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09/23/97 JOYCE KOLODZIEJZAK v. MELVIN SIMON &

September 23, 1997

JOYCE KOLODZIEJZAK, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF DAVID KOLODZIEJZAK, DECEASED, PLAINTIFF-APPELLEE,
v.
MELVIN SIMON & ASSOCIATES, SIMON MANAGEMENT COMPANY, CORPORATE SECURITY CONSULTANTS, INC., INDIV. AND D/B/A YARDS SECURITY, DEFENDANTS-APPELLANTS. MELVIN SIMON & ASSOCIATES, SIMON MANAGEMENT COMPANY, CORPORATE SECURITY CONSULTANTS, INC., INDIV. AND D/B/A YARDS SECURITY, THIRD-PARTY PLAINTIFFS-APPELLANTS, V. ADIEL CUEVAS, THIRD-PARTY DEFENDANT.



Appeal from the Circuit Court of Cook County. Honorable Jennifer Duncan-Brice, Judge Presiding.

Released for Publication November 10, 1997.

Presiding Justice McNULTY delivered the opinion of the court. Rakowski, J., concurs. Tully, J., dissents.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

Plaintiff Joyce Kolodziejzak brought this wrongful death action against defendant Simon Management Company and other defendants on behalf of the estate of David Kolodziejzak (Kolodziejzak). The jury found in favor of plaintiff and allocated 10% of the fault to Simon Management. The trial court entered judgment on that verdict. Simon Management appeals, contending that the trial court erred in denying its motion for a directed verdict because: (1) Simon Management did not owe any duty to protect David Kolodziejzak from criminal attacks by third parties; (2) plaintiff failed to present any evidence that Simon Management's alleged negligence was the proximate cause of Kolodziejzak's injury; and (3) plaintiff failed to present any evidence that Simon Management negligently hired the security company Corporate Security Consultants Inc. (Corporate Security). Simon Management also claims that the jury's apportionment of fault was unreasonable and contrary to the evidence, and that the trial court erred in denying Simon Management's motion to bar the testimony of plaintiff's expert witness. We reverse the trial court order entering judgment on the jury's verdict, and we enter judgment in favor of Simon Management.

In the fall of 1990, a strip mall, named Yards Plaza, opened at 47th and Damen Avenue in Chicago. Simon Management was the property management company for Yards Plaza. On October 31, 1990, Simon entered into a one-year contract with Corporate Security pursuant to which Corporate Security was to provide security service to the common areas of Yards Plaza. Corporate Security guards were to patrol the exterior of the Plaza and do security checks of the main lot and parking areas. On November 13, 1991, Simon Management's contract with Corporate Security was renewed for another year.

On November 24, 1990, Montgomery Ward signed a lease to become a tenant store at Yards Plaza. On November 25, 1990, at approximately 4 p.m. Terry Minor, a Montgomery Ward loss prevention specialist, was on patrol inside Montgomery Ward, when he saw six teenagers fighting in the "Electric Avenue" department. Minor called a "Code 600" over his radio, indicating that he needed help and calling all available loss prevention specialists to the "Electric Avenue" department. Loss prevention specialists David Kolodziejzak and Algis Kivenas proceeded to the "Electric Avenue" department, talked to Minor about the disturbance and went looking for the teenagers. Kolodziejzak yelled to Kivenas that he saw a shoplifter, and Kivenas then saw Adiel Cuevas carrying a gun and running out of Montgomery Ward.

Michael Gercone, the Corporate Security guard on duty at the time, heard the "Code 600" and drove toward Montgomery Ward. Gercone saw Cuevas running, followed by Kolodziejzak. As Kolodziejzak was about to apprehend Cuevas, Cuevas turned and fatally shot Kolodziejzak. At the time of the shooting, Gercone was about 20 to 30 yards away from Cuevas.

Plaintiff brought suit against Simon Management, Corporate Security, Montgomery Ward and Cuevas. The jury found in favor of plaintiff and attributed 10% of the fault to Simon Management, 10% to Corporate Security, 25% to Montgomery Ward and 35% to Cuevas.

Simon Management first claims that the trial court erred in denying its motion for a directed verdict because Simon Management did not owe plaintiff's decedent any duty to protect him from criminal attacks by third parties. The determination of the existence of a duty is a question of law to be resolved by the court. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 583 N.E.2d 538, 164 Ill. Dec. 622 (1991). As a general rule, a landlord owes its tenants no duty to protect them from criminal attacks by third parties. Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 399 N.E.2d 596, 35 Ill. Dec. 530 (1979). However, an exception to this rule exists when a landlord voluntarily undertakes to provide security services, in which event, he assumes a duty not to be negligent in the performance of that undertaking. Pippin, 78 Ill. 2d at 209-10. The extent of the landlord's liability is strictly limited by the scope of the undertaking. Phillips v. Chicago Housing Authority, 89 Ill. 2d 122, 431 N.E.2d 1038, 59 Ill. Dec. 281 (1982). When a landlord hires a security firm to provide security services, he may be liable for negligent hiring. Pippin, 78 Ill. 2d at 210. When a landlord undertakes security measures himself, he has a duty of reasonable care in that undertaking. Phillips, 89 Ill. 2d at 127.

In Pippin, the Chicago Housing Authority (CHA) hired Interstate Service Corporation to provide guard services on CHA premises. Plaintiff, a guest on the premises, was stabbed by a third party. The court found that, because the CHA did not undertake to perform the guard service itself, it could not be held to have a duty to protect plaintiff. The CHA's duty was limited by the extent of its undertaking, which was to use reasonable care in hiring Interstate to provide the guard services. The court therefore determined that the CHA could be liable only for the negligent hiring of Interstate. Because plaintiff's complaint alleged that the CHA negligently hired Interstate, a question of fact as to the CHA's liability existed, and summary judgment was improper.

The plaintiff in the instant case claims not only that Simon Management had a duty to use reasonable care in hiring Corporate Security to provide the security services, but also that Simon Management undertook a duty to oversee the security force. Plaintiff has presented no evidence to support her negligent hiring claim. Plaintiff instead focuses on her theory that Simon Management undertook a duty to oversee whether the security program in force was effective. Plaintiff claims that Simon Management breached this duty by having no competent system for following upon the information reporting violent crimes that was being provided to it by Corporate Security and by failing to hire additional security guards after being notified of the need for increased security by Corporate Security.

In seeking to expand Simon Management's duty beyond that of using reasonable care in hiring Corporate Security, plaintiff relies on Martin v. McDonald's Corp., 213 Ill. App. 3d 487, 572 N.E.2d 1073, 157 Ill. Dec. 609 (1991). The plaintiffs' claims in Martin arose out of a murder and robbery that occurred at the restaurant after closing hours. The plaintiffs claimed that McDonald's Corporation owed them a duty of care and protection because it voluntarily assumed such a duty. In finding that McDonald's Corporation had in fact assumed such a duty, the court relied on the fact that McDonald's Corporation created a branch of its corporation to deal with security problems and prepared a bible for store security operations. The bible set forth the security procedures to be followed at closing time. One such procedure established that garbage was to be taken out a glass side door one hour before closing, rather than taken out the back door after dark. Through its regional security manager, McDonald's Corporation undertook the obligation to check for security problems, to communicate to the store management what the security policies were, and to follow up to be certain that the recommended security procedures were being followed. However, the regional security manager admitted that he did not follow up to see if proper closing procedures were being followed. He never checked to be sure that the back door was not being used after dark or that signs were posted on the door warning employees not to use this door after dark. The regional security manager never checked to be sure that the workers received proper instructions about the use of the back door. In fact several employees testified that they had never received a security manual and had never been instructed not to use the back door after dark. Furthermore, the regional security manager failed to notice the dumpster that was pulled up to the back door after dark so that employees could dump garbage out the back door.

The court therefore concluded that McDonald's Corporation assumed the duty to provide security and protection to plaintiffs, which included follow-up, and that there was sufficient evidence for the jury to determine that McDonald's Corporation breached its duty to plaintiffs when it failed to follow up to see the if security policies were being followed. See also Decker v. Domino's Pizza, Inc., 268 Ill. App. 3d 521, 644 N.E.2d 515, 205 Ill. Dec. 959 (1994)(Domino's Pizza assumed a duty to protect its employees when it became directly involved in ...


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