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Bence v. Crawford Savings & Loan Ass'n

OPINION FILED JANUARY 7, 1980.

FRANK BENCE, ADM'R OF THE ESTATE OF STANISLAVA BENCE, DECEASED, PLAINTIFF-APPELLANT,

v.

CRAWFORD SAVINGS & LOAN ASSOCIATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Crawford Savings & Loan Association (defendant) filed a motion to strike and dismiss the second amended complaint filed by Frank Bence, administrator of the estate of Stanislava Bence, deceased (plaintiff), in his action for wrongful death and bodily injuries. The cause was dismissed with prejudice and plaintiff appeals.

The second amended complaint alleged in count I: On February 12, 1976, plaintiff's wife went to defendant's premises to conduct business. The only access to defendant's premises was through an electric door buzzer system which was activated by one of defendant's employees. The system was used for screening persons presenting themselves at the glass portion of the door so that their identities could be ascertained before admitting them. Plaintiff's wife presented herself at the door and was admitted. While she was in defendant's premises, two other persons were negligently admitted. These persons staged a holdup. The only exit from the premises was through the electronically operated door, which required that the door buzzer system be activated by an employee of defendant. When the robbers attempted to leave the premises, no employee activated the door buzzer system. The robbers panicked and fired shots, one of which killed plaintiff's wife.

Although count I made several allegations of claimed negligence, on oral argument it developed that the only claim of negligence was that the electronic door buzzer system required activation in order to leave the premises and that this fact created an unusual circumstance which imposed liability on defendant because no employee activated the buzzer system to allow the robbers to leave, causing them to panic and fire the shots which killed plaintiff's wife.

Count II adopted the allegations of count I and sought damages for injuries, pain and suffering and for medical expenses.

Defendant's motion to strike and dismiss alleged: that count I failed to state a cause for liability upon defendant for the intervening criminal act of felons; that it failed to allege any circumstances under which defendant, plaintiff's decedent or anyone else would know or have reason to know that the particular persons were intent upon the robbery of defendant or its customers or that those persons manifested such intent to commit a felony as to place defendant on notice that those felons were intent upon committing the crime; that it failed to state a cause of action merely by alleging that defendant did take certain security precautions of having an electrically operated latch on the glass front door which required patrons to be buzzed out as well as in; and that count II failed to state a cause of action for personal injury on assault by felons; any such action could only be brought under the Wrongful Death Act.

Plaintiff contends that the trial court improperly dismissed his action with prejudice. We disagree.

• 1 To state a cause of action for negligence, the complaint must allege the breach of a duty owed by defendant to plaintiff. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill.2d 95, 97, 306 N.E.2d 39.) The existence of a duty is a question of law to be determined by the court. (Barnes v. Washington (1973), 56 Ill.2d 22, 26, 305 N.E.2d 535; Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 555, 328 N.E.2d 538.) If no duty is alleged, plaintiff's complaint is properly dismissed. Smith v. Chicago Housing Authority (1976), 36 Ill. App.3d 967, 969, 344 N.E.2d 536.

In Altepeter v. Virgil State Bank (1952), 345 Ill. App. 585, 104 N.E.2d 334, the court affirmed the dismissal of a complaint which sought damages because plaintiff, a customer of a bank, had been shot by a robber during a holdup. The court stated (345 Ill. App. 585, 603):

"* * * The illegal act of the bank robber could not reasonably have been foreseen. An independent act of negligence or willfulness by a third person is an occurrence which a defendant is not bound to anticipate. (Noonan v. Sheridan, 230 Ky. 162, 18 S.W.2d 976.) An owner of premises is not bound to anticipate the malicious or criminal acts of others by which damage is inflicted. (45 C.J.S., Neg., sec. 495.) It is only when the independent illegal act is of a nature which might have been anticipated by defendant and against which it was defendant's duty to provide that a defendant will be held to be liable."

In Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill.2d 95, 306 N.E.2d 39, an armed robber entered a currency exchange, put a pistol at the head of plaintiff's husband (Boyd) and told the teller (Murphy) that if she did not give him money or open the door he would kill Boyd. The teller did not comply with the demand. The robber shot and killed Boyd. In holding that plaintiff's complaint was properly dismissed for failure to state a cause of action, the court said (56 Ill.2d 95, 97-98):

"It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. (Hamlin's Wizard Oil Co. v. United States Express Co., 265 Ill. 156.) The plaintiff contends that a business proprietor has a duty to his invitees to honor criminal demands when failure to do so would subject the invitees to an unreasonable risk. It is claimed that this duty arises from the relationship between a landowner and a business invitee.

It is the general rule in Illinois and other jurisdictions that a person has no duty to anticipate the criminal acts of third parties. (Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 33.) An exception to this rule exists, however, when criminal acts should reasonably have been foreseen. (Neering v. Illinois Central R.R. Co., 383 Ill. 366.) Neering, and many of the other cases cited by the parties, involved the question of whether facts existed which should have alerted the defendant to a risk of harm to his invitees by criminals. (See O'Brien v. Colonial Village, Inc., 119 Ill. App.2d 105; Stelloh v. Cottage 83, 52 Ill. App.2d 168; Altepeter v. Virgil State Bank, 345 Ill. App. 585; Nigido v. First National Bank, 264 Md. 702, 288 A.2d 127.) These cases are of little help here since our case presents a question of whether the defendant who is faced with an imminent criminal demand incurs liability by resisting, not whether he is negligent in failing to take precautions against a possible future crime."

The court then, after discussing cases from other jurisdictions and the Restatement of Torts, ...


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