Zimring v. Wendrow

• Decision Date: 01 November 1985
• Docket Number: No. 2-84-0622,2-84-0622
• Citation: 137 Ill.App.3d 847,485 N.E.2d 478,92 Ill.Dec. 667
• Parties: , 92 Ill.Dec. 667 Richard K. ZIMRING, Plaintiff-Appellant, v. Richard WENDROW, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 478

485 N.E.2d 478

137 Ill.App.3d 847, 92 Ill.Dec. 667

Richard K. ZIMRING, Plaintiff-Appellant, v. Richard WENDROW, et al., Defendants-Appellees.

No. 2-84-0622.

Appellate Court of Illinois,

Second District.

Nov. 1, 1985.

Robinson & Skelnik, Mary Robinson, Elgin, for plaintiff-appellant.

Querrey, Harrow, Gulanick & Kennedy, Theodore E. Dawes, Glen E. Amundsen, G. Scott Williams, Waukegan, for defendants-appellees.

NASH, Presiding Justice:

In this interlocutory appeal plaintiff, Richard K. Zimring, seeks reversal of an order of the circuit court dismissing Counts VIII and IX of his amended complaint, which is directed against defendants Richard Wendrow, Bernard Wendrow and Eta Wendrow, for failure to state a cause of action. Plaintiff has not addressed any issue relating to Count VIII in his argument and we will not consider it further. Supreme Court Rule 341(e)(3) (87 Ill.2d R. 341(e)(3); Jenkins v. Wu (1984), 102 Ill.2d 468, 483, 82 Ill.Dec. 382, 468 N.E.2d 1162.

In Count I of his amended complaint plaintiff seeks recovery against defendant Richard Wendrow for damages sustained in an assault upon him by this defendant and other persons on August 8, 1982, in a parkway at or near 369 North Deere Park Drive in the City of Highland Park, where plaintiff was alleged to have been pulled from his car and beaten. Count II charged the attack was wilful and malicious and sought further damages. Count III is directed against defendant Richard Wendrow's parents, defendants Bernard and Eta Wendrow, and seeks to recover damages premised upon the Parental Responsibility Law (Ill.Rev.Stat.1983, ch. 70, par. 51 et seq. ) and Count IV seeks relief against the parents under an ordinance of Highland Park entitled "Parental Responsibility and Vandalism Victim Compensation." Counts V through VII alleged intentional assault and battery and parental liability theories against other defendants for recovery of damages.

Count IX of plaintiff's amended complaint, with which we are solely concerned in this appeal, sounded in tort and was directed against defendants Richard, Bernard and Eta Wendrow. It alleged the latter were Richard's parents and owned the premises at 369 North Deere Park Drive, a single family residence with a private beach on Lake Michigan, with an easement to the beach property across the public streets of Highland Park; that these three defendants gave a party at the residence on August 8, 1982, which was primarily attended by teenage minors, and that it became the duty of these defendants to:

"exercise reasonable care to control the conduct of their guests, including teenage, minor guests, so as to prevent them, or anyone of them, from intentionally harming third parties, including plaintiff, or from so conducting themselves, or any one of them, as to create an unreasonable risk of potential harm to any third party, including plaintiff, if defendants (a) knew, or had reason to know, that they, or any one of them, had the ability to control their guests, or any one of them, and (b) if the defendants knew, or should have known, of the necessity and opportunity for exercising such control."

Count IX further alleged that defendants, in disregard of their duty, carelessly and negligently:

(a) failed to supervise their guests and invitees known to be rowdy and with a propensity to conduct themselves in a manner likely to result in the infliction of intentional harm upon third parties, including plaintiff;

(b) permitting known rowdy, minor, teenage guests who had a propensity to act in a manner likely to result in intentional harm to third parties, including plaintiff, to use their private beach so as to increase the risk of intentional harm by them upon third parties, including plaintiff; and

(c) in not taking precautions for the safety of the general public, including plaintiff, during the time their minor, teenage guests were upon their premises, including their easement to their private beach across the public streets of Highland Park, at a time when said guests were rowdy and had a propensity to conduct themselves in a manner likely to result in the infliction of intentional harm to third parties, including plaintiff.

This count of the complaint also alleged that the defendants at the party knew that they, or any one of them, had the ability to control their guests, and knew of the necessity and opportunity to exercise such control. Count IX concluded that as a proximate cause of defendants' negligence plaintiff was assaulted by defendants' minor guests, upon defendants' premises, causing injuries for which he seeks the recovery of damages.

Defendants' motions to dismiss Count IX as not stating a cause of action were granted and, after the trial court made the requisite finding there was no just reason for delaying enforcement or appeal required by Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)), plaintiff has appealed.

Plaintiff relies upon section 318 of the Restatement (Second) of Torts (1965) and cases from other jurisdictions as support for his cause of action, contending that within that framework the defendants had a duty to control the use they permitted to be made of their land to avoid foreseeable risk of harm to third parties. Defendants argue that section 318 of the Restatement of Torts has not been adopted in Illinois as an exception to the general rule that one is not liable for the intentional torts of another and, alternatively, that Count IX of the complaint does not state facts upon which such a duty could be imposed under section 318.

There can be no recovery in tort unless a complaint alleges facts which establish a duty on the part of defendants towards plaintiff, a breach of that duty, and an injury resulting from the breach. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 162, 74 Ill.Dec. 614, 456 N.E.2d 116.) Whether there is a duty is a question of law to be determined by the court (98 Ill.2d 158, 163; Ferentchak v. Village of Frankfort (1985), 105 Ill.2d 474, 480, 86 Ill.Dec. 443, 475 N.E.2d 822.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proven under the pleadings which would entitle plaintiff to relief. (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill.App.3d 569, 572, 66 Ill.Dec. 222, 442 N.E.2d 648.) Although Illinois requires fact rather than notice pleading (Pelham v. Griesheimer (1982), 92 Ill.2d 13, 17, 64 Ill.Dec. 544, 440 N.E.2d 96), a complaint will not be dismissed if facts essential to its claim appear by reasonable implication and it reasonably informs defendants of a valid claim under a general class of cases. Magana v. Elie (1982), 108 Ill.App.3d 1028, 1031, 64 Ill.Dec. 511, 439 N.E.2d 1319; section 2-612 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-612).

Section 318 of the Restatement (Second) of Torts, entitled "Duty of possessor of land or chattels to control conduct of licensee," states:

"If the actor [defendants] permit a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor

(a) knows or has reason to know that he has the ability to control the third person, and

(b) knows or has reason to know of the necessity and opportunity for exercising such control." Restatement (Second) of Torts, section 318 (1965).

No Illinois case has adopted section 318 of the Restatement (Second) of Torts, upon which plaintiff relies. The appellate court in Fugate v. Galvin (1980), 84 Ill.App.3d 573, 40 Ill.Dec. 318, 406 N.E.2d 19, did note in dictum, that a "land possessor", as referred to in section 318, was one of the special relationships in which a duty could rise to control the conduct of a third party to prevent injury to another. (84 Ill.App.3d 573, 574-75.) In Fugate, however, the court declined to create a duty on the part of a passenger in an automobile towards a plaintiff who was struck and injured by it and did not consider the question presented by this case.

Plaintiff cites cases from other jurisdictions which have relied, in part, upon section 318 of the Restatement to establish a duty on the part of a landowner to control the conduct of persons permitted to use his land so as to prevent injury to others. (See e.g., Comeau v. Lucas (1982), 90 A.D.2d 674, 455 N.Y.S.2d 871; Huyler v. Rose (1982), 88 A.D.2d 755, 451 N.Y.S.2d 478; DeRosa v. Fordham University (1963), 18 A.D.2d 1056, 238 N.Y.S.2d 778; Stevens v. City of Pittsburg (1938), 329 Pa. 496, 198 A. 655; Honaman v. City of Philadelphia (1936), 322 Pa. 535, 185 A. 750; Pease v. Parsons (1930), 273 Mass. 111, 173 N.E. 406.) Plaintiff also offers Martin v. Shea (Ind.Ct.App.1982), 432 N.E.2d 46, as authority to establish a host's duty to control his guests. That case was reversed, however, by the Indiana Supreme Court which held that as plaintiff was a licensee, the general principles of premises liability applied limiting the duty of a defendant-host toward plaintiff-licensee (Martin v. Shea (Ind.1984), 463 N.E.2d 1092).

At the time of the occurrence in August 1982, Illinois followed the "premises doctrine" under which the duty of an occupier of premises to persons entering it depended upon whether the entrant was an invitee, licensee or trespasser. (Pashinian v. Haritonoff (1980), 81 Ill.2d 377, 380, 43 Ill.Dec. 21, 410 N.E.2d 21.) The highest duty imposed by law was to an invitee to whom a land owner owed a duty to maintain the premises in a reasonably safe condition and to warn of dangerous latent conditions. (Concoran v. Village of Libertyville (1978), 73 Ill.2d 316, 329, 22 Ill.Dec. 701, 383 N.E.2d 177.) A licensee or social guest could recover from the occupier of premises...