The opinion of the court was delivered by: Presiding Justice Burke
(NUNC PRO TUNC December 31, 2001)
Appeal from the Circuit Court of Cook County. Honorable Sophia H. Hall, Judge Presiding.
Plaintiff Antonio Salazar, as administrator of the estate of Pedro Salazar, deceased, appeals from an order of the circuit court granting the defendants, Crown Enterprise, Inc., Central Transport, Inc., and GLS Leasco, Inc.'s,*fn1 motion to dismiss plaintiff's fourth amended complaint, alleging a negligence action based on wilful and wanton conduct by defendants that caused decedent's death, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1998)). On appeal, plaintiff contends that the trial court erred in dismissing his complaint because the trial court relied on prior pleadings in rendering its decision and did not limit itself to the issues raised by his fourth amended complaint. Substantively, plaintiff contends that his complaint was sufficient to state a cause of action against defendants based on the fact that the condition of defendants' property constituted a danger sufficient to rise to the level of wilful and wanton conduct. For the reasons set forth below, we affirm.
Plaintiff's decedent, Pedro Salazar, an alleged homeless person, was beaten to death by an unknown assailant on March 10, 1997, while trespassing on property owned by defendants located at 56 East 25th Street in Chicago Heights. Decedent was apparently seeking shelter in the vacant building on the property. Plaintiff filed his original complaint on September 17, 1997, alleging ordinary negligence on the part of defendants. After defendants filed a section 2-615 motion to dismiss, plaintiff voluntarily withdrew his complaint and filed an amended complaint. The amended complaint again alleged ordinary negligence against defendants based on a broken, defective, or unlocked door that allowed access to the vacant building on the property. Defendants again filed a motion to dismiss. On June 15, 1998, the trial court granted defendants' motion to dismiss, finding that plaintiff failed to state a cause of action.
On July 31, 1998, plaintiff filed his second amended complaint and, on August 27, 1999, his third amended complaint. Both complaints were substantially similar to plaintiff's amended complaint and again alleged ordinary negligence on the part of defendants based on the defective door. Following each complaint, defendants filed a section 2-615 motion to dismiss. The trial court granted both motions.
On May 12, 2000, plaintiff filed his fourth amended complaint (complaint). In this complaint, plaintiff altered his theory, now alleging wilful and wanton conduct on the part of defendants. Plaintiff based this cause of action upon the entirety of the hazardous conditions on the defendants' premises. He alleged three different types of hazards: structural hazards, sanitary hazards, and social hazards. With respect to structural hazards, plaintiff alleged that the exterior door to the building and the perimeter fence were broken or defective and allowed easy access to the property and building. Plaintiff alleged that defendant had been served with numerous citations for violations of the municipal code and had been served with a complaint in 1997, stating that the structure was dangerous and unsafe because it was abandoned, vacant, vandalized, and open. As a result of this complaint, the building was ultimately demolished on June 30, 1997.
With respect to sanitary hazards, plaintiff alleged that garbage, including food, clothes, beer bottles, , etc., were lying around both inside the building and outside, that human waste was evident, and that dumping habitually occurred on the property. According to plaintiff, all of these factors demonstrated a regular and continual use of the property as a habitat. Lastly, with respect to social hazards, plaintiff alleged that there was continuing lawlessness on the property resulting in frequent police and fire department calls and responses with respect to the property. He identified 50 specific complaints dating between 1982 and 1998.*fn2
According to plaintiff, the state of disrepair of the property encouraged a lawless social environment, due to easy access from the fence and door and allowed the building to be used as a dwelling place for an extended period of time. Plaintiff also alleged that the fact the building was used as a dwelling was open and obvious due to the existence of various personal items on the property, including inter alia a space heater, chairs, a television, a radio, lamps, a couch, and personal necessity items. Additionally, this state of disrepair, according to the complaint, resulted in an "isolated sub-society populated by the indigent, schooled in the ethics of the street--in which the spoils go to the cunning, the swift and the ruthless--and characterized by violent behavior."
Plaintiff then set forth allegations with respect to defendants' knowledge. According to plaintiff, defendants knew or should have known, in the exercise of ordinary reasonable care, of the condition of the structure and derelict condition of the building via common knowledge that property deteriorates over time and the numerous violation notices they had received, including two notices each of a failure to maintain the exterior door and a failure to maintain the perimeter fence. Because defendants failed to do anything with respect to the condition, plaintiff alleged that this demonstrated defendants' lack of concern and indifference.
Plaintiff also alleged that defendants knew trespassers entered the property in a regular fashion and that they took no action, even the most ordinary, to remedy the situation. According to plaintiff, the basis of defendants' knowledge was premised upon their awareness of the openings in the perimeter fence, the vandalized condition of the gate, the beaten paths across the property, and the piles of garbage visible on the property.
With respect to the elements of defendants' breach of duty and proximate cause, plaintiff alleged that defendants' failure to correct the egregious conditions on the property fostered an illegal community and allowed "this island of lawlessness" to continue unabated. Specifically, plaintiff alleged that defendants "actively countenanced conditions [on the property] which a person of reasonable intelligence and outlook would characterize as dangerous, unsanitary, contrary to the public good, and likely to result in lawless and violent behavior" and allowed the structure on the property to sink "to a condition which invited human habitation characterized by violent and chaotic behavior."
Plaintiff further alleged that on March 10, 1997, decedent entered the property as a trespasser and encountered this dangerous condition, "or confluence of dangerous conditions, and was, as a result, beaten to death. According to plaintiff, defendants consciously failed to use ordinary care to guard against the dangerous and hazardous conditions ...