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Duncan v. Rzonca

OPINION FILED MAY 7, 1985.

ALAN DUNCAN, PLAINTIFF-APPELLANT,

v.

RAYMOND RZONCA ET AL., DEFENDANTS (HINSDALE FEDERAL SAVINGS AND LOAN ASSOCIATION ET AL., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The plaintiff, Alan Duncan, a Naperville police officer, appeals the judgment of the circuit court of Du Page County dismissing with prejudice counts III and IV of his first amended complaint at law for personal injury against defendants Hinsdale Federal Savings and Loan Association (Hinsdale Federal or bank) and Patricia A. Doerr. The court found the counts failed to state a cause of action against these respective defendants, and its judgment included the finding required by Supreme Court Rule 304(a) to permit interlocutory appeal. Supreme Court Rule 304(a), as amended April 27, 1984, effective July 1, 1984.

Plaintiff was injured on May 19, 1983, at approximately 2:17 p.m. in an automobile accident during an emergency response to a robbery alarm from Hinsdale Federal in Naperville. The plaintiff was forced to swerve his squad car in order to avoid a collision when a vehicle, owned by defendant Edward Rzonca and driven by defendant Raymond Rzonca, entered the intersection of Olesen Drive and Chicago Avenue in Naperville. The officer's car struck a telephone pole, and he sustained the injuries and damages claimed in the suit. The alarm, a false one, allegedly was activated by the defendant Doerr's three-year-old son, Charles A. Doerr.

Inter alia, it was alleged that between the period January 10, 1983, to the date in question, May 19, 1983, six alarms, all later discovered to be false, originated from the Hinsdale Federal facility. It was alleged that a false alarm immediately preceding the one in question occurred on May 13, 1983, about 12:37 p.m., and that it also was activated by defendant Doerr's son Charles. In each of the six false alarm instances, certain Naperville police officers, including plaintiff here, responded, assuming that a robbery was in progress at the facility.

Plaintiff's complaint alleged that on the date and at the time in question, May 19, 1983, 2 p.m., Doerr was advised by one of Hinsdale Federal's employees, Carol Crowell, that the last time Doerr was in the bank her son had set off the silent alarm, causing the Naperville police to respond. Doerr was requested by Crowell to keep Charles away from the back of her desk where the alarm button, exposed and facing outward from the rear of the desk, was located in the upper right-hand corner of the desk's knee-space. Shortly thereafter, Crowell left Doerr's presence, and another bank employee, Stephen A. Shuman, observed Doerr's son behind Crowell's desk, at or near said alarm button, and directed him to come to the front of the desk. It was alleged the boy had already pushed the button, however, and the alarm was activated. Plaintiff was injured while responding to that false alarm.

Plaintiff's count III against Hinsdale Federal alleged it "then and there owned, operated, maintained and/or controlled or had the duty to own, operate, maintain and/or control a certain banking facility at 1490 East Chicago Avenue in the City of Naperville * * *," and alleged it was:

"then and there guilty of one or more of the following careless and negligent acts and/or omissions which were a proximate cause of the aforesaid collision and the injuries sustained by the plaintiff:

a) Allowed said silent alarm button to be open, exposed and unguarded when they knew the defendant's son had activated the alarm on a prior occasion.

b) Failed to have an adequate safeguard to prevent children from pushing the silent alarm button when they knew the defendant DOERR's son Charles had activated the alarm on a prior occasion.

c) Failed to prevent children from gaining access to the silent alarm button when they had prior notice that defendant DOERR's son Charles so activated the alarm on a prior occasion.

d) Failed to institute appropriate safeguards to prevent defendant DOERR's son Charles from gaining access to the silent alarm button when they knew he had set off the silent alarm on a prior occasion.

e) Failed to determine whether or not the defendant DOERR's son Charles had set off the alarm on May 19, 1983 when they had observed him at and/or near said button.

f) Failed to notify the Naperville Police Department, and especially the plaintiff herein, that said alarm was falso [sic] when they knew said failure could create a hazardous and dangerous condition for police officers responding to said call, including the plaintiff herein.

g) Failed to prevent false alarms from being reported to the Naperville Police Department when it knew or should have known that said failure could create a hazardous and dangerous condition for police officers responding to said alarm, including plaintiff herein."

Plaintiff's count IV against Doerr alleged she was advised about the prior false alarm activated by her son on May 13, and was asked to control her son and keep him away from the back of Crowell's desk. It was further alleged Doerr permitted her son "to run around the premises, including the back of Ms. Crowell's desk, at which time he activated the aforementioned silent alarm." It was further alleged that Doerr:

"was then and there guilty of one or more of the following careless and negligent acts and/or omissions which were a proximate cause of the aforementioned collision and injuries sustained by the plaintiff:

a) Failed to prevent her son, CHARLES DOERR, from activating the silent alarm when she knew that he had done so on May 13, 1983.

b) Failed to determine whether her son had activated the silent alarm.

c) Failed to properly supervise the conduct of her son, CHARLES DOERR.

d) Failed to notify the Naperville Police Department and the plaintiff that said alarm was false on May 19, 1983.

e) Failed to prevent a false alarm from being reported to the Naperville Police Department when she knew or should have known that said failure could create a hazardous and dangerous condition for police officers responding to said alarm, including plaintiff herein."

The court granted Hinsdale Federal's motion to dismiss because it found the "two intervening acts, one of the parent-child control or lack thereof, and secondly, the intervening conduct of the plaintiff and the driver defendant in this particular case" made it "just too far out from foreseeability as well as violating the concept of proximate cause."

The court granted Doerr's motion to dismiss, finding that:

"Insofar as the mother and the control is concerned, I think that this is one step closer, but once again on the issue of foreseeability, proximate cause, intervening cause, I don't believe in either instance the plaintiff in this case can make out an action predicated that the negligence, if any, of either of the defendants is a, and I do emphasize the word `a', proximate cause of the injuries, which of course is what it is all about."

Continuing, the court commented:

"There may very well be some contractual duty or contractual liability between the bank and the City of * * * Naperville.

But I don't see that that duty or that responsibility, insofar as multiple activation of a silent alarm, bleeds over and is the kind of duty that is involved insofar as this action is concerned."

The central issue is whether the court erred in determining that counts III and IV failed, respectively, to state a cause of action in negligence against defendants Hinsdale Federal and Patricia Doerr. This appeal focuses first on the question whether the plaintiff's complaint alleged facts sufficient to establish a duty on the part of each of these two defendants owed to the plaintiff and, if so, whether the breach of the respective defendant's alleged duty proximately caused the plaintiff's injury.

• 1, 2 Common to this court's review of each of the dismissals at bar are several general principles. First, in order to adequately state a cause of action for negligence, the plaintiff's allegations must establish the existence of a duty of care owed by defendant to plaintiff, a breach of that duty, and an injury proximately resulting from that breach. (Curtis v. County of Cook (1983), 98 Ill.2d 158.) It is not sufficient that a complaint merely allege a duty; the plaintiff must allege facts from which the law will raise a duty. (Bescor, Inc. v. Chicago Title & Trust Co. (1983), 113 Ill. App.3d 65.) The existence of a legal duty is a question of law to be determined by the trial court. (Keller v. Mols (1984), 129 Ill. App.3d 208; Zimmermann v. Netemeyer (1984), 122 Ill. App.3d 1042; Mieher v. Brown (1973), 54 Ill.2d 539.) The granting of a motion to strike and dismiss is within the sound discretion of the trial court. Knox College v. Celotex Corp. (1981), 88 Ill.2d 407.

• 3-5 On appeal from orders allowing motions to dismiss, all well-pleaded facts within the complaint must be regarded as admitted and true, and all reasonable inferences which can be fairly drawn from the facts alleged must also be considered as true. (Wilczynski v. Goodman (1979), 73 Ill. App.3d 51.) An appeal from an order dismissing a complaint for failure to state a cause of action preserves for review only the question of the complaint's legal sufficiency; i.e., whether the plaintiff has stated a cause of action. (Sorrentino v. Waco Scaffolding & Shoring Co. (1976), 44 Ill. App.3d 1055, 1059.) In determining the propriety of dismissal of an action, the appellate court is concerned on review only with questions of law presented by the pleadings and the court tests the sufficiency of the complaint by ascertaining whether the essential elements of a cause of action were alleged. (Beese v. National Bank of Albany Park (1980), 82 Ill. App.3d 932.) The reviewing court should interpret facts alleged in the complaint in the light most favorable to plaintiff on appeal from the granting of a motion to dismiss. (Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App.3d 834, 836.) A motion to dismiss for failure to state a cause of action should be affirmed on appeal only where ...


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