Lead Opinion
delivered the opinion of the court:
Plaintiff, Carla Bourgonje, appeals from the grant of summary judgment to her landlord, defendant, Luann Machev, in her claim for damages resulting from the criminal attack of a third party. For the following reasons, we affirm in part, reverse in part, and remand.
I. FACTUAL BACKGROUND
On October 29, 2001, Bourgonje filed a two-count complaint against Machev seeking to hold her responsible for an attack that began as a robbery on the sidewalk outside the front gate of her apartment building, but concluded as a rape after the perpetrator forced her to the back of the apartment building. In the first count, Bourgonje alleged that Machev had assumed a duty to protect her against such attacks in that she
“undertook to provide the Plaintiff with a security lights [sic] to reduce the risk of criminal conduct at the property. The lights provided by Machev were security lights installed for the specific purpose of making the property safe and visible at night and to discourage criminals and not for identification of address signs or for aesthetic reasons.”
The complaint further alleged that Bourgonje “relied upon the security lights provided by the Defendant in leasing the property, in using the property and for the purpose of safely entering and existing [sic] the property at night.” She complained, however, that Machev failed to repair the exterior lights or otherwise maintain them, or to warn her that the lights were not repaired. She alleged that as a result of the lack of lighting she was subjected to the sexual assault. The second count alleged that Machev had assumed and breached a duty of providing security for Bourgonje through installing, but not maintaining, door buzzers, which also proximately caused her injuries.
Following the close of discovery, Machev moved for summary judgment. In her motion, she argued that shе owed no duty to Bourgonje because the landlord-tenant relationship was not recognized as a “special relationship” imposing a duty to protect against third-party criminal attacks; the lights and door buzzers were not a voluntary undertaking to provide security, but were rather intended merely as conveniences; and because the attack was an independent, unforeseeable, superceding cause removing any causation of injury from any alleged acts or omissions of Machev.
The circuit court granted the motion, ruling:
“Plaintiff alleges that the defendant assumed the duty to provide security by providing the bells and the lights. *** [HJaving doorbells on the outside of the gate is not an assumption of a duty. In addition, there is no evidence that the bells were defective. And that’s a question of right.
Here the court finds that the placement of lights outside the building was not an assumption of duty to provide security. Almost all buildings provide *** outside lighting. ***
Next, the Court finds that *** if there was negligence [on the] part of the defendant it was not the proximate cause of the injury. It’s simply too speculative. The attack would have happened regardless of defendant’s negligence, and the defendant [presumably ‘plaintiff was intended] would have been forced by the third party to enter the gate regardless of the lights. *** It is simply too speculative *** that if the lights would have been working, the third party would have stopped the attack, would have fled, or simply continued and gone to the south side of the building.”
The circuit court also appeared to find it significant that the attack began outside of the actual grounds of the mansion, though it did not elaborate on the reasons why that fact was significant in its analysis.
In reaching its determination, the court had before it the depositions of Bourgonje and Machev; Charles Troche, the apartment building’s handyman; Gabe Fajuri and Barry Bursak, other tenants of the building; Larry Ligas, a real estate developer in the Logan Square area and co-founder of Logan Square Concerned Citizens; plus Detectives Hart and Thaxton, who investigated the attack on Bourgonje. The parties likewise presented the court with a copy of the lease between Bourgonje and Machev, as well as their respective answers to the other’s interrogatories. Finally, the court possessed the signed confession of Juan Delgado, who pled guilty to raping Bourgonje. From this evidence, the following facts appear to be undisputed.
Bourgonje, a cultural affairs officer for the Chicago office of the Ministry of Foreign Affairs of the Netherlands, responded to an advertisement for an apartment placed in the Chicago Tribune in August 2001. The advertisement stated: “Logan Square historic mansion on Boulevard. 1,700 square feet, two bedroom, two bath. Whirlpool, ornate woodwork and glass. Large balcony. Two blocks to the L. $1,600 HTD.” She called a telephone number provided in the advertisement and spoke with the landlord, Machev. The two arranged to meet at the mansion, which was located at 2410 North Kedzie Avenue, in Chicago, on the following Saturday.
The mansion had single, large apartments on each of its three floors. There was a front door, facing east onto Kedzie, which allowed access to the second-floor apartment. There was also access to the apartments through a side door on the north side of the building. To access the grounds of the mansion, one had to pass through a locked gate. A path ran from the front gate alongside the north side of the mansion, passing through another gate just west of the northeast corner of the building. Adjacent and attaсhed to the mansion was a theater at 2408 North Kedzie, formerly used by the fraternal order of the Knights Templar. The theater could be accessed through a door in a sunken alcove beyond the side door.
A panel for an intercom system was next to the gate. The intercom system was meant to allow visitors to notify the residents of their presence by sounding a buzzer inside their apartments, but the residents could not remotely unlock the gate using the intercom system. The buzzer/intercom system was unreliable, however, and regularly in need of repair. The apartments’ mailboxes were also outside the front gate.
In front of the building, parallel with and south of the front porch were two antique streetlights, holding three lamps each. There was an additional antique street lamp outside the gate. A set of two floodlights was on the north side of the balcony, which was over the front porch. There were two more sets of two floodlights attached to a turret farther west on the north side of the building. At least one of these sets was fitted with a motion detector. Another set of floodlights was placed farther west yet on the north side of the building, but short of the side door. Each of these sets of floodlights was attached between the second and third floors of the mansion. Another single floodlight was placed in the ground pointing up onto the south side of the building. Finally, there was a light in a cone-shaped fixture immediately in front of and above the side door.
Bourgonje signed a lease and paid a security deposit for her apartment shortly after her initial visit to the mansion. The lease included the following provisions:
“6. LESSOR TO MAINTAIN
A. Tenant hereby declares that Tenant has inspected the Apartment, the Building and all related areas and grounds and that Tenant is satisfied with the physical condition thereof. Tenant agrees that nо representations, warranties (express or implied) or covenants with respect to the condition, maintenance or improvements of the Apartment, Building, or other areas have been made to Tenant except (1) those contained in this Lease, the application or otherwise in writing signed by Lessor and (2) those provided under applicable law.
21. RESIDENT TO INSURE POSSESSIONS/LIMITATIONS OF LANDLORD LIABILITY: Lessor is not an insurer of Tenant’s person or possessions. Tenant agrees that all of Tenant’s person and property in the Apartment or elsewhere in the Building shall be at the risk of Tenant only and that Tenant will carry such insurance as Tenant deems necessary therefor. Tenant further agrees that, except as provided under applicable law and except for instances of negligence or willful misconduct of Lessor, its agents or employees, Lessor, its agents and employees shall not be liable for any damage to the person or property of Tenant or any other person occupying or visiting the Apartment or Building, sustained due to the Apartment or Building or any part thereof or any appurtenances thereof becoming out of repair (as example and not by way of limitation), due to damage caused by water, snow, ice, frost, steam, fire, sewerage, sewer gas or odors; heating, cooling, and ventilating equipment, bursting leaking pipes, faucets and plumbing fixtures; mechanical breakdown or failure; electrical failure; the misuse of or non-operation of observation cameras or devices (if any), master or central television equipment and antennas (if any), cable television equipment (if any) or mailboxes; or due to the happening of any accident in or about the Building; or due to any act or neglect of any other tenant or оccupant of the building or any other person. Further, except as provided by applicable law, Lessor shall not be liable to Tenant for any damage to the person or property of Tenant sustained due to, arising out of, or caused by the acts or omissions of any third party whether or not such third party is a tenant of the Building.”
Around 11:10 on the evening of October 2, 2001, Bourgonje returned home after having a dinner and attending a performance at the Lyric Opera with a friend. She found a place to park her car approximately one block away from the mansion. When she gathered her mail from her mailbox, a man pushed her into the mansion’s gate and placed his hand over her mouth and nose. The attacker told her that he would not hurt her, that he only wanted her “gold and cash.” As she struggled against her attacker, Bourgonje pressed some of the intercom/buzzer buttons with either her elbow or her hand. The attacker then told Bourgonje to open the gate, and she complied. The attacker, while continuing to choke her, pushed her down the path leading to the front door and then along the north side of the mansion. During this time he told Bourgonje that she would perform various sex acts with him. The attacker continued to push her along until he had her in the alcove beyond the side door. Once in the alcove, the attacker followed through on his threat and raped Bourgonje.
After the attack, Machev called an electrician to the mansion. The electrician performed work on the exterior lights at a cost of $654.
Aside from these undsiputed facts, however, the testimony diverged widely. To begin, the parties dispute what conversations occurred and what promises were made surrounding the exterior lighting at the mansion prior to Bourgonje signing the lеase.
According to Bourgonje, she inquired extensively about security at her first meeting with Machev. Bourgonje testified in her deposition that she and Machev had the following conversation about security at the mansion:
“[Machev spoke] about how well-lit the place is, because I told her I’m a single person and my job takes me out almost every other night. *** So I did ask her about that, how well-lit everything was, because I come home many times quite late. And she said it was absolutely well-lit and taken care of, because she is also a single woman and she knows how important it is to live somewhere and feel safe.
The house is very far away from — you have to go through a gate. Then you have to have a long walkway and there’s the house, and you have steps and then you go into the building. So you should lit [sic] it up. She said, ‘Oh yeah. Absolutely no problem.’ ”
Bourgonje also testified that Machev had promised that repairs would be made to the buzzers which only worked irregularly.
Machev, on the other hand, in her deposition, testified that she only remembered two subjects of conversation with Bourgonje when she first showed her the apartment, neither of which dealt with security. In one conversation they “talkfed] about the history of the building *** talk[ed] about the history of the halls. *** [WJe had some discussion *** about doing it [the apartment] in colors that she wanted.” The other conversation occurred after Bourgonje twisted her ankle and, apparently, broke her sunglasses when coming back into the apartment after seeing the balcony. According to Machev, Bourgonje repeatedly threatened to sue her “for her sunglasses,” which apparently broke during the stumble from the balcony. Machev specifically denied ever telling Bourgonje that the mansion would be well lit.
Moreover, the testimony varied significantly as to whether the lights functioned regularly, if at all, after Bourgonje became a tenant and what degree of illumination the exterior lights would provide when fully functional.
Bourgonje testified that, on September 10, while moving her possessions into the apartment with the help of friends, she noticed that none of the exterior lights were working and she tripped on the stairs in the dark. She and her friends saw motion detectors, but they did not activate the lights; they also saw fixtures without lightbulbs. Bourgonje testified that she spoke with Machev on the 12th and told her “LuAnn, the lights. You know, we were there with five people. There were no lights on. Nothing went on. Nothing is on a timer.” Machev responded that she would speak with the mansion’s handyman. Bourgonje thought that she also called the handyman herself. Bourgonje further testified that between approximately September 14 and September 20, she called and “told [Machev] over and over that it [was] too dark” and that she had “to work on the lights” because there was “no light going on.” However, Bourgonje also noted that one of the ground lights “would go on at very strange hours of the night.” Finally, Bourgonje wrote Machev a memo on September 30, which she delivered to the doorman of Machev’s residence, which stated, in pertinent part: “The lights outside the house need to be set on a timer so that they go on every day at a certain time, and not late at night. It’s very dark and I fell on the stairs once, don’t want to do this again. Also for visitors, it’s just too dark.”
Machev testified that, to her knowledge, all the exterior lights functioned properly with the exception of the lights in the ground, with which she was not concerned. When she visited the mansion at night in December, following the attack, she observed the lights working.
According to Troche, Machev told him “Carla was concerned about insufficient lighting outside and that if I cоuld look at the lights, which I’xe changed floodlights, light bulbs, that is, on the outside of the built ng, but never seemed to work.” Troche also informed Machev, “[j;.ist right after [Bourgonje] moved in,” that some of the lights would still not go on after their bulbs were changed, and Machev said she would hire an electrician to come and fix the lights. 1'roche also told Machev that he could not find the timers. Troche further testified that Bourgonje spoke with him about two weeks prior to the attack and told him that she was concerned with the exterior lights since it was “dark for her” and that he then forwarded these concerns to Machev “[w]ithin a day or two,” since he could not repair the lights because he “couldn’t figure out where the wires ran, if there was a switch or if they were on timers” and that Machev said she would call an electrician. Later in his deposition, Troche testified that Bourgonje spoke with him about the lights two weeks after she moved in, or around September 27, 2001.
Troche further testified that the antique streetlight outside the gate was set on a timer from 5 to 11 p.m.; he did not know why those hours were selected and had never set the timer himself. The two antique streetlights inside the gate were on a switch and, while functional, were not regularly turned on. Of the remaining exterior floodlights, only one light on a motion sensor worked, activating as one reached the side gate, and would remain illuminated for three to four minutes. The motion sensor always worked during the five times he visited the mansion at night. He disputed a police report that attributed a statement to him to the effect that the motion detector was unreliable. Finally, Troche testified that the light in the cone-shaped fixture also functioned when a tenant would activate its switch, which was located inside the side door.
Troche testified that the antique streetlight outside the gate, when functioning, would illuminate the walkway up to the front door of the mansion. The light on the motion sensor would illuminate the north side of the building all the way to the side door, but would not light the sunken alcove.
Bursak testified that all of the lights on timers functioned properly. Although he did not know what hours the lights were set for, “[w]hen it was dark, there was light.” Likewise, in his experience, the light on the motion detector always went on as he passed by, though only for about 30 seconds. He also testified that the lights in the ground functioned properly, illuminating the face of the building, but not the yard. Bursak remembered the cone-shaped light by the side door being functional on the date of the attack since he had recently changed the lightbulb in it himself and it was usually left on overnight. However, he had no recollection as to whether or not he had turned on the switch to activate it that night. Bursak testified that the mansion’s exterior lighting was sufficient to allow him to get to the entrance of his apartment and “to be able to know if anybody was around there.”
Fajuri, in his deposition, explained that the antique streetlight outside the gate was on 50% to 60% of the time. The antique streetlamps inside the gate were on only 40% to 50% of the time. To his recollection, the motion detector on the exterior floodlights was installed after the attack. He had no recollection of regularly turning the cone-shaped light on or off, “[i]t just sort of happened.” Fajuri otherwise testified that “[o]n occasion the light on the exterior of the house would be on and sometimes, you know, the side light would be on, but it wasn’t all or nothing. It was sometimes yes, sometimes no.” He did not recall the exterior lights going on and off at regular times so as to suggest the operation of a timer. Likewise, he never remembered tripping a motion sensor and having a light go on. However, he felt the exterior lighting was adequate to аllow him to navigate from the front of the building to the side door to access his apartment.
Detective Hart was called to the mansion subsequent to the attack. He recalled there being “no lighting at all” as he walked from the front gate to the sunken alcove, and he had to use a flashlight to locate Bourgonje’s personal effects. However, as he returned to the front of the mansion, a floodlight went on and temporarily blinded him, although he could not say how long it remained on.
Detective Thaxton and another detective also visited the mansion either on the evening of the attack or the night following. At that time, none of the exterior lights on the north side of the buildings functioned and they too had to use their flashlights.
Likewise, Bourgonje’s and Machev’s testimony diverged as to the operation of the lights at the time of the attack on Bourgonje. In her deposition, Bourgonje testified there were no lights on at the mansion as she approached and she thought “Damn, that’s dark.” She further testified that no lights came on at any point during the attack. Machev, on the other hand, testified to overhearing Bourgonje tell the police that as she and her attacker “went around the corner, the light did come on and he was startled, but it wasn’t long enough.”
II. ANALYSIS
On appeal, Bourgonje contends that the circuit court erred in granting summary judgment because it failed to consider the effect of Machev’s promises to her in evaluating whether Machev voluntarily undertook to provide security and therefore owed her a duty. She further contends that whether the nonfunctioning door buzzers and lights were a cause of the attack was a question of fact that should have been left to the jury. Machev, on the other hand, contends that there was no voluntary undertaking assumed under the lease and that there could be no proximate cause as a matter of law, even if she had assumed a duty to Bourgonje.
A. Summary Judgment Standards
Summary judgment should be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact” and the moving “party is entitled to a judgment as a matter of law.” 735 ILCS 5/2 — 1005(c) (West 2002). However, summary judgment is a drastic measure and should only be granted when the moving party’s right to judgment is clear and free from doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co.,
The movant bears the initial burden of production in a motion for summary judgment. Williams v. Covenant Medical Center,
“Like other issues of duty, whether a defendant has voluntarily undertaken a duty to a plaintiff is a question of lаw for the court ***.” Lange v. Fisher Real Estate Development Corp.,
B. Voluntary Undertaking Claim
The parties do not dispute that the landlord-tenant relationship is not a “special relationship” imposing a general duty on a landlord to protect her tenants against third-party criminal acts (see Rowe v. State Bank of Lombard,
Section 323, which is the more applicable of the two sections, since it addresses when the injured party is the person for whom the voluntary undertaking was made, as opposed to an injured third party, states:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.” Restatement (Second) of Torts § 323, at 135 (1965).
1. Could a Duty Have Been Assumed and Breached Through Giving and Reneging on an Oral Promise?
Broken promises to undertake certain performances, namely “nonfeasance,” as well as carelessly performed undertakings, namely “misfeasance,” are encompassed within section 323. See Restatement (Second) of Torts § 323, Comment a, аt 136 (1965) (“It applies whether the harm to the other or his things results from the defendant’s negligent conduct in the manner of his performance of the undertaking, or from his failure to exercise reasonable care to complete it or to protect the other when he discontinues it”); Restatement (Second) of Torts § 323, Comment on Caveat d, at 139 (1965) (“There is no essential reason why the breach of a promise which has induced reliance and so caused harm should not be actionable in tort. This is true particularly where the harm is physical harm, to the person, land, or chattels of the plaintiff. The technicalities to which the courts have resorted in finding some commencement of performance indicate a development of the law toward such liability”); N.W. v. Amalgamated Trust & Savings Bank,
Under Illinois law, a plaintiff’s reliance on the defendant’s promise is an independent, essential element in cases of nonfeasance. See Vesey v. Chicago Housing Authority,
We acknowledge that some recent cases, in attempting to draw the distinction between claims of misfeasance and nonfeasance, have stated that “ ‘[w]here a duty of care is imposed by reason of a voluntary undertaking, breach of that duty can be found only where there is misfeasance rather than nonfeasance’ ***. *** [Citation.]” Lange,
Machev would contend that we may not find any voluntary undertaking based on nonfeasance because, under the merger clause in paragraph 6A of the lease, any promises that could be attributed to her had to be included in the lease. She further cites to the exculpatory provision in paragraph 21, which purports to deny responsibility for the acts of third parties, as evidence that any promise of security was contractually disclaimed. However, we note that courts have, in fact, held that tort duties may arise from gratuitous voluntary undertakings irrespective of contractual obligations. See Nеlson v. Union Wire Rope Corp.,
Admittedly, the law has historically drawn a distinction in finding tort duties independent of contractual relations between cases involving misfeasance and nonfeasance. As Professor Keeton explained:
“The line of division which developed quite early was that between ‘nonfeasance,’ which meant not doing the thing at all, and ‘misfeasance,’ which meant doing it improperly. Much scorn has been poured on the distinction, but it does draw a valid line between the complete non-performance of a promise, which in the ordinary case is a breach of contract only, and a defeсtive performance, which may also be a matter of tort. In general, the courts have adhered to the line thus drawn; and a failure even to begin or attempt performance of an agreement to lend money [(Farabee-Treadwell Co. v. Union & Planters’ Bank & Trust Co.,135 Tenn. 208 ,186 S.W. 92 (1916); John Deere Co. of St. Louis v. Short,378 S.W.2d 496 (Mo. 1964))], to employ the plaintiff, to furnish transportation, to deliver goods ordered [(Dawson Cotton Oil Co. v. Kenan, McKay & Speir,21 Ga. App. 688 ,94 S.E. 1037 (1918); Mulvey v. Staab,4 N.M. 172 ,12 P. 699 (1887); Ketcham v. Miller,104 Ohio St. 372 ,136 N.E. 145 (1922))], to furnish light for a room [(Stone v. Johnson,89 N.H. 329 ,197 A. 713 (1938)) j, to obtain the dissolution of an injunction and permit the plaintiff to proceed with the construction of a road [(Chase v. Clinton County,241 Mich. 478 ,217 N.W. 565 (1928))], or to attend as a physician [(Randolph’s Administrator v. Snyder,139 Ky. 159 ,129 S.W. 562 (App. 1910))], all are held to amount to mere breaches of contract, for which no tort action will lie.” W. Keeton, Prosser & Keeton on Torts § 92, at 659-60 (5th ed. 1984) (hereinafter Prosser & Keeton on Torts).
However, commentators have also noted that there are sound reasons to depart from this historical practice.
One reason to depart is that the nature of damages resulting from nonfeasance, when the plaintiff relies on a promise, may go beyond the benefit of the bargain:
“When one makes a promise — a commitment as to what he will do or will not do in the future — this generally induces reasonable reliance thereon, and reliance damage apart from benefit of the bargain damage is likely to result. Some courts are likely to hold that there is a duty to exercise reasonable care, even if the promise is not enforceable as such under contract law, to prevent foreseeable harm to the promisee (as well as to third parties) from reasonable reliance on the promisor to carry out the promise as made. This is not a duty to perform but rather a duty to prevent reliance damage. Since the loss suffered is the result of reliance on a manifested intention, it might bе preferable to regard the recovery when justified as a type of contractual recovery, especially when the claim is by a promisee and not by a third party. But contractual liability can be regarded as limited to the type of case where promises are found to be enforceable, and the damage results from the breach of an enforceable promise.” Prosser & Keeton on Torts § 92, at 658.
A second reason to depart can be found in considering the different underlying purposes and protections of tort and contract law both as to plaintiffs and defendants. As Professor Dobbs explains:
“1. Tort law aims, policies, and rules are well-adapted to deal with physical harms to persons and property and hence with undertakings to provide physical safety. Although contracts can be made on almost any subject, including safety, most contracts deal with economic relationships. The policies, rules, and damages measures of contract law are focused accordingly.
2. Tort law duties based upon a safety undertaking are not necessarily as broad as contract duties. Contract obligations are prima facie strict; the plaintiff need not prove that the defendant negligently breached the contract, only that he breached it. *** Tort obligations are rarely strict. Courts can limit the defendant’s obligation to perform a gratuitous undertaking to a duty of reasonable care, no more; and in fact the Restatement [section 323J does so.
3. Liability may be limited in tort law where courts think it appropriate. While a contract obligation might impose liability for any kind of harm, including pure economic harm, courts can limit the obligation imposed by tort law, even when that obligation is rooted in a promise or undertaking. In fact, the Restatement itself limits the obligation based upon undertakings to physical harms such as personal injuries or property damage. It thereby excludes the largest number of contract cases, those based upon expectancy of pure economic harms without physical injury.” 2 D. Dobbs, Torts § 320, at 867-68 (2001).
As an example of the practical application of these principles, Professor Dobbs puts forth the following example:
“[Sjuppose that the defendant, who is standing on the highway’s edge, promises to signal if traffic approaches as the plaintiff backs his trailer out of a blind driveway. The defendant does not watch and does not signal, and the plaintiff is injured backing into oncoming traffic. Although the promise is gratuitous, the plaintiffs reliance was nevertheless reasonable, and there seems no reason not to enforce the promise as a duty in tort, whether or not it is enforceable in contract. The promise is one about safety of persons and property, not about an economic exchange. The moral understanding and expectation of the community would require its performance and reasonable people would perform it. Finally, nonperformance is unreasonable and negligent; the defendant is held, not merely for breach as in contract cases, but only for negligent breach that created danger and injury.” 2 D. Dobbs, Torts § 320, at 868-69 (2001).
We are persuaded by these two views and hold that Machev may still be liable for her nonfeasance, in failing to keep her promise to keep the mansion well lit for the protection of Bourgonje, irrespective of the provisions of the lease. This holding is consistent with the reasoning of the Illinois case of Jacob v. Greve,
In Jacob, the plaintiff was injured when a fellow passenger on a tour bus had difficulty handling his carry-on bag, lost control of it, and struck the plaintiff on the head with it. Jacob,
We further note that, with the exception of the aged, pre-Second Restatement examples of failing to light a room, based on Stone,
Machev contended below that courts should look to the underlying purpose of voluntary undertakings in determining what duties are assumed. She argued that our supreme court held in Rowe that the underlying purpose of exterior lighting was not for security but for convenience, stating: “The outside lighting and buzzers a[t] the property were not provided for security, but, instead, are common for apartment buildings as a convenience. Their installation at the property cannot reasonably be regarded as an assumption of a duty to protect against third party criminal acts ***.” See Rowe,
For example, in Nelson v. Union Wire Rope Corp.,
Accordingly, in this case, under a favorable reading of Bourgonje’s account, Machev specifically agreed to light the mansion in order to protect her from attacks late at night. This conclusion is further supported by Machev listing the exterior lights as a security measure in her answers to Bourgonje’s interrogatories. Therefore, there is evidence to allow the conclusion that in this case providing the lighting was a voluntary undertaking of a security measure against assaults, and the circuit court’s conclusion that there was no duty as a matter of law was reversible error.
However, in defining the scope and extent of a voluntary undertaking in terms of its underlying purpose, we can detect no voluntary undertaking to provide security through the provision of the mansion’s door buzzers and intercom system as claimed by Bourgonje in count II of her complaint. In her motion for summary judgment, as well as on appeal, Machev contends that the evidence only shows that the door buzzers and intercom were a convenience. In the face of this challenge, Bourgonje fails to provide counterevidence to show that the door buzzers and intercom system were provided for security, and, in particular, as a security device for alerting people inside the mansion that a person outside needed help. Instead, Bourgonje appears to suggest that door buzzers inherently serve such a function, stating in her response to Machev’s motion “buzzers are for communicating. Carla tried to have someone help. There was only silence.” In support of her position, Bourgonje cites to Tynan v. Willowdale Commercial Corp.,
2. Could Bourgonje Have Reasonably Relied on Machev’s Promise?
There still remains to be determined whether there was sufficient reliance by Bourgonje on Machev’s promise for liability to attach for her nonfeasance. To begin, we note that summary judgment would not have been procedurally proper on this issue in the circuit court as Machev never contested Bourgonje’s allegations of reliance presented in her complaint, nor, for that matter, does she now. See Williams,
“Reliance may reasonably be placed where there is a deceptive appearance that performance had been made, or where a representation of performance has been communicated to plaintiff by defendant, or where plaintiff is otherwise prevented from obtaining knowledge or substitute performance of the undertaking.” Chisolm,
We see that Bourgonje presented sufficient evidence of reliance in this case to preclude summary judgment. We note the factual similarity of this case to that of N.W., where the court held:
“The plaintiff has made a sufficient showing of reliance. There was a promise by the landlord to maintain the locks in рroper working condition at all times to prevent entry by unauthorized persons. This promise induced the plaintiff to sign a lease with the defendants. Further, there were repeated assurances by the building management that repair would be effected, thereby inducing the plaintiff to remain in her apartment and forego the opportunity to take safety precautions of her own.” N.W.,196 Ill. App. 3d at 1073 .
See also Reider v. Martin,
Admittedly, a point does arise at which, after promises have been repeatedly broken, a plaintiff may no longer reasonably rely on them. See McCoy v. Chicago Housing Authority,
“Over the course of several years, the CHA repeatedly failed to fulfill promises that it would make the repairs. A month prior to the incident, CHA personnel specifically told Jones that the CHA would not make repairs to the apartment because it lacked manpower. Most significantly, Jones’ statement that she was still attempting to call the CHA to fix the problems on the date the accident occurred indicates that she did not expect the CHA to fulfill its earlier retracted promise. Thus, [the record] provides no evidence from which to infer that she possessed an expectation that the CHA would repair her window locks at the time of the accident.” McCoy,333 Ill. App. 3d at 310-11 .
Here, however, though Bourgonje was aware that Machev initially broke her promise, by not having the lights functioning at the time of her move in, this was followed by another promise to repair the lights, with the attack occurring only a short time later. The entire period between Machev’s initial promise and the attack was approximately two months. The period between Machev’s last promise before the attack and the attack itself appears, at most, to have only been a little more than two weeks. Thus, we do not see myriad broken promises, over an extended period of time, like in McCoy, that would justify a legal conclusion that Bourgonje could not have reasonably continued to rely on Machev’s promises of repair.
Moreover, it is reasonable to infer that Bourgonje was precluded from undertaking substitute performance. We do not perceive this case to be akin to McCoy, where there were clearly identifiable options available to the tenant to remedy her situation. See McCoy,
C. Proximate Causation
Machev still contends, however, that there is no evidence that would allow a finding that any breach of the undertaking proximately caused Bourgonje’s injuries. “Proximate cause requires the plaintiff to show that the defendant’s negligence was (1) the actual cause or the cause in fact of his injury, i.e., but for the defendant’s conduct, the accident would not have occurred; and (2) the legal cause of his injury, i.e., the defendant’s conduct was so closely tied to the plaintiff’s injury that he should be held legally responsible for it.” McCraw v. Cegielski,
Machev first argues that there is no proximate cause because Delgado’s attack was an independent, intervening act which she could not foresee occurring as the result of her failure to repair the lights. While at one time criminal acts were presumed unforeseeable, the law has developed to recognize that criminal acts may become foreseeable in a variety of circumstances so that liability may still attach to a landowner. Compare, generally, Altepeter v. Virgil State Bank,
We start by noting that Machev’s contention is undercut by Bourgonje’s account of her initial conversations with Machev. According to Bourgonje, Machev fully concurred that full exterior lighting was important in order to prevent attacks on single women. Necessarily, then, she would also have understood that the prevailing darkness could facilitate such an attack. Rowe,
Additionally, there is evidence in the record to support an inference that the area surrounding the mansion was dangerous enough so that Machev should have known that an attack such as that experienced by Bourgonje was likely. Detective Hart testified that less than a mile south of the mansion there was a halfway house for newly released prison inmates, as well as a nearby transient hotel on Milwaukee Avenue, both of which “add[ed] an element of risk to the area.” According to Hart, community relations personnel in the department would communicate to community groups about the need to increase neighborhood security when such establishments were in the area. As our supreme court said in Neering v. Illinois Central R.R. Co.,
“The law recognizes, and it is generally understood, that where lawbreakers congregate they are dangerous to society and are likely to break other laws, and we do not see how it could reasonably be said when vagrants are permitted to congregate they will not become a menace to the public peace or that under such conditions one could not reasonably anticipate they might commit some unlawful act or become dangerous to society.”
Moreover, there was testimony that there was a significant amount of violent crime in the vicinity of the mansion. Detective Thaxton explained that there were probably about 10 community alerts for District 14 in 2001 for sex crimes, with at least half issued prior to the attack on Bourgonje, and that there were “a lot of violent crimes that occur within that area,” such as “street robberies, businesses being robbed and things of that sort.” Ligas testified that there was a history of violent sexual crimes prior to the attack on Bourgonje that became the subject of meetings, notices and fliers of the Logan Square Concerned Citizens, including “numerous rapes,” although the only specific crime he could recall leading to a community alert was an incident involving the beating of prostitutes. See Ignarski,
Likewise, we have ample evidence of the causal relationship of lighting on property and criminal activity. Ligas explained in his deposition that his organization advised homeowners to light their premises throughout the night because “[fit’s been proven that lighting definitely assists in the dropping of crime or reduction of crime” because “criminals tend[ ] to sort of go to the place of least resistance, and lighting brings attention.” Similarly, Detective Hart testified that “[fit’s kind of a known fact that lighting seems to make it a — place more secure and deter a crime. The fact that no lights did come on when they went back there could have, in all likelihood, embolded [sic] him [Delgado], made him braver.” Further, courts have recognized inadequate lighting as making criminal activity foreseeable. See Duncavage,
Machev still argues, however, that there is no evidence to establish that her alleged negligence was a cause in fact of Bourgonje’s injuries, or that “but for” such negligence, the attack would not have occurred. Specifically, Machev contends “[t]here is no evidence that Delgado knew Bourgonje, where she lived, or anything about Machev’s property before the attack. If Bourgonje had lived elsewhere, it is just as likely that the attack would have taken place elsewhere.” We cannot agree.
The parties attempted to take the deposition of Juan Delgado, who was arrested, tried and sentenced for the rape of Bourgonje. Delgado told the parties’ attorneys that he wanted to consult a lawyer and would answer most questions by stating an objection under the fifth amendment. He was willing, however, to authenticate his confession for the attack on Bourgonje as recorded by the State’s Attorney. In the confession, Delgado explained that he originally sought only to find a skinny, older woman to rob in his neighborhood. However, as he was attacking Bourgonje, he changed his mind and decided to rape her. Delgado explained to the assistant State’s Attorney “that he then told her to open up the gate so he could drag the woman back to someplace that was dark and no one could see him rape her,” explaining “he had to go around the building to the back of the building where there was a staircase” and “that he did get back to that staircase,” where he completed his robbery and rape. These final statements, that “he then told her to open up the gate so he could drag the woman back to someplace that was dark and no one could see him rape her,” and that “he had to go around the building to the back of the building where there was a staircase” and “that he did get back to that staircase,” allow the inference that, even if he was unaware of the fact that the exterior of the mаnsion was unlit prior to commencing the robbery, he subsequently elected to rape Bourgonje because of his ability to operate in darkness on the mansion grounds. This potential inference mandates that the issue of causation be put to a jury. See Duncavage,
Thus, there is more than enough evidence to create a question of fact as to whether the assault on Bourgonje was a foreseeable result of Machev’s alleged failure to fulfill her voluntary undertaking to illuminate the premises.
Machev still argues, however, that the sunken alcove would have remained unlit, even with the exterior lighting fully functioning, so that the rape would have occurred even if Machev had completed her undertaking. Bourgonje counters that there is an issue of fact as to whether the functioning of the existing exterior lighting would have stopped Delgado prior to reaching the sunken alcove. We agree with Bourgonje. This conclusion is corroborated by Machev’s testimony that she overheard Bourgonje tell the police that as she and Delgado “went around the corner, the light did come on and he was startled but it wasn’t long enough,” indicating that the existing exterior lights, if functioning, might well have deterred Delgado from culminating his plan to rape Bourgonje. See Berg,
III. Conclusion
For the foregoing reasons, we conclude that a jury must be allowed to determine whether Machev promised to light the premises of the mansion in order to protect Bourgonje from criminal attacks; whether Bourgonje relied on that promise; whether Machev unreasonably failed to fulfill her promise; and whether any breaking of that promise proximately caused Bourgonje to suffer the rape. We feel compelled to briefly respond to our colleague’s impassioned special concurrence. Contrary to its characterization of our majority decision, we, on our part, do not purport to comment or editorialize with respect to what is or should constitute the substantive rights or obligations of landlords or, for that matter, tenants. Rather, the basis and rationale of our majority opinion rest upon our construction and interpretation of the voluntary undertakings doctrine as applied in the underlying summary adjudication. In that context, we have concluded that material issues of fact are present which should not be resolved summarily. We do not believe that we should comment, at this stage of the proceedings, as to how the trier of fact should ultimately weigh or evaluate the evidence when it is presented at trial. We, nevertheless, welcome the consensus of the entire tribunal in holding that summary judgment was inappropriate in the face of material issues of fact remaining for determination by the trier of fact. We, therefore, affirm the entry of summary judgment on count II of the complaint; reverse the entiy of summary judgment on count I of the complaint; and remand for further proceedings in accord with this order.
Affirmed in part and reversed in part; cause remanded.
CAHILL, P.J., concurs.
Notes
We do note that there appears to be evidence of misfeasance in the record as well, however. Troche testified that Machev instructed him to repair the lights, though he had no qualifications as an electrician, and without even providing him with the necessary information to make a reasonable attempt, such as the location of the timers, and then failing to promptly call an electrician when Troche informed her that he could not repair the lights himself.
Concurrence Opinion
specially concurring:
I concur with the majority’s conclusion that this case presents disputed issues of material fact which cannot be resolved on a motion for summary judgment. Each of us, however, has reached this conclusion through such a widely divergent interpretation of the facts in this case that a separate concurrence seems in order. I also write out of concern for what I view as the erosion of a very sensible legal principle, namely, that a landowner is not generally liable for the criminаl acts of third parties.
In the instant case, plaintiff Bourgonje sued defendant Machev under a theory of negligence. A threshold question here, as in any cause of action for negligence, is whether defendant owed plaintiff a duty. See Puttman v. May Excavating Co.,
Despite this general rule, we remand this case to the circuit court because the record contains some evidence which could permit a trier of fact to conclude that a voluntary undertaking occurred where defendant allegedly promised to maintain the external lighting at 2410 North Kedzie as a security measure. See N.W. v. Amalgamated Trust & Savings Bank,
It is critical to note, however, that if there had been no evidence that defendant made an explicit promise to the plaintiff to maintain the external lights at 2410 North Kedzie, the defendant landlord would have owed no special duty of care to the plaintiff. The Illinois Supreme Court has recognized that a landlord who provides a property with external lighting, door locks, buzzers, or similar general security-related features is not engaging in a “voluntary undertaking” that creates a legal duty; such features are routinely provided by landlords as a matter of course and thus do not create any special or elevated duty owed to the tenant. See Rowe,
If the trier of fact determines that based upon these facts a duty exists, the next inquiry concerns whether defendant breached this duty. It is here that my interpretation of the facts differs significantly from that of the majority. The record shows that plaintiff met with defendant in late July or early August 2001 and signed her lease sometime in early August 2001. Plaintiff had numerous discussions with defendant regarding improvements to the apartment, such as paint colors, as well as conversations about the history of the building. Plaintiff claims that diming one of these conversations she spoke with defendant regarding the need for good lighting on the property. Although defendant denies it, according to plaintiff, defendant stated that, as a fellow single woman, she appreciated the connection of lights to security and also made assurances that the lights on and around the building would be maintained. At this time there was no indiction that the lights around the building were inoperable. It is only after plaintiff moved in, during a three-day period between September 10 to 13, 2001, that the рlaintiff noticed that some of the lights were not functioning, it was “too dark,” and plaintiff felt some timed lights went on and off at inappropriate intervals. The plaintiff claimed that she also notified the defendant of the lighting problem. The handyman testified that he was notified of the problem by plaintiff, “right after Carla moved in,” or “about two weeks” before the attack, which is roughly the same 2- to 2
Based upon the foregoing facts, the majority appears to have concluded that there was a breach of duty (assuming one exists) because it characterized this case as one of “nonfeasance,” that is, a failure to do a voluntary undertaking altogether where the plaintiff relied on that undertaking. See Vesey v. Chicago Housing Authority,
With regard to nonfeasance, it is notable that the majority stresses there is a “two month” time frame in which this purported nonfeasance occurred, presumably from the date of the voluntary undertaking in early August 2001 until the attack on October 2, 2001. It is puzzling to me how defendant’s conduct could be called nonfeasance because, as previously noted, defendant acted promptly by having her handyman attempt to repair the lights after being notified that they were not working. The majority’s opinion implies that the defendant owed a duty from the time of the purported promise to inspect the lights rather than simply a duty to repair the lights upon request from a tenant. There is no support in the law for such a proposition and at least one Illinois case has held that a promise to repair and maintain does not amount to a duty to “police” the grounds. See N.W.,
The final element to consider is proximate cause. See N.W.,
Thus, to determine whether defendant’s actions constituted “cause in fact” in the instant case, one must look to whether defendant’s purported failure to have the lights repaired more promptly was a substantial factor in causing plaintiffs injury. Unlike the majority, I view the evidence presented as gossamer thin. There is little or no evidence to establish that the attack would not have occurred if all the lights were operating and a question as to whether the situs of the rape would have bеen illuminated even if the lights were working. Would there then be a duty to light every square inch of the grounds? Moreover, the perpetrator, who stated that he first intended only to rob plaintiff, attacked plaintiff outside the building grounds on a city street. It is a reasonable inference from the evidence that since it was late in the evening, street lights were on. Thus, in all likelihood, the criminal began his attack in some light, so the mere presence of light was not enough to deter his initial crime. In what appears to be a spontaneous chain of events, the criminal became aroused during the mugging and decided to rape the plaintiff. The criminal said in his confession that he took Bourgonje to a “dark place” to accomplish this. Plaintiff was not specifically singled out ahead of time as being vulnerable because her home lacked adequate lighting. The criminal act in this case appears to be completely random as is the choice of a “dark place” on defendant’s property as opposed to any other nearby property.
As previously noted, legal cause rests on the principle that the crime is foreseeable to a reasonable person. Harrison,
In the first place, there is no indication that defendant ever knew about any of the above information. There had been no previous violent crimes on the property in question, defendant did not live in this area, and she did not belong to neighborhood groups such as C.A.ES. Thus, there is no reason that defendant should have been alerted to the impending crime based upon the testimony of plaintiffs witnesses.
If one rejects, as did the court in Petrauskas, the speculative, anecdotal evidence concerning the purported “high crime” rate of the neighborhood, the only evidence of proximate cause is the perpetrator’s statement that he took plaintiff to a “dark place” so that no one would see him rape her. To illustrate how random this act was, it appears that the criminal himself did not even foresee the more violent aspect of his crime in that he stated that he initially set out only to rob plaintiff, then, in what seems to be a split-second decision, decided to rape her as well. Thus, unlike the majority, I would not say there is “more than enough” evidence to establish a question of fact regarding proximate cause. Although I find that the evidence raises an issue of fact, it hangs on the questionable word of a convicted criminal.
Finally, I am concerned about what I regard as an erosion of an entirely reasonable rule protecting landowners from liability for the criminal acts of others. The majority might argue the case simply follows established exceptions to the rule, conferring liability for voluntary undertakings as was done in Rowe, and I acknowledge that it does. The supreme court in Rowe, however, stated that no duty arises when a landlord simply provides external lights, though here the majority thinks that a purported promise to maintain those lights may be sufficient for liability to accrue. I fear that the next case may continue to expand this exception even further, holding that the brightness, placement, or type of light may be deemed inadequate and thus liability will attach. Eventually, the exception will become the rule.
Moreover, as a matter of public policy, any expansion of the exception would prove such a burden on landowners that it would effectively deter any owner from ever providing even minor improvements at his property for the security and convenience of his tenants. See Petrauskas,