Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Nicholas J. Bua, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
This is an action for the wrongful death of Frederick Douglas Pippin, brought by his mother, Mollie Pippin, the administratrix of his estate, against the Chicago Housing Authority (Authority), a municipal corporation, and Interstate Service Corporation (Interstate) in the circuit court of Cook County. The circuit court granted summary judgment in favor of the defendants, but the appellate court reversed and remanded. (58 Ill. App.3d 1029.) We granted the Authority leave to appeal. (65 Ill.2d R. 315.) Interstate joined in the appeal pursuant to our Rule 318(a). 58 Ill.2d R. 318(a).
At issue is the extent of the Authority's duty, if any, to protect plaintiff's decedent, Frederick Pippin, a social guest, from criminal conduct which occurred on premises owned and managed by the Authority, and the duty of Interstate to protect the deceased from such conduct.
On January 10, 1973, around 6 p.m., in the lobby of a housing project owned and operated by the Authority, Loretta Haywood approached Willie Torrence and Willie Butler, employed as security guards at the project by Interstate. She asked the two guards, who were releasing a lock system on the mailboxes at the time, to remove Pippin, an acquaintance and apparently a licensee (Restatement (Second) of Torts sec. 330, comment h(3) (1965)) from her apartment in the project building. They explained they were not permitted, by Interstate's policy, to become involved in any "domestic problem," and suggested she call the Chicago police. She thereupon left the building but returned to the lobby in three or four minutes. About the same time, Pippin entered the lobby from the building's stairway. Haywood, in an audible voice, told him to "go * * * and don't come back." At that, Pippin walked over to Haywood and struck her on the head more than once. The guards stopped their work at the mailboxes and, within seconds of the start of the altercation, separated the couple. Upon pulling them apart, the guards for the first time saw that Haywood was in possession of a knife and that Pippin was bleeding. According to both guards, at no time prior to the beating and knifing did either Haywood or Pippin display haste, excitement or hysteria.
At the time of the incident, a contract for security or "protective services" existed between the Authority and Interstate, and included the following language.
"WHEREAS, the party of the second part [(Authority)] is desirous of securing from the party of the first part [(Interstate)] the services of armed guards and other protective services for the purpose of guarding its properties * * * and the protection of persons thereon * * *.
It is expressly understood and agreed that the party of the first part is an independent contractor, engaged in an independently established business and is at the present time furnishing services of the same character as are herein provided to other parties and that neither party of the first part nor any of its employees, whether engaged in rendering any of the services provided for under this contract or otherwise, shall under any circumstances whatsoever be considered as employees of the party of the second part." (Emphasis added.)
The Authority contends that it had no legal duty to protect Pippin from criminal conduct because the common law imposes no such duty; that Pippin had no special relationship with the Authority that would justify placing a burden of protection on the Authority; and that it had not assumed a duty of protection by contracting for protective services. The appellate court agreed there was no duty to protect the victim, but held that the Authority and Interstate, "by the terms of their contract * * * assumed a duty to exercise reasonable care in protecting persons lawfully on the premises from foreseeable criminal attacks and other foreseeable dangers." 58 Ill. App.3d 1029, 1037.
"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. Accord, Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 554-55.) The appellate court correctly states the common law in Illinois: a landlord does not owe a tenant or social guest (licensee) a duty to protect the latter from criminal acts. (58 Ill. App.3d 1029, 1033-37; Martin v. Usher (1977), 55 Ill. App.3d 409, 410-11; Smith v. Chicago Housing Authority (1976), 36 Ill. App.3d 967, 969-71; Trice v. Chicago Housing Authority (1973), 14 Ill. App.3d 97, 99-101. See Annot., Liability to Social Guest Injured Otherwise Than By Condition of Premises, 79 A.L.R.2d 990 (1961), and Annot., Landlord's Obligation to Protect Tenant Against Criminal Activities of Third Persons, 43 A.L.R.3d 331 (1972).) Moreover, this case does not fall into the "special relationship" exception to the general rule above. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 559-60. Cf. McCoy v. Chicago Transit Authority (1977), 69 Ill.2d 280 (common law liability existed because the defendant was a common carrier, a "special relationship" classification).
As additional support for the argument that the Authority has the duty to protect persons on its premises, plaintiff posits the following portions of two provisions of the Housing Authorities Act.
"It is hereby declared as a matter of legislative determination that in order to promote and protect the health, safety, morals and welfare of the public, it is necessary in the public interest to provide for the creation of municipal corporations to be known as housing authorities, and to confer upon and vest in said housing authorities all powers necessary or appropriate in order that they may engage in low-rent housing and slum clearance projects, and undertake such land assembly, clearance, rehabilitation, development, and redevelopment projects as will tend to relieve the shortage of decent, safe, and sanitary dwellings." Ill. Rev. Stat. 1971, ch. 67 1/2, par. 2.
"The State Housing Board shall thereupon issue a certificate to the presiding officer of such city, village, incorporated town or county for the creation of such authority if it shall find (a) that unsanitary or unsafe inhabited dwelling accommodations exist in such city, village, incorporated town or county, or (b) that there is a shortage of safe or sanitary dwelling accommodations in such city, village, incorporated town or county available to persons who lack the amount of income which is necessary (as determined by said Board) to enable them without financial assistance to live in decent, safe and sanitary dwellings without over-crowding." (Ill. Rev. Stat. 1971, ch. 67 1/2, par. 3.)
The foregoing language, and particularly the phrase "decent, safe and sanitary dwellings," cannot reasonably be construed to require the Authority to provide protection from criminal activities directed against persons lawfully on the premises owned or operated by the Authority. Rather, we are convinced that this language refers exclusively to the physical condition of the premises. Annot., 43 A.L.R.3d 331, 344 (1972).
Although the Authority had no independent duty to protect against criminal acts on its premises, it voluntarily entered into a contract with Interstate, an independent contractor, by which the latter agreed to provide guard services on Authority premises. In Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 74, this court gave its recognition to the established principle that liability can arise from the negligent performance of a voluntary undertaking. The court utilized this principle to impose liability against an insurer for personal injuries suffered as a result of the insurer's negligent performance of a gratuitous inspection of the premises where the injuries occurred. Although the principle is applicable here, the extent of the Authority's undertaking was different than that of the insurer in Nelson. Because the Authority did not undertake to perform the guard services itself, it cannot be held to have had a duty to protect Pippin. The Authority's duty was limited by the extent of the undertaking, viz, to use reasonable care in engaging Interstate to provide the guard services. The Authority can therefore be liable at most for the negligent hiring of Interstate. (Restatement (Second) of Torts sec. 411 (1965); Prosser, Torts sec. 71, at ...