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Fancil v. Q.s.e. Foods





Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Crawford County; the Hon. Henry Lewis, Judge, presiding.


This is an action to recover damages for the death of plaintiff's husband. On motion of the defendant the amended complaint was dismissed by the circuit court of Crawford County for failure to state a cause of action. The appellate court reversed and remanded the cause to the circuit court. (19 Ill. App.3d 414.) We granted leave to appeal.

The defendant was the owner and operator of a grocery store in Oblong, Illinois. The plaintiff's decedent was a member of the Oblong city police force. On the night of June 1, 1970, the plaintiff's decedent went to the defendant's premises for the purpose of performing a routine security check. He was attacked by burglars and fatally shot. The amended complaint alleges that prior to June 1, 1970, the defendant's premises had been the subject of attempted and actual burglaries of which the defendant knew; the decedent and other police officers of the village inspected the premises of the defendant each night as a part of their regular duties, which the defendant knew; subsequent to the prior criminal activity at the defendant's store, the defendant had erected a mercury light which provided illumination to the south of the defendant's building and to a wire enclosure attached to the south side of the building; valuable merchandise was stored within the wire enclosure, and with knowledge of the danger to decedent and other officers the defendant had disconnected the mercury light that had been used for exterior illumination. The amended complaint alleges that the defendant had thus negligently and carelessly failed to provide adequate light in the area of the enclosure, had disconnected the light, had failed to light the area at night, and had failed to make provision for inspection of the south side of defendant's buildings by police officers from the safety of their patrol car. The plaintiff alleges that, as a direct and proximate result of these negligent omissions and acts, burglars concealed themselves on the premises and ambushed the decedent while he was in the process of conducting a security check at the rear of the defendant's premises. Since we are here determining the propriety of the dismissal of the amended complaint, we must accept all properly pleaded facts as true and are concerned only with the question of law presented by the pleadings. Follett's Illinois Book and Supply Store, Inc. v. Isaacs (1963), 27 Ill.2d 600, 603.

This action is brought on a theory of common law negligence. The complaint alleges the violation of no duty established by statute or ordinance. Necessary to recovery is the existence of a duty or an obligation requiring one to conform to a certain standard of conduct for the protection of another against an unreasonable risk. (Barnes v. Washington (1973), 56 Ill.2d 22, 26.) It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill.2d 95, 97.) The question of duty, the legal obligation imposed upon one for the benefit of another, is a question of law to be determined by the court (Barnes v. Washington (1973), 56 Ill.2d 22, 26; Prosser, Handbook of the Law of Torts sec. 37, at 206 (4th ed. 1971)) because liability for common law negligence is not absolute but rather it is based on fault. The plaintiff here asserts that a duty should be placed on an owner to take steps to protect invitees from foreseeable criminal acts committed by third parties.

In the present case the appellate court, holding that the amended complaint stated a cause of action, relied on the rationale of Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366; Johnston v. Harris (1972), 387 Mich. 569, 198 N.W.2d 409; and sections 302(B), 448 and 449 of Restatement (Second) of Torts (1965).

Section 302(B) provides:

"An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal."

Section 448 provides:

"The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime."

Section 449 provides:

"If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby."

Comment a under section 302(B) refers to comment a of section 302, which states: "If the actor is under no duty to the other to act, his failure to do so may be negligent conduct within the rule stated in this Section, but it does not subject him to liability, because of the absence of duty." (Restatement (Second) of Torts p. 82.) The same is true under sections 448 and 449. Thus, before it is appropriate to consider these sections of the Restatement, we must determine whether the relation between the defendant and the decedent was such as to give rise to a duty owed by the defendant for the protection of the decedent.

The traditional classification of those who come upon the land of another as trespassers, licensees and invitees has not provided a satisfactory means of determining the duty a possessor of land owes to public employees who come upon the land in the performance of their duties. (Prosser, Handbook of the Law of Torts 395-96 (4th ed. 1971).) In Illinois, under such circumstances, policemen and firemen have in the past been considered to be mere licensees. However, in Ryan v. Chicago and Northwestern Ry. Co. (1942), 315 Ill. App. 65, the court held that the railway company was obligated to use reasonable care for the protection of a policeman who was rightfully on the defendant's right of way. In Dini v. Naiditch (1960), 20 Ill.2d 406, this court referred to the appellate court's decision in Ryan and held that the owner of a building was under a duty to use reasonable care in the maintenance of his property for the protection of a fireman upon the premises fighting a fire. Subsequent to Dini, the law of this State has imposed upon the possessor of land, as to a policeman or a fireman who is on the premises in the performance of his official duties at a place where he might reasonably be expected to be, the same duty which the possessor of land owes to an invitee.

This interpretation corresponds with the position stated in Restatement (Second) of Torts, section 345(2). Comment e to this section states that the possessor's liability to a policeman or fireman falls ...

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