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THIRD DIVISION
Date Filed: March 3, 2004

No. 1-01-4226

 

JUSTICE HALL delivered the opinion of the court:

The plaintiff, Hedy Elliott, appeals from orders of thecircuit court of Cook County granting summary judgment to defendants Titan Security Service, Inc. (Titan), and Draper &Kramer, Inc., and denying her motion for leave to file an amendedcomplaint.

On appeal, the plaintiff contends that the circuit courterred in granting summary judgment to Titan because genuineissues of material fact exist as to whether Titan's conduct inhiring defendant Carl Williams was a proximate cause of theplaintiff's injuries. She further contends that the circuitcourt erred in denying her motion for leave to file an amendedcomplaint. Finally, the plaintiff submits that if the circuitcourt erred in granting summary judgment to Titan, then thesummary judgment in favor of Draper & Kramer must also bereversed. For the reasons that follow, we reverse and remand.

Titan was hired by Draper & Kramer to provide security atthe Lake Meadows Apartments. On March 12, 1996, while staying atthe Lake Meadows Apartments, the plaintiff was sexually assaultedby Carl Williams, a security guard employed by Titan.

On March 11, 1998, the plaintiff filed a complaint againstthe defendants and Carl Williams.⁽¹⁾ The complaint, which wassubsequently amended on March 23, 2000,⁽²⁾ alleged that Titan wasguilty of negligence in the hiring of Mr. Williams in that Titan,inter alia, failed to conduct a background check which would haverevealed Mr. Williams's criminal background. The complaintfurther alleged that Draper & Kramer was negligent in its hiringand retention of Titan based on Titan's hiring of unfit securityguards.

On January 25, 2001, Titan filed a motion for summaryjudgment. Titan relied, inter alia, on the following evidence insupport of its motion.

In her deposition, the plaintiff testified that on March 11,1996, she was staying with a friend at the Lake MeadowsApartments. Around 5:30 p.m., the plaintiff left the apartmentto go shopping with another friend. She returned from shoppingat around 9:30 p.m. She had packages in her hands and a soda. She was able to open the outer door to the building but wasstruggling trying to open the inner door when a security guardopened it for her. While the plaintiff was waiting for theelevator, the security guard and she had a brief conversationduring which the plaintiff mentioned the name of the person withwhom she was staying.

When the elevator arrived, the security guard volunteered tohelp the plaintiff take her packages up to the apartment whereshe was staying. While in the elevator, the security guard toldthe plaintiff that his name was "Carl." In the course of theirconversation, the plaintiff gave Carl her telephone number inPeoria and mentioned that she could get concert tickets for him. As the plaintiff approached the apartment, Carl was holding theelevator and watching her.

At around 10:30 p.m., Carl knocked on the apartment door. When the plaintiff opened the door, he told her he was coming offduty and asked her to join him for a drink. The plaintiffdeclined the invitation telling him that she was going out withfriends.

The plaintiff further testified that a male friend and afriend of his stopped over to see her, but she did not recall ifshe left the apartment to admit them to the apartment. They leftabout 11:45 p.m.

Sometime between 11:45 p.m. and 2 a.m, Carl called her andasked if he could come up to the apartment.⁽³⁾ She told him no. He called a second time and told her he had a gift for her andcould he bring it up to her. After first declining, theplaintiff agreed to allow Carl to bring the gift to the apartmentdoor. A few minutes later, Carl knocked on the door, and theplaintiff, knowing it was Carl, opened the door to the apartment. The plaintiff acknowledged that, initially, she had told thepolice that she opened the door because she thought it was herfriend returning to the apartment. Carl was dressed in streetclothes but was wearing the hat he wore as part of his securityuniform.

It is undisputed that Carl Williams then assaulted theplaintiff. He was subsequently arrested and following a benchtrial, convicted of the assault.

On June 7, 2001, prior to a hearing on Titan's motion forsummary judgment, the plaintiff filed a motion for leave to fileher second amended complaint. The proposed second amendedcomplaint added a claim of respondeat superior against Titan, Mr.Williams and an unknown security guard based on the conduct ofthe unknown security guard whom the plaintiff alleged hadadmitted Mr. Williams into the apartment building. A claim forbreach of the Private Detective, Private Alarm, Private Security,and Locksmith Act of 1993 (225 ILCS 446/1 et seq. (West 1996))against Titan and a claim of reckless conduct against Titan werealso added to the second amended complaint.

On June 26, 2001, the circuit court granted Titan's summaryjudgment motion. On July 6, 2001, Draper & Kramer filed itsmotion for summary judgment.

On September 7, 2001, the circuit court denied theplaintiff's motion for leave to file her second amended complaintand granted Draper & Kramer's motion for summary judgment.

On October 26, 2001, the circuit court entered an orderdismissing the remainder of the complaint. This timely appealfollowed.

Motions for summary judgment are reviewed de novo. Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d278, 292, 757 N.E.2d 481, 491 (2001).

Summary judgment is proper if, and only if, the pleadings,depositions, affidavits and other relevant matters on file showthat there is no genuine issue of material fact and that themovant is entitled to judgment as a matter of law. Prowell v.Loretto Hospital, 339 Ill. App. 3d 817, 822, 791 N.E.2d 1261,1265 (2003). In determining whether a genuine issue of materialfact exists, a court must construe the pleadings, admissions andaffidavits strictly against the movant and liberally in favor ofthe opponent. Prowell, 339 Ill. App. 3d at 822, 791 N.E.2d at1265.

The purpose of summary judgment is not to try a question offact but to determine if one exists. Gilbert v. SycamoreMunicipal Hospital, 156 Ill. 2d 511, 517, 622 N.E.2d 788, 792(1993). A triable issue precluding summary judgment exists wherethe material facts are disputed or, where the material facts areundisputed, reasonable persons might draw different inferencesfrom the undisputed facts. Gilbert, 156 Ill. 2d at 518, 622N.E.2d at 792. Summary judgment should only be allowed when theright of the moving party is clear and free from doubt. Gilbert,156 Ill. 2d at 518, 622 N.E.2d at 792.

The plaintiff contends that a genuine issue of material factexists as to whether Titan's negligent hiring of Mr. Williams wasa proximate cause of the injuries to her. Titan responds that,regardless of any negligence on its part in hiring Mr. Williams,the plaintiff's action in opening the apartment door to Mr.Williams constituted an intervening cause and, therefore, Titan'snegligent hiring of Mr. Williams was not a proximate cause of theplaintiff's injuries.

Proximate cause is ordinarily a question for the jury todecide. Mack v. Ford Motor Co., 283 Ill. App. 3d 52, 57, 669N.E.2d 608, 612 (1996). The proximate cause of an injury canbecome a question of law only when the facts are not onlyundisputed but are also such that there can be no difference inthe judgment of reasonable men as to the inferences to be drawnfrom them. Mack, 283 Ill. App. 3d at 57, 669 N.E.2d at 612-13.

The plaintiff correctly notes that there may be more thanone proximate cause of an injury. Mack, 283 Ill. App. 3d at 57,669 N.E.2d at 613. A defendant may be held liable even if hisnegligence is not the sole proximate cause of the plaintiff'sinjuries, so long as his conduct contributed in whole or in partto the injury. Mack, 283 Ill. App. 3d at 57, 669 N.E.2d at 613.

The negligence of a defendant will not constitute aproximate cause of a plaintiff's injuries if some intervening actsupercedes the defendant's negligence, but if the defendant couldreasonably foresee the intervening act, that act will not relievethe defendant of liability. Mack, 283 Ill. App. 3d at 57, 669N.E.2d at 613.

Illinois courts draw a distinction between a condition and acause. First Springfield Bank & Trust v. Galman, 188 Ill. 2d252, 257, 720 N.E.2d 1068, 1071 (1999). If the negligencecharged does nothing more than furnish a condition by which theinjury is made possible, and that condition causes an injury bythe subsequent, independent act of a third person, the creationof the condition is not the proximate cause of the injury. Galman, 188 Ill. 2d at 257, 720 N.E.2d at 1071. "The test thatshould be applied in all proximate cause cases is whether thefirst wrongdoer reasonably might have anticipated the interveningefficient cause as a natural and probable result of the firstparty's own negligence. [Citation.]" Galman, 188 Ill. 2d at 257,720 N.E.2d at 1071.

In accord with its analysis in Lee v. Chicago TransitAuthority, 152 Ill. 2d 432, 605 N.E. 2d 493 (1992), the supremecourt noted that "proximate cause" describes two distinctrequirements: cause in fact and legal cause. Galman, 188 Ill. 2dat 257-58, 720 N.E.2d at 1072. Cause in fact exists where thereis a reasonable certainty that a defendant's acts caused theinjury or damage. Galman, 188 Ill. 2d at 258, 720 N.E.2d at1072. A defendant's conduct is a cause in fact of theplaintiff's injury only if that conduct is a material element anda substantial factor in bringing about the injury. Galman, 188Ill. 2d at 258, 720 N.E.2d at 1072. A defendant's conduct is amaterial element and a substantial factor in bringing about aninjury if, absent that conduct, the injury would not haveoccurred. Galman, 188 Ill. 2d at 258, 720 N.E.2d at 1072. "Legal cause," by contrast, is essentially a question offorseeability. Galman, 188 Ill. 2d at 258, 720 N.E. 2d at 1072. The relevant inquiry is whether the injury is of a type that areasonable person would see as a likely result of his or herconduct. Galman, 188 Ill. 2d at 258, 720 N.E.2d at 1072.

Carter v. Skokie Valley Detective Agency, Ltd., 256 Ill.App. 3d 77, 628 N.E.2d 602 (1993), relied on by the circuitcourt, is distinguishable but, nonetheless, instructive. In thatcase, the defendant rehired an employee without performing abackground check, which would have revealed several criminalconvictions. The employee appeared at the service station whereboth the victim and he worked and explained that he was to workat another location that day. He persuaded the victim to givehim a ride to that location. The victim's body was discoveredthe next day.

The reviewing court reversed the jury verdict for theplaintiff. The court found that the defendant's negligence inrehiring a former employee, without performing a backgroundcheck, was not a proximate cause of the victim's death. Thecourt noted that in order for there to be a causal connectionbetween the employer's negligence and the plaintiff's injuries,the employment itself must create the situation where theemployee's violent propensities harm the third person. Carter,256 Ill. App. 3d at 80, 628 N.E.2d at 604.

Applying the analysis in Galman and in Carter to the factsof the case before us, we determine that a genuine issue of factexists as to whether Titan's alleged negligent hiring of Mr.Williams, without performing a background check which presumablywould have revealed his criminal record, was a legal cause, aswell as the cause in fact, of the plaintiff's injuries.

It is a reasonable inference from the record that theplaintiff's decision to open the door to Mr. Williams was basedon the fact he was a security guard and not just because shebelieved that he was bringing a gift to her. Earlier, Mr.Williams had assisted her into the apartment building andescorted her up stairs to the apartment where she was staying.Had Mr. Williams been a stranger, it is questionable as towhether the plaintiff would have permitted him to come up to theapartment. It is also a reasonable inference from the recordthat Titan could have anticipated that the plaintiff would agreeto allow Mr. Williams to come up to the apartment because he wasa security guard.

"It was not the fact Harris was a security guard that gothim into Emma's car and proximately caused her injuries anddeath; it was the fact that she trusted him because she knew himfrom work." Carter, 256 Ill. App. 3d at 82-83, 628 N.E.2d at605. In contrast, in the case before us, it was a reasonableinference from the record that Mr. Williams' position as asecurity guard was the reason the plaintiff allowed him to comeupstairs and admitted him to the apartment.

We conclude that a genuine issue of material fact exists asto whether Titan's alleged negligent hiring of Carl Williams wasa proximate cause of the plaintiff's injuries and that thecircuit court erred when it granted summary judgment to Titan.

Deciding this issue as we do, we need not address thecircuit court's denial of the plaintiff's request for leave toamend her complaint.

Draper & Kramer contend that the plaintiff has waived herargument as to Draper & Kramer's liability by failing to cite anyauthority in support of her argument. However, Draper & Kramer'sliability in this case stems from the allegation that Titan'snegligent hiring of Mr. Williams was a proximate cause of theplaintiff's injuries. Therefore, the plaintiff's argument as toTitan is equally applicable to Draper & Kramer.

Having determined that a genuine issue of material factexists as to whether Titan was a proximate cause of theplaintiff's injuries, we conclude that the circuit court erredwhen it granted summary judgment to Draper & Kramer.

The judgment of the circuit court granting summary judgmentto Titan and Draper & Kramer is reversed, and the cause isremanded for further proceedings.

Reversed and remanded.

SOUTH and KARNEZIS, JJ., concur.

1. Mr. Williams is not a party to this appeal.

2. The March 23, 2000, amendments pertained to Draper &Kramer.

3. The plaintiff was uncertain as to whether there was one ortwo calls from Carl. Carl did not tell her from where he wascalling.