APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
E. HALLETT, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Plaintiff initiated the instant wrongful death action alleging that defendant Chicago Housing Authority proximately caused the death of plaintiff's minor son by breaching its duty of due care in the operation, maintenance and control of the building in which decedent lived. Plaintiff appeals from an order of the Circuit Court granting defendant's motion to strike the amended complaint for failure to state a cause of action.
Plaintiff and her son, Ernest, were tenants in defendant's 15 story building located at 2245 West Lake Street, Chicago, Illinois. *fn1 Defendant owned and operated the building and was in control of various areaways and common passageways in and around the building. Each of these common areas and passageways were provided with railings. On December 12, 1968, Ernest, while in an areaway outside his sixth floor apartment, was fatally injured when a television set, allegedly thrown over a railing from above, struck him on the head.
The amended complaint alleged that defendant owed decedent the duty of exercising due care and caution in the operation, maintenance, control and design of the building and common areaways; and that defendant owed its tenants the duty of exercising reasonable care to protect the areas and the tenants while in these common areas. The amended complaint alleged breach of these duties in that defendant carelessly and negligently designed the fences so that objects could be thrown over the fences from various floors of the building; that defendant carelessly and negligently maintained, controlled and operated the premises; that defendant failed to protect its tenants from the known hazard of articles being thrown over the fences onto the common passageways; that defendant permitted this dangerous condition to exist for a long period of time; that defendant failed to take adequate precautions to protect the safety of the tenants in the common areas after defendant had due notice of the dangerous condition; that defendant negligently failed to erect higher fencing to protect against the danger of objects being thrown over the existing railings; and that as a direct and proximate result of these negligent acts, decedent was struck by an item thrown over the railing.
Both parties have devoted much time and effort to discussing the question of the duty to provide tenants with adequate police protection. Plaintiff contends that defendant is statutorily empowered to provide its own police force. We do not believe that this issue need be decided in this case. We also need not reach the issue of whether a duty exists to protect tenants from harm caused by negligent acts of third persons. The principal issue before us is whether a landlord has a duty to protect tenants from intentional or criminally reckless acts of other tenants or third persons.
In determining whether allegations state a cause of action, we must accept all properly pleaded facts as true. Follett's Illinois Book & Supply Store, Inc. v. Isaacs, 27 Ill.2d 600, 190 N.E.2d 324.
The Restatement (Second) of Torts § 315 (1965) states that there is no duty to control the conduct of a third person to such a degree as to prevent him from causing physical harm to another, unless a special relationship exists between the actor and the other. Sections 314A and 320 of the Restatement enumerate certain special relationships, such as common carrier-passenger, business invitor-invitee and innkeeper-guest. In Illinois a duty has been found to exist when one of these special relationships has been shown. Neering v. Illinois Central R.R., 383 Ill. 366, 50 N.E.2d 497.
Plaintiff has cited no case in which the "special relationship" has encompassed a landlord-tenant relationship. Plaintiff has alleged no facts of a contractual or statutory duty imposed on defendant to specially design its buildings to prevent injuries caused by criminally reckless acts of third persons. In effect, plaintiff urges us to create a new duty by expansion of tort liability.
• 1 Plaintiff argues that Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208, has departed from the traditional view and has brought the landlord-tenant relationship into this special relationship category. Our supreme court in Spring imposed a duty based on an implied warranty of habitability, but strictly limited its holding:
"[W]e hold that included in the contracts, both oral and written, governings the tenancies of defendants in the multiple unit dwelling occupied by them, is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code." 50 Ill.2d 351, 366.
Nowhere in Spring did the court imply that a landlord has a duty to protect his tenants from injury caused by third persons. An implied warranty of habitability and an implied warranty against criminal or criminally reckless acts of third persons are not the same. On the basis of Spring alone, this court cannot expand the duty of a landlord.
• 2 Plaintiff's principal allegation is that defendant owed a duty to protect its tenants in common areas from acts of third persons throwing objects over railings. These acts must be characterized as criminally reckless. In determining whether a duty exists, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on defendant must be taken into account. ...