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01/23/87 Claudia Berry, v. the Habitat Company Et Al.

January 23, 1987





504 N.E.2d 153, 152 Ill. App. 3d 78, 105 Ill. Dec. 284 1987.IL.46

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.


JUSTICE LORENZ delivered the opinion of the court. PINCHAM and MURRAY, JJ. concur.


Plaintiff, the victim of an assault and attempted rape in the underground parking garage of the building where she resided, instituted a negligence action against the owners of her apartment complex, the operator of the parking garage, and her assailant, alleging that the corporate defendants had failed to use due care in the maintenance of the parking facility. The circuit court granted summary judgment only as to the corporate defendant responsible for the garage's parking operations. Plaintiff appeals from the summary judgment on the grounds that (1) the trial court improperly viewed the case in terms of the law of premises liability; (2) the case cited by defendant as controlling did not actually support the merits of defendant's position; and (3) the trial court virtually ignored and thereby failed to apply the proper procedural law in determining whether to grant the summary judgment motion.

For the reasons stated below, we reverse.

Plaintiff, Claudia Berry, and her husband were residents of the River Plaza apartment complex from May 1979 through August 1982. The couple signed leases both for a residential apartment and a parking space for their car at the underground facility in the building. The garage, which provided both public and private parking facilities, consisted of four levels. Level 1 (G1), the top level, was reserved exclusively for public parking. Level 2 (G2) was used by employees of the Sun-Times, located immediately adjacent to the River Plaza complex. Levels 3 and 4 (G3 and G4), the two bottom levels, were set aside for tenant parking.

On January 27, 1982, while in the tenant parking area of the garage, plaintiff became the victim of an assault and attempted rape. As a result of the attack, plaintiff initiated a lawsuit against the Habitat Company (hereinafter referred to as Habitat), the designated agent of the complex and lessor of the tenant parking spaces, General Parking Corporation (hereinafter referred to as General Parking), the managers of said garage operations, and Darryl K. Matthews, her assailant. Plaintiff's amended complaint, filed on January 3, 1984, alleged in relevant part that defendant General Parking "operated, managed, controlled and provided security" for the parking facility where the attack had occurred and that its failure to maintain a pre-existing security system and to keep the entrance door leading to the bottom two levels of the facility locked had caused her to sustain injuries of a personal, pecuniary, and permanent nature.

Defendant General Parking attacked the amended complaint by moving for summary judgment. Attached to said motion were copies of plaintiff's residential and parking leases with Habitat, the deposition of plaintiff, and the affidavit of John W. Hammerschlag, an employee of General Parking. Plaintiff filed a response along with various sworn depositions. These depositions revealed, among other significant facts, that (1) aside from the singular vehicular entrance to the garage, maintained as a checkpoint by defendant, there was a door in G2 leading to a stairwell which connected level G2 with the lower two floors; (2) defendant parking company kept a total of two attendants on duty to service the parking operations, one of which was positioned at the main entrance and the other in level G2; (3) the entrance door at level G2 had sometimes been left unlocked and an alarm system, installed for security purposes prior to defendant assuming duties of the operations of the garage, was no longer working; (4) the lower two levels of the garage could only be accessed through the vehicular entrance, the stairwell door on G2, or the tenants' elevator operating directly from the lobby of the security-guarded building; (5) in October 1981 General Parking took over the operation of the garage pursuant to a contract with Habitat, but refrained from actively operating all floors at that time because of a delay with its supplier of parking equipment; and (6) as of June 1982 defendant was actively operating all levels of the facility.

Following a hearing on the motion, summary judgment was entered in favor of defendant General Parking. It is from that order that this appeal is taken.


The sole issue on appeal is whether summary judgment was properly granted by the trial court.

We first consider plaintiff's contention that the trial court, in granting defendant General Parking its motion, improperly viewed the case in terms of the law of premises liability. The duty imposed on an owner or occupier of land to one who comes upon the premises is limited in that it only arises with the knowledge of danger and the likelihood of injury. (Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 428 N.E.2d 662.) The record in the instant case reveals that in its motion for summary judgment the defendant solely relied on landlord/tenant cases to support a limited liability argument. Defendant's attempt to apply the laws relating to ownership, however, is patently misplaced. Rather than being owner of the property, defendant merely came to control the premises for the specific purpose of managing and securing it. There is nothing in the record that would lead us to conclude that defendant, by virtue of its managing capacity, should be allowed to stand in the shoes of a ...

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