The opinion of the court was delivered by: Justice Wolfson
Appeal from the Circuit Court of Cook County.
Honorable Diane J. Larsen, Judge Presiding.
This case demonstrates the price that can be paid for an offhand approach to the rules that govern civil proceedings.
Eleazar Landeros (Eleazar) and Luz Maria Landeros (Luz Maria) brought this negligence action against Equity Property and Development (Equity) and Bearland Vistas, Inc. (Bearland), after Eleazar was shot by a third party in the parking lot of Ford City Shopping Center (Ford City). Ford City is maintained and operated by Equity and Bearland. Plaintiffs allege the shooting was caused by defendants' negligent failure to provide adequate security in the parking lot of Ford City.
Defendants filed a motion for summary judgment. After plaintiffs filed their response to the motion, defendants filed a motion to strike the exhibits attached to plaintiffs' response. The trial court granted defendants' motion to strike, as well as their motion for summary judgment. Plaintiffs filed a motion to reconsider, which the trial court denied.
Plaintiffs appeal both the trial court's ruling on the motion for summary judgment and its ruling on the motion to reconsider, contending: (1) the trial court erred in finding defendants did not owe a duty to protect plaintiffs from criminal attack; and (2) a genuine issue of fact exists as to whether defendants negligently failed to provide adequate security.
Eleazar and Luz Maria were shopping at Ford City with two of their children, Ileana and Octavio, on February 27, 1994. As they exited the shopping center and walked toward a CTA bus stop, Eleazar was shot in the arm and chest by a third party. Luz Maria was allegedly injured when Eleazar pushed her to the ground in an attempt to protect her from the shots fired. Equity employed security personnel to provide security services at the mall.
Plaintiffs filed this suit in December 1994. In January 1999, defendants filed a motion for summary judgment. In their motion, defendants argued plaintiffs could not establish defendants had a duty to secure the parking lot from intervening criminal attacks by third parties. Defendants attached a transcript of Eleazar's deposition testimony, and referred to his statement that the shooting occurred in the mall parking lot.
Defendants also argued plaintiffs could not establish the incident was the result of inadequate security. They attached David Levenberg's affidavit, in which he said:
"1. I am the Corporate Director of Security for General Growth Management, Inc. and I am responsible for Public Safety and Loss Prevention programs for over 120 regional shopping centers. I have worked in the field of security of shopping facilities and retail for over 20 years.
2. I am familiar with the standard of care for security at shopping centers in the Chicago area.
3. It is my opinion based on a reasonable degree of certainty, that all times [sic] relevant and in particular that on February 27, 1994, the security at Ford City Shopping Center complied with the standard of care applicable in the Chicago area and on a national level and conformed to the acceptable standard of care of security pertaining to shopping centers in the Chicago area in 1994."
Plaintiffs responded to the summary judgment motion, arguing defendants had a duty to protect them from criminal attack by third parties because similar incidents had occurred on the mall premises in the past, making the incident reasonably foreseeable. Plaintiffs attached a Chicago Police Department "Listing of Case Reports" as support for these assertions. This list showed all of the reported offenses that occurred at the mall's address from December 1993 through March 1994. Plaintiffs also attached the affidavit of Patrick Halpin, which said:
"1. I am currently and have been a Chicago Police Officer since March 1976. I am presently the afternoon and evening supervisor for the Treasure Island Shopping Mall located on Clybourn Avenue, and have been employed there since 1994 as a security guard. Similarly I am a security guard at Finkl Steel Mill located on Cortland Ave., and have been employed as a security guard there since 1989.
2. I am familiar with the standard of care and security procedures for shopping centers in the Chicago area.
3. It is my opinion that based on a reasonable degree of certainty, that at all times relevant and in particular that on February 27, 1994, the security at Ford City Shopping Center did not comply with the standard of care applicable in the Chicago area, and did not conform to the acceptable standard of care pertaining to shopping centers in the Chicago area in 1994."
Defendants replied to plaintiffs' response, and filed a motion to strike both the "Listing of Case Reports" and Halpin's affidavit. Defendants argued plaintiffs failed to authenticate the case reports, and as such they were inadmissible. They argued Halpin's affidavit was conclusory and did not comply with Supreme Court Rule 191. 145 Ill. 2d R. 191. Defendants also argued plaintiffs failed to identify Halpin as an expert witness ...