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Comastro v. Village of Rosemont

OPINION FILED MARCH 15, 1984.

DAVID COMASTRO, PLAINTIFF-APPELLANT,

v.

THE VILLAGE OF ROSEMONT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Myron Gomberg, Judge, presiding.

PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, David Comastro, filed an action in the circuit court of Cook County seeking damages from defendant, the village of Rosemont (Village), for injuries he allegedly sustained as a result of the Village's negligent failure to use due care in patrolling its premises and thereby prevent a criminal attack by an unknown third party. The Village responded by filing a motion for summary judgment, arguing that as it had no duty to protect Comastro from random criminal attack, no genuine issue of material fact existed, and the Village was entitled to summary judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2-1005.) The Village's motion was granted, and Comastro now appeals.

The sole issue raised on appeal is whether the trial court erred in granting summary judgment to defendant, the village of Rosemont.

We reverse the entry of summary judgment by the trial court and remand the case for trial on the issues of breach of duty, proximate cause of injury, and damages.

FACTS

The record discloses that Comastro, his brother, and some friends were among the audience at a September 20, 1980, rock concert presented by the group AC/DC at the Rosemont Horizon, a large arena owned by and located in the village of Rosemont. When Comastro and his girlfriend arrived at the Horizon, he saw several Rosemont policemen directing traffic into the parking lot. At each entrance to the arena, police personnel wearing yellow jackets were conducting pat-downs of the incoming patrons and confiscating any bottles, cans, fireworks, drugs, or weapons found. During the concert, the traffic officers patrolled the parking lot to discourage vandalism, catch bootleg vendors of AC/DC items, and prevent damage to the private property surrounding the Horizon.

After the concert was over, the police assumed the task of helping the 18,000 spectators leave the building in a safe, orderly manner. According to the depositions of Comastro and the resident manager of the Horizon, no fights or arguments had broken out during the concert, no one was observed drinking, and the only "rowdiness" was some dancing in the aisles.

Following the concert, the members of Comastro's party left the arena, stopped briefly on the walkway outside the door, and then parted to go to their cars. As Comastro looked back, he saw a large male hit his brother; he went back and asked what the trouble was, whereupon the unknown male attempted to punch him. Comastro hit back and broke his hand. At that moment another assailant began hitting Comastro on the back of the head, and an empty bottle came down on his shoulder. With that, the assailants fled. Comastro located his girl friend, but neither she nor any of his brother's friends had witnessed the incident. Although Comastro did not report the attack to any Horizon official or the local police, he did relate the incident to his attorney, who thereafter filed this suit.

OPINION

In order to prevail in a negligence action, a plaintiff must prove that the defendant breached a duty owed to plaintiff and thereby proximately caused plaintiff's injuries. (Gill v. Chicago Park District (1980), 85 Ill. App.3d 903, 407 N.E.2d 671.) A trial court may enter summary judgment only when, after examining all the pleadings, depositions, and affidavits, it concludes that no genuine issue of material fact exists between the parties and summary judgment may be entered as a matter of law. (Kusiciel v. LaSalle National Bank (1982), 106 Ill. App.3d 333, 435 N.E.2d 1217; Ill. Rev. Stat. 1981, ch. 110, par. 2-1005.) Conversely, if a court is presented with disputed facts or conflicting inferences, entry of summary judgment is inappropriate. Marciniak v. O'Connor (1981), 102 Ill. App.3d 381, 430 N.E.2d 536.

The existence of a duty, i.e., the legal obligation imposed upon one person or entity for the benefit of another, is a question of law to be determined by the court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538.) On the other hand, questions concerning a breach of that duty and proximate cause of injury are questions for the trier of fact. Johnson v. Hoover Water Well Service, Inc. (1982), 108 Ill. App.3d 994, 439 N.E.2d 1284.

In its motion for summary judgment, the Village acknowledged that although the general rule is that a person has no duty to protect someone from criminal attack by third persons (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill.2d 95, 306 N.E.2d 39), its relationship to Comastro was, as Comastro alleged in his amended complaint, that of an owner of business premises to a business invitee, one of four "special relationships" recognized as exceptions to the general rule. (Burks v. Madyun (1982), 105 Ill. App.3d 917, 435 N.E.2d 185; Krautstrunk v. Chicago Housing Authority (1981), 95 Ill. App.3d 529, 420 N.E.2d 429; Restatement (Second) of Torts sec. 314A (1965).) These four "special relationships," which do give rise to a duty to protect another from harm, are (1) carrier-passenger, (2) innkeeperguest, (3) business inviter-invitee, and (4) voluntary custodian-protectee under certain limited circumstances. In each one of these relationships, the carrier, the innkeeper, the business inviter, and the voluntary custodian all owe their respective charges a duty to protect them from harm as long as they have the requisite "knowledge of previous incidents or special circumstances [that] would charge the owners [carriers, etc.] with knowledge of the dangers and the duty to anticipate it." O'Brien v. Colonial Village, Inc. (1970), 119 Ill. App.2d 105, 108, 255 N.E.2d 205, 207.

• 1 The duty imposed on a private party, who may or may not be involved in a special relationship, is to exercise reasonable care under the circumstances to the extent of its undertaking. (Pippin v. Chicago Housing Authority (1979), 78 Ill.2d 204, 399 N.E.2d 596.) A municipal corporation engaged in a non-governmental function, such as the operation of a public stadium or arena (Gill v. Chicago Park District (1980), 85 Ill. App.3d 903, 407 N.E.2d 671), a public transportation system (McCoy v. Chicago Transit Authority (1977), 69 Ill.2d 280, 371 N.E.2d 625), or a public housing project (Phillips v. Chicago Housing Authority (1982), 89 Ill.2d 122, 431 N.E.2d 1038), will be held to the same standard of care as that imposed on a private party. In situations involving one of the "special relationships" discussed above, the "extent of the undertaking" is the special relationship itself; the common carrier, like the innkeeper, the business inviter, and the custodian, is "bound to exercise a high degree of care toward its passengers and this include[s] the responsibility to prevent injuries which could have been reasonably foreseen and avoided." Letsos v. Chicago Transit Authority (1970), 47 Ill.2d 437, 441, 265 N.E.2d 650, 653.

Noting that business visitors subjected to personal attack are owed the same duty by the premises owner as are owed by the carrier to its passengers, Haynes v. Chicago Transit Authority (1978), 59 ...


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