Berg v. Allied Security, Inc.
Annotate this Case
FIRST DIVISION
June 29, 1998
No. 1-96-4199
IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
JOAN BERG,
Plaintiff-Appellant,
v.
ALLIED SECURITY, INC., CHICAGO, an
Illinois corporation, and PODOLSKY AND
ASSOCIATES, INC.,
Defendants-Appellees. )
)
)
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)
)
)
)
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) Appeal from the
Circuit Court of
Cook County
No. 92 L 10202
Honorable
Arthur A. Sullivan,
Jr.,
Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
Plaintiff, Joan Berg, brought a personal injury action
against the defendants, Allied Security, Inc. (Allied), and
Podolsky & Associates, Inc. (Podolsky). On September 4, 1996,
the circuit court granted both defendants' motions for summary
judgment. Plaintiff subsequently filed a motion to reconsider,
which requested, in the alternative, leave to file a second
amended complaint. On October 15, 1996, plaintiff's motion for
reconsideration was denied and the court took plaintiff's request
for leave to file a second amended complaint under advisement.
The court ultimately denied the request on November 21, 1996.
Plaintiff filed her notice of appeal on November 26, 1996.
Our initial inquiry concerns whether we have jurisdiction to
hear this appeal. Defendants contend that plaintiff's notice of
appeal was untimely since there was no legitimate postjudgment
motion filed within 30 days of the September 4, 1996 order
granting summary judgment, which was a final judgment.
Defendants argue that plaintiff's motion for reconsideration was
invalid because it did not include any specific grounds that
would warrant the court's reversal of its decision, was nothing
more than an attempt to stall for time and, therefore, did not
extend the time in which to file a notice of appeal. After
thoroughly reviewing the record, the briefs and the case law, we
have determined that plaintiff's notice of appeal was timely and
this court has jurisdiction of this appeal. We conclude that
plaintiff's motion to reconsider met the requirements for
postjudgment motions as set out by section 2-1203 of the Code of
Civil Procedure (735 ILCS 5/2-1203 (West 1994)), thus triggering
the extension of time in which to file a notice of appeal.
There are two separate statutes that address posttrial, or
postjudgment, motions. Posttrial motions in jury cases are
governed by section 2-1202 of the Code of Civil Procedure. 735
ILCS 5/2-1202 (West 1994)(formerly Ill. Rev. Stat. 1981, ch. 110,
par. 68.1). Posttrial motions in nonjury cases are governed by
section 2-1203 of the Code of Civil Procedure. 735 ILCS 5/2-1203
(West 1994)(formerly Ill. Rev. Stat. 1981, ch. 110, par. 68.3).
In both jury and nonjury cases, posttrial motions must be
filed within 30 days after the entry of judgment. 735 ILCS 5/2-
1202(c), 5/2-1203(a) (West 1994); 155 Ill. 2d R. 303(a)(1). The
parties do not dispute and the supreme court has held that a
motion to reconsider a judgment falls within that category of
post-judgment motions which must be filed within 30 days after
the judgment is entered. See Archer Daniels Midland Co. v. Barth,
103 Ill. 2d 536, 470 N.E.2d 290 (1984). A timely filed posttrial
motion stays enforcement of the judgment. 735 ILCS 5/2-1202(d),
5/2-1203(b) (West 1994). In that instance, the time for appeal
does not begin to run until the trial court rules on the
postjudgment motion. 155 Ill. 2d R. 303(a)(1). While these
provisions are similar in both statutes, there are other critical
distinctions between the two statutes with respect to the
necessity of filing the motion in the first instance, as well as
the required contents of the motion.
The statute dealing with posttrial motions in jury cases
provides in pertinent part:
" 2-1202. ***
(b) Relief desired after trial in jury cases *** must
be sought in a single post-trial motion. *** The
post-trial motion must contain the points relied upon,
particularly specifying the grounds in support thereof,
and must state the relief desired, as for example, the
entry of a judgment, the granting of a new trial or
other appropriate relief. Relief sought in post-trial
motions may be in the alternative or may be conditioned
upon the denial of other relief asked in preference
thereto, as for example, a new trial may be requested
in the event a request for judgment is denied."
(Emphasis added.) 735 ILCS 5/2-1202 (West 1994).
On the other hand, the statute dealing with postjudgment motions
in nonjury cases, provides in pertinent part:
"2-1203. *** (a) In all cases tried without a jury,
any party may, within 30 days after the entry of the
judgment or within any further time the court may allow
within the 30 days or any extensions thereof, file a
motion for a rehearing, or a retrial, or modification
of the judgment or to vacate the judgment or for other
relief." (Emphasis added.) 735 ILCS 5/2-1203 (West
1994).
Thus, the critical distinctions between the two statutes are that
a posttrial motion is optional in a nonjury case, but mandatory
in a jury case, and only the motion in a jury case must contain
the specific grounds relied upon. See also In re Marriage of
Jerome, 255 Ill. App. 3d 374, 389, 625 N.E.2d 1195, 1206-07
(1994)(section 2-1203 of the Code of Civil Procedure governs
posttrial motions in nonjury cases and does not mandate the
detail as required by section 2-1202 which applies to jury
cases).
Section 2-1203 gives a litigant in a nonjury case the right
to request that a judge reconsider his ruling; the statute does
not impose the additional burden of requiring the litigant to
specify the grounds. Had the legislature wanted to require such
specificity in posttrial motions filed in nonjury cases, it would
have included the language, as it did for the motions filed in
jury cases.
This distinction between jury cases and nonjury cases is
recognized by Supreme Court Rule 366(b). 155 Ill. 2d R. 366(b).
In jury cases, the rule states that "[a] party may not urge as
error on review of the ruling on the party's post-trial motion
any point, ground, or relief not specified in the motion." 155
Ill. 2d R. 366(b)(2)(iii). In nonjury cases, however, the rule
merely states that "[n]either the filing of nor the failure to
file a post-judgment motion limits the scope of review." 155 Ill.
2d R. 366(b)(3)(ii); see also In re Marriage of Steadman, 283
Ill. App. 3d 703, 712, 670 N.E.2d 1146, 1153 (1996)(in a nonjury
proceeding a litigant may forego filing a posttrial motion and
may assert as error grounds raised for the first time on appeal).
Supreme Court Rule 303, which governs appeals from final
judgments, requires that postjudgment motions be timely filed,
but is silent as to the contents of such motions. 155 Ill. 2d R.
303.
While we realize that the language in Rule 366(b) deals with
the court's "scope of review" rather than its "jurisdiction," we
deem it incongruous to say that our scope of review is not
limited by the existence of a posttrial motion or its contents in
a nonjury case, but that, once a postjudgment motion is filed,
our jurisdiction is dependent upon its contents. Thus, we
conclude that, despite the fact that plaintiff's motion did not
contain the specific grounds relied upon for its request for
relief, it nonetheless met the requirements of section 2-1203 and
was a valid postjudgment motion. Thus, plaintiff's notice of
appeal was timely filed within 30 days of the trial court's
ruling on the postjudgment motion.
In arriving at our conclusion, we are mindful of the
language to the contrary contained in the supreme court cases of
Andersen v. Resource Economics Corp., 133 Ill. 2d 342, 549 N.E.2d 1262 (1990) and Beck v. Stepp, 144 Ill. 2d 232, 579 N.E.2d 824
(1991). However, with all due respect and deference to the
supreme court, we are not bound to follow the dicta of either
Andersen or Beck.
We first note that the dicta contained in both Andersen and
Beck were expressions of opinion upon points in the cases
deliberately passed on by the court; thus, they are properly
characterized as judicial dicta rather than mere obiter dicta.
Wolf v. Meister-Neiberg, Inc., 194 Ill. App. 3d 727, 730, 551 N.E.2d 353, 355 (1990), aff'd, 143 Ill. 2d 44, 570 N.E.2d 327
(1991). The distinction can be critical because obiter dicta,
even of the supreme court, while persuasive are not binding, but
judicial dicta generally establish binding precedent. See Ko v.
Eljer Industries, Inc., 287 Ill. App. 3d 35, 41, 678 N.E.2d 641
(1997). Therefore, we would normally have to follow the dicta in
question because of the general rule that judicial dicta
establish binding precedent. The supreme court, however, added a
caveat to the general rule when it stated that judicial dicta
should be followed "unless found to be erroneous." Cates v.
Cates, 156 Ill. 2d 76, 80, 619 N.E.2d 715, 717 (1993). We,
therefore, decline to follow the dicta of Andersen or Beck
because we have determined that they are erroneous.
In Andersen, the supreme court stated that a postjudgment
motion must (1) include a request for at least one of the forms
of relief specified in section 2-1203 and (2) allege grounds that
would warrant the granting of the relief requested. Andersen, 133 Ill. 2d at 347 (1990). Because the plaintiff's motion in
Andersen, which was merely a motion for leave to amend, failed in
the first instance to include a request for any of the forms of
relief specified in section 2-1203, the court did not address the
merits of the second criterion. Andersen, 133 Ill. 2d at 347-48,
549 N.E.2d at 1264. Unlike the plaintiff in Andersen, plaintiff
here filed a proper motion to reconsider.
Nevertheless, in dictum, because it was not essential to the
disposition of the case, the Andersen court noted that the
posttrial motion at issue lacked specificity and was "nothing
more than a title and an ambiguous prayer for relief with
absolutely no substance in between." Andersen, 133 Ill. 2d at
347, 549 N.E.2d at 1264. In discussing the specificity
requirement, the Andersen court relied upon the case of Brown v.
Decatur Memorial Hospital, 83 Ill. 2d 344, 415 N.E.2d 337 (1980).
The Andersen court, however, failed to note that Brown was a jury
case decided under the statute dealing with jury cases. The
posttrial motion in question in Brown was determined to be
inadequate under section 68.1(2) of the Civil Practice Act (Ill.
Rev. Stat. 1979, ch. 110, par. 68.1(2)) and Supreme Court Rule
366(b)(2)(iii) (73 Ill. 2d R. 366(b)(2)(iii)), both of which
applied to jury cases. Thus, we conclude that the judicial
dictum in Andersen was erroneous and did not engraft a
specificity requirement onto posttrial motions filed in nonjury
cases.
While the specificity requirement was again pronounced in
Beck v. Stepp, 144 Ill. 2d 232, 579 N.E.2d 824 (1991), there the
court decided that a letter which plaintiff had contended was in
substance a "post-trial motion" did not meet the statutory
requirements in that it failed to include a request for at least
one of the forms of relief specified in section 2-1203. Beck, 144 Ill. 2d at 240, 579 N.E.2d at 828. Thus, similar to the
plaintiff in Andersen, the document in issue did not qualify as a
postjudgment motion in the first instance, regardless of its lack
of specificity. Since the Beck court's subsequent reference to
the specificity requirement of posttrial motions, which was based
entirely upon the erroneous dictum of Andersen, was not essential
to the disposition of the case, it too was a judicial dictum - an
erroneous judicial dictum we need not follow.
This court has previously acknowledged that section 2-1203
contains no language requiring specificity, but stated that the
supreme court in both Andersen and Beck "clearly grafted such a
requirement onto section 2-1203." Mendelson v. Ben A. Borenstein
& Co., 240 Ill. App. 3d 605, 615, 608 N.E.2d 187, 193 (1992). An
analysis of the correctness of Andersen's dictum was not
necessary, however, since the plaintiff's postjudgment motion in
Mendelson included a request for leave to file a supporting
memorandum which the court determined satisfied the specificity
requirement. Moreover, Mendelson was decided before Cates, the
supreme court case that first announced that "erroneous" judicial
dicta need not be followed.
Nevertheless, even after Cates, cases from both this
district and others have cited with approval the judicial dicta
of Andersen and Beck that specificity is required in a
postjudgment motion in a nonjury case. See, e.g., J.D. Marshall
International, Inc. v. First National Bank, 272 Ill. App. 3d 883,
888, 651 N.E.2d 518, 521 (1st Dist. 1995); Droen v. Wechsler, 271
Ill. App. 3d 332, 334, 648 N.E.2d 981, 983 (1st Dist. 1995);
Sho-Deen, Inc. v. Michel, 263 Ill. App. 3d 288, 291-93, 635 N.E.2d 1068, 1071-73 (2nd Dist. 1994); In re Marriage of Sisk,
258 Ill. App. 3d 388, 391, 630 N.E.2d 1289, 1292 (4th Dist.
1994). In view of our analysis of the judicial dicta of Andersen
and Beck and our determination that they were erroneous, we
respectfully disagree with any endorsement of the dicta contained
in these cases.
Having determined that we have jurisdiction of this appeal,
we now address the merits. Plaintiff appeals from the trial
court's order granting summary judgment in favor of both
defendants.
A trial court may render summary judgment if the record
shows that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.
735 ILCS 5/2-1005(c) (West 1992). A reviewing court conducts de
novo review in an appeal from a trial court's grant of summary
judgment. In re Estate of Hoover, 155 Ill. 2d 402, 615 N.E.2d 736
(1993). An order granting summary judgment should be reversed if
the evidence shows that a genuine issue of material fact exists
or if the judgment was incorrect as a matter of law. Clausen v.
Carroll, 291 Ill. App. 3d 530, 536, 684 N.E.2d 167, 171 (1997).
To survive a motion for summary judgment, the nonmoving party
must present a factual basis that would arguably entitle him to a
judgment, but plaintiffs are not required to prove their case at
the summary judgment stage. Allegro Services, Ltd. v.
Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256,
665 N.E.2d 1246, 1254 (1996). Summary judgment is a drastic
means of disposing of litigation, and it must be clear that the
moving party is truly entitled to such a remedy. Jackson Jordan,
Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 633 N.E.2d 627 (1994). When considering a summary judgment motion, a court
must construe the evidence strictly against the movant and
liberally in favor of the nonmoving party. Guerino v. Depot Place
Partnership, 273 Ill. App. 3d 27, 30, 652 N.E.2d 410 (1995). A
motion for summary judgment should be granted only if the
movant's right to judgment is clear and free from doubt. Outboard
Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90,
102, 607 N.E.2d 1204 (1992).
With these principles in mind, we conclude that summary
judgment in favor of both Podolsky and Allied was incorrect as a
matter of law. Both defendants had a duty towards plaintiff and
genuine issues of material fact exist as to whether either
defendant was negligent and whether either defendant's negligence
proximately caused plaintiff's injuries. Plaintiff should be
permitted to present the evidence in her case to a trier of fact.
On March 27, 1992, plaintiff Joan Berg was attacked in a
parking lot by an unknown assailant. The parking lot was part of
an office complex. Plaintiff's employer, along with various
other commercial tenants, was located in one of the buildings in
the office complex, which was owned by Podolsky. At the time of
plaintiff's attack, plaintiff was returning to work after having
picked up pizzas for her coworkers on the 2 p.m. to 12 a.m.
shift.
As plaintiff began to step out of her car, she was hit in
the back of the head. When she turned to look, she saw a man
standing over her with a solid metal bar. He pushed her into the
car across the front seat, continuing to strike her repeatedly.
When plaintiff sounded the horn, the attacker fled.
During the previous 6« years, there had been no incidents of
violent attacks in the parking lot, but there had been
approximately 20 incidents of property damage to automobiles in
the parking lot and one incident in which a woman's buttock was
fondled.
With respect to security measures, the lease between
Podolsky and plaintiff's employer provided in pertinent part:
"12. CERTAIN RIGHTS RESERVED TO LANDLORD.
Landlord reserves the following rights:
***
O. To install, operate and maintain a building
security system which monitors, by closed circuit
television or otherwise, all persons entering and
leaving the Building."
Pursuant to this reserved right, Podolsky had a monitoring system
in place. In addition, Podolsky hired Allied to provide security
24 hours per day.
The contract between Podolsky and Allied provided as
follows:
"SECURITY GUARD SERVICE AGREEMENT
***
2. A. The Client [Podolsky] desires Contractor [Allied]
to provide security personnel to perform mutually agreed upon
tasks *** and,
B. The Contractor desires to provide said personnel to
perform such tasks.
The parties do mutually agree as follows:
3. Contractor shall furnish security personnel whose
principal posts and hours of duty shall be mutually agreed upon
by the Client and Contractor. If the Client changes the time or
the amount of coverage originally requested, significantly alters
the duties of the Contractor's personnel, or the nature of the
Client's environment substantially changes, the Contractor
reserves the right to renegotiate the contract.
4. Contractor shall at all times be in compliance with all
[relevant] statutes, rules, regulations, ordinances and other
regulatory procedures ***.
5. Contractor will provide personnel to perform such
services as may be agreed upon by Contractor and Client and shall
perform such tasks as reasonably requested by the client and as
are consistent with post duties; however, said personnel shall
remain the employees of Contractor.
6. The hiring, training, uniforming, equipping,
supervising, directing and discharging of all security guards
shall be the sole function and responsibility of the Contractor."
(Emphasis added.)
Thus, the contract shows that the defendants jointly decided upon
the activities to be performed.
The post orders issued by Allied to its guards provided as
follows:
"Your primary functions are as follows:
1. Keep unauthorized people from the property to
reduce the risk of theft, vandalism, and assault.
2. Assist in access control for authorized visitors
and employees.
3. Reduce the threat of damage to property due to
fire, equipment failure, flooding, etc.
You will accomplish these functions by:
1. Maintaining a high level of visibility.
2. Properly dealing with situations that arise such
as unauthorized visitors, unsecured building
doors, equipment failures, etc.
3. Constant vigilance and effective reporting of
events such as loiterers, fire hazards, etc.
4. Seeking assistance as needed in specified
situations." (Emphasis added.)
The post orders further provided:
"You are reminded of previous training. You are
not a police officer and are not to act as a police
officer. You are to detect and prevent, when possible,
security related problems.
***
The specifics on these objectives and the method
of operation are outlined in this manual." (Emphasis in
original.)
Podolsky advertised to its tenants, including plaintiff's
employer, that it would have security in place at all times,
which included patrols of the parking lot. Podolsky decided how
many guards were used. Initially, two security guards were used,
one stationed at the security desk and one who roamed the
grounds. When another tower was opened at the complex, an
additional rover was added. In the past, Podolsky had replaced
Allied employees who were unqualified for the security desk
position.
In addition to retaining Allied, Podolsky installed 20
cameras located throughout the office complex that were connected
to four monitors. The guard at the security desk controlled
which camera views appeared on these four monitors in front of
him; however, due to the additional responsibilities of the
position, the guard could devote approximately half of his time
to viewing the monitors. One of the cameras could be used to
scan the area of the parking lot where plaintiff's car was parked
and, when in the scan mode, would have covered the area every few
seconds. At the time of the attack, the camera was not in scan
mode. Nine months after the attack, Podolsky fired Allied and
retained a new security service.
"In an action for negligence, the plaintiff must set out
sufficient facts establishing the existence of a duty owed by the
defendant to the plaintiff, a breach of that duty, and an injury
proximately resulting from the breach." Rowe v. State Bank, 125 Ill. 2d 203, 215, 531 N.E.2d 1358 (1988). Thus, since there can
be no recovery absent a duty, the first issue we address is
whether the defendants, Allied and Podolsky, owed a legal duty to
Joan Berg. Acknowledging that it is sometimes difficult to
separate the two concepts of duty and proximate cause, the
supreme court has noted that they must be analyzed separately.
Dunn v. Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 364-65, 537 N.E.2d 738, 744 (1989). The existence of a duty is a question of
law for the court to decide. Espinoza v. Elgin, Joliet & Eastern
Ry. Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323 (1995). The court
also determines the scope of the duty. Cullotta v. Cullotta, 287
Ill. App. 3d 967, 973, 678 N.E.2d 717, 720 (1997).
Generally, a landowner does not have a legal duty to protect
others from criminal acts by third persons on his property,
unless a "special relationship" exists between the parties. Rowe
v. State Bank, 125 Ill. 2d at 215-16. An exception to this
general rule has been recognized in those instances where a
landlord voluntarily undertakes to provide security services, is
negligent in his performance of the undertaking, and the
negligence is the proximate cause of injury to the plaintiff.
Rowe v. State Bank, 125 Ill. 2d at 215-16 (and cases cited
therein). Thus, although there may be no common law duty to
protect others, when a party agrees to provide security services
for another, a duty arises, under the doctrine of voluntary
undertaking, to exercise reasonable care in providing such
protection. O'Brien v. City of Chicago, 285 Ill. App. 3d 864,
874, 674 N.E.2d 927, 935 (1996). We have concluded that Podolsky
and Allied voluntarily entered into a contract, the terms of
which constituted a voluntary assumption on the part of both
defendants to protect plaintiff from the criminal acts of third
parties on the premises.
Our supreme court first recognized the voluntary undertaking
doctrine, which occurs where one gratuitously undertakes to
render services to another and fails to perform those services
with due care or with such competence and skill as he or she
possessed, in Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 74,
199 N.E.2d 769, 773-74 (1964). The duty of care that arises in
such a situation is limited to the extent of the undertaking.
Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 210, 399 N.E.2d 596 (1979). We recognize that, even where a property
owner voluntarily assumes a duty to protect others from criminal
acts of third persons, such an undertaking can never be construed
as an insurance of absolute protection against crime. Lawson v.
City of Chicago, 278 Ill. App. 3d 628, 662 N.E.2d 1377 (1996).
If it were, plaintiff here likely could have summary judgment
entered in her favor. While we agree that defendants did not
undertake to become absolute insurers for harm done to Berg by
the criminal acts of third persons, that is clearly different
from defendants' position that they had no duty with respect to
such attacks.
The fundamental inquiry, then, is whether the scope of
either defendant's duty encompassed the negligent acts alleged by
plaintiff to be the cause of her injury. Here, pursuant to the
lease between Podolsky and plaintiff's employer, Podolsky had
exclusive control over the installation, operation and
maintenance of the security monitoring system. In addition, by
retaining Allied, Podolsky assumed a duty not to negligently hire
the security firm. Finally, pursuant to the contract between
Podolsky and Allied, whereby they mutually agreed upon the tasks
to be performed by the security personnel and their principle
posts, Podolsky undertook to perform the guard services in
concert with Allied. Although the extent of any liability is
strictly limited by the scope of the undertaking, when a landlord
hires a security firm to provide security services, he may be
liable for negligent hiring and when the landlord undertakes
security measures himself, he has a duty of reasonable care in
that undertaking. Phillips v. Chicago Housing Authority, 89 Ill. 2d 122, 127, 431 N.E.2d 1038 (1982). Here, genuine issues of
material fact exist as to whether Podolsky was negligent in
either regard. The ordinary meaning of the terms in the contract
provide that Podolsky assumed the duty to decide upon and oversee
the security measures that would be implemented by Allied. Thus,
Podolsky and Allied shared responsibility for security and their
duties coexisted.
Allied also voluntarily assumed a duty to protect Berg. The
scope of duty on the part of Allied extended to the duty of
exercising reasonable care in the performance of its contracted
obligations, which included the duty to maintain a high level of
visibility, the duty of constant vigilance, and the duty to keep
unauthorized people from the property to reduce the risk of
assault.
While the parties do not dispute the fact that there was a
voluntary undertaking here, they disagree as to whether the
voluntary undertaking included a duty to protect Berg from the
danger of unforeseen criminal acts of third parties. Allied
argues that its duty was limited to the terms of the contract,
which did not include the protection of tenants in the parking
lot, particularly since it had no authority to control access to
the parking lot and, in the event of such attack, had no
authority to intervene. Podolsky notes that although there was a
history of crime in the parking lot, there were no incidents of
prior violent crimes. Therefore, Podolsky contends, the attack
on Berg was not reasonably foreseeable and it had no duty to
prevent it. Plaintiff acknowledges that the attack on Berg was
the first of its kind suffered at the office complex, but deems
irrelevant the issue of whether the risk was "foreseeable," since
Podolsky knew of the risk as evidenced by the implementation of
security measures for the protection of tenants.
The necessity that a criminal attack by a third party be
foreseeable under the voluntary undertaking doctrine is less than
clear. Although foreseeability can be established by evidence of
prior criminal attacks on the premises, one court has indicated
that the foreseeability exception is distinct from the voluntary
undertaking doctrine. Ignarski v. Norbut, 271 Ill. App. 3d 522,
526, 648 N.E.2d 285, 289 (1995)(foreseeability may be established
through the avenue of the voluntary undertaking doctrine itself);
but see Shea v. Preservation Chicago, Inc., 206 Ill. App. 3d 657,
662-63, 565 N.E.2d 20, 24 (1990)(declining to adopt plaintiff's
suggestion of two separate and independent bases for potential
landlord liability for third-party criminal attacks and
concluding that "[t]he proper inquiry is to determine whether, on
a case-by-case basis, a particular landlord has retained control
over or access to a portion of the property, and whether the
circumstances demonstrate that the landlord, by retaining access
to or control over the premises, assumed a duty to protect
tenants against reasonably foreseeable third-party criminal
attacks).
As will be explained below, we need not engage in an
analysis of whether the attack in the present case was
foreseeable. Were we to examine the foreseeability issue under
our duty analysis, however, we would note that prior incidents of
the same criminal activity are not a per se requirement to hold
landlord liable for a third-party criminal attack on a tenant.
Shea v. Preservation Chicago, Inc., 206 Ill. App. 3d 657, 565 N.E.2d 20 (1990). We would further find instructive the supreme
court's statement that "even though there had not been previous
crimes of violence at [the location in question], where a
plaintiff's injury results from the same risk, the existence of
which required the exercise of greater care, unforseeability of
what exactly could develop and the extent of the injury or loss
will not limit liability." (Emphasis added.) Rowe v. State Bank,
125 Ill. 2d 203, 227, 531 N.E.2d 1358, 1369 (1988).
The foreseeability analysis is unnecessary in the present
case as it relates to the existence of a duty because both
defendants expressly undertook a duty to reduce the risk of
assault by the terms of their contractual agreement. While the
issue of foreseeability may or may not be relevant to a
determination of whether either defendant breached its duty, the
existence and scope of the duty are determined by looking to the
extent of the voluntary undertaking. Here, the facts indicate
that both Allied and Podolsky knew of the present risk, since the
security measures that were implemented specifically included
reducing the risk from assault. Thus, as evidenced by the terms
of their contract, the extent of their voluntary undertaking
included protecting the plaintiff from an assault. Performing
patrols of the parking lot was one of the activities
contractually agreed upon by the defendants. As one court has
noted, a "courtesy patrol's main reason for being was to protect
both the employees and the patrons of the club from all types of
harm that might befall them on the parking lots." (Emphasis
added.) Urbas v. Saintco, Inc., 264 Ill. App. 3d 111, 126, 636 N.E.2d 1214, 1224 (1994). In the instant case, there was a
stronger indication in that the post orders specifically stated
that the security guard's role was to reduce the risk of assault.
The fact that Allied's personnel were not police and could not
control access to the parking lot does not negate the existence
of this duty. The evidence showed that the attacker fled at the
sound of the horn; thus, whether the guards' presence would have
been a sufficient deterrent, in spite of an inability absolutely
to control access to the parking lot and an alleged lack of
"authority to intervene" or act as police, is a question for the
trier of fact. Material questions of fact exist as to whether
the duty, which included maintaining high visibility and reducing
the risk of assault, was breached and whether, as a proximate
cause of any breach, the attack could have been prevented
altogether or plaintiff's injuries reduced.
This case can be distinguished from this court's recent
decision in Kolodziejzak v. Melvin Simon & Associates, 292 Ill.
App. 3d 490, 685 N.E.2d 985 (1997). In Kolodziejzak, the estate
of a deceased employee brought a wrongful death action against a
property management company, the security company it hired and
other defendants after the deceased was killed during a criminal
attack by a third party. The jury found in favor of the
plaintiff and allocated 10% of the fault to the property
management company, which appealed the trial court's denial of
its motion for a directed verdict. Although the Kolodziejzak
court determined that the property management company was not
liable, the decision was based on the court's opinion that the
plaintiff had presented no evidence at trial that the defendant
breached any duty. The court stated that the evidence revealed
that the plaintiff had "presented no evidence to support her
negligent hiring claim" (emphasis added) (Kolodziejzak, 292 Ill.
App. 3d at 493) and, further, that the property management
company reviewed the daily log reports, thus fulfilling "the only
specific duty [it] undertook" (emphasis added) (292 Ill. App. 3d
at 496). By contrast, Podolsky voluntarily undertook or assumed
the general duty to protect the plaintiff from assaults; in so
doing, it also undertook several other specific duties as
evidenced by the contractual language in its lease with
plaintiff's employer, as well as its contract with Allied.
The Kolodziejzak court also opined that "whether [the
deceased's] death could have been prevented by the addition of
another security guard is at best speculation and conjecture."
Kolodziejzak, 292 Ill. App. 3d at 498. This statement, however,
was made as part of the court's analysis under the
"foreseeability" theory, after it found no duty under a voluntary
undertaking analysis. Since we have determined that a duty did
exist under the voluntary undertaking theory, as previously
discussed, we need not engage in a foreseeability analysis.
In addition to the existence of a duty, a plaintiff must
provide proof that an injury proximately resulted from the breach
of that duty. Arroyo v. Chicago Transit Authority, 268 Ill. App.
3d 317, 325, 643 N.E.2d 1322 (1994). The issues of breach and
proximate cause are factual matters for a jury to decide,
provided there is a genuine issue of material fact regarding
those issues. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323, 1326 ( 1995). Here, there are
sufficient issues of fact to allow a trier of fact to determine
whether either defendant breached its duty of care. Commentary
in a federal court case has acknowledged that cases that have
addressed the general rule of police nonliability for failure to
prevent crime have recognized the difficulties not only in
preventing crime, but also in proving whether a crime could have
been prevented. See Figueroa V. Evangelical Covenant Church, 879 F.2d 1427, 1437, n. 11 (7th Cir. 1989). While this is not a case
involving the police, plaintiff still must pass the hurdle of
proving that her crime could have been prevented. Nevertheless,
she should be allowed to try.
We hold that a voluntary undertaking in this case created an
enforceable duty to plaintiff on the part of both defendants.
Summary judgment is vacated and this cause is remanded.
Vacated and cause remanded.
BUCKLEY, P.J., and CAMPBELL, P.J., concur.
CAMPBELL, P.J., specially concurring.
PRESIDING JUSTICE CAMPBELL, specially concurring:
I write separately to note that I am not in accord with the
majority opinion s discussion of Beck v. Stepp, 144 Ill. 2d 232,
579 N.E.2d 824 (1991), and Andersen v. Resource Economics Corp.,
133 Ill. 2d 342, 549 N.E.2d 1262 (1990). However, as the
majority opinion addresses the merits of the appeal, I also note
my agreement with the majority s conclusion that there are
material questions of fact regarding breach of duty and proximate
causation that preclude the entry of summary judgment, given the
facts and circumstances in this case.
June 29, 1998
No. 1-96-4199
IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
JOAN BERG,
Plaintiff-Appellant,
v.
ALLIED SECURITY, INC., CHICAGO, an
Illinois corporation, and PODOLSKY AND
ASSOCIATES, INC.,
Defendants-Appellees. )
)
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 92 L 10202
Honorable
Arthur A. Sullivan,
Jr.,
Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
Plaintiff, Joan Berg, brought a personal injury action
against the defendants, Allied Security, Inc. (Allied), and
Podolsky & Associates, Inc. (Podolsky). On September 4, 1996,
the circuit court granted both defendants' motions for summary
judgment. Plaintiff subsequently filed a motion to reconsider,
which requested, in the alternative, leave to file a second
amended complaint. On October 15, 1996, plaintiff's motion for
reconsideration was denied and the court took plaintiff's request
for leave to file a second amended complaint under advisement.
The court ultimately denied the request on November 21, 1996.
Plaintiff filed her notice of appeal on November 26, 1996.
Our initial inquiry concerns whether we have jurisdiction to
hear this appeal. Defendants contend that plaintiff's notice of
appeal was untimely since there was no legitimate postjudgment
motion filed within 30 days of the September 4, 1996 order
granting summary judgment, which was a final judgment.
Defendants argue that plaintiff's motion for reconsideration was
invalid because it did not include any specific grounds that
would warrant the court's reversal of its decision, was nothing
more than an attempt to stall for time and, therefore, did not
extend the time in which to file a notice of appeal. After
thoroughly reviewing the record, the briefs and the case law, we
have determined that plaintiff's notice of appeal was timely and
this court has jurisdiction of this appeal. We conclude that
plaintiff's motion to reconsider met the requirements for
postjudgment motions as set out by section 2-1203 of the Code of
Civil Procedure (735 ILCS 5/2-1203 (West 1994)), thus triggering
the extension of time in which to file a notice of appeal.
There are two separate statutes that address posttrial, or
postjudgment, motions. Posttrial motions in jury cases are
governed by section 2-1202 of the Code of Civil Procedure. 735
ILCS 5/2-1202 (West 1994)(formerly Ill. Rev. Stat. 1981, ch. 110,
par. 68.1). Posttrial motions in nonjury cases are governed by
section 2-1203 of the Code of Civil Procedure. 735 ILCS 5/2-1203
(West 1994)(formerly Ill. Rev. Stat. 1981, ch. 110, par. 68.3).
In both jury and nonjury cases, posttrial motions must be
filed within 30 days after the entry of judgment. 735 ILCS 5/2-
1202(c), 5/2-1203(a) (West 1994); 155 Ill. 2d R. 303(a)(1). The
parties do not dispute and the supreme court has held that a
motion to reconsider a judgment falls within that category of
post-judgment motions which must be filed within 30 days after
the judgment is entered. See Archer Daniels Midland Co. v. Barth,
103 Ill. 2d 536, 470 N.E.2d 290 (1984). A timely filed posttrial
motion stays enforcement of the judgment. 735 ILCS 5/2-1202(d),
5/2-1203(b) (West 1994). In that instance, the time for appeal
does not begin to run until the trial court rules on the
postjudgment motion. 155 Ill. 2d R. 303(a)(1). While these
provisions are similar in both statutes, there are other critical
distinctions between the two statutes with respect to the
necessity of filing the motion in the first instance, as well as
the required contents of the motion.
The statute dealing with posttrial motions in jury cases
provides in pertinent part:
" 2-1202. ***
(b) Relief desired after trial in jury cases *** must
be sought in a single post-trial motion. *** The
post-trial motion must contain the points relied upon,
particularly specifying the grounds in support thereof,
and must state the relief desired, as for example, the
entry of a judgment, the granting of a new trial or
other appropriate relief. Relief sought in post-trial
motions may be in the alternative or may be conditioned
upon the denial of other relief asked in preference
thereto, as for example, a new trial may be requested
in the event a request for judgment is denied."
(Emphasis added.) 735 ILCS 5/2-1202 (West 1994).
On the other hand, the statute dealing with postjudgment motions
in nonjury cases, provides in pertinent part:
"2-1203. *** (a) In all cases tried without a jury,
any party may, within 30 days after the entry of the
judgment or within any further time the court may allow
within the 30 days or any extensions thereof, file a
motion for a rehearing, or a retrial, or modification
of the judgment or to vacate the judgment or for other
relief." (Emphasis added.) 735 ILCS 5/2-1203 (West
1994).
Thus, the critical distinctions between the two statutes are that
a posttrial motion is optional in a nonjury case, but mandatory
in a jury case, and only the motion in a jury case must contain
the specific grounds relied upon. See also In re Marriage of
Jerome, 255 Ill. App. 3d 374, 389, 625 N.E.2d 1195, 1206-07
(1994)(section 2-1203 of the Code of Civil Procedure governs
posttrial motions in nonjury cases and does not mandate the
detail as required by section 2-1202 which applies to jury
cases).
Section 2-1203 gives a litigant in a nonjury case the right
to request that a judge reconsider his ruling; the statute does
not impose the additional burden of requiring the litigant to
specify the grounds. Had the legislature wanted to require such
specificity in posttrial motions filed in nonjury cases, it would
have included the language, as it did for the motions filed in
jury cases.
This distinction between jury cases and nonjury cases is
recognized by Supreme Court Rule 366(b). 155 Ill. 2d R. 366(b).
In jury cases, the rule states that "[a] party may not urge as
error on review of the ruling on the party's post-trial motion
any point, ground, or relief not specified in the motion." 155
Ill. 2d R. 366(b)(2)(iii). In nonjury cases, however, the rule
merely states that "[n]either the filing of nor the failure to
file a post-judgment motion limits the scope of review." 155 Ill.
2d R. 366(b)(3)(ii); see also In re Marriage of Steadman, 283
Ill. App. 3d 703, 712, 670 N.E.2d 1146, 1153 (1996)(in a nonjury
proceeding a litigant may forego filing a posttrial motion and
may assert as error grounds raised for the first time on appeal).
Supreme Court Rule 303, which governs appeals from final
judgments, requires that postjudgment motions be timely filed,
but is silent as to the contents of such motions. 155 Ill. 2d R.
303.
While we realize that the language in Rule 366(b) deals with
the court's "scope of review" rather than its "jurisdiction," we
deem it incongruous to say that our scope of review is not
limited by the existence of a posttrial motion or its contents in
a nonjury case, but that, once a postjudgment motion is filed,
our jurisdiction is dependent upon its contents. Thus, we
conclude that, despite the fact that plaintiff's motion did not
contain the specific grounds relied upon for its request for
relief, it nonetheless met the requirements of section 2-1203 and
was a valid postjudgment motion. Thus, plaintiff's notice of
appeal was timely filed within 30 days of the trial court's
ruling on the postjudgment motion.
In arriving at our conclusion, we are mindful of the
language to the contrary contained in the supreme court cases of
Andersen v. Resource Economics Corp., 133 Ill. 2d 342, 549 N.E.2d 1262 (1990) and Beck v. Stepp, 144 Ill. 2d 232, 579 N.E.2d 824
(1991). However, with all due respect and deference to the
supreme court, we are not bound to follow the dicta of either
Andersen or Beck.
We first note that the dicta contained in both Andersen and
Beck were expressions of opinion upon points in the cases
deliberately passed on by the court; thus, they are properly
characterized as judicial dicta rather than mere obiter dicta.
Wolf v. Meister-Neiberg, Inc., 194 Ill. App. 3d 727, 730, 551 N.E.2d 353, 355 (1990), aff'd, 143 Ill. 2d 44, 570 N.E.2d 327
(1991). The distinction can be critical because obiter dicta,
even of the supreme court, while persuasive are not binding, but
judicial dicta generally establish binding precedent. See Ko v.
Eljer Industries, Inc., 287 Ill. App. 3d 35, 41, 678 N.E.2d 641
(1997). Therefore, we would normally have to follow the dicta in
question because of the general rule that judicial dicta
establish binding precedent. The supreme court, however, added a
caveat to the general rule when it stated that judicial dicta
should be followed "unless found to be erroneous." Cates v.
Cates, 156 Ill. 2d 76, 80, 619 N.E.2d 715, 717 (1993). We,
therefore, decline to follow the dicta of Andersen or Beck
because we have determined that they are erroneous.
In Andersen, the supreme court stated that a postjudgment
motion must (1) include a request for at least one of the forms
of relief specified in section 2-1203 and (2) allege grounds that
would warrant the granting of the relief requested. Andersen, 133 Ill. 2d at 347 (1990). Because the plaintiff's motion in
Andersen, which was merely a motion for leave to amend, failed in
the first instance to include a request for any of the forms of
relief specified in section 2-1203, the court did not address the
merits of the second criterion. Andersen, 133 Ill. 2d at 347-48,
549 N.E.2d at 1264. Unlike the plaintiff in Andersen, plaintiff
here filed a proper motion to reconsider.
Nevertheless, in dictum, because it was not essential to the
disposition of the case, the Andersen court noted that the
posttrial motion at issue lacked specificity and was "nothing
more than a title and an ambiguous prayer for relief with
absolutely no substance in between." Andersen, 133 Ill. 2d at
347, 549 N.E.2d at 1264. In discussing the specificity
requirement, the Andersen court relied upon the case of Brown v.
Decatur Memorial Hospital, 83 Ill. 2d 344, 415 N.E.2d 337 (1980).
The Andersen court, however, failed to note that Brown was a jury
case decided under the statute dealing with jury cases. The
posttrial motion in question in Brown was determined to be
inadequate under section 68.1(2) of the Civil Practice Act (Ill.
Rev. Stat. 1979, ch. 110, par. 68.1(2)) and Supreme Court Rule
366(b)(2)(iii) (73 Ill. 2d R. 366(b)(2)(iii)), both of which
applied to jury cases. Thus, we conclude that the judicial
dictum in Andersen was erroneous and did not engraft a
specificity requirement onto posttrial motions filed in nonjury
cases.
While the specificity requirement was again pronounced in
Beck v. Stepp, 144 Ill. 2d 232, 579 N.E.2d 824 (1991), there the
court decided that a letter which plaintiff had contended was in
substance a "post-trial motion" did not meet the statutory
requirements in that it failed to include a request for at least
one of the forms of relief specified in section 2-1203. Beck, 144 Ill. 2d at 240, 579 N.E.2d at 828. Thus, similar to the
plaintiff in Andersen, the document in issue did not qualify as a
postjudgment motion in the first instance, regardless of its lack
of specificity. Since the Beck court's subsequent reference to
the specificity requirement of posttrial motions, which was based
entirely upon the erroneous dictum of Andersen, was not essential
to the disposition of the case, it too was a judicial dictum - an
erroneous judicial dictum we need not follow.
This court has previously acknowledged that section 2-1203
contains no language requiring specificity, but stated that the
supreme court in both Andersen and Beck "clearly grafted such a
requirement onto section 2-1203." Mendelson v. Ben A. Borenstein
& Co., 240 Ill. App. 3d 605, 615, 608 N.E.2d 187, 193 (1992). An
analysis of the correctness of Andersen's dictum was not
necessary, however, since the plaintiff's postjudgment motion in
Mendelson included a request for leave to file a supporting
memorandum which the court determined satisfied the specificity
requirement. Moreover, Mendelson was decided before Cates, the
supreme court case that first announced that "erroneous" judicial
dicta need not be followed.
Nevertheless, even after Cates, cases from both this
district and others have cited with approval the judicial dicta
of Andersen and Beck that specificity is required in a
postjudgment motion in a nonjury case. See, e.g., J.D. Marshall
International, Inc. v. First National Bank, 272 Ill. App. 3d 883,
888, 651 N.E.2d 518, 521 (1st Dist. 1995); Droen v. Wechsler, 271
Ill. App. 3d 332, 334, 648 N.E.2d 981, 983 (1st Dist. 1995);
Sho-Deen, Inc. v. Michel, 263 Ill. App. 3d 288, 291-93, 635 N.E.2d 1068, 1071-73 (2nd Dist. 1994); In re Marriage of Sisk,
258 Ill. App. 3d 388, 391, 630 N.E.2d 1289, 1292 (4th Dist.
1994). In view of our analysis of the judicial dicta of Andersen
and Beck and our determination that they were erroneous, we
respectfully disagree with any endorsement of the dicta contained
in these cases.
Having determined that we have jurisdiction of this appeal,
we now address the merits. Plaintiff appeals from the trial
court's order granting summary judgment in favor of both
defendants.
A trial court may render summary judgment if the record
shows that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.
735 ILCS 5/2-1005(c) (West 1992). A reviewing court conducts de
novo review in an appeal from a trial court's grant of summary
judgment. In re Estate of Hoover, 155 Ill. 2d 402, 615 N.E.2d 736
(1993). An order granting summary judgment should be reversed if
the evidence shows that a genuine issue of material fact exists
or if the judgment was incorrect as a matter of law. Clausen v.
Carroll, 291 Ill. App. 3d 530, 536, 684 N.E.2d 167, 171 (1997).
To survive a motion for summary judgment, the nonmoving party
must present a factual basis that would arguably entitle him to a
judgment, but plaintiffs are not required to prove their case at
the summary judgment stage. Allegro Services, Ltd. v.
Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256,
665 N.E.2d 1246, 1254 (1996). Summary judgment is a drastic
means of disposing of litigation, and it must be clear that the
moving party is truly entitled to such a remedy. Jackson Jordan,
Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 633 N.E.2d 627 (1994). When considering a summary judgment motion, a court
must construe the evidence strictly against the movant and
liberally in favor of the nonmoving party. Guerino v. Depot Place
Partnership, 273 Ill. App. 3d 27, 30, 652 N.E.2d 410 (1995). A
motion for summary judgment should be granted only if the
movant's right to judgment is clear and free from doubt. Outboard
Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90,
102, 607 N.E.2d 1204 (1992).
With these principles in mind, we conclude that summary
judgment in favor of both Podolsky and Allied was incorrect as a
matter of law. Both defendants had a duty towards plaintiff and
genuine issues of material fact exist as to whether either
defendant was negligent and whether either defendant's negligence
proximately caused plaintiff's injuries. Plaintiff should be
permitted to present the evidence in her case to a trier of fact.
On March 27, 1992, plaintiff Joan Berg was attacked in a
parking lot by an unknown assailant. The parking lot was part of
an office complex. Plaintiff's employer, along with various
other commercial tenants, was located in one of the buildings in
the office complex, which was owned by Podolsky. At the time of
plaintiff's attack, plaintiff was returning to work after having
picked up pizzas for her coworkers on the 2 p.m. to 12 a.m.
shift.
As plaintiff began to step out of her car, she was hit in
the back of the head. When she turned to look, she saw a man
standing over her with a solid metal bar. He pushed her into the
car across the front seat, continuing to strike her repeatedly.
When plaintiff sounded the horn, the attacker fled.
During the previous 6« years, there had been no incidents of
violent attacks in the parking lot, but there had been
approximately 20 incidents of property damage to automobiles in
the parking lot and one incident in which a woman's buttock was
fondled.
With respect to security measures, the lease between
Podolsky and plaintiff's employer provided in pertinent part:
"12. CERTAIN RIGHTS RESERVED TO LANDLORD.
Landlord reserves the following rights:
***
O. To install, operate and maintain a building
security system which monitors, by closed circuit
television or otherwise, all persons entering and
leaving the Building."
Pursuant to this reserved right, Podolsky had a monitoring system
in place. In addition, Podolsky hired Allied to provide security
24 hours per day.
The contract between Podolsky and Allied provided as
follows:
"SECURITY GUARD SERVICE AGREEMENT
***
2. A. The Client [Podolsky] desires Contractor [Allied]
to provide security personnel to perform mutually agreed upon
tasks *** and,
B. The Contractor desires to provide said personnel to
perform such tasks.
The parties do mutually agree as follows:
3. Contractor shall furnish security personnel whose
principal posts and hours of duty shall be mutually agreed upon
by the Client and Contractor. If the Client changes the time or
the amount of coverage originally requested, significantly alters
the duties of the Contractor's personnel, or the nature of the
Client's environment substantially changes, the Contractor
reserves the right to renegotiate the contract.
4. Contractor shall at all times be in compliance with all
[relevant] statutes, rules, regulations, ordinances and other
regulatory procedures ***.
5. Contractor will provide personnel to perform such
services as may be agreed upon by Contractor and Client and shall
perform such tasks as reasonably requested by the client and as
are consistent with post duties; however, said personnel shall
remain the employees of Contractor.
6. The hiring, training, uniforming, equipping,
supervising, directing and discharging of all security guards
shall be the sole function and responsibility of the Contractor."
(Emphasis added.)
Thus, the contract shows that the defendants jointly decided upon
the activities to be performed.
The post orders issued by Allied to its guards provided as
follows:
"Your primary functions are as follows:
1. Keep unauthorized people from the property to
reduce the risk of theft, vandalism, and assault.
2. Assist in access control for authorized visitors
and employees.
3. Reduce the threat of damage to property due to
fire, equipment failure, flooding, etc.
You will accomplish these functions by:
1. Maintaining a high level of visibility.
2. Properly dealing with situations that arise such
as unauthorized visitors, unsecured building
doors, equipment failures, etc.
3. Constant vigilance and effective reporting of
events such as loiterers, fire hazards, etc.
4. Seeking assistance as needed in specified
situations." (Emphasis added.)
The post orders further provided:
"You are reminded of previous training. You are
not a police officer and are not to act as a police
officer. You are to detect and prevent, when possible,
security related problems.
***
The specifics on these objectives and the method
of operation are outlined in this manual." (Emphasis in
original.)
Podolsky advertised to its tenants, including plaintiff's
employer, that it would have security in place at all times,
which included patrols of the parking lot. Podolsky decided how
many guards were used. Initially, two security guards were used,
one stationed at the security desk and one who roamed the
grounds. When another tower was opened at the complex, an
additional rover was added. In the past, Podolsky had replaced
Allied employees who were unqualified for the security desk
position.
In addition to retaining Allied, Podolsky installed 20
cameras located throughout the office complex that were connected
to four monitors. The guard at the security desk controlled
which camera views appeared on these four monitors in front of
him; however, due to the additional responsibilities of the
position, the guard could devote approximately half of his time
to viewing the monitors. One of the cameras could be used to
scan the area of the parking lot where plaintiff's car was parked
and, when in the scan mode, would have covered the area every few
seconds. At the time of the attack, the camera was not in scan
mode. Nine months after the attack, Podolsky fired Allied and
retained a new security service.
"In an action for negligence, the plaintiff must set out
sufficient facts establishing the existence of a duty owed by the
defendant to the plaintiff, a breach of that duty, and an injury
proximately resulting from the breach." Rowe v. State Bank, 125 Ill. 2d 203, 215, 531 N.E.2d 1358 (1988). Thus, since there can
be no recovery absent a duty, the first issue we address is
whether the defendants, Allied and Podolsky, owed a legal duty to
Joan Berg. Acknowledging that it is sometimes difficult to
separate the two concepts of duty and proximate cause, the
supreme court has noted that they must be analyzed separately.
Dunn v. Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 364-65, 537 N.E.2d 738, 744 (1989). The existence of a duty is a question of
law for the court to decide. Espinoza v. Elgin, Joliet & Eastern
Ry. Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323 (1995). The court
also determines the scope of the duty. Cullotta v. Cullotta, 287
Ill. App. 3d 967, 973, 678 N.E.2d 717, 720 (1997).
Generally, a landowner does not have a legal duty to protect
others from criminal acts by third persons on his property,
unless a "special relationship" exists between the parties. Rowe
v. State Bank, 125 Ill. 2d at 215-16. An exception to this
general rule has been recognized in those instances where a
landlord voluntarily undertakes to provide security services, is
negligent in his performance of the undertaking, and the
negligence is the proximate cause of injury to the plaintiff.
Rowe v. State Bank, 125 Ill. 2d at 215-16 (and cases cited
therein). Thus, although there may be no common law duty to
protect others, when a party agrees to provide security services
for another, a duty arises, under the doctrine of voluntary
undertaking, to exercise reasonable care in providing such
protection. O'Brien v. City of Chicago, 285 Ill. App. 3d 864,
874, 674 N.E.2d 927, 935 (1996). We have concluded that Podolsky
and Allied voluntarily entered into a contract, the terms of
which constituted a voluntary assumption on the part of both
defendants to protect plaintiff from the criminal acts of third
parties on the premises.
Our supreme court first recognized the voluntary undertaking
doctrine, which occurs where one gratuitously undertakes to
render services to another and fails to perform those services
with due care or with such competence and skill as he or she
possessed, in Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 74,
199 N.E.2d 769, 773-74 (1964). The duty of care that arises in
such a situation is limited to the extent of the undertaking.
Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 210, 399 N.E.2d 596 (1979). We recognize that, even where a property
owner voluntarily assumes a duty to protect others from criminal
acts of third persons, such an undertaking can never be construed
as an insurance of absolute protection against crime. Lawson v.
City of Chicago, 278 Ill. App. 3d 628, 662 N.E.2d 1377 (1996).
If it were, plaintiff here likely could have summary judgment
entered in her favor. While we agree that defendants did not
undertake to become absolute insurers for harm done to Berg by
the criminal acts of third persons, that is clearly different
from defendants' position that they had no duty with respect to
such attacks.
The fundamental inquiry, then, is whether the scope of
either defendant's duty encompassed the negligent acts alleged by
plaintiff to be the cause of her injury. Here, pursuant to the
lease between Podolsky and plaintiff's employer, Podolsky had
exclusive control over the installation, operation and
maintenance of the security monitoring system. In addition, by
retaining Allied, Podolsky assumed a duty not to negligently hire
the security firm. Finally, pursuant to the contract between
Podolsky and Allied, whereby they mutually agreed upon the tasks
to be performed by the security personnel and their principle
posts, Podolsky undertook to perform the guard services in
concert with Allied. Although the extent of any liability is
strictly limited by the scope of the undertaking, when a landlord
hires a security firm to provide security services, he may be
liable for negligent hiring and when the landlord undertakes
security measures himself, he has a duty of reasonable care in
that undertaking. Phillips v. Chicago Housing Authority, 89 Ill. 2d 122, 127, 431 N.E.2d 1038 (1982). Here, genuine issues of
material fact exist as to whether Podolsky was negligent in
either regard. The ordinary meaning of the terms in the contract
provide that Podolsky assumed the duty to decide upon and oversee
the security measures that would be implemented by Allied. Thus,
Podolsky and Allied shared responsibility for security and their
duties coexisted.
Allied also voluntarily assumed a duty to protect Berg. The
scope of duty on the part of Allied extended to the duty of
exercising reasonable care in the performance of its contracted
obligations, which included the duty to maintain a high level of
visibility, the duty of constant vigilance, and the duty to keep
unauthorized people from the property to reduce the risk of
assault.
While the parties do not dispute the fact that there was a
voluntary undertaking here, they disagree as to whether the
voluntary undertaking included a duty to protect Berg from the
danger of unforeseen criminal acts of third parties. Allied
argues that its duty was limited to the terms of the contract,
which did not include the protection of tenants in the parking
lot, particularly since it had no authority to control access to
the parking lot and, in the event of such attack, had no
authority to intervene. Podolsky notes that although there was a
history of crime in the parking lot, there were no incidents of
prior violent crimes. Therefore, Podolsky contends, the attack
on Berg was not reasonably foreseeable and it had no duty to
prevent it. Plaintiff acknowledges that the attack on Berg was
the first of its kind suffered at the office complex, but deems
irrelevant the issue of whether the risk was "foreseeable," since
Podolsky knew of the risk as evidenced by the implementation of
security measures for the protection of tenants.
The necessity that a criminal attack by a third party be
foreseeable under the voluntary undertaking doctrine is less than
clear. Although foreseeability can be established by evidence of
prior criminal attacks on the premises, one court has indicated
that the foreseeability exception is distinct from the voluntary
undertaking doctrine. Ignarski v. Norbut, 271 Ill. App. 3d 522,
526, 648 N.E.2d 285, 289 (1995)(foreseeability may be established
through the avenue of the voluntary undertaking doctrine itself);
but see Shea v. Preservation Chicago, Inc., 206 Ill. App. 3d 657,
662-63, 565 N.E.2d 20, 24 (1990)(declining to adopt plaintiff's
suggestion of two separate and independent bases for potential
landlord liability for third-party criminal attacks and
concluding that "[t]he proper inquiry is to determine whether, on
a case-by-case basis, a particular landlord has retained control
over or access to a portion of the property, and whether the
circumstances demonstrate that the landlord, by retaining access
to or control over the premises, assumed a duty to protect
tenants against reasonably foreseeable third-party criminal
attacks).
As will be explained below, we need not engage in an
analysis of whether the attack in the present case was
foreseeable. Were we to examine the foreseeability issue under
our duty analysis, however, we would note that prior incidents of
the same criminal activity are not a per se requirement to hold
landlord liable for a third-party criminal attack on a tenant.
Shea v. Preservation Chicago, Inc., 206 Ill. App. 3d 657, 565 N.E.2d 20 (1990). We would further find instructive the supreme
court's statement that "even though there had not been previous
crimes of violence at [the location in question], where a
plaintiff's injury results from the same risk, the existence of
which required the exercise of greater care, unforseeability of
what exactly could develop and the extent of the injury or loss
will not limit liability." (Emphasis added.) Rowe v. State Bank,
125 Ill. 2d 203, 227, 531 N.E.2d 1358, 1369 (1988).
The foreseeability analysis is unnecessary in the present
case as it relates to the existence of a duty because both
defendants expressly undertook a duty to reduce the risk of
assault by the terms of their contractual agreement. While the
issue of foreseeability may or may not be relevant to a
determination of whether either defendant breached its duty, the
existence and scope of the duty are determined by looking to the
extent of the voluntary undertaking. Here, the facts indicate
that both Allied and Podolsky knew of the present risk, since the
security measures that were implemented specifically included
reducing the risk from assault. Thus, as evidenced by the terms
of their contract, the extent of their voluntary undertaking
included protecting the plaintiff from an assault. Performing
patrols of the parking lot was one of the activities
contractually agreed upon by the defendants. As one court has
noted, a "courtesy patrol's main reason for being was to protect
both the employees and the patrons of the club from all types of
harm that might befall them on the parking lots." (Emphasis
added.) Urbas v. Saintco, Inc., 264 Ill. App. 3d 111, 126, 636 N.E.2d 1214, 1224 (1994). In the instant case, there was a
stronger indication in that the post orders specifically stated
that the security guard's role was to reduce the risk of assault.
The fact that Allied's personnel were not police and could not
control access to the parking lot does not negate the existence
of this duty. The evidence showed that the attacker fled at the
sound of the horn; thus, whether the guards' presence would have
been a sufficient deterrent, in spite of an inability absolutely
to control access to the parking lot and an alleged lack of
"authority to intervene" or act as police, is a question for the
trier of fact. Material questions of fact exist as to whether
the duty, which included maintaining high visibility and reducing
the risk of assault, was breached and whether, as a proximate
cause of any breach, the attack could have been prevented
altogether or plaintiff's injuries reduced.
This case can be distinguished from this court's recent
decision in Kolodziejzak v. Melvin Simon & Associates, 292 Ill.
App. 3d 490, 685 N.E.2d 985 (1997). In Kolodziejzak, the estate
of a deceased employee brought a wrongful death action against a
property management company, the security company it hired and
other defendants after the deceased was killed during a criminal
attack by a third party. The jury found in favor of the
plaintiff and allocated 10% of the fault to the property
management company, which appealed the trial court's denial of
its motion for a directed verdict. Although the Kolodziejzak
court determined that the property management company was not
liable, the decision was based on the court's opinion that the
plaintiff had presented no evidence at trial that the defendant
breached any duty. The court stated that the evidence revealed
that the plaintiff had "presented no evidence to support her
negligent hiring claim" (emphasis added) (Kolodziejzak, 292 Ill.
App. 3d at 493) and, further, that the property management
company reviewed the daily log reports, thus fulfilling "the only
specific duty [it] undertook" (emphasis added) (292 Ill. App. 3d
at 496). By contrast, Podolsky voluntarily undertook or assumed
the general duty to protect the plaintiff from assaults; in so
doing, it also undertook several other specific duties as
evidenced by the contractual language in its lease with
plaintiff's employer, as well as its contract with Allied.
The Kolodziejzak court also opined that "whether [the
deceased's] death could have been prevented by the addition of
another security guard is at best speculation and conjecture."
Kolodziejzak, 292 Ill. App. 3d at 498. This statement, however,
was made as part of the court's analysis under the
"foreseeability" theory, after it found no duty under a voluntary
undertaking analysis. Since we have determined that a duty did
exist under the voluntary undertaking theory, as previously
discussed, we need not engage in a foreseeability analysis.
In addition to the existence of a duty, a plaintiff must
provide proof that an injury proximately resulted from the breach
of that duty. Arroyo v. Chicago Transit Authority, 268 Ill. App.
3d 317, 325, 643 N.E.2d 1322 (1994). The issues of breach and
proximate cause are factual matters for a jury to decide,
provided there is a genuine issue of material fact regarding
those issues. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323, 1326 ( 1995). Here, there are
sufficient issues of fact to allow a trier of fact to determine
whether either defendant breached its duty of care. Commentary
in a federal court case has acknowledged that cases that have
addressed the general rule of police nonliability for failure to
prevent crime have recognized the difficulties not only in
preventing crime, but also in proving whether a crime could have
been prevented. See Figueroa V. Evangelical Covenant Church, 879 F.2d 1427, 1437, n. 11 (7th Cir. 1989). While this is not a case
involving the police, plaintiff still must pass the hurdle of
proving that her crime could have been prevented. Nevertheless,
she should be allowed to try.
We hold that a voluntary undertaking in this case created an
enforceable duty to plaintiff on the part of both defendants.
Summary judgment is vacated and this cause is remanded.
Vacated and cause remanded.
BUCKLEY, P.J., and CAMPBELL, P.J., concur.
CAMPBELL, P.J., specially concurring.
PRESIDING JUSTICE CAMPBELL, specially concurring:
I write separately to note that I am not in accord with the
majority opinion s discussion of Beck v. Stepp, 144 Ill. 2d 232,
579 N.E.2d 824 (1991), and Andersen v. Resource Economics Corp.,
133 Ill. 2d 342, 549 N.E.2d 1262 (1990). However, as the
majority opinion addresses the merits of the appeal, I also note
my agreement with the majority s conclusion that there are
material questions of fact regarding breach of duty and proximate
causation that preclude the entry of summary judgment, given the
facts and circumstances in this case.
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