APPEAL from the Circuit Court of Cook County; the Hon. ALLEN
HARTMAN, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 28, 1979.
These consolidated appeals arise out of the plaintiffs' negligence suit against defendant Chicago Housing Authority (CHA) and defendants Wells Fargo Alarm Services, Wells Fargo Security Guard Services, Wells Fargo Company, Wells Fargo Alarm Services, Inc., and Baker Protective Services, Inc. (hereinafter Wells Fargo-Baker), for personal and pecuniary injuries they suffered when plaintiff Willie Cross was attacked by unknown assailants on CHA premises for which Wells Fargo-Baker had contracted with CHA to provide security services. Plaintiffs appeal an order of the circuit court of Cook County dismissing counts IV and V of their complaint against defendant CHA (No. 77-1887). Pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1977, ch. 110A, par. 308), defendants Wells Fargo-Baker appeal an order denying their motion to dismiss counts I, II, III, and VI of the plaintiffs' complaint (No. 78-380). The issues presented for our review are (1) whether the defendant CHA had either a common-law duty or had voluntarily assumed a duty to protect plaintiff Willie Cross against criminal attacks by third persons, and (2) whether defendants Wells Fargo-Baker had voluntarily assumed such a duty.
Counts IV and V of the plaintiffs' complaint against defendant CHA allege that prior to December 21, 1970, there were repeated incidents of criminal activity in the area of Governor Henry Horner Housing Project located at 141 North Wolcott, Chicago, Illinois, and owned, operated, and managed by defendant CHA; that defendant CHA had entered into a contract with defendants Wells Fargo-Baker for the purpose of protecting the property and persons on those premises; that in accordance with this contract, guards were to be provided between the hours of 9 a.m. and 1 a.m.; but were not to be provided between the hours of 1 a.m. and 9 a.m.; that as a result of this part-time security service the premises became more dangerous between the hours of 1 a.m. and 9 a.m., that defendant CHA knew or should have known that such part-time security service created a dangerous condition by increasing the risk of criminal attack during the hours of 1 a.m. to 9 a.m., while the plaintiff did not have such knowledge; and that plaintiff Willie Cross had been attacked by unknown assailants at 1:15 a.m. while entering the defendant's premises. The gravamen of the plaintiffs' complaint alleges that the defendant CHA was negligent in creating a highly dangerous condition on the premises between the hours of 1 a.m. and 9 a.m. by providing guard service only between the hours of 9 a.m. and 1 a.m., in failing to warn visitors and other persons rightfully on the premises that security service was not provided between the hours of 1 a.m. and 9 a.m. and that a highly dangerous condition existed during those hours, in failing to provide a locking door to the main lobby of the premises, and in failing to take any action to correct this alleged highly dangerous condition after having notice of its existence.
Counts I, II, III, and VI allege that defendants Wells Fargo-Baker had contracted with defendant CHA not only to provide armed security guards between the hours of 9 a.m. and 1 a.m., but also had contracted to evaluate the defendant CHA's security needs on a continuing basis, to assign a project supervisory officer to maintain a liaison with the CHA on a daily basis, and to publish and distribute specific job instructions and requirements to its guards and to the CHA staff. Plaintiffs allege that the defendants' negligent and/or wilful and wanton failure to perform these latter contractual duties allegedly undertaken for the plaintiffs' benefit proximately caused their injuries. Plaintiffs further allege that the period between the hours of 1 a.m. and 9 a.m. became more dangerous as a result of the part-time security service, that the defendants knew or should have known of this increasingly dangerous condition, and that the defendants' failure to notify CHA of this condition, and of the need for security service between the hours of 1 a.m. and 9 a.m. proximately caused their injuries.
The defendants' motions to dismiss asserted that they had no duty to protect plaintiff Willie Cross from criminal assaults by third persons. The trial court granted defendant CHA's motion to dismiss Counts IV and V and denied defendants Wells Fargo-Baker's motion to dismiss Counts I, II, III, and VI. It is from these orders that the plaintiffs and defendants Wells Fargo-Baker appeal.
1 The plaintiffs' complaint is in negligence. As such, it must set out the existence of a duty owed by the defendant to the plaintiffs, a breach of that duty, and an injury resulting from that breach. Cunis v. Brennan (1974), 56 Ill.2d 372, 374, 308 N.E.2d 617.
Of pertinence to this appeal is section 302B of the Restatement (Second) of Torts (1965), which 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."
However, comment (a) of section 302B 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."
The above is also true under sections 448 and 449 of the Restatement also relied on by the plaintiffs. (See Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 556, 328 N.E.2d 538.) Therefore, before reaching the question of the applicability of any of these Restatement sections, it must first be determined whether ...