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Mrzlak v. Ettinger

JANUARY 23, 1975.

MARY M. MRZLAK, PLAINTIFF-APPELLEE,

v.

ROBERT E. ETTINGER ET AL., D/B/A DEARBORN CLUB RESIDENCE FOR GIRLS, DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM V. DALY, Judge, presiding.

MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

On August 8, 1967, plaintiff, Mary Mrzlak, while asleep in her room at the Dearborn Club Residence for Girls (hereafter referred to as Club), was assaulted and robbed by an unknown male assailant who allegedly obtained entry through the bathroom window of plaintiff's second-story room. Plaintiff brought this action against defendants Robert Ettinger and Harold Zimmerman, the owners and operators of the Club, and alleged that defendants were negligent in failing to exercise a high degree of care to maintain the premises in a safe condition so as to prevent an assault against the plaintiff, a paying guest.

The jury entered a verdict of $22,500 in favor of the plaintiff and defendants now appeal.

We affirm.

Defendants make the following contentions on review: (1) that defendants are not liable to plaintiff as a matter of law because there is no duty to protect against unforeseeable, independent criminal acts of third persons; (2) even if the defendants owed a duty to protect plaintiff against unforeseeable, independent criminal acts, and that duty was breached, such breach was not the proximate cause of plaintiff's injury; (3) that plaintiff was contributorily negligent as a matter of law; (4) that it was error for the court to instruct the jury that the defendants owed plaintiff a high degree of care; (5) that the closing argument of plaintiff's counsel exceeded the bounds of proper debate and prevented defendants from receiving a fair trial; and (6) that the verdict of $22,500 is unreasonable and excessive and the result of the jury's passion or prejudice.

• 1, 2 Defendants' first contention is that they are not liable to plaintiff as a matter of law because there is no duty to protect against unforeseeable, independent criminal acts of third persons. Whether or not defendants have a duty to protect plaintiff from independent, intervening criminal acts of third persons depends upon whether such acts are foreseeable. Even cases cited by defendants acknowledge this basic rule. (See Mancha v. Field Museum of Natural History (1972), 5 Ill. App.3d 699, 283 N.E.2d 899; Moore v. Yearwood (1960), 24 Ill. App.2d 248, 164 N.E.2d 215.) Defendants argue that the evidence shows that the criminal act was unforeseeable, that the Club had no knowledge of previous incidents and that, indeed, there were no previous incidents. We believe these contentions to be without merit. In the case at bar the evidence presented showed that there were taverns in the vicinity of the Club and that immediately next door to the Club there was a rooming house. Joel Carothers, called as a witness by the plaintiff, testified that there were three attempted break-ins at the Club and further stated that she informed Mr. Zimmerman, co-owner of the Club, of each of these attempts. Another witness, Sharon Matts Hancon, testified that she thought there were two attempted break-ins at the Club in the spring of 1967. Yet another witness, Millie Conlon, testified that someone tried to get in the hotel by throwing a rock through the powder room in the main lounge. Furthermore, Robert Ettinger, the other co-owner of the building, testified that the manager of the building might have told him about attempts to break into the building. In light of such evidence we believe the question of foreseeability was properly a question for the jury and will not overturn the jury's decision on appeal.

Defendants next contend that even if the Club did owe and breach a duty to the plaintiff to guard against intervening criminal acts, the breach of that duty was not the proximate cause of plaintiff's injury. This specific issue was discussed at length by the Illinois Supreme Court in Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 117 N.E.2d 74. In Ney, the defendant cab company's employee left his cab unattended with the engine running, in violation of the Uniform Traffic Act. A thief stole the cab and while in flight collided with the plaintiff's vehicle causing property damage. In discussing the intervening criminal acts the court stated as follows:

"* * * Wrongful acts of independent third persons, not actually intended by the defendant, are not regarded by the law as natural consequences of his wrong, and he is not bound to anticipate the general probability of such acts, anymore than a particular act by this or that individual. The rule applies a fortiori to criminal acts. The intervention of a criminal act, however, does not necessarily interrupt the relation of cause and effect between negligence and an injury. If at the time of the negligence, the criminal act might reasonably have been foreseen, the causal chain is not broken by the intervention of such act. 38 Am.Jur. 728-9." 2 Ill.2d 74, 79, 80, 117 N.E.2d 74, 78.

• 3 In Green v. Welts (1970), 130 Ill. App.2d 600, 605, 265 N.E.2d 188, 191, the same issue was considered as follows:

"* * * In cases such as this, the intervening act is always wrongful and is not normal or reasonable conduct under the circumstances. That is the reason the question arises as to whether there is a break in the causal chain. The question of whether or not this intervening conduct was within the range of reasonable anticipation and probability is the type of factual question for the jury to determine. Questions which are composed of qualities sufficient to cause reasonable men to arrive at different results, inferences and conclusions, should not be determined as matters of law. Ney v. Yellow Cab Co., supra 83, 84; Kinsch v. Di Vito Const. Co., Inc. (1964), 54 Ill. App.2d 149, 154, 155; Marquardt v. Cernocky (1958), 18 Ill. App.2d 135, 145, 146."

We believe that the evidence presented at trial concerning previous attempts to break into the Club, defendants' knowledge of such attempts, and the general character of the neighborhood in which the Club was located, properly made the issue of proximate cause one for the jury. As stated in Ney, supra:

"Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the Magna Charta, our Declaration of Independence and both our State and Federal constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function. Bailey v. Central Vermont Railway Co., 319 U.S. 350." (2 Ill.2d 74, 84, 117 N.E.2d 74, 80.)

Defendants' next contention is that plaintiff's failure to lock her window constitutes contributory negligence as a matter of law. The evidence presented at trial concerning whether or not there are locks on the bathroom window is conflicting. Mr. Ettinger testified that at the time of the incident the bathroom had two locks, that he tested both locks on the morning after the incident, and that both were functional. Defendants' exhibit no. 3, a photograph of the bathroom window taken shortly after the assault, shows what appears to be two locks on the window. Plaintiff testified that she did not see any locks on the window, and Officer Hayslip, who arrived shortly after the incident, testified that he saw no security devices on the window.

• 4 Furthermore, plaintiff was told by the Club manager, Miss Sills, that the Club was a safe place to stay. There is nothing in the record to indicate that the plaintiff received any instructions concerning locking the windows. As stated in Breslin v. Bates (1973), 14 Ill. App.3d 941, 945, 303 N.E.2d 807, 811, "What evidence constitutes contributory negligence is ordinarily a question of fact, and each case must be determined according to its own facts and circumstances." In the case at bar, the jury in answer to a special interrogatory on plaintiff's contributory negligence stated that the plaintiff was not contributorily negligent. In light of the conflicting evidence concerning the existence of locks on the window, the fact that the manager of the Club told plaintiff that the Club ...


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