Kolodziejzak v. M. Simon & Associates
Annotate this Case
SECOND DIVISION
September 23, 1997
No. 1-96-2104
JOYCE KOLODZIEJZAK, Indiv. and as ) Appeal from the
Special Adm'r of the Estate of ) Circuit Court of
David Kolodziejzak, Deceased, ) Cook County.
Plaintiff-Appellee, )
)
v. )
)
MELVIN SIMON & ASSOCIATES, )
SIMON MANAGEMENT COMPANY, CORPORATE)
SECURITY CONSULTANTS, INC., Indiv. )
and d/b/a YARDS SECURITY, )
Defendants-Appellants. )
-----------------------------------
MELVIN SIMON & ASSOCIATES, )
SIMON MANAGEMENT COMPANY, CORPORATE)
SECURITY CONSULTANTS, INC., Indiv. )
and d/b/a YARDS SECURITY, )
Third-Party Plaintiffs- )
Appellants, )
)
v. ) Honorable
ADIEL CUEVAS, ) Jennifer Duncan-Brice,
Third-Party Defendant. ) Judge Presiding.
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
Plaintiff Joyce Kolodziejzak brought this wrongful death action
against defendant Simon Management Company and other defendants on
behalf of the estate of David Kolodziejzak (Kolodziejzak). The jury
found in favor of plaintiff and allocated 10% of the fault to Simon
Management. The trial court entered judgment on that verdict.
Simon Management appeals, contending that the trial court erred in
denying its motion for a directed verdict because: (1) Simon
Management did not owe any duty to protect David Kolodziejzak from
criminal attacks by third parties; (2) plaintiff failed to present
any evidence that Simon Management's alleged negligence was the
proximate cause of Kolodziejzak's injury; and (3) plaintiff failed
to present any evidence that Simon Management negligently hired the
security company Corporate Security Consultants Inc. (Corporate
Security). Simon Management also claims that the jury's
apportionment of fault was unreasonable and contrary to the
evidence, and that the trial court erred in denying Simon
Management's motion to bar the testimony of plaintiff's expert
witness. We reverse the trial court order entering judgment on the
jury's verdict, and we enter judgment in favor of Simon Management.
In the fall of 1990, a strip mall, named Yards Plaza, opened at
47th and Damen Avenue in Chicago. Simon Management was the property
management company for Yards Plaza. On October 31, 1990, Simon
entered into a one-year contract with Corporate Security pursuant to
which Corporate Security was to provide security service to the
common areas of Yards Plaza. Corporate Security guards were to
patrol the exterior of the Plaza and do security checks of the main
lot and parking areas. On November 13, 1991, Simon Management s
contract with Corporate Security was renewed for another year.
On November 24, 1990, Montgomery Ward signed a lease to become
a tenant store at Yards Plaza. On November 25, 1990, at
approximately 4 p.m. Terry Minor, a Montgomery Ward loss prevention
specialist, was on patrol inside Montgomery Ward, when he saw six
teenagers fighting in the "Electric Avenue" department. Minor
called a "Code 600" over his radio, indicating that he needed help
and calling all available loss prevention specialists to the
"Electric Avenue" department. Loss prevention specialists David
Kolodziejzak and Algis Kivenas proceeded to the "Electric Avenue"
department, talked to Minor about the disturbance and went looking
for the teenagers. Kolodziejzak yelled to Kivenas that he saw a
shoplifter, and Kivenas then saw Adiel Cuevas carrying a gun and
running out of Montgomery Ward.
Michael Gercone, the Corporate Security guard on duty at the
time, heard the "Code 600" and drove toward Montgomery Ward.
Gercone saw Cuevas running, followed by Kolodziejzak. As
Kolodziejzak was about to apprehend Cuevas, Cuevas turned and
fatally shot Kolodziejzak. At the time of the shooting, Gercone was
about 20 to 30 yards away from Cuevas.
Plaintiff brought suit against Simon Management, Corporate
Security, Montgomery Ward and Cuevas. The jury found in favor of
plaintiff and attributed 10% of the fault to Simon Management, 10%
to Corporate Security, 25% to Montgomery Ward and 35% to Cuevas.
Simon Management first claims that the trial court erred in
denying its motion for a directed verdict because Simon Management
did not owe plaintiff's decedent any duty to protect him from
criminal attacks by third parties. The determination of the
existence of a duty is a question of law to be resolved by the
court. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 583 N.E.2d 538 (1991). As a general rule, a landlord owes its tenants
no duty to protect them from criminal attacks by third parties.
Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 399 N.E.2d 596
(1979). However, an exception to this rule exists when a landlord
voluntarily undertakes to provide security services, in which event,
he assumes a duty not to be negligent in the performance of that
undertaking. Pippin, 78 Ill. 2d at 209-10. The extent of the
landlord's liability is strictly limited by the scope of the
undertaking. Phillips v. Chicago Housing Authority, 89 Ill. 2d 122,
431 N.E.2d 1038 (1982). When a landlord hires a security firm to
provide security services, he may be liable for negligent hiring.
Pippin, 78 Ill. 2d at 210. When a landlord undertakes security
measures himself, he has a duty of reasonable care in that
undertaking. Phillips, 89 Ill. 2d at 127.
In Pippin, the Chicago Housing Authority (CHA) hired Interstate
Service Corporation to provide guard services on CHA premises.
Plaintiff, a guest on the premises, was stabbed by a third party.
The court found that, because the CHA did not undertake to perform
the guard service itself, it could not be held to have a duty to
protect plaintiff. The CHA s duty was limited by the extent of its
undertaking, which was to use reasonable care in hiring Interstate
to provide the guard services. The court therefore determined that
the CHA could be liable only for the negligent hiring of Interstate.
Because plaintiff s complaint alleged that the CHA negligently hired
Interstate, a question of fact as to the CHA s liability existed,
and summary judgment was improper.
The plaintiff in the instant case claims not only that Simon
Management had a duty to use reasonable care in hiring Corporate
Security to provide the security services, but also that Simon
Management undertook a duty to oversee the security force.
Plaintiff has presented no evidence to support her negligent hiring
claim. Plaintiff instead focuses on her theory that Simon
Management undertook a duty to oversee whether the security program
in force was effective. Plaintiff claims that Simon Management
breached this duty by having no competent system for following upon
the information reporting violent crimes that was being provided to
it by Corporate Security and by failing to hire additional security
guards after being notified of the need for increased security by
Corporate Security.
In seeking to expand Simon Management's duty beyond that of
using reasonable care in hiring Corporate Security, plaintiff relies
on Martin v. McDonald's Corp., 213 Ill. App. 3d 487, 572 N.E.2d 1073
(1991). The plaintiffs claims in Martin arose out of a murder and
robbery that occurred at the restaurant after closing hours. The
plaintiffs claimed that McDonald's Corporation owed them a duty of
care and protection because it voluntarily assumed such a duty. In
finding that McDonald s Corporation had in fact assumed such a duty,
the court relied on the fact that McDonald's Corporation created a
branch of its corporation to deal with security problems and
prepared a bible for store security operations. The bible set forth
the security procedures to be followed at closing time. One such
procedure established that garbage was to be taken out a glass side
door one hour before closing, rather than taken out the back door
after dark. Through its regional security manager, McDonald's
Corporation undertook the obligation to check for security problems,
to communicate to the store management what the security policies
were, and to follow up to be certain that the recommended security
procedures were being followed. However, the regional security
manager admitted that he did not follow up to see if proper closing
procedures were being followed. He never checked to be sure that
the back door was not being used after dark or that signs were
posted on the door warning employees not to use this door after
dark. The regional security manager never checked to be sure that
the workers received proper instructions about the use of the back
door. In fact several employees testified that they had never
received a security manual and had never been instructed not to use
the back door after dark. Furthermore, the regional security
manager failed to notice the dumpster that was pulled up to the back
door after dark so that employees could dump garbage out the back
door.
The court therefore concluded that McDonald's Corporation
assumed the duty to provide security and protection to plaintiffs,
which included follow-up, and that there was sufficient evidence for
the jury to determine that McDonald's Corporation breached its duty
to plaintiffs when it failed to follow up to see the if security
policies were being followed. See also Decker v. Domino s Pizza,
Inc., 268 Ill. App. 3d 521, 644 N.E.2d 515 (1994)(Domino s Pizza
assumed a duty to protect its employees when it became directly
involved in providing its employees with security procedures and
mechanisms and conducting follow up to make sure that the safety
procedures were being followed).
In Martin, McDonald s Corporation was the party actually
providing the security services to its stores. In the instant case,
Simon Management did not provide any security measures itself but,
instead, hired Corporate Security to perform security services.
Plaintiff, however, claims that Simon Management, like the defendant
in Martin, undertook an obligation to follow up to determine whether
proper security procedures were being followed. Plaintiff claims
that a reasonable jury could have concluded from the testimony
adduced at trial, that Simon Management did not have a competent
system in place for conducting such follow-up and that, although
advised on the need for additional security, failed to hire an
additional guard.
Plaintiff relies primarily on the testimony of Kathy Dernell,
Simon Management's operations supervisor. Dernell testified that
she was responsible for overseeing the day-to-day operations of
Yard's Plaza, which included overseeing the landscaping, snow
removal, and asphalt repair, looking for trip hazards on the
sidewalks, showing the retail space, and reviewing daily log reports
sent to her by Corporate Security. Dernell testified that she had
no formal training or experience on security matters.
Dernell testified that, in 1990, she gathered proposals from
several security companies and sent them to Tom Cernock, who was the
technical services security expert for Simon Management. Cernock
negotiated and signed the contract with Corporate Security.
According to this contract, Corporate Security was to send to Simon
Management daily log and incident reports regarding events that
occurred at Yards Plaza.
Once a month, Gene Motyka, the director of Corporate Security,
sent these daily log reports to Dernell. Dernell testified that she
reviewed the reports to assess whether the security guards were
properly performing their jobs and whether the overall security
program was effective. Dernell testified that, while reviewing the
reports, she would automatically consider whether the incident was
handled correctly and how it could have been handled better.
Barbara Barnes the property manager did not actually review the
log reports. However, if Dernell found that a security guard was
doing something inappropriate, she would notify Barnes. Dernell
also reported to Barnes incidents involving graffiti, loitering, and
vandalism.
Dernell testified that she was in contact with Motyka once a
week to discuss incidents occurring at the shopping center. Dernell
also testified that after reading the log reports, if she had any
questions or concerns regarding a reported incident, she would
contact Motyka and obtain more information about the incident and if
necessary correct the situation. Dernell testified that she was
always satisfied with the work and conduct of the Corporate Security
guards. Dernell testified that when she reviewed the daily log
reports, she found that the neighborhood was not as bad as she had
been led to believe when the mall opened.
Dernell testified that Motyka would occasionally recommend that
Simon Management hire an additional guard during holidays or special
events held at the shopping center. Dernell would pass this
information on to Barnes, and Barnes would then get approval to hire
an additional guard from Cernock.
Plaintiff claims that Dernell's testimony reveals that Simon
Management had no competent system for following up on the
information that was being provided to it by Corporate Security.
Plaintiff claims that changes in security could only have been
initiated by Dernell, but because Dernell had no security training
or any security experience, she was not qualified to assess and
monitor the security program. Specifically, plaintiff claims that
it was reasonable for the jury to conclude that Simon Management was
advised of the need for increased manpower and that Dernell should
have notified her manager of the request, and the security plan
should have then been evaluated and revised to meet the changing and
increased security needs of the shopping center.
Plaintiff claims that Gene Motyka, director of Corporate
Security, notified Dernell of the need for increased manpower.
Plaintiff relies on a letter Motyka sent to Dernell on June 24,
1991, suggesting that an additional guard be hired for the 4 p.m.
shift due to the likelihood of increased customer traffic due to
school letting out for the summer. Motyka testified that he
recommended an additional guard for the summer, not for November,
when this shooting incident occurred. Motyka testified that the
level of security at Yards Plaza was adequate on November 25, 1991,
and that he never suggested that security be increased on Monday
afternoons in November. Motyka testified that one reason for
writing the letter was to increase business for his company.
Thus, even if we were to broaden the landlord's duty beyond
that of reasonable care in hiring the security company, it would be
difficult to find a duty that Simon Management undertook that it
failed to fulfill. In McDonald's, there were specific acts of
follow-up that defendant undertook a duty to perform, but admittedly
failed to perform. Here, the only specific duty Simon Management
undertook was the duty to review the daily log reports. The
evidence reveals that Simon Management fulfilled this duty. Dernell
reviewed the log reports on a monthly basis, spoke with the director
of Corporate Security on a weekly basis and reported any issues of
concern to her superiors. Simon Management had no duty to hire
someone with more knowledge on security matters than Dernell to
review these reports. There is evidence of only one recommendation
Corporate Security made to Simon Management that Simon Management
did not implement. While Motyka, director of Corporate Security,
recommended that Simon Management hire an additional guard for
summer afternoons and evenings, no additional guard was hired.
However, nobody from Corporate Security suggested the hiring of an
additional guard for November 1991 when this shooting occurred.
Thus, during the relevant time frame, there is no evidence of any
unfulfilled duty on the part of Simon Management.
Plaintiff further claims that Simon Management's duty to
protect Kolodziejak from a criminal attack by third parties arose by
virtue of the fact that prior crimes had occurred on the premises,
thereby making the criminal attack on plaintiff's decedent
reasonably foreseeable. In Taylor v. Hocker, 101 Ill. App. 3d 639,
428 N.E.2d 622 (1981), the court considered the issue of whether the
landlord had sufficient notice or knowledge of previous criminality
in the area of the shopping mall so as to give rise to a duty to
protect plaintiffs from criminal attacks of third parties. There,
the lease between the landlord and the store owners provided that
the landlord was responsible for maintaining security personnel in
the common areas. The landlord employed security guards to patrol
the common areas of the mall, including the parking lot.
Plaintiffs, customers of the mall, were assaulted by a third party
in the shopping mall parking lot. Prior to plaintiff's assault,
defendant had notice of numerous shoplifting incidents and thefts
from automobiles, as well as some automobile thefts and one bicycle
theft. The only previous incident of violence involved an irate
customer striking the manager of a store located next to the mall,
but not on mall premises. The court stated that evidence of crimes
against property, commonplace in all shopping centers, did not give
rise to a jury question as to whether defendant owed plaintiff a
duty to protect against attacks by third parties.
Plaintiff in the instant case claims that there was sufficient
evidence to support a jury finding that criminal acts and gang
activities on the premises made it foreseeable to Simon Management
that a gang member would come onto the Yards Plaza premises, with a
weapon, and cause great bodily injury or death to an innocent
person. However, our review of the incident reports prepared by the
Corporate Security guards and the testimony introduced at trial
reveals no incidents of gang intimidation, gang-related violence or
the brandishing of any weapons by gang members on the Yards Plaza
premises. The incident reports reveal that retail theft was a
common occurrence at Yards Plaza. While there is a report of an
armed robbery that occurred in one of the tenant stores, as well as
a strong-armed robbery, these incidents were not linked to gang
activity. A report of a man with a gun under a bridge concerned an
incident that occurred off the Yards Plaza's premises. Other
reported incidents on the premises involved a Corporate Security
guard threatened with an oil stick, automobile theft, a youth seen
carrying a dagger, two juveniles fighting in front of the parking
lot, and a drunk man yelling. The only incidents linked to gang
members involved the shouting of gang slogans from a car, the
attempted theft of a bicycle, and the writing of gang signs in the
tenant stores and in the common areas of Yards Plaza. None of these
gang related incidents involved violence. We do not believe that
any of the prior crimes would have put Simon Management on notice of
the likelihood that a gang member would enter Yards Plaza's premises
with a gun and shoot an innocent person.
Even if we were to find that the occurrence of a violent
incident by a gang member was foreseeable, foreseeability alone will
not result in the imposition of a duty. Popp v. Cash Station, Inc.,
244 Ill. App. 3d 87, 613 N.E.2d 1150 (1992). The magnitude of the
burden to guard against it and the consequences of placing the
burden on defendant must also be considered. Popp, 244 Ill. App. 3d
87.
In Shea v. Preservation Chicago, Inc., 206 Ill. App. 3d 657,
565 N.E.2d 20 (1990), cited by plaintiff, the court found that
plaintiff's complaint sufficiently showed that the landlord assumed
a duty to protect its tenant against reasonably foreseeable third-
party criminal attacks proximately caused by defendant's failure to
repair and maintain the apartment building's interior security door
and safety lock. The court's conclusion was based on the fact that
the landlord retained control over that area of the premises and
attempted to repair the broken equipment on several occasions. The
court found that a reasonable person in the landlord's position
would have been aware of the risks of unauthorized entry and
resulting criminal attacks by third parties caused by a faulty
security door and lock. Moreover, the court noted that the cost of
repairing the door and lock was not prohibitive, given the risks of
injury resulting from their malfunction. The court further
emphasized that the landlord was in the best position to guard
against the risks associated with the faulty equipment. The court
noted that the factual situation in Shea was different from a case
involving "a large expanse of land and buildings such as a shopping
mall or university, where the cost of more extensive security
measures may have been prohibitive to the landowner." Shea, 206
Ill. App. 3d at 665.
In the instant case, we find that imposing the cost of
protecting third parties from all criminal attacks at Yards Plaza on
the landlord Simon Management Company is too burdensome. The
shopping center's common areas are large and open and Simon
Management had only attenuated control over these areas. We do not
believe that Simon Management could reasonably be expected to secure
this entire area. How many guards would Simon Management have to
hire to protect against any criminal act occurring in the common
area of a shopping center which is open to the public? 2? 50? or
100? Alternatively, what else could Simon Management do except
erect a fence around Yards Plaza and screen all persons entering the
premises? Either of these scenarios would certainly place too
onerous an economic burden on Simon Management.
We also note that the record is devoid of any evidence showing
that any action or inaction on the part of Simon Management was the
proximate cause of Kolodziejzak's death. There is no allegation
that the Corporate Security guard on duty at the time Kolodziejzak
was shot was negligent in his handling of this incident.
Furthermore, whether Kolodziejzak's death could have been prevented
by the addition of another security guard is at best speculation and
conjecture. Nola M. v. University of Southern California, 16 Cal. App. 4th 421, 20 Cal. Rptr. 2d 97 (1993).
We therefore find the trial court should have granted Simon
Management's motion for a directed verdict. In light of this
determination, we need not address the other issue raised by
plaintiff in this appeal. Accordingly, the judgment entered against
Simon Management is vacated and judgment in favor of Simon
Management is entered.
Vacated.
RAKOWSKI, J., concurs.
TULLY, J., dissents.
JUSTICE TULLY dissenting:
I must respectfully disagree with the majority's opinion that
the trial court erred in denying defendant's motion for a directed
verdict. A trial court should grant a motion for directed verdict
only in those cases where all the evidence, when viewed in its
aspect most favorable to the non-movant, so overwhelmingly favors
the movant that no contrary verdict based on the evidence could ever
stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510,
229 N.E.2d 504, 513-14 (1967). Upon a careful review of the record,
I do not find that the evidence so overwhelming favors defendant's
position that no duty exists that the jury's verdict for plaintiff
cannot stand.
As the majority points out, although a landlord generally owes
its tenants no duty to protect them from criminal attacks by third
parties, an exception to this rule exists when a landlord
voluntarily undertakes to provide security services. See Pippin v.
Chicago Housing Authority, 78 Ill. 2d 204, 209-210, 399 N.E.2d 596
(1979). In the present case, defendant undertook to provide an
extensive security system on the premises. Instead of simply hiring
an outside security firm, as was the case in Pippin, defendant
herein sought to oversee the security services being provided by
Corporate Security. Defendant required Corporate Security to
provide it with daily log reports detailing any and all incidents
occurring on the premises. Defendant also assigned one of its
managers to review such reports and to determine if the security
needs of the premises were being met. Once a week defendant's
manager met with the director of Corporate Security to discuss the
security measures being implemented. Plaintiff also produced
evidence of at least one occasion where defendant exercised control
over Corporate Security's hiring of an additional security guard for
the premises. Thus, defendant clearly retained control of the
security operations on its premises even though such services were
provided by an outside security firm. When a landlord voluntarily
undertakes to provide such services, it has a duty to do so in a
non-negligent manner. See Phillips v. Chicago Housing Authority, 89 Ill. 2d 122, 127, 431 N.E.2d 1038 (1992). Accordingly, I believe
the evidence presented by plaintiff clearly demonstrates the
existence of a duty on the part of defendant, and, as such, the
trial court was correct in denying defendant's motion for a directed
verdict.
September 23, 1997
No. 1-96-2104
JOYCE KOLODZIEJZAK, Indiv. and as ) Appeal from the
Special Adm'r of the Estate of ) Circuit Court of
David Kolodziejzak, Deceased, ) Cook County.
Plaintiff-Appellee, )
)
v. )
)
MELVIN SIMON & ASSOCIATES, )
SIMON MANAGEMENT COMPANY, CORPORATE)
SECURITY CONSULTANTS, INC., Indiv. )
and d/b/a YARDS SECURITY, )
Defendants-Appellants. )
-----------------------------------
MELVIN SIMON & ASSOCIATES, )
SIMON MANAGEMENT COMPANY, CORPORATE)
SECURITY CONSULTANTS, INC., Indiv. )
and d/b/a YARDS SECURITY, )
Third-Party Plaintiffs- )
Appellants, )
)
v. ) Honorable
ADIEL CUEVAS, ) Jennifer Duncan-Brice,
Third-Party Defendant. ) Judge Presiding.
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
Plaintiff Joyce Kolodziejzak brought this wrongful death action
against defendant Simon Management Company and other defendants on
behalf of the estate of David Kolodziejzak (Kolodziejzak). The jury
found in favor of plaintiff and allocated 10% of the fault to Simon
Management. The trial court entered judgment on that verdict.
Simon Management appeals, contending that the trial court erred in
denying its motion for a directed verdict because: (1) Simon
Management did not owe any duty to protect David Kolodziejzak from
criminal attacks by third parties; (2) plaintiff failed to present
any evidence that Simon Management's alleged negligence was the
proximate cause of Kolodziejzak's injury; and (3) plaintiff failed
to present any evidence that Simon Management negligently hired the
security company Corporate Security Consultants Inc. (Corporate
Security). Simon Management also claims that the jury's
apportionment of fault was unreasonable and contrary to the
evidence, and that the trial court erred in denying Simon
Management's motion to bar the testimony of plaintiff's expert
witness. We reverse the trial court order entering judgment on the
jury's verdict, and we enter judgment in favor of Simon Management.
In the fall of 1990, a strip mall, named Yards Plaza, opened at
47th and Damen Avenue in Chicago. Simon Management was the property
management company for Yards Plaza. On October 31, 1990, Simon
entered into a one-year contract with Corporate Security pursuant to
which Corporate Security was to provide security service to the
common areas of Yards Plaza. Corporate Security guards were to
patrol the exterior of the Plaza and do security checks of the main
lot and parking areas. On November 13, 1991, Simon Management s
contract with Corporate Security was renewed for another year.
On November 24, 1990, Montgomery Ward signed a lease to become
a tenant store at Yards Plaza. On November 25, 1990, at
approximately 4 p.m. Terry Minor, a Montgomery Ward loss prevention
specialist, was on patrol inside Montgomery Ward, when he saw six
teenagers fighting in the "Electric Avenue" department. Minor
called a "Code 600" over his radio, indicating that he needed help
and calling all available loss prevention specialists to the
"Electric Avenue" department. Loss prevention specialists David
Kolodziejzak and Algis Kivenas proceeded to the "Electric Avenue"
department, talked to Minor about the disturbance and went looking
for the teenagers. Kolodziejzak yelled to Kivenas that he saw a
shoplifter, and Kivenas then saw Adiel Cuevas carrying a gun and
running out of Montgomery Ward.
Michael Gercone, the Corporate Security guard on duty at the
time, heard the "Code 600" and drove toward Montgomery Ward.
Gercone saw Cuevas running, followed by Kolodziejzak. As
Kolodziejzak was about to apprehend Cuevas, Cuevas turned and
fatally shot Kolodziejzak. At the time of the shooting, Gercone was
about 20 to 30 yards away from Cuevas.
Plaintiff brought suit against Simon Management, Corporate
Security, Montgomery Ward and Cuevas. The jury found in favor of
plaintiff and attributed 10% of the fault to Simon Management, 10%
to Corporate Security, 25% to Montgomery Ward and 35% to Cuevas.
Simon Management first claims that the trial court erred in
denying its motion for a directed verdict because Simon Management
did not owe plaintiff's decedent any duty to protect him from
criminal attacks by third parties. The determination of the
existence of a duty is a question of law to be resolved by the
court. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 583 N.E.2d 538 (1991). As a general rule, a landlord owes its tenants
no duty to protect them from criminal attacks by third parties.
Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 399 N.E.2d 596
(1979). However, an exception to this rule exists when a landlord
voluntarily undertakes to provide security services, in which event,
he assumes a duty not to be negligent in the performance of that
undertaking. Pippin, 78 Ill. 2d at 209-10. The extent of the
landlord's liability is strictly limited by the scope of the
undertaking. Phillips v. Chicago Housing Authority, 89 Ill. 2d 122,
431 N.E.2d 1038 (1982). When a landlord hires a security firm to
provide security services, he may be liable for negligent hiring.
Pippin, 78 Ill. 2d at 210. When a landlord undertakes security
measures himself, he has a duty of reasonable care in that
undertaking. Phillips, 89 Ill. 2d at 127.
In Pippin, the Chicago Housing Authority (CHA) hired Interstate
Service Corporation to provide guard services on CHA premises.
Plaintiff, a guest on the premises, was stabbed by a third party.
The court found that, because the CHA did not undertake to perform
the guard service itself, it could not be held to have a duty to
protect plaintiff. The CHA s duty was limited by the extent of its
undertaking, which was to use reasonable care in hiring Interstate
to provide the guard services. The court therefore determined that
the CHA could be liable only for the negligent hiring of Interstate.
Because plaintiff s complaint alleged that the CHA negligently hired
Interstate, a question of fact as to the CHA s liability existed,
and summary judgment was improper.
The plaintiff in the instant case claims not only that Simon
Management had a duty to use reasonable care in hiring Corporate
Security to provide the security services, but also that Simon
Management undertook a duty to oversee the security force.
Plaintiff has presented no evidence to support her negligent hiring
claim. Plaintiff instead focuses on her theory that Simon
Management undertook a duty to oversee whether the security program
in force was effective. Plaintiff claims that Simon Management
breached this duty by having no competent system for following upon
the information reporting violent crimes that was being provided to
it by Corporate Security and by failing to hire additional security
guards after being notified of the need for increased security by
Corporate Security.
In seeking to expand Simon Management's duty beyond that of
using reasonable care in hiring Corporate Security, plaintiff relies
on Martin v. McDonald's Corp., 213 Ill. App. 3d 487, 572 N.E.2d 1073
(1991). The plaintiffs claims in Martin arose out of a murder and
robbery that occurred at the restaurant after closing hours. The
plaintiffs claimed that McDonald's Corporation owed them a duty of
care and protection because it voluntarily assumed such a duty. In
finding that McDonald s Corporation had in fact assumed such a duty,
the court relied on the fact that McDonald's Corporation created a
branch of its corporation to deal with security problems and
prepared a bible for store security operations. The bible set forth
the security procedures to be followed at closing time. One such
procedure established that garbage was to be taken out a glass side
door one hour before closing, rather than taken out the back door
after dark. Through its regional security manager, McDonald's
Corporation undertook the obligation to check for security problems,
to communicate to the store management what the security policies
were, and to follow up to be certain that the recommended security
procedures were being followed. However, the regional security
manager admitted that he did not follow up to see if proper closing
procedures were being followed. He never checked to be sure that
the back door was not being used after dark or that signs were
posted on the door warning employees not to use this door after
dark. The regional security manager never checked to be sure that
the workers received proper instructions about the use of the back
door. In fact several employees testified that they had never
received a security manual and had never been instructed not to use
the back door after dark. Furthermore, the regional security
manager failed to notice the dumpster that was pulled up to the back
door after dark so that employees could dump garbage out the back
door.
The court therefore concluded that McDonald's Corporation
assumed the duty to provide security and protection to plaintiffs,
which included follow-up, and that there was sufficient evidence for
the jury to determine that McDonald's Corporation breached its duty
to plaintiffs when it failed to follow up to see the if security
policies were being followed. See also Decker v. Domino s Pizza,
Inc., 268 Ill. App. 3d 521, 644 N.E.2d 515 (1994)(Domino s Pizza
assumed a duty to protect its employees when it became directly
involved in providing its employees with security procedures and
mechanisms and conducting follow up to make sure that the safety
procedures were being followed).
In Martin, McDonald s Corporation was the party actually
providing the security services to its stores. In the instant case,
Simon Management did not provide any security measures itself but,
instead, hired Corporate Security to perform security services.
Plaintiff, however, claims that Simon Management, like the defendant
in Martin, undertook an obligation to follow up to determine whether
proper security procedures were being followed. Plaintiff claims
that a reasonable jury could have concluded from the testimony
adduced at trial, that Simon Management did not have a competent
system in place for conducting such follow-up and that, although
advised on the need for additional security, failed to hire an
additional guard.
Plaintiff relies primarily on the testimony of Kathy Dernell,
Simon Management's operations supervisor. Dernell testified that
she was responsible for overseeing the day-to-day operations of
Yard's Plaza, which included overseeing the landscaping, snow
removal, and asphalt repair, looking for trip hazards on the
sidewalks, showing the retail space, and reviewing daily log reports
sent to her by Corporate Security. Dernell testified that she had
no formal training or experience on security matters.
Dernell testified that, in 1990, she gathered proposals from
several security companies and sent them to Tom Cernock, who was the
technical services security expert for Simon Management. Cernock
negotiated and signed the contract with Corporate Security.
According to this contract, Corporate Security was to send to Simon
Management daily log and incident reports regarding events that
occurred at Yards Plaza.
Once a month, Gene Motyka, the director of Corporate Security,
sent these daily log reports to Dernell. Dernell testified that she
reviewed the reports to assess whether the security guards were
properly performing their jobs and whether the overall security
program was effective. Dernell testified that, while reviewing the
reports, she would automatically consider whether the incident was
handled correctly and how it could have been handled better.
Barbara Barnes the property manager did not actually review the
log reports. However, if Dernell found that a security guard was
doing something inappropriate, she would notify Barnes. Dernell
also reported to Barnes incidents involving graffiti, loitering, and
vandalism.
Dernell testified that she was in contact with Motyka once a
week to discuss incidents occurring at the shopping center. Dernell
also testified that after reading the log reports, if she had any
questions or concerns regarding a reported incident, she would
contact Motyka and obtain more information about the incident and if
necessary correct the situation. Dernell testified that she was
always satisfied with the work and conduct of the Corporate Security
guards. Dernell testified that when she reviewed the daily log
reports, she found that the neighborhood was not as bad as she had
been led to believe when the mall opened.
Dernell testified that Motyka would occasionally recommend that
Simon Management hire an additional guard during holidays or special
events held at the shopping center. Dernell would pass this
information on to Barnes, and Barnes would then get approval to hire
an additional guard from Cernock.
Plaintiff claims that Dernell's testimony reveals that Simon
Management had no competent system for following up on the
information that was being provided to it by Corporate Security.
Plaintiff claims that changes in security could only have been
initiated by Dernell, but because Dernell had no security training
or any security experience, she was not qualified to assess and
monitor the security program. Specifically, plaintiff claims that
it was reasonable for the jury to conclude that Simon Management was
advised of the need for increased manpower and that Dernell should
have notified her manager of the request, and the security plan
should have then been evaluated and revised to meet the changing and
increased security needs of the shopping center.
Plaintiff claims that Gene Motyka, director of Corporate
Security, notified Dernell of the need for increased manpower.
Plaintiff relies on a letter Motyka sent to Dernell on June 24,
1991, suggesting that an additional guard be hired for the 4 p.m.
shift due to the likelihood of increased customer traffic due to
school letting out for the summer. Motyka testified that he
recommended an additional guard for the summer, not for November,
when this shooting incident occurred. Motyka testified that the
level of security at Yards Plaza was adequate on November 25, 1991,
and that he never suggested that security be increased on Monday
afternoons in November. Motyka testified that one reason for
writing the letter was to increase business for his company.
Thus, even if we were to broaden the landlord's duty beyond
that of reasonable care in hiring the security company, it would be
difficult to find a duty that Simon Management undertook that it
failed to fulfill. In McDonald's, there were specific acts of
follow-up that defendant undertook a duty to perform, but admittedly
failed to perform. Here, the only specific duty Simon Management
undertook was the duty to review the daily log reports. The
evidence reveals that Simon Management fulfilled this duty. Dernell
reviewed the log reports on a monthly basis, spoke with the director
of Corporate Security on a weekly basis and reported any issues of
concern to her superiors. Simon Management had no duty to hire
someone with more knowledge on security matters than Dernell to
review these reports. There is evidence of only one recommendation
Corporate Security made to Simon Management that Simon Management
did not implement. While Motyka, director of Corporate Security,
recommended that Simon Management hire an additional guard for
summer afternoons and evenings, no additional guard was hired.
However, nobody from Corporate Security suggested the hiring of an
additional guard for November 1991 when this shooting occurred.
Thus, during the relevant time frame, there is no evidence of any
unfulfilled duty on the part of Simon Management.
Plaintiff further claims that Simon Management's duty to
protect Kolodziejak from a criminal attack by third parties arose by
virtue of the fact that prior crimes had occurred on the premises,
thereby making the criminal attack on plaintiff's decedent
reasonably foreseeable. In Taylor v. Hocker, 101 Ill. App. 3d 639,
428 N.E.2d 622 (1981), the court considered the issue of whether the
landlord had sufficient notice or knowledge of previous criminality
in the area of the shopping mall so as to give rise to a duty to
protect plaintiffs from criminal attacks of third parties. There,
the lease between the landlord and the store owners provided that
the landlord was responsible for maintaining security personnel in
the common areas. The landlord employed security guards to patrol
the common areas of the mall, including the parking lot.
Plaintiffs, customers of the mall, were assaulted by a third party
in the shopping mall parking lot. Prior to plaintiff's assault,
defendant had notice of numerous shoplifting incidents and thefts
from automobiles, as well as some automobile thefts and one bicycle
theft. The only previous incident of violence involved an irate
customer striking the manager of a store located next to the mall,
but not on mall premises. The court stated that evidence of crimes
against property, commonplace in all shopping centers, did not give
rise to a jury question as to whether defendant owed plaintiff a
duty to protect against attacks by third parties.
Plaintiff in the instant case claims that there was sufficient
evidence to support a jury finding that criminal acts and gang
activities on the premises made it foreseeable to Simon Management
that a gang member would come onto the Yards Plaza premises, with a
weapon, and cause great bodily injury or death to an innocent
person. However, our review of the incident reports prepared by the
Corporate Security guards and the testimony introduced at trial
reveals no incidents of gang intimidation, gang-related violence or
the brandishing of any weapons by gang members on the Yards Plaza
premises. The incident reports reveal that retail theft was a
common occurrence at Yards Plaza. While there is a report of an
armed robbery that occurred in one of the tenant stores, as well as
a strong-armed robbery, these incidents were not linked to gang
activity. A report of a man with a gun under a bridge concerned an
incident that occurred off the Yards Plaza's premises. Other
reported incidents on the premises involved a Corporate Security
guard threatened with an oil stick, automobile theft, a youth seen
carrying a dagger, two juveniles fighting in front of the parking
lot, and a drunk man yelling. The only incidents linked to gang
members involved the shouting of gang slogans from a car, the
attempted theft of a bicycle, and the writing of gang signs in the
tenant stores and in the common areas of Yards Plaza. None of these
gang related incidents involved violence. We do not believe that
any of the prior crimes would have put Simon Management on notice of
the likelihood that a gang member would enter Yards Plaza's premises
with a gun and shoot an innocent person.
Even if we were to find that the occurrence of a violent
incident by a gang member was foreseeable, foreseeability alone will
not result in the imposition of a duty. Popp v. Cash Station, Inc.,
244 Ill. App. 3d 87, 613 N.E.2d 1150 (1992). The magnitude of the
burden to guard against it and the consequences of placing the
burden on defendant must also be considered. Popp, 244 Ill. App. 3d
87.
In Shea v. Preservation Chicago, Inc., 206 Ill. App. 3d 657,
565 N.E.2d 20 (1990), cited by plaintiff, the court found that
plaintiff's complaint sufficiently showed that the landlord assumed
a duty to protect its tenant against reasonably foreseeable third-
party criminal attacks proximately caused by defendant's failure to
repair and maintain the apartment building's interior security door
and safety lock. The court's conclusion was based on the fact that
the landlord retained control over that area of the premises and
attempted to repair the broken equipment on several occasions. The
court found that a reasonable person in the landlord's position
would have been aware of the risks of unauthorized entry and
resulting criminal attacks by third parties caused by a faulty
security door and lock. Moreover, the court noted that the cost of
repairing the door and lock was not prohibitive, given the risks of
injury resulting from their malfunction. The court further
emphasized that the landlord was in the best position to guard
against the risks associated with the faulty equipment. The court
noted that the factual situation in Shea was different from a case
involving "a large expanse of land and buildings such as a shopping
mall or university, where the cost of more extensive security
measures may have been prohibitive to the landowner." Shea, 206
Ill. App. 3d at 665.
In the instant case, we find that imposing the cost of
protecting third parties from all criminal attacks at Yards Plaza on
the landlord Simon Management Company is too burdensome. The
shopping center's common areas are large and open and Simon
Management had only attenuated control over these areas. We do not
believe that Simon Management could reasonably be expected to secure
this entire area. How many guards would Simon Management have to
hire to protect against any criminal act occurring in the common
area of a shopping center which is open to the public? 2? 50? or
100? Alternatively, what else could Simon Management do except
erect a fence around Yards Plaza and screen all persons entering the
premises? Either of these scenarios would certainly place too
onerous an economic burden on Simon Management.
We also note that the record is devoid of any evidence showing
that any action or inaction on the part of Simon Management was the
proximate cause of Kolodziejzak's death. There is no allegation
that the Corporate Security guard on duty at the time Kolodziejzak
was shot was negligent in his handling of this incident.
Furthermore, whether Kolodziejzak's death could have been prevented
by the addition of another security guard is at best speculation and
conjecture. Nola M. v. University of Southern California, 16 Cal. App. 4th 421, 20 Cal. Rptr. 2d 97 (1993).
We therefore find the trial court should have granted Simon
Management's motion for a directed verdict. In light of this
determination, we need not address the other issue raised by
plaintiff in this appeal. Accordingly, the judgment entered against
Simon Management is vacated and judgment in favor of Simon
Management is entered.
Vacated.
RAKOWSKI, J., concurs.
TULLY, J., dissents.
JUSTICE TULLY dissenting:
I must respectfully disagree with the majority's opinion that
the trial court erred in denying defendant's motion for a directed
verdict. A trial court should grant a motion for directed verdict
only in those cases where all the evidence, when viewed in its
aspect most favorable to the non-movant, so overwhelmingly favors
the movant that no contrary verdict based on the evidence could ever
stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510,
229 N.E.2d 504, 513-14 (1967). Upon a careful review of the record,
I do not find that the evidence so overwhelming favors defendant's
position that no duty exists that the jury's verdict for plaintiff
cannot stand.
As the majority points out, although a landlord generally owes
its tenants no duty to protect them from criminal attacks by third
parties, an exception to this rule exists when a landlord
voluntarily undertakes to provide security services. See Pippin v.
Chicago Housing Authority, 78 Ill. 2d 204, 209-210, 399 N.E.2d 596
(1979). In the present case, defendant undertook to provide an
extensive security system on the premises. Instead of simply hiring
an outside security firm, as was the case in Pippin, defendant
herein sought to oversee the security services being provided by
Corporate Security. Defendant required Corporate Security to
provide it with daily log reports detailing any and all incidents
occurring on the premises. Defendant also assigned one of its
managers to review such reports and to determine if the security
needs of the premises were being met. Once a week defendant's
manager met with the director of Corporate Security to discuss the
security measures being implemented. Plaintiff also produced
evidence of at least one occasion where defendant exercised control
over Corporate Security's hiring of an additional security guard for
the premises. Thus, defendant clearly retained control of the
security operations on its premises even though such services were
provided by an outside security firm. When a landlord voluntarily
undertakes to provide such services, it has a duty to do so in a
non-negligent manner. See Phillips v. Chicago Housing Authority, 89 Ill. 2d 122, 127, 431 N.E.2d 1038 (1992). Accordingly, I believe
the evidence presented by plaintiff clearly demonstrates the
existence of a duty on the part of defendant, and, as such, the
trial court was correct in denying defendant's motion for a directed
verdict.
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