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FIRST DIVISION                                                                                                                                                   
December 5, 2005

No. 1-04-1873

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 she 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. * * * [H]aving 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 depostions 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 attached 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 no 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 occupant 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 lease.

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 "talk[ed] about the history of the building *** talk[ed] about the history of the halls. *** [W]e 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 twelfth 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 could look at the lights, which I've changed floodlights, light bulbs, that is, on the outside of the building, but never seemed to work." Troche also informed Machev, "[j]ust 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. Troche 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 allow 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 off 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., 154 Ill. 2d 90, 102 (1992). Thus, all evidence before a court considering a summary judgment motion must be considered in the light most favorable to the nonmoving party (In re Estate of Hoover, 155 Ill. 2d 402, 410-11 (1993)), and summary judgment should be denied not only if there are disputed facts, but also if reasonable people could draw different inferences from the undisputed facts (Wood v. National Liability & Fire Insurance Co., 324 Ill. App. 3d 583, 585 (2001)).

The movant bears the initial burden of production in a motion for summary judgment. Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 689 (2000). A defendant moving for summary judgment may meet its burden of production either by presenting evidence that, left unrebutted, would entitle it to judgment as a matter of law or by demonstrating that the plaintiff will be unable to prove an element of its cause of action. Williams, 316 Ill. App. 3d at 688. Until the defendant supplies facts that would demonstrate its entitlement to judgment as a matter of law, the plaintiff may rely on the pleadings to create questions of material fact. Williams, 316 Ill. App. 3d at 689. However, should a defendant present such facts, the burden then shifts to the plaintiff to present some evidence allowing the imposition of liability on the defendant and supporting each element of his cause of action, thereby defining a material issue of fact to be determined at trial. Williams, 316 Ill. App. 3d at 689; Wortel v. Somerset Industries, Inc., 331 Ill. App. 3d 895, 899-900 (2002); Garcia v. Nelson, 326 Ill. App. 3d 33, 38 (2001).

"Like other issues of duty, whether a defendant has voluntarily undertaken a duty to a plaintiff is a question of law for the court ***." Lange v. Fisher Real Estate Development Corp., 358 Ill. App. 3d 962, 973 (2005). Therefore, "[w]ithout a showing from which the court could infer the existence of a duty, no recovery by a plaintiff is possible as a matter of law and summary judgment in favor of the defendant is proper." Haupt v. Sharkey, 358 Ill. App. 3d 212, 216 (2005). However, though a question of law, if there is a dispute of material fact affecting the existence of an undertaking of a duty, summary judgment is improper. See Protective Insurance Co. v. Coleman, 144 Ill. App. 3d 682, 686, 688 (1986) (after noting that "[s]ince the construction of an insurance policy is a matter of law, summary judgment would appear to be an appropriate disposition when such construction is at issue," holding that "[h]ere, the aforementioned factual issues were material to a determination of plaintiff's duty to defend its insured and, therefore, demonstrate that defendant's right to summary judgment was not free from doubt," and that "the trial court erred in granting summary judgment, as genuine issues of material fact existed"). Additionally, "[a]lthough the issue of proximate cause is ordinarily a question of fact determined by the trier of fact, it is well settled that it may be determined as a matter of law by the court where the facts as alleged show that the plaintiff would never be entitled to recover." Abrams v. City of Chicago, 211 Ill. 2d 251, 257-58 (2004).