APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA, Judge, presiding.
MR. PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
The plaintiff, Mollie Pippin, brought this action in the circuit court of Cook County to recover for the wrongful death of her son, Frederick Douglas Pippin, which resulted from the alleged negligence of the defendants. On October 20, 1975, the circuit court granted a summary judgment in favor of defendants Chicago Housing Authority (hereinafter referred to as CHA), and Interstate Service Corporation (hereinafter referred to as ISC). The plaintiff appeals.
On review, the plaintiff asks that this court consider two issues: (1) Whether the CHA has a legal duty to use reasonable care in preventing foreseeable injuries to persons legally in the common areas of its buildings; and (2) whether defendants CHA and ISC voluntarily assumed a duty to provide security protection for persons on CHA property and are required by law to perform such duty in a nonnegligent manner.
This court will also consider the arguments raised by the defendants: (1) That the decedent's alleged misconduct prohibits any recovery by plaintiff; and (2) that defendant CHA has statutory immunity from plaintiff's suit.
The facts, stated briefly, are as follows: On January 10, 1973, Frederick Douglas Pippin was visiting Loretta Haywood in a CHA project building located at 3983 South Lake Park Avenue, in Chicago. Ms. Haywood was a tenant in the building. At the time of the incident, two ISC employed guards, Willie Torrence and Willie Butler, were on duty at the premises. A contract existed between CHA and ISC, whereby ISC was to provide security guard service to CHA managed properties. Shortly after 6 p.m., Ms. Haywood approached Torrence and Butler in the building's lobby and requested that they assist her in removing a man (Pippin) from her apartment. The two guards informed her that she must contact the Chicago Police Department and that a public phone was located outside of the building. She then exited the lobby. When she re-entered the building, Pippin was apparently departing through the lobby. She shouted at him, "Go on out and don't come back." Pippin stopped and the two adversaries began to quarrel noisily. A struggle ensued and Loretta Haywood stabbed Pippin in the chest with a butcher knife. When the guards were able to separate them, Pippin was dying. Butler and Torrence then summoned the Chicago Police Department and notified the ISC of what had occurred.
The plaintiff, mother of the decedent and administrator of his estate, alleged in her complaint that the building involved was part of a housing complex having a history of numerous violent and felonious crimes. Plaintiff alleged that defendant CHA had due and adequate notice of the resulting dangerous condition of the premises and, therefore, it had a duty to exercise reasonable care in the building's maintenance, control, and management for the welfare of persons legally in or about the premises. She further alleged that for such purpose the CHA had, without proper investigation and with negligence, employed the services of defendant ISC, and that ISC had negligently employed incompetent and negligent guards. According to the complaint, the ISC guards negligently stood by and watched the altercation during which Pippin was attacked and killed and took no action whatsoever to prevent his death. The guards' negligence proximately caused Pippin's death and caused his surviving heirs and next of kin to suffer irreparable pecuniary damage and loss.
In their depositions, Torrence and Butler stated that they carried firearms while on duty, and that they had received 8 weeks of training pursuant to their employment. Torrence had worked as a guard for 7 years and Butler for 8 years. Neither of the men had ever found it necessary to fire his weapon while on duty. Their training was to direct persons in need of assistance to call the city police department and to assist them in calling when necessary.
The two guards stated that they were in the process of unlocking a "mail guard" from the tenant mailboxes when Loretta Haywood returned to the building lobby after calling the police. They noticed she was wearing a sweater and slacks, but they did not observe any weapon on her person. Pippin had also entered the lobby carrying a shopping bag; he appeared to be leaving peacefully. The guards continued to unlock the mailboxes. Then, after Loretta shouted at him, Pippin turned toward her and began to beat her about the head. The two guards then immediately proceeded toward the struggling couple to separate them, but it was too late. Only after the two people had been separated did the guards see the 6-inch butcher knife in the woman's hand. They stated that the struggle and stabbing took place within minutes.
Section 57 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 57(3)), provides that a summary judgment shall be granted in a case where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. The plaintiff contends that here the trial court erred when it found defendants could not be liable to plaintiff as a matter of law and granted a summary judgment in their favor.
The plaintiff specifically contends that defendant CHA had a common law duty to provide security protection for its tenants and their guests since CHA was on notice that its project buildings were potentially dangerous for those persons. According to plaintiff, the high incidence of crime rampant throughout the various project buildings, including the building at 3983 South Lake Park, made additional crimes there foreseeable and therefore served as notice to the CHA that security protection was necessary. Plaintiff cites numerous cases in support of this contention. (Kline v. 1500 Massachusetts Avenue Apartment Corp. (D.C. Cir. 1970), 439 F.2d 477; McCoy v. Chicago Transit Authority (1977), 69 Ill.2d 280, 371 N.E.2d 625; Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497; Stribling v. Chicago Housing Authority (1975), 34 Ill. App.3d 551, 340 N.E.2d 47; Mrzlak v. Ettinger (1975), 25 Ill. App.3d 706, 323 N.E.2d 796.) In the alternative, plaintiff contends that defendants, by their contract, assumed the duty to provide security protection for persons lawfully on the premises of project buildings and, therefore, they were obligated to be sure that protection was afforded in a nonnegligent manner. Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 199 N.E.2d 769.
Defendants deny any legal duty to provide security protection for CHA tenants or their guests whether engendered by common law or contract. Furthermore, they contend that Frederick Pippin's alleged misconduct precludes any recovery by this plaintiff. (Zank v. Chicago, Rock Island & Pacific R.R. Co. (1959), 17 Ill.2d 473, 161 N.E.2d 848.) Defendant CHA also contends that it has been granted statutory immunity from plaintiff's suit on the basis of section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter Governmental Employees Tort Immunity Act) (Ill. Rev. Stat. 1973, ch. 85, par. 4-102) which provides:
"Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals."
Here, as in the case of Trice v. Chicago Housing Authority (1973), 14 Ill. App.3d 97, 99, 302 N.E.2d 207, 208, the primary issue before us is whether the defendant landlord has a duty imposed by law to protect tenants and other persons legally on its property from the intentional criminal or criminally reckless acts of other tenants or third persons. This question of the landlord's common law duty to protect has previously been resolved in the defendant's favor. Smith v. Chicago Housing Authority (1976), 36 Ill. App.3d 967, 971, 344 N.E.2d 536, 540; Trice, at 100-01.
In Trice, where plaintiff failed to allege the existence of any "special relationship" that would create a legal duty to protect tenants against the criminal acts of third persons (Restatement (Second) of Torts § 315 (1965)), and failed to allege facts that could support the imposition of any contractual or statutory duty to protect, this court refused to create a new common law duty through any expansion of the landlord's tort liability. (Trice, at 99.) The court, in effect, refused to make landlords ...