations amount to no more than providing shelter which was found insufficient in Kosrow. Although plaintiff alleged that defendant gave her son money to buy cocaine and the gun and posted his bail, these facts did not show that defendant took charge of her son. The remaining allegations, that defendant knew her son was reckless with the gun, related to whether defendant knew he was dangerous...