APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
A. SULLIVAN, JR., Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
The plaintiff, John Burks, filed a one-count complaint against defendant, Isoura Madyun, seeking damages for personal injuries suffered as a result of defendant's wilful and wanton negligence in not warning him against the danger of criminal attack by third persons while on her premises. Defendant moved to dismiss the second amended complaint for failure to state a cause of action apparently pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 45). The trial court granted defendant's motion to dismiss and plaintiff appeals from that order.
The issues on appeal are (1) whether plaintiff's second amended complaint was improperly dismissed with prejudice for failure to set forth facts demonstrating that defendant had both notice of imminent danger to plaintiff and was also in special relationship with him, which gave rise to a legal duty to warn or protect him against the criminal acts of third parties, and (2) whether the complaint was improperly dismissed for failure to state a cause of action for wilful and wanton misconduct as a matter of law.
Plaintiff's second amended complaint contained the following pertinent allegations. Defendant owned and occupied the premises at 5631 S. Hoyne Avenue in Chicago, Illinois, as a family residence. On March 28, 1979, defendant invited plaintiff upon the property to stay with her highschool aged boys for a certain fee so that she might attend to personal business. The pleading alleged that defendant had an affirmative duty to warn plaintiff of the "extremely dangerous situation" into which she was placing him.
Specifically, plaintiff alleged that defendant was guilty of the following wilful and wanton misconduct: (1) misstating to plaintiff that her boys were merely having trouble "at school" when they were actually having trouble "with gangs at school," (2) withheld information from plaintiff that her boys had had threats upon their lives from these gangs who knew where the boys lived, (3) withheld information from plaintiff that his life and/or limbs would be in danger should he stay with her boys, (4) induced plaintiff to stay upon her property with her boys when she either knew or should have known of danger to him in doing so, and (5) was otherwise guilty of wilful and wanton misconduct.
The complaint further alleged that as a result of this misconduct, and while he was upon defendant's property in a special relationship, her house was broken into by one or more third persons who shot him, causing him severe bodily injuries.
Defendant's motion to dismiss argued that plaintiff's complaint failed to state a cause of action. In support thereof, she argued that a duty to protect another from criminal acts by third persons exists under Illinois law only when there is both a "special relationship" between the defendant and the person who suffers harm, and only if the defendant has notice of the danger. Defendant maintained that the complaint failed to set forth facts demonstrating either a special relationship with the plaintiff or notice of the danger, and, therefore, defendant had no legal duty to warn plaintiff of any potential danger of criminal attack by third persons.
After reviewing the parties' memoranda and hearing argument, the trial court determined that plaintiff's second amended complaint failed to state a cause of action and issued an order dismissing it with prejudice.
We turn first to the contention of whether the complaint states a cause of action sufficient to withstand the motion.
The Civil Practice Act provides that pleadings shall be liberally construed with a view to doing substantial justice (Ill. Rev. Stat. 1973, ch. 110, par. 33(3)) although it will not sustain a complaint which wholly fails to state a cause of action. Smith v. Chicago Housing Authority (1976), 36 Ill. App.3d 967, 344 N.E.2d 536.
In determining the legal sufficiency of a complaint on a motion to dismiss, all well pleaded facts are to be taken as true (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 380 N.E.2d 790), and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. Farns Associates Inc. v. Sternback (1979), 77 Ill. App.3d 249, 395 N.E.2d 1103.
Plaintiff argues that his second amended complaint set forth facts which demonstrate that defendant had a special relationship with him which gave rise to a legal duty to warn or protect him against the criminal acts of third parties, and therefore his complaint was improperly dismissed.
Necessary to recovery in the present case is the existence of a duty or an obligation requiring one to conform to a certain standard of conduct for the protection of another against an unreasonable risk. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538.) Under Illinois law, a complaint must allege the breach of a duty owed by the defendant to the plaintiff in order to state a cause of action for negligence. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill.2d 95, 306 N.E.2d 39.) The existence of a duty, the legal obligation imposed upon ...