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Elizondo v. Ramirez

July 17, 2001


Appeal from the Circuit Court of Kane County. No. 98--L--413 Honorable Timothy Q. Sheldon, Judge, Presiding

The opinion of the court was delivered by: Justice Grometer


Plaintiff, Raul G. Elizondo, as special administrator of the estate of Rodolfo Garcia, Jr., appeals the decision of the circuit court of Kane County granting summary judgment in favor of defendants, Rigoberto Ramirez, Mrs. Rigoberto Ramirez (Manuela), and Judith Ramirez. Plaintiff contends that the trial court erred in finding defendants owed plaintiff's decedent, Rodolfo Garcia, Jr., no duty of care. For the reasons that follow, we affirm the judgment of the trial court.


Rigoberto and Manuela Ramirez own a house located in the City of Aurora. At the time of the incident that forms the basis of this suit, defendants resided in an apartment located in the upper floor of the house. The apartment on the lower floor was vacant. Rigoberto and Manuela gave their 15-year-old daughter, Judith, permission to have a party in the ground-floor apartment. The party was held on April 5, 1997. Manuela gave Judith the keys to the apartment. Judith told two of her friends to tell other people about the party. There was no guest list. Only teenagers were invited. At about 7:30 p.m., Rigoberto took Judith to the store to buy some supplies for the party. At 9:15 p.m., one of Judith's friends who had agreed to act as the disk jockey for the party arrived and began setting up his equipment in the kitchen. The disk jockey was not paid for his services. Judith locked the doors to the apartment's bedrooms, limiting the party to the kitchen, living room, dining room, and porch. No security was provided or hired. The party commenced at approximately 10:15 p.m.

Between 50 and 70 people attended that party. The apartment was lit by a strobe light and a few other lights; witnesses described it as dark. There was no lighting on the porch, and it was described as "pitch dark." A sign on the front entrance stated "$3.00 at door, no gang colors." A person stood at the front door collecting the entry fee, and Judith greeted people at the door as well. Five other partygoers stated that they were not charged the $3 fee. There was a keg of beer at the party and some beer in the refrigerator. Most of the guests drank beer from the keg, using clear plastic cups. Judith purchased and provided the cups. Judith testified that she observed some of the partygoers consuming alcohol.

At some point in the evening, Judith left the party to go to the store and buy some candy. She designated no one to be in charge during her absence. As she was leaving, a police officer stopped his patrol car and called her over. The officer inquired as to what was going on. Judith stated that she was having a party. The officer told her he would be watching the party. He also told Judith to have fun and not cause any trouble.

Rodolfo arrived at the party while Judith was gone. He paid the entry fee. Rodolfo was a member of the Latin Kings. When he arrived, several members of the Sureno 13s, a rival gang, were already present. Both Rodolfo and the members of the Sureno 13s were wearing gang colors. Rodolfo attempted to aggravate the other gang members by yelling out some gang slogans; however, the music was loud and they did not appear to hear him.

Later in the evening, Judith left the party to take a friend home. As she was leaving, she encountered Rodolfo on the porch. She told him to either go back inside or leave. A second police officer then stopped and called Judith over to the car. The officer asked if everything was alright, and Judith replied that it was. Shortly after Judith left, someone from inside the apartment rushed out and struck Rodolfo in the face. A fight ensued on the porch. A second individual then exited the apartment and shot Rodolfo in the right side. The first individual continued to kick and hit Rodolfo. Rodolfo died a short time later after being taken to a hospital. Judith was not present during the attack.

Prior to the altercation, Rigoberto, the father, who had just recently returned from a friend's house, went downstairs to the party. Rigoberto brought a beer with him and spent some time walking around the lower apartment. He never told anyone at the party to stop drinking. Eventually, he went out onto the porch and continued drinking his beer. A group of people had gathered on the porch. Rigoberto was on the porch when the fight occurred. Rigoberto stated that the fight lasted three or four minutes, but he also stated that it happened fast. Rigoberto did nothing to stop the fight and went back upstairs. When he arrived upstairs, Manuela had called the police because she had heard the gunshot.

During the party, Manuela, the mother, remained in the upstairs apartment. Judith went upstairs on several occasions. On one occasion, Judith told her mother that she had told someone to leave and he refused. Manuela told her daughter to tell him to leave, but took no other action.

Plaintiff brought a wrongful death and survival action alleging defendants' negligence based on the aforementioned facts. Defendants moved for summary judgment. The trial court granted this motion. The trial court noted that no special relationship existed between defendants and Rodolfo such that they owed him a duty to protect him from the criminal acts of third parties. Defendant now appeals. ANALYSIS

Because this case comes to this court following a grant of summary judgment, review is de novo. Corona v. Malm, 315 Ill. App. 3d 692, 694 (2000). Summary judgment should be granted only if no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Stewart v. Jones, 318 Ill. App. 3d 552, 557-58 (2001). The record must be construed liberally in favor of the non-movant and strictly against the movant. Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 753 (1999). Although the party opposing the motion need not prove its case, it must present some facts that would arguably entitle it to judgment. Lutz v. Goodlife Entertainment, Inc., 208 Ill. App. 3d 565, 568 (1990). Summary judgment is a drastic means of disposing of litigation and should be granted only where the movant's right to judgment is clear and free from doubt. Lutz, 208 Ill. App. 3d at 568.

Further, whether the relationship between the parties is such that a duty exists is a question of law. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991). Keeping in mind that the record must be construed liberally in the non-movant's favor, the question of whether a duty exists is a proper subject for resolution by a court on a motion for summary judgment (Ralls v. Village of Glendale Heights, 233 Ill. App. 3d 147, 154 (1992)). Thus, if, based upon the pleadings, depositions, and affidavits available, it appears ...

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