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09/22/88 Lori Rowe Et Al., v. State Bank of Lombard

September 22, 1988

LORI ROWE ET AL., APPELLANTS

v.

STATE BANK OF LOMBARD, AS TRUSTEE, ET AL., APPELLEES



SUPREME COURT OF ILLINOIS

531 N.E.2d 1358, 125 Ill. 2d 203, 126 Ill. Dec. 519 1988.IL.1401

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. William E. Black, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

Plaintiff Lori Rowe sustained personal injuries when she and Bonnie Serpico were attacked, and then shot, while they were working at a large office park located in Glen Ellyn. Serpico was killed. Rowe and Serpico's husband, Andrew, and minor children, Linda and Andrea, brought separate actions for damages in the circuit court of Du Page County against, among others, the Paramount Group, Inc., companies that collectively owned and managed the office park; Todd Fennessey, Paramount's managing agent; and Leland Stahelin, the developer and a prior owner of the office park. The circuit court consolidated the actions, granted summary judgment in favor of the defendants, and pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), authorized an interlocutory appeal. The appellate court affirmed (153 Ill. App. 3d 788), and this court granted the plaintiffs' petition for leave to appeal under Rule 315(a) (107 Ill. 2d R. 315(a)).

In the early morning hours of April 24, 1978, Rowe and Serpico, employees of J-Mar Enterprises, were working at their office on the first floor of building No. 1 of the Glen Hill Office Park, which contains eight separate commercial office buildings. J-Mar leased the office space from Paramount, which held beneficial interest to the property under a land trust. The State Bank of Lombard held title to the property and served as trustee.

At approximately 4 a.m., an intruder entered the office in which they were working through a door which opened directly into the office space, and at gun point, forced Rowe and Serpico, who were alone at the time, into the lunchroom of the building. He tied Rowe's hands behind her back and took Serpico into another room. As Rowe struggled to free herself, the assailant returned and knocked her to the ground. Rowe then heard Serpico running from the other room and saw the assailant turn and run after her. Several seconds later Rowe heard a gunshot. The assailant returned and shot Rowe before running from the building. After he fled, Rowe called the police, who were forced to break the office door down to reach her. Serpico died in the assault and Rowe sustained serious personal injuries. The police investigation determined that the assailant was James Free, who had previously worked at the office park for Stahelin as a construction laborer. He was arrested, convicted and sentenced to death. See People v. Free (1983), 94 Ill. 2d 378.

Plaintiffs Linda and Andrea Serpico, Bonnie Serpico's minor daughters, by their father, Andrew Serpico, and Andrew Serpico, individually and as administrator of the decedent's estate, brought an action in the circuit court of Du Page County for the wrongful death and personal injury of the plaintiffs' decedent against Free, J-Mar, the State Bank of Lombard, Paramount, Stahelin, and Fennessey, individually and as Paramount's agent. The complaint alleged that Paramount, Fennessey and Stahelin had a duty, or had assumed a duty, to protect the decedent while she was on the premises of the office park from "criminal or tortious attacks by intruders or other third persons." It charged that they breached this duty by, inter alia, failing to properly maintain the locks on the doors to J-Mar's office; failing to control the distribution of master keys and grandmaster keys; failing to warn the decedent that master and grandmaster keys were outstanding and unaccounted for; failing to warn of the numerous criminal incidents that had been reported at the office park; and otherwise failing to provide adequate security on the premises. It further alleged that as a proximate result of the defendants' negligence in failing to provide the necessary security measures or adequate warnings, Free was allowed to enter J-Mar's offices where he shot and killed the decedent.

Rowe brought a separate action in the circuit court of Du Page County against the defendants, which was consolidated with the Serpicos' action, and set out substantially the same allegations as those set out in their complaint.

Defendants Fennessey and Paramount filed a motion for summary judgment, and in support, filed excerpts from a deposition of Lori Rowe and an affidavit of Fennessey. Both stated that they could not recall a break-in or forcible assault occurring at the office park prior to April 24, 1978. Also attached to their motion was a copy of J-Mar's lease with Paramount, which provided:

"The Lessee shall use and occupy said premises for business office use and for no other purpose; and the Lessee shall, at his own expense, keep said premises in good repair and tenantable condition during said term, replacing at his own expense, any and all broken glass in or about said premises with glass of the same size and quality, and replacing signs thereof.

Lessor shall not be liable and Lessee waives all claims for injury or damage to person or property sustained by Lessee, its employees and agents, resulting directly or indirectly from any act or negligence of any tenant or occupant of the building or of any other person. All personal property belonging to Lessee, its agents and employees, that is on the premises shall be there at the risk of Lessee and Lessor shall not be liable for any damage thereto or the theft or misappropriation thereof."

Stahelin filed a motion for summary judgment also, and in an attached affidavit, stated that he sold the office park to Paramount in August of 1976, and turned over the master keys in his possession to the new owners at that time.

The plaintiffs filed the deposition and affidavit of Robert Davis, a maintenance engineer at the office park who was employed by both Paramount and Fennessey. Deposed, he stated that during the time that Stahelin owned the office park several individuals were given master keys which would open the doors to each building at the office park, and grandmaster keys which would open the door locks in all of the buildings. He could not recall if Stahelin maintained records of who was given these keys or whether they were collected when the office park was sold. Davis also stated that when a tenant vacated an office at the expiration of the lease, the door locks were simply "re-keyed" for the new tenant. This would render the prior tenant's keys inoperative, but not the master or grandmaster keys.

In an affidavit, Davis stated that in early 1976, he told Stahelin that he believed a number of master keys were unaccounted for and that Stahelin authorized him to purchase the materials necessary "to change the lock system so that the old master keys would not work." When the parts arrived, however, Stahelin told him not to install them because of the cost, which, according to Davis, was $2,500. Davis testified that he made the same suggestion to Fennessey after Stahelin sold the office park to Paramount, but that Fennessey's superior, Martin Panek, rejected the idea also due to the expense. Davis further testified that during the time that Free was employed by Stahelin, he "frequently saw James Free with sets of master keys in his possession."

The plaintiffs also filed excerpts from a deposition of Fennessey in which he stated that on the afternoon of April 23, 1978, he received a call from a woman who worked in building No. 4 at the office park. She told Fennessey that a man (whom she later identified as James Free following his arrest) was in the building "asking about carpets that needed to be cleaned." When Fennessey arrived the man had left; Fennessey checked the doors to the building, talked briefly to the woman and left.

The trial court denied Fennessey and Paramount's motion for summary judgment but granted Stahelin's motion. The court held that Stahelin owed no duty to protect Rowe or Serpico from the criminal assault because he did not own or manage the office park at the time of the assault by Free. The State Bank of Lombard was dismissed on the ground that, as trustee, it held only legal title to the property and, therefore, was not responsible for managing the property. Before the cause was called for trial, it was reassigned to a different Judge pursuant to an administrative order establishing civil and criminal divisions within the circuit. One month later, Fennessey and Paramount filed a petition for reconsideration before the new Judge of the original Judge's denial of their motion for summary judgment.

In response, the plaintiffs submitted the affidavit of Mary Ferrier, who stated that on April 23, 1978, she saw James Free in building No. 4 at the office park while she was working. Shortly thereafter, she received a telephone call from a man who stated that "two girls left some change in the lunch room" and that she should come down to get it. Ferrier stated that Mally Heaton, with whom she was working with at the time, called Fennessey, informed him of the call and asked him if the man was authorized to be in the building. Heaton testified in a separate affidavit that when she arrived for work at approximately 8 a.m. on April 23, 1978, the door she entered to building No. 4 was locked and, after being opened, automatically locked behind her. At approximately 9 a.m., she saw James Free enter the same door and "putkeys in his pocket."

The plaintiff also submitted evidence regarding prior incidents of criminal activity occurring on the premises of the office park. In an affidavit, James Mullany, Glen Ellyn's police chief, listed 17 incidents of criminal activity the police had investigated at the office park in the two years preceding the assault on Rowe and Serpico. He attached the related police reports which showed that eight of the incidents involved acts of theft, five occurring in the parking lot area and three in tenants' offices; eight were burglaries of tenants' offices; and none involved a violent crime.

Robert Velon, a Glen Ellyn police detective, testified in an affidavit that he investigated three burglaries at the office park during 1977 and 1978; that two of the incidents showed no signs of forced entry; and that he advised Fennessey on several occasions that "the locks on the buildings in the complex should be changed in view of the burglaries and thefts reported." John Kleinifen, a Glen Ellyn police officer, stated in an affidavit that in April of 1977, he investigated two reported burglaries at the office park which involved a total theft of $25 worth of postage by someone's operating the company's postage machine on two successive nights. Kleinifen stated too that he checked the office doors and found no signs of forced entry. William Bruno, also a Glen Ellyn police officer, stated that he investigated a burglary at the office park on June 9, 1977, involving the alleged theft of $20 from one of the offices located in building No. 3. Bruno stated that he also could not determine how entry was made into the office.

The new trial court granted Paramount and Fennessey's petition for reconsideration of the denial of their motion for summary judgment, stating that they were under no duty as a matter of law to protect Rowe and Serpico from the criminal actions of Free. Pursuant to our Rule 304 (107 Ill. 2d R. 304), the court made a finding that there existed no just reason to delay appeal of its orders granting summary judgment in favor of Paramount, Fennessey and Stahelin, and the appellate court affirmed (153 Ill. App. 3d 788). The plaintiffs' actions against the other defendants still pend in the circuit court and they are not involved in this appeal.

The plaintiffs contend that the trial court erred in granting Paramount and Fennessey's petition for reconsideration of the denial of their motion for summary judgment. They first argue that under Balciunas v. Duff (1983), 94 Ill. 2d 176, the trial court was precluded from reversing the prior order because the defendants had not ...


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