July 17, 2001

No. 2--00--0698

Plaintiff, Raul G. Elizondo, as special administrator of theestate of Rodolfo Garcia, Jr., appeals the decision of the circuitcourt of Kane County granting summary judgment in favor ofdefendants, Rigoberto Ramirez, Mrs. Rigoberto Ramirez (Manuela),and Judith Ramirez. Plaintiff contends that the trial court erredin finding defendants owed plaintiff's decedent, Rodolfo Garcia,Jr., no duty of care. For the reasons that follow, we affirm thejudgment of the trial court.

BACKGROUND

Rigoberto and Manuela Ramirez own a house located in the Cityof Aurora. At the time of the incident that forms the basis ofthis suit, defendants resided in an apartment located in the upperfloor of the house. The apartment on the lower floor was vacant. Rigoberto and Manuela gave their 15-year-old daughter, Judith,permission to have a party in the ground-floor apartment. Theparty was held on April 5, 1997. Manuela gave Judith the keys tothe apartment. Judith told two of her friends to tell other peopleabout the party. There was no guest list. Only teenagers wereinvited. At about 7:30 p.m., Rigoberto took Judith to the store tobuy some supplies for the party. At 9:15 p.m., one of Judith'sfriends who had agreed to act as the disk jockey for the partyarrived and began setting up his equipment in the kitchen. Thedisk jockey was not paid for his services. Judith locked the doorsto the apartment's bedrooms, limiting the party to the kitchen,living room, dining room, and porch. No security was provided orhired. The party commenced at approximately 10:15 p.m.

Between 50 and 70 people attended that party. The apartmentwas lit by a strobe light and a few other lights; witnessesdescribed it as dark. There was no lighting on the porch, and itwas described as "pitch dark." A sign on the front entrance stated"$3.00 at door, no gang colors." A person stood at the front doorcollecting the entry fee, and Judith greeted people at the door aswell. Five other partygoers stated that they were not charged the$3 fee. There was a keg of beer at the party and some beer in therefrigerator. Most of the guests drank beer from the keg, usingclear plastic cups. Judith purchased and provided the cups. Judith testified that she observed some of the partygoers consumingalcohol.

At some point in the evening, Judith left the party to go tothe store and buy some candy. She designated no one to be incharge during her absence. As she was leaving, a police officerstopped his patrol car and called her over. The officer inquiredas to what was going on. Judith stated that she was having aparty. The officer told her he would be watching the party. Healso told Judith to have fun and not cause any trouble.

Rodolfo arrived at the party while Judith was gone. He paidthe entry fee. Rodolfo was a member of the Latin Kings. When hearrived, several members of the Sureno 13s, a rival gang, werealready present. Both Rodolfo and the members of the Sureno 13swere wearing gang colors. Rodolfo attempted to aggravate the othergang members by yelling out some gang slogans; however, the musicwas loud and they did not appear to hear him.

Later in the evening, Judith left the party to take a friendhome. As she was leaving, she encountered Rodolfo on the porch. She told him to either go back inside or leave. A second policeofficer then stopped and called Judith over to the car. Theofficer asked if everything was alright, and Judith replied that itwas. Shortly after Judith left, someone from inside the apartmentrushed out and struck Rodolfo in the face. A fight ensued on theporch. A second individual then exited the apartment and shotRodolfo in the right side. The first individual continued to kickand hit Rodolfo. Rodolfo died a short time later after being takento a hospital. Judith was not present during the attack.

Prior to the altercation, Rigoberto, the father, who had justrecently returned from a friend's house, went downstairs to theparty. Rigoberto brought a beer with him and spent some timewalking around the lower apartment. He never told anyone at theparty to stop drinking. Eventually, he went out onto the porch andcontinued drinking his beer. A group of people had gathered on theporch. Rigoberto was on the porch when the fight occurred. Rigoberto stated that the fight lasted three or four minutes, buthe also stated that it happened fast. Rigoberto did nothing tostop the fight and went back upstairs. When he arrived upstairs,Manuela had called the police because she had heard the gunshot.

During the party, Manuela, the mother, remained in theupstairs apartment. Judith went upstairs on several occasions. Onone occasion, Judith told her mother that she had told someone toleave and he refused. Manuela told her daughter to tell him toleave, but took no other action.

Plaintiff brought a wrongful death and survival actionalleging defendants' negligence based on the aforementioned facts. Defendants moved for summary judgment. The trial court grantedthis motion. The trial court noted that no special relationshipexisted between defendants and Rodolfo such that they owed him aduty to protect him from the criminal acts of third parties. Defendant now appeals.

ANALYSIS

Because this case comes to this court following a grant ofsummary judgment, review is de novo. Corona v. Malm, 315 Ill. App.3d 692, 694 (2000). Summary judgment should be granted only if nogenuine issues of material fact exist and the movant is entitled tojudgment as a matter of law. Stewart v. Jones, 318 Ill. App. 3d552, 557-58 (2001). The record must be construed liberally infavor of the nonmovant and strictly against the movant. Largosa v.Ford Motor Co., 303 Ill. App. 3d 751, 753 (1999). Although theparty opposing the motion need not prove its case, it must presentsome facts that would arguably entitle it to judgment. Lutz v.Goodlife Entertainment, Inc., 208 Ill. App. 3d 565, 568 (1990). Summary judgment is a drastic means of disposing of litigation andshould be granted only where the movant's right to judgment isclear and free from doubt. Lutz, 208 Ill. App. 3d at 568.

Further, whether the relationship between the parties is suchthat a duty exists is a question of law. Ziemba v. Mierzwa, 142Ill. 2d 42, 47 (1991). Keeping in mind that the record must beconstrued liberally in the nonmovant's favor, the question ofwhether a duty exists is a proper subject for resolution by a courton a motion for summary judgment (Ralls v. Village of GlendaleHeights, 233 Ill. App. 3d 147, 154 (1992)). Thus, if, based uponthe pleadings, depositions, and affidavits available, it appearsthat no duty exists, summary judgment for the defendant isappropriate. Greene v. City of Chicago, 209 Ill. App. 3d 311, 313(1991).

In order to prevail in an action for negligence, a plaintiffmust prove the existence of a duty, a breach of that duty, and aninjury proximately caused by the breach. Bartelli v. O'Brien, 307Ill. App. 3d 655, 659 (1999). The rule is well established that,generally, no duty exists on the part of the owner or occupier ofland to protect entrants from the criminal acts of third parties. Rowe v. State Bank, 125 Ill. 2d 203, 215 (1988); Shortall v.Hawkeye's Bar & Grill, 283 Ill. App. 3d 439, 443 (1996); Lutz, 208Ill. App. 3d at 568. However, an exception to this rule exists. A landowner or occupier has a duty to protect others againstcriminal acts where there is a special relationship between thelandowner and the injured person. Hill v. Charlie Club, Inc., 279Ill. App. 3d 754, 758 (1996). Also, the criminal attack must havebeen reasonably foreseeable. Hill, 279 Ill. App. 3d at 758. Various policy considerations may affect the foreseeabilityanalysis, including the likelihood of harm, the magnitude of theburden of guarding against the injury, and the consequences ofplacing the burden on the defendant. Hill, 279 Ill. App. 3d at758.

Illinois courts recognize the following four specialrelationships sufficient to impose a duty upon a landowner to guardagainst third-party criminal attacks: (1) innkeeper and guest; (2)carrier and passenger; (3) one who voluntarily takes custody ofanother in a manner that limits the person's ordinary opportunitiesfor protection; and (4) business invitor and invitee. Lutz, 208Ill. App. 3d at 569. In the present case, the first three clearlydo not apply; hence, the question before this court is whetherdefendants and plaintiff's decedent stood in the relationship ofbusiness invitors and invitee. This relationship requires that theland where the plaintiff was injured be open to the general publicfor business purposes. Hills v. Bridgeview Little League Ass'n,195 Ill. 2d 210, 252 (2000).

Initially, plaintiff disputes the general rule that a specialrelationship is required before a landowner or occupier has a dutyto guard against third-party criminal acts. Plaintiff posits theexistence of a duty on certain sections of the Restatement (Second)of Torts as well as on the Illinois Premises Liability Act (Act)(740 ILCS 130/1 et seq. (West 1996)). Plaintiff also contends thatRodolfo was an invitee to whom a duty was owed. We will,therefore, first address whether a duty to protect a person fromthird-party criminal acts can exist absent a special relationshipbetween a landowner or occupier and the injured person.

Plaintiff first asserts the existence of a duty of reasonablecare under the Act. See 740 ILCS 130/1 et seq. (West 1996). TheAct "retraced the special but limited immunity from tort liabilityenjoyed by owners and occupiers of land with respect to licensees." Ward v. K mart Corp., 136 Ill. 2d 132, 141 (1990). However, theAct "did not significantly alter the common law duty owed by anowner or occupier of premises to invitees thereon." Ward, 136 Ill.2d at 142. The status of business invitee is still relevant todetermining whether a landowner has a duty to protect anotheragainst criminal acts by third parties. See Hills, 195 Ill. 2d at243-44 (2000). In Hills, our supreme court distinguished betweenindividuals whose presence on the land confers some benefit to theowner or occupier and individuals who enter land that is held opento the public for entry for business purposes. Hills, 195 Ill. 2dat 248. The court concluded that the latter conditions werenecessary to establish a special relationship such that the owneror occupier had a duty to guard against criminal acts by thirdparties. Hills, 195 Ill. 2d at 249-51. Although the Act abolishedthe distinction between invitees and licensees for most purposes,in order to impose liability for the criminal act of a thirdperson, all individuals must establish that the premises where theinjury occurred were open to the general public for businesspurposes. Hills, 195 Ill. 2d at 252. Because the Act did notsignificantly change duties owed to invitees (Ward, 136 Ill. 2d at142), defendants owed plaintiff no duty under the Act absent ashowing that defendants' premises were open to the general publicfor business purposes. Accordingly, we conclude that the Act doesnot excuse plaintiff from establishing the existence of a specialrelationship before plaintiff can impose liability upon defendants.

Plaintiff next argues that a duty existed under section 318 ofthe Restatement (Second) of Torts. This section provides asfollows:

"If the actor permits a third person to use land or chattelsin his possession otherwise than as a servant, he is, ifpresent, under a duty to exercise reasonable care so tocontrol the conduct of the third person as to prevent him fromintentionally harming others or from so conducting himself asto create an unreasonable risk of bodily harm to them, if theactor

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

(b) knows or should know of the necessity and opportunityfor exercising such control." Restatement (Second) of Torts