Shea v. Preservation Chicago, Inc.

565 N.E.2d 20, 206 Ill. App. 3d 657, 151 Ill. Dec. 749, 1990 Ill. App. LEXIS 1736
CourtAppellate Court of Illinois
DecidedNovember 15, 1990
Docket1-89-1958
StatusPublished
Cited by22 cases

This text of 565 N.E.2d 20 (Shea v. Preservation Chicago, Inc.) 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
Shea v. Preservation Chicago, Inc., 565 N.E.2d 20, 206 Ill. App. 3d 657, 151 Ill. Dec. 749, 1990 Ill. App. LEXIS 1736 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Elizabeth Shea (plaintiff) appeals from the trial court’s dismissal with prejudice (Ill. Rev. Stat. 1989, ch. 110, par. 2—615) of her negligence, breach of contract, and consumer fraud claims against her landlord and its leasing agents (hereinafter collectively referred to as defendants). Plaintiff’s complaint alleged in pertinent part that she was injured when a third person unlawfully entered the apartment building and criminally assaulted her. Her pleading claimed that these injuries were proximately caused by defendants’ failure to repair and maintain an interior security door and a safety lock on this door.

We conclude that, under the circumstances of this case, plaintiff’s complaint alleged sufficient facts to demonstrate that defendants owed plaintiff a duty to protect her from reasonably foreseeable third-party criminal attacks. Accordingly, we reverse the dismissal of plaintiff’s negligence claim and remand this count for further proceedings consistent herewith. We also determine that plaintiff’s complaint did not allege sufficient facts to show that defendants breached an oral or written contract to protect plaintiff from third-party attacks, and that plaintiff’s pleading did not allege sufficient facts to indicate that defendants violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 1211/2, par. 261 et seq.). As a result, we affirm the trial court’s dismissal of plaintiff’s breach of contract and consumer fraud claims.

The following factual allegations in plaintiff’s complaint are accepted as true for the purpose of reviewing the trial court’s dismissal of the pleadings pursuant to section 2 — 615. (See Krasinski v. United, Parcel Service (1988), 124 Ill. 2d 483, 485-86, 530 N.E.2d 468.) On June 8, 1986, plaintiff and defendants executed a written document leasing an apartment to plaintiff in a building located on the north side of the City of Chicago. Under the lease agreement, plaintiff’s rental of the apartment ran from June 15, 1986, to September 30, 1987. When plaintiff signed the lease, defendants represented to plaintiff that an interior security door, and the safety lock on this door, were in a defective and inoperable condition, but that defendants would repair and maintain the security door and safety lock in safe condition for the term of the lease. Defendants attempted to repair the interior security door and safety lock on several occasions during the months of June and July, but were negligent in these attempts and did not return the door or the lock to good operating condition. Because of defendants’ negligence in failing to repair the interior security door and safety lock, an intruder gained access to the apartment building and assaulted the plaintiff on July 18, 1986, causing her severe and permanent injury.

Plaintiff filed suit against defendants alleging that their failure to properly repair and maintain the interior security door and safety lock proximately caused her injuries. As ultimately amended, plaintiff’s complaint contained claims for negligence (count I), breach of contract (count II), and consumer fraud (count III). The trial court dismissed plaintiff’s complaint for failure to state claims for which relief could be granted (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), and plaintiff appeals.

In support of the trial court’s dismissal of plaintiff’s complaint, defendants contend that they had no duty to protect plaintiff against criminal attacks in the instant cause. Defendants also argue that dismissal of plaintiff’s negligence count was appropriate because plaintiff did not allege that prior criminal conduct occurred in the building which would have put defendants on notice that their failure to exercise due care would create a dangerous condition on the premises. Defendants urge that Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358, and Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433, relied upon by plaintiff in support of her negligence claim, are factually distinguishable from the case at bar. Defendants also note that in Rowe and Duncavage there had been previous incidents of violent criminal activity and assert that these decisions reaffirm a “prior incidents” requirement.

Plaintiff argues that there can be landlord liability when either (1) prior criminal conduct has occurred in the building, or (2) the landlord’s actions materially increase the risk of criminal activity although there have been no prior, similar criminal attacks on the premises. To support this argument, plaintiff relies primarily upon Duncavage and Rowe. Plaintiff argues upon review that her negligence claim was factually sufficient and did not require an allegation that a prior, similar criminal attack had befallen another tenant in defendants’ apartment building.

At issue in plaintiff’s negligence count is whether the allegations in plaintiff’s complaint establish the existence of a duty of care. The existence of such a duty of care is a question of law. By dismissing plaintiff’s complaint, the trial court determined that plaintiff failed to allege any set of facts from which a legal duty upon defendants can be inferred.

In Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358, the Illinois Supreme Court held that a landlord has no general duty to provide protection to tenants against foreseeable third-party criminal attacks. (125 Ill. 2d at 216.) Rather, the proper question is whether a particular landlord, under the facts of each case, assumed a duty to do so. (125 Ill. 2d at 217.) Where the landlord has retained or exercised control over a portion of the premises, the landlord has assumed a duty to exercise such control in a reasonably safe manner. (125 Ill. 2d at 217-20; see also Larrikin v. Towner (1990), 138 Ill. 2d 510.) Whether this retention of control includes a duty to protect tenants against foreseeable third-party criminal attacks depends upon the normal and usual function of such control and the particular circumstances of the case. Rowe, 125 Ill. 2d at 217-20.

The supreme court determined that, under the facts of Rowe, the landlord’s provision of exterior lighting to common areas did not amount to the assumption of a duty to protect tenants from third-party attacks, since lighting is commonplace and provided by virtually all landlords to all tenants. (125 Ill. 2d at 218.) However, the landlord’s retention of access to individual units, and the manufacture and control of master keys to gain such access, constituted a voluntary assumption by the landlord to protect tenants from reasonably foreseeable third-party criminal attacks. This voluntary assumption of a duty by a landlord to protect tenants imposed upon the landlord the legal duty to take reasonable precautions to prevent unauthorized entries by third parties. (125 Ill. 2d at 221.) Because the landlord was aware that master keys were outstanding and unaccounted for, the landlord was obligated to take reasonable precautions to protect tenants from foreseeable unauthorized entries with such keys. The landlord was in the best position to guard against such unauthorized entry.

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Cite This Page — Counsel Stack

Bluebook (online)
565 N.E.2d 20, 206 Ill. App. 3d 657, 151 Ill. Dec. 749, 1990 Ill. App. LEXIS 1736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shea-v-preservation-chicago-inc-illappct-1990.