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Duncavage v. Allen

OPINION FILED AUGUST 19, 1986.

JOSEPH A. DUNCAVAGE, INDIV. AND AS ADM'R OF THE ESTATE OF MARYBETH DUNCAVAGE, DECEASED, PLAINTIFF-APPELLANT,

v.

KEVIN J. ALLEN, INDIV. AND D/B/A BAY MANAGEMENT COMPANY, ET AL., DEFENDANTS (KEVIN J. ALLEN, INDIV. AND D/B/A BAY MANAGEMENT COMPANY, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Alan J. Morrill, Judge, presiding.

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 17, 1986.

Plaintiff sued the owners of a residential apartment building to recover damages for personal injuries and death sustained by plaintiff's decedent, Marybeth Duncavage, arising out of a criminal assault by defendant Tommy Lee Jackson. The only defendant involved in this appeal is Kevin J. Allen, the landlord of the apartment building where plaintiff's decedent resided at the time she was criminally assaulted and killed. Pursuant to defendant's section 2-615 motion, the trial court dismissed for failure to state a cause of action all claims asserted against the owners of the apartment building. Several counts asserted against the criminal assailant remain pending in the trial court. Plaintiff appeals.

Defendant Allen allegedly owned and managed an apartment complex located at 710-716 West Buckingham Place in Chicago. On July 27, 1982, plaintiff's decedent, a second-year medical student, entered into a residential-lease agreement with Allen for rental of apartment 1-W. She moved into the apartment on August 1, 1982. At about 3 a.m. on August 4, 1982, Tommy Lee Jackson came into the rear yard adjacent to apartment 1-W and allegedly hid and concealed himself in the darkness of the unlighted exit area and in the high weeds on the property. Using a ladder which plaintiff alleged defendant Allen stored in the yard adjacent to decedent's apartment, Jackson climbed the building's wall and entered apartment 1-W through a window which plaintiff alleged was incapable of being locked. Once inside the apartment, Jackson tied decedent's hands and feet, tied two ligatures around her neck, and repeatedly raped, sodomized and strangled her until she was dead.

Count I of plaintiff's first amended complaint, as amended, alleged that the ladder used in this incident had been used prior to July 27, 1982, to enter the same window and burglarize the same apartment 1-W. Plaintiff stated that defendant Allen knew of the burglary from tenant complaints, from personal inspection and from a citation he received from the Department of Inspectional Services of the city of Chicago. The complaint alleged that conditions of the building amounted to numerous violations of the Chicago housing and building code, including lack of window screens, defective windows and doors, high weeds, inoperable or burned out interior and exterior lighting, and the failure to remove refuse and debris, including the ladder, from the yard adjacent to apartment 1-W. Plaintiff alleged that these violations substantially increased the danger of criminal attack. Count I further alleged that leasing of apartment 1-W to decedent while the building was in violation of building regulations violated sections 78-15, 78-15.1, 96-2 and 96-12 of the Chicago building code. Plaintiff asserted that even though defendant knew of the previous burglary with the ladder and of the hazards in the building that defendant failed to warn decedent of the dangerous situation and of the building's and apartment 1-W's defects and failed to take reasonable and necessary steps to protect decedent and others or to have prevented the complained of occurrence. Plaintiff alleged that defendant's negligence therefore proximately caused the assault and death of the decedent.

In count III plaintiff alleged that decedent was a consumer and that the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.) incorporated section 2 of the Uniform Deceptive Business Practices Act (the Uniform Act) (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 311 et seq.). Plaintiff stated that defendant had violated section 2 of the Consumer Fraud Act by concealing, suppressing, or omitting material facts concerning the building and apartment 1-W, and by creating a likelihood of confusion or of misunderstanding in the mind of decedent regarding the building's compliance with the Chicago building code. Plaintiff asserted decedent relied on these omissions and misrepresentations.

Plaintiff sought recovery in count IV under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 1 et seq.) and in count V under the Survival Act (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 27-6).

Count IX sounded in strict products liability. Plaintiff alleged that defendant was engaged in the business of selling, supplying or renting residential apartments, including apartment 1-W, that these apartments and their maintenance were products or services distributed in commerce, and that the building and apartment 1-W were unreasonably dangerous from the time they left possession of the defendant. Plaintiff specified storage of the ladder, weeds, defective windows, window sashes and doors, insufficient lighting, lack of screens, and the high-crime area as dangerous and defective. Plaintiff further asserted that defendant had failed to warn decedent of the defects in the building and of the high-crime area.

On January 16, 1985, defendant filed a motion to dismiss counts I through VI and count IX of the amended complaint for failure to state a cause of action. The plaintiff asserted during oral argument on the motion that defendant Jackson had confessed to the crime. The trial court granted plaintiff leave to amend the first amended complaint to allege that on September 12, 1984, the municipal division of the circuit court of Cook County entered an order finding that the apartment complex at 710-716 West Buckingham failed to conform to the minimum standards of health and safety set forth in applicable ordinances of the municipal code of Chicago. The municipal division also found that the premises were unfit for human habitation. Plaintiff also alleged that defendant Jackson chose to enter upon the 714 West Buckingham property because he thought it would be a good building to burglarize because of its dilapidated condition.

After considering plaintiff's response, defendant's reply, and hearing oral argument on the motion to dismiss, the trial court entered an order striking with prejudice counts I through VI of the first amended complaint. Plaintiff appeals from this order. On November 26, 1985, we permitted the Illinois Coalition Against Sexual Assault to file a brief amicus curiae.

• 1, 2 Initially, defendant contends that plaintiff has expressly waived the issues in punitive damages for wilful and wanton conduct and common law fraud in counts II and VI of the amended complaint by stating in his brief that he will not argue in support of these counts. We agree with defendant that the dismissal of counts II and VI should be affirmed. Defendant also asserts that the dismissal of counts IV and V, the wrongful death and survival actions, should be affirmed because plaintiff failed to address the sufficiency of these counts in his initial appellant's brief. Defendant urges that this violates Supreme Court Rule 341(e). (87 Ill.2d R. 341(e).) Nevertheless, the waiver rule is a limitation on the parties, not on the courts, and a reviewing court may ignore the waiver rule in order to achieve a just result. (Augsburg v. Frank's Car Wash, Inc. (1982), 103 Ill. App.3d 329, 333, 431 N.E.2d 58.) The issues are answerable by reference to the record (Comet Casualty Co. v. Schneider (1981), 98 Ill. App.3d 786, 793, 424 N.E.2d 911), and we choose to exercise our discretionary authority to consider the points not initially argued. Consequently, we also reject defendant's request to ignore the arguments of amicus curiae concerning counts IV and V.

• 3 Finally, defendant asserts that the brief of amicus curiae contains numerous allegations which are dehors the record, in violation of Supreme Court Rule 341(e). (87 Ill.2d R. 341(e).) Defendant asks us to strike the amicus brief in its entirety. We find that the violation complained of does not warrant striking the entire amicus brief, but only those portions not supported by the record.

• 4 The first issue to be determined is whether the trial court properly dismissed with prejudice count I of plaintiff's complaint for failure to state a cause of action because a landlord is not responsible for the criminal acts of third parties. Both parties agree that in Illinois, a landlord generally has no duty to safeguard his tenants from the criminal acts of third persons. (Pippin v. Chicago Housing Authority (1979), 78 Ill.2d 204, 208, 399 N.E.2d 596.) However, Illinois cases recognize exceptions to this general rule. (Phillips v. Chicago Housing Authority (1982), 89 Ill.2d 122, 431 N.E.2d 1038; Cross v. Wells Fargo Alarm Services (1980), 82 Ill.2d 313, 412 N.E.2d 472; Krauststrunk v. Chicago Housing Authority (1981), 95 Ill. App.3d 529, 534, 420 N.E.2d 429; Stribling v. Chicago Housing Authority (1975), 34 Ill. App.3d 551, 340 N.E.2d 47.) Plaintiff contends that defendant had a duty to maintain the common areas of the building, a duty under the circumstances of this case to protect decedent from criminal acts of third parties, and a duty arising from specific building-code ordinances. Defendant disputes that he owed any such duties to plaintiff's decedent and asserts that a condition of the premises was not here a proximate cause of decedent's injuries.

• 5 For purposes of review, a motion to dismiss admits all well-pleaded facts and reasonable inferences that can be drawn therefrom. (Mack v. Plaza Dewitt Limited Partnership (1985), 137 Ill. App.3d 343, 349, 484 N.E.2d 900.) In determining the propriety of a dismissal of an action, the reviewing court considers only questions of law presented by the pleadings and tests the sufficiency of the complaint by ascertaining whether the essential elements of a cause of action were alleged. (Duncan v. Rzonca (1985), 133 Ill. App.3d 184, 191, 478 N.E.2d 603.) All allegations in a complaint should be interpreted in the light most favorable to the plaintiff. (City of Chicago v. Department of Human Rights (1986), 141 Ill. App.3d 165, 169, 490 N.E.2d 53.) When confronted by a motion to ...


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