N.W. v. Amalgamated Trust & Savings Bank

554 N.E.2d 629, 196 Ill. App. 3d 1066, 143 Ill. Dec. 694, 1990 Ill. App. LEXIS 537
CourtAppellate Court of Illinois
DecidedApril 18, 1990
Docket1-89-0662
StatusPublished
Cited by42 cases

This text of 554 N.E.2d 629 (N.W. v. Amalgamated Trust & Savings Bank) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
N.W. v. Amalgamated Trust & Savings Bank, 554 N.E.2d 629, 196 Ill. App. 3d 1066, 143 Ill. Dec. 694, 1990 Ill. App. LEXIS 537 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE CERDA

delivered the opinion of the court:

The plaintiff, N.W., was a tenant living in an apartment building located at 7379 North Damen in Chicago. She brought an action for damages against the owners and manager of the building, claiming that the defendants were negligent and that such negligence was the proximate cause of a sexual assault upon her by an unknown intruder. The trial court granted the defendants’ motion for summary judgment, and the plaintiff appeals.

At approximately 12:30 a.m. on August 1, 1983, an unknown intruder gained entrance into the plaintiff’s apartment and found her asleep in her bedroom. The intruder repeatedly raped her and forced her to perform fellatio. In her third amended complaint, the plaintiff alleges that prior to entering into a lease with the defendants, she specifically pointed out to defendants her status as a single woman living alone and expressed her concern for her safety from criminal activity. The plaintiff further alleges that the defendants promised her that the doors to the front and rear entrances were locked at all times and were always kept in good repair for the purpose of keeping intruders out of the premises, and that in reliance upon these promises she entered into a lease agreement with the defendants. The plaintiff asserts that the defendants assumed a duty to prevent intruders from gaining access into the common areas of the building and that defendants were under a duty to maintain the common areas of the building in a reasonably safe condition. The complaint charges, inter alia, that the defendants knew or should have known that the lock to the rear entrance door was broken, and that the defendants failed to repair the broken lock and negligently maintained the premises. Finally, the plaintiff alleges that the defendants’ negligent acts and omissions were the proximate cause of her physical and emotional injuries.

The plaintiff first entered into a lease with the defendants for a one-bedroom apartment on the third floor in September of 1979. The plaintiff answered an advertisement in the Chicago Sun-Times and was instructed by Parliament Enterprises (Parliament) to make an appointment with a Mr. Lorello, the building janitor. Lorello gave the plaintiff a tour of the premises and showed her two apartments. The building is U-shaped with a courtyard and is divided into sections, each with its own front entrance. The door to the front entrance is equipped with an automatic lock which requires a key for entry. There is also a rear entrance in the plaintiff’s section facing an alley behind the building. The door to the rear entrance is also equipped with a deadbolt lock requiring a key for entry.

The apartment that the plaintiff eventually leased has a back door in the kitchen with an automatic lock and a chain. The back door leads to an enclosed stairway, and at the base of the stairway is the door to the rear entrance facing the alley. The door to the rear entrance also leads to a gangway running alongside the building which has locked doors at both ends. Tenants living in the plaintiff’s section of the building possess keys for the door to the rear entrance. When shown the apartment, she expressed dissatisfaction with the lock on her kitchen door. Lorello assured her the kitchen door was secure because there was no way that unauthorized persons could get inside through the rear entrance. He told the plaintiff that the doors were always locked and that the locks were always kept in working condition. Lorello further added that he was in charge of maintenance and that his position at the building was his only employment. The plaintiff subsequently talked to the previous tenant, who told her that she had liked the apartment and that she had never had any problems with her personal safety.

Some three weeks prior to the attack, the plaintiff discovered the rear entrance door wide open. Upon closer inspection, she observed that the lock was broken and that the door remained ajar two or three inches after attempting to close it. The plaintiff stated that she notified employees of Parliament of the broken lock on at least six or seven occasions. The plaintiff also learned from her neighbors across the hall that the lock on the rear door had been broken longer than she thought and that they too had complained to Parliament. The plaintiff further stated that she spoke with the janitor, Terry Merkin, who had replaced Lorello a year and a half earlier, on a daily basis regarding the lock.

According to the plaintiff, the police were of the opinion that the assailant entered the building through the rear entrance and used a credit card and a tool to open her kitchen door. The plaintiff concedes, however, that tenants in her section have free access to the stairwell leading up to her kitchen door. She never saw the intruder enter her apartment nor did she observe how he left. The plaintiff admits she is unable to exclude other tenants or their guests as possible suspects. The plaintiff further stated in her deposition that during the years she resided at the defendants’ building, she was unaware of any criminal acts committed in the building.

Summary judgment may be granted when the pleadings, depositions, admissions and affidavits, if any, show 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. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005.) A motion for summary judgment and its supporting documents must be construed strictly against the moving party and liberally in favor of the opponent. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 214, 531 N.E.2d 1358.) Summary judgment is a drastic method of disposing of cases and should be granted only when the movant’s right is clear and free from doubt. Rowe, 125 Ill. 2d at 215.

In an action for negligence, a plaintiff must set out facts establishing the existence of a duty of care, a breach of that duty, and an injury proximately resulting from that breach. (Rowe, 125 Ill. 2d at 215.) In their motion for summary judgment, defendants dispute the existence of the elements of duty and proximate cause. The basic test for determining whether a duty exists is foreseeability, as the law imposes a duty to exercise ordinary care to guard against injuries which may naturally flow as a reasonably probable and foreseeable consequence of one’s act. (Mims v. New York Life Insurance Co. (1971), 133 Ill. App. 2d 283, 285, 273 N.E.2d 186.) The determination of whether to impose a duty also requires consideration of the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant. (Trice v. Chicago Housing Authority (1973), 14 Ill. App. 3d 97, 100, 302 N.E.2d 207.) Whether a duty exists is a question of law for the court. Morgan v. Dalton Management Co. (1983), 117 Ill. App. 3d 815, 818, 454 N.E.2d 57.

As a general rule, there is no duty to protect others against the criminal attacks of third persons absent a special relationship. (Gill v. Chicago Park District (1980), 85 Ill. App. 3d 903, 905, 407 N.E.2d 671

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Cite This Page — Counsel Stack

Bluebook (online)
554 N.E.2d 629, 196 Ill. App. 3d 1066, 143 Ill. Dec. 694, 1990 Ill. App. LEXIS 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nw-v-amalgamated-trust-savings-bank-illappct-1990.