Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 11 L 1605. Honorable Jeffrey Lawrence, Judge Presiding.
For APPELLANT: Scott D. Lane, Michael D. Elkin.
For APPELLEE: Matthew L. Johnson, Garrett L. Boehm, Jr.
JUSTICE ELLIS delivered the judgment of the court, with opinion.[*] Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.
[¶1] Plaintiff Jane Doe was beaten and raped by an unknown assailant as she walked to her car after her night shift at the hospital operated by defendants, the University of Chicago Medical Center and the University of Chicago. Plaintiff sued defendants for negligence and breach of contract, alleging they had voluntarily and contractually assumed a duty to provide transportation or an escort to and from plaintiff's parked vehicle, as well to provide security desks manned by security personnel at all hours of the night that could call for such transportation or escort. She further alleged that, on the night she was attacked, she first tried to request
these services at the security desk in the lobby of defendants' Goldblatt Pavilion, but it was unmanned, prompting plaintiff to set out alone on foot to reach her vehicle.
[¶2] Defendants filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)) and attached an affidavit of defendants' director of public safety and security. The trial court granted defendants' motion to dismiss with prejudice. The court first held that defendants did not breach their promise to provide certain security services because plaintiff did not request them on the night in question, despite having the option of using a cell phone, a security phone, or an emergency phone outside the building to do so. Second, the court held that defendants owed no duty to plaintiff with regard to a criminal assault by a third person off of defendants' premises. Plaintiff now appeals. For the reasons that follow, we reverse and remand.
[¶3] I. FACTUAL BACKGROUND
[¶4] A section 2-619(a)(9) motion to dismiss admits all well-pleaded allegations in the complaint and, for purposes of this appeal, we also take them as true. Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill.2d 484, 486, 752 N.E.2d 1090, 256 Ill.Dec. 848 (2001); Fireman's Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill.2d 160, 161, 679 N.E.2d 1197, 223 Ill.Dec. 424 (1997). Plaintiff's pertinent factual allegations follow.
[¶5] Defendants operated a hospital in Chicago, where plaintiff had been employed as a phlebotomist since May 2008. Several months after she started, defendants asked plaintiff to work the night shift. Defendants knew that the area around the hospital was unusually dangerous and that a significant amount of violent crime occurred around that area. Defendants operated a program called SafeRide, which was a service designed to provide its faculty, staff, and students with safe transportation in the area during late night and early morning hours within a designated area. That area included all of Midway Plaisance, though it was not defendants' property. Defendants also offered a security personnel escort service, whereby defendants' security personnel, upon request, would walk users to their destination within a designated area that included the park in the 1100 block of 59th Street and all of Midway Plaisance.
[¶6] In exchange for plaintiff's agreement to work the night shift, defendants " promised they would provide personnel and services to get her to and from her parked vehicle safely." They " expressly promised" her that: (1) there would be adequate parking in close proximity to the hospital; (2) the areas where plaintiff parked and walked to and from her vehicle would be well lit; (3) defendants would provide SafeRide and escort services to transport plaintiff to and from her parked vehicle; and (4) defendants would provide security desks manned by security personnel at all hours of the night so that plaintiff could request said services. These promises were made on numerous occasions during plaintiff's employment by several of defendants' agents and employees, including Robin Kurjurna-Mills, Alicia Dillard, and John Walker, who were all supervisors in the phlebotomy department. Defendants voluntarily made these promises and voluntarily offered these services because they recognized the services were necessary to protect their employees who worked at night. Plaintiff agreed to work the night shift in reliance on these promises.
[¶7] Defendants specifically instructed plaintiff to obtain transportation to her vehicle by approaching security personnel
at any security desk and asking the personnel to call for a SafeRide pick-up and drop-off. There was a security desk in the lobby of defendants' Goldblatt Pavilion. According to plaintiff, defendants promised to provide security personnel stationed at security desks, including the security desk in the lobby of the Goldblatt Pavilion, at all times during the night to call for SafeRide transportation. To obtain a security personnel escort to and from her vehicle, defendants specifically instructed plaintiff to approach security personnel at any security desk, which included the security desk in the Goldblatt Pavilion.
[¶8] On February 16, 2009, plaintiff drove to work and parked her vehicle on Midway Plaisance, which was several blocks from defendants' hospital, because no closer and safer parking spots were available. At approximately 9 p.m., plaintiff wanted assistance in reaching her vehicle. As she had been instructed to do, plaintiff went to the security desk in the lobby of Goldblatt Pavilion, but there were no security personnel at the desk as defendants had promised. Nor were there security personnel in the lobby, the nearby hallways, or anywhere in the vicinity. Plaintiff went to use the restroom, hoping that when she returned there would be security personnel at the desk. She returned and waited for 10 more minutes, but no security personnel arrived. Concluding that no security personnel were available to assist her, she left the building alone. As plaintiff was walking through an inadequately-lit public park on the way to reach her vehicle, she was beaten and raped by an unknown individual.
[¶9] II. PROCEDURAL BACKGROUND
[¶10] A. Complaint
[¶11] The fifth amended complaint seeks relief in four counts. In count I, plaintiff seeks damages for defendants' alleged negligence. Plaintiff alleges that defendants voluntarily assumed a duty to provide personnel and services to get her safely to and from her vehicle when she worked the night shift but failed to perform that voluntary undertaking. In count III, plaintiff alleges that defendants' promises to plaintiff resulted in a contract that defendants breached when it failed to provide these safety services on the night in question. Counts II and IV are loss-of-consortium counts brought by plaintiff's husband, John Doe, based on the same theories of negligence and breach of contract, respectively.
[¶12] B. Defendants' Section 2-619(a)(9)Motion to Dismiss
[¶13] Defendants filed a motion to dismiss the complaint under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)). Defendants first argued that they did not breach their duty to plaintiff--arising either under a voluntary undertaking or contract--because plaintiff did not request SafeRide transportation or otherwise engage defendants' security services on the night in question, despite having the opportunity to do so. Defendants asserted that plaintiff's allegations that defendants had a legal and contractual duty to man the security desk at the Goldblatt Pavilion security desk 24 hours a day were fatally flawed because " there is no legal duty to do so and no promise was made to her in such a regard." As a second basis
for dismissal, Defendants argued that they had no duty to protect plaintiff from the criminal acts of an unknown third-party that occurred off their property.
[¶14] In support of their first argument, defendants attached the affidavit of Rodney Morris, the director of public safety and security at the University of Chicago Medical Center. Mr. Morris was then deposed by plaintiff. Plaintiff included a copy of Mr. Morris's deposition in her response to the motion to dismiss.
[¶15] C. Rodney Morris's Testimony
[¶16] Morris testified that there are 24 interconnected buildings that make up the University of Chicago's medical complex. The hospital has security personnel working 24 hours a day, 7 days a week, including on February 16, 2009. The building where plaintiff visited the security desk on the night in question--Goldblatt Pavilion--is one of five buildings located at " the back end of the hospital." During the time period at issue (2009) and the time shift at issue (3 p.m. to 11 p.m.), there was only one roving security officer on duty in those five buildings. That officer could respond to any calls for service but otherwise was spread around those five buildings without a specific assignment at a specific time.
[¶17] Morris testified that Goldblatt Pavilion has one security desk. Since 1990 and continuing through the time of plaintiff's attack in 2009, the security desk at the Goldblatt Pavilion was manned only from 7:30 a.m. to 3:20 p.m. on Monday through Friday, not around the clock as plaintiff alleged, in her complaint, she had been promised. Goldblatt Pavilion has a house phone in the corridor directly behind the security desk. Moreover, without having to go outside, a person in Goldblatt Pavilion could walk to either the adult emergency room entrance or the Bernard Mitchell entrance, both of which had security desks manned at all hours. (The distance to those other security desks, or the time it would take to reach them, is not found in the record.)
[¶18] Morris described defendants' SafeRide and escort services. He stated that SafeRide transportation services were available after 9 p.m. He described SafeRide as a strictly on-call service: " That means you would call in. We ask you where you are, where you are going." To use the SafeRide service, an employee would pick up a phone, call the medical communications center, and request use of the service. Because there was only one SafeRide bus, the employee might have to wait for service if the bus was already transporting someone else.
[¶19] As for the escort service, Morris stated that it was provided in conjunction with the University of Chicago police. An employee who wanted to use the service could pick up a phone and call the public safety dispatch center to request an escort. A police officer would arrive and follow the person to his or her destination.
[¶20] Morris stated that the above information about defendants' SafeRide and escort services was disseminated to employees at the new employee orientation. Each employee was given a " common sense pamphlet," which explained how to call for SafeRide and escort services. In addition, extra " common sense pamphlets" were left at various entry points to the medical center. The information was also available online. Furthermore, the house phone in the Goldblatt Pavilion lobby had a placard above it that listed the phone number for the public safety dispatch center.
[¶21] Morris admitted that he did not have any personal knowledge as to whether plaintiff received this information. He also did not know whether plaintiff was promised that the Goldblatt Pavilion ...