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Taylor v. Hocker

OPINION FILED NOVEMBER 9, 1981.

MERIDETH TAYLOR ET AL., PLAINTIFFS-APPELLANTS,

v.

DAVID HOCKER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Jackson County; the Hon. BILL F. GREEN, Judge, presiding.

MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from an order of the circuit court of Jackson County granting defendants' motion for summary judgment pursuant to section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57). Plaintiffs, Merideth Taylor and Melody Beiler, instituted a negligence action against defendants, David Hocker and Alan Squitieri. The amended complaint alleged that defendants operated the University Mall Shopping Center in Carbondale, Illinois, and that on the evening of September 25, 1976, plaintiffs were assaulted and stabbed by an unknown assailant in the mall's parking lot. The plaintiffs urge that defendants were liable for the harm suffered by plaintiffs as a result of the criminal attack because defendants failed to provide adequate security or sufficient lighting and failed to warn of the danger of being assaulted while on the parking lot.

Defendants moved for summary judgment, and the trial court, after considering the pleadings, depositions, and arguments offered by the parties, concluded that defendants were entitled to judgment as a matter of law and granted defendants' motion for summary judgment. It is from this order that plaintiffs appeal. We affirm.

Plaintiffs' depositions disclosed that on September 25, 1976, at approximately 8 p.m., plaintiffs went shopping at the University Mall, having parked near the front of the mall's parking area. After about an hour, the plaintiffs returned to their car, and as they were entering the vehicle, a stranger approached them and requested a ride to Southern Illinois University. When the plaintiffs refused, the stranger became more insistent and suddenly became violent. He pulled a knife and began stabbing the plaintiffs. Melody Beiler was stabbed in the chest and back, and Merideth Taylor was stabbed in the back.

Ms. Beiler stated that some lights in the parking area were burned out but that the area was sufficiently lighted that a potential assailant could not hide in the darkness. Ms. Taylor related that there were lights on in the parking lot, and that the darkness did not prevent her from seeing her attacker, but that the lighting seemed dim.

The only other deponent was Philip Favreau, who had managed the mall since it opened on October 30, 1974. He stated that University Mall employed security personnel who patrolled the common area of the mall, including the parking lot. The security employees were hired primarily for traffic and crowd control, but they also handled reported incidents of shoplifting and traffic accidents. The parking lot was also regularly patrolled by officers from the Carbondale Police Department.

Mr. Favreau further stated that the parking lot was well lighted. He related that the only criminal activities he was aware of occurring at the mall were shoplifting incidents; however, he recalled an occasion in which the manager of the J.C. Penney store, contiguous to but not a part of the mall, was struck by an irate customer at the J.C. Penney store on September 17, 1976.

The lease between the defendants and the store owners, which was made part of the defendants' answers to interrogatories, provided, in part, as follows:

"(i) Common Area Charge. In advance payable in equal monthly installments * * * an annual sum * * * shall * * * be applied toward the TENANT'S proportionate share of all costs and expenses * * * paid or incurred by LANDLORD in operating, managing, cleaning, protecting, equipping, lighting, repairing, replacing and maintaining malls, whether open or enclosed, walkways, corridors, public areas, common restrooms and meeting areas, vehicle parking areas, drive-ways and other common areas * * * within the Shopping Center. Such cost and expense shall include, but not be limited to, the cost of: * * * maintaining, repairing, and replacing, cleaning, lighting, snow and ice handling and line painting of all vehicle parking areas and other outdoor Common Areas * * * and maintaining security personnel in, on and about the Common Areas, including offsite traffic control on streets adjacent or contiguous to the Shopping Center * * *."

The plaintiffs filed a bill of particulars which suggested that defendants were put on notice of the likelihood of criminal activity by virtue of their awareness of the incident involving the manager of the J.C. Penney store on September 17, 1976, and another incident in which Mrs. Colleen Battaglia "may have been abducted" from the J.C. Penney parking lot on or about July 9, 1973, which was prior to the opening of University Mall. Plaintiffs' counsel also submitted an affidavit stating that he intended to introduce evidence of the Carbondale Police Department reports of crime which occurred at University Mall between March and September, 1976. An attached exhibit indicated that the mall had numerous shoplifting incidents, 19 thefts from automobiles, four automobile thefts, and one bicycle theft.

After considering the pleadings, the depositions, and the affidavits, the trial court granted defendants' motion for summary judgment, and this appeal resulted.

It is recognized that summary judgments should be rendered with great caution; however, where a plaintiff fails to establish an element of the cause of action through the pleadings, depositions, admissions, and affidavits on file, summary judgment for the defendant is proper. (Schoondyke v. Heil, Heil, Smart & Golee, Inc. (1980), 89 Ill. App.3d 640, 411 N.E.2d 1168; Joiner v. Benton Community Bank (1980), 82 Ill.2d 40, 411 N.E.2d 229.) It is elementary that there can be no liability in tort for negligence unless defendant has breached a duty owed to the plaintiff. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill.2d 95, 306 N.E.2d 39.) Therefore, the primary question presented in this appeal is whether defendants had sufficient notice or knowledge of previous criminality in the area so as to give rise to a duty to protect the plaintiffs from criminal attacks of third parties. The question of whether the owners of a shopping center owed a duty to protect a patron from criminal attack was addressed by the court in O'Brien v. Colonial Village, Inc. (1970), 119 Ill. App.2d 105, 255 N.E.2d 205. In rejecting plaintiff's contention that the daily city-like presence of thousands of people on the premises raised a duty to anticipate and guard against criminal action, the court stated:

"* * * [T]he liability at common law is not that of an insurer, but is based on fault. [Citations.] Obviously, every risk which is foreseeable does not create a duty to an injured person. In addition, the likelihood of injury, the magnitude of the burden of guarding against it, and the desirability of placing the burden upon a defendant must also be considered. [Citations.]" 119 Ill. App.2d 105, 107, 255 N.E.2d 205, 207. See also Annot., 93 A.L.R.3d 999 (1979); Restatement (Second) of Torts § 344, comment f (1965).

Although we are aware of no Illinois case that has considered the precise issue presented by the case at bar, the court in Meyer v. Riverview Park Co. (1950), 342 Ill. App. 218, 96 N.E.2d 379, stated that the prerequisite of a good complaint in similar cases is that it must allege not only danger of assault but that the defendant had notice of such danger and reasonably should have anticipated it. Cf. Altepeter v. Virgil State ...


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