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THIRD DIVISION

March 28, 2001

No. 1-99-3602

JUSTICE WOLFSON delivered the opinion of the court:

This case demonstrates the price that can be paid for anoffhand approach to the rules that govern civil proceedings.

BACKGROUND

Eleazar Landeros (Eleazar) and Luz Maria Landeros (LuzMaria) brought this negligence action against Equity Property andDevelopment (Equity) and Bearland Vistas, Inc. (Bearland), afterEleazar was shot by a third party in the parking lot of Ford CityShopping Center (Ford City). Ford City is maintained andoperated by Equity and Bearland. Plaintiffs allege the shootingwas caused by defendants' negligent failure to provide adequatesecurity in the parking lot of Ford City.

Defendants filed a motion for summary judgment. Afterplaintiffs filed their response to the motion, defendants filed amotion to strike the exhibits attached to plaintiffs' response. The trial court granted defendants' motion to strike, as well astheir motion for summary judgment. Plaintiffs filed a motion toreconsider, which the trial court denied.

Plaintiffs appeal both the trial court's ruling on themotion for summary judgment and its ruling on the motion toreconsider, contending: (1) the trial court erred in findingdefendants did not owe a duty to protect plaintiffs from criminalattack; and (2) a genuine issue of fact exists as to whetherdefendants negligently failed to provide adequate security.

We affirm.

FACTS

Eleazar and Luz Maria were shopping at Ford City with two oftheir children, Ileana and Octavio, on February 27, 1994. Asthey exited the shopping center and walked toward a CTA bus stop,Eleazar was shot in the arm and chest by a third party. LuzMaria was allegedly injured when Eleazar pushed her to the groundin an attempt to protect her from the shots fired. Equityemployed security personnel to provide security services at themall.

PROCEDURAL FACTS

Plaintiffs filed this suit in December 1994. In January1999, defendants filed a motion for summary judgment. In theirmotion, defendants argued plaintiffs could not establishdefendants had a duty to secure the parking lot from interveningcriminal attacks by third parties. Defendants attached atranscript of Eleazar's deposition testimony, and referred to hisstatement that the shooting occurred in the mall parking lot.

Defendants also argued plaintiffs could not establish theincident was the result of inadequate security. They attachedDavid Levenberg's affidavit, in which he said:

"1. I am the Corporate Director of Security forGeneral Growth Management, Inc. and I am responsiblefor Public Safety and Loss Prevention programs for over120 regional shopping centers. I have worked in thefield of security of shopping facilities and retail forover 20 years.

2. I am familiar with the standard of care forsecurity at shopping centers in the Chicago area.

3. It is my opinion based on a reasonable degreeof certainty, that all times [sic] relevant and inparticular that on February 27, 1994, the security atFord City Shopping Center complied with the standard ofcare applicable in the Chicago area and on a nationallevel and conformed to the acceptable standard of careof security pertaining to shopping centers in theChicago area in 1994."

Plaintiffs responded to the summary judgment motion, arguingdefendants had a duty to protect them from criminal attack bythird parties because similar incidents had occurred on the mallpremises in the past, making the incident reasonably foreseeable. Plaintiffs attached a Chicago Police Department "Listing of CaseReports" as support for these assertions. This list showed allof the reported offenses that occurred at the mall's address fromDecember 1993 through March 1994. Plaintiffs also attached theaffidavit of Patrick Halpin, which said:

"1. I am currently and have been a Chicago PoliceOfficer since March 1976. I am presently the afternoonand evening supervisor for the Treasure Island ShoppingMall located on Clybourn Avenue, and have been employedthere since 1994 as a security guard. Similarly I am asecurity guard at Finkl Steel Mill located on CortlandAve., and have been employed as a security guard theresince 1989.

2. I am familiar with the standard of care andsecurity procedures for shopping centers in the Chicagoarea.

3. It is my opinion that based on a reasonabledegree of certainty, that at all times relevant and inparticular that on February 27, 1994, the security atFord City Shopping Center did not comply with thestandard of care applicable in the Chicago area, anddid not conform to the acceptable standard of carepertaining to shopping centers in the Chicago area in1994."

Defendants replied to plaintiffs' response, and filed amotion to strike both the "Listing of Case Reports" and Halpin'saffidavit. Defendants argued plaintiffs failed to authenticatethe case reports, and as such they were inadmissible. Theyargued Halpin's affidavit was conclusory and did not comply withSupreme Court Rule 191. 145 Ill. 2d R. 191. Defendants alsoargued plaintiffs failed to identify Halpin as an expert witnesspursuant to Supreme Court Rule 213 (177 Ill. 2d R. 213), and didnot establish Halpin's expertise in security issues.

The trial court granted defendants' motion to strike andtheir motion for summary judgment on May 12, 1999.

Plaintiffs filed a motion for reconsideration, attachingseveral new documents and affidavits as exhibits. The newexhibits included the deposition testimony of Donald Story, takenon April 21, 1998. Story's deposition exhibits were includedwith his deposition. These exhibits consisted of Ford City'ssecurity log, several Ford City security incident reports,Chicago Police Department reports, and a document entitled"Responsibilities of Security."

Plaintiffs attached several police reports to the motion toreconsider. These were some of the same reports used as exhibitsduring Story's deposition. Plaintiffs again attached the ChicagoPolice Department "Listing of Cases" stricken from their responseto defendants' motion for summary judgment. Plaintiffsauthenticated the list with an affidavit from Sergeant O'Reilly,the record keeper for the Chicago Police Department.

Plaintiffs attached several affidavits to their motion toreconsider. Joseph Flynn, who was identified by defendants in1997 as one of the security guards on duty at the time of theshooting, provided an affidavit. In it, he said he waspersonally aware of a number of violent crimes that occurred inthe Ford City parking lot prior to the shooting in this case. Heauthenticated the "security log," kept by Ford City securitypersonnel, listing offenses committed on the mall premises.

Plaintiffs attached a new affidavit from Patrick Halpin. This affidavit complied with Supreme Court Rule 191. 145 Ill. 2dR. 191.

Plaintiffs attached the affidavit of Marie Biggane, aChicago police officer, who said she was personally aware of anumber of violent crimes that occurred in the mall parking lotand was aware of gang members frequenting the mall.

Plaintiff attached the deposition testimony of EleazarLanderos, Luz Maria Landeros, and Ileana Landeros. All of thesedepositions were taken in 1996.

Plaintiffs included an affidavit from their attorney thatexplained the delay in bringing the "new" evidence to the court'sattention:

"1. I am the attorney of record for EleazarLanderos and Luz Maria Landeros. I was granted leaveto file my appearance as their attorney on March 30,1999. ***

2. The response to Defendant's [sic] Motion forSummary Judgment was due on and was filed on April 16,1999.

3. I received from my clients what was purportedto be the entire file in this matter on March 29, 1999.

4. On May 17, 1999, I learned for the first timethat the file that I had did not contain DefendantsAnswers to Supplemental Interrogatories, which listed aformer employee named Joseph Flynn.

5. On June 3, 1999, I received for the first timea copy of police report number Y-002873. Upon receiptof the police report I learned for the first time thatChicago Police Officer Marie Biggane had reported theaggravated battery with bats and chains that reportedlyoccurred on January 2, 1994 in the parking lot of thedefendants' shopping center. At that time, I contactedthe Officer and she indicated that she was aware ofprevious similar incidents that had occurred in theparking lot of the defendants' shopping center."

The trial court denied plaintiffs' motion to reconsider onSeptember 27, 1999.

DECISION

Motion to Strike

Plaintiffs contend the exhibits attached to their responseto defendants' summary judgment motion were improperly stricken,and should have been considered by the trial court before rulingon the first summary judgment motion in May 1999.

The granting of a motion to strike exhibits is within thesound discretion of the trial court. Cincinnati Cos. v. W.American Ins. Co., 287 Ill. App. 3d 505, 514, 679 N.E.2d 91(1997).

The first exhibit attached to plaintiffs' response to thesummary judgment motion was a Chicago Police Department "Listingof Case Reports" pertaining to Ford City. Plaintiffs did notinclude an affidavit from someone who could attest to the list'sauthenticity.

Plaintiffs' failure to authenticate the list made itinadmissible. "Basic rules of evidence require that a party mustlay the foundations for the introduction of a document intoevidence." Gardner v. Navistar International TransportationCorp., 213 Ill. App. 3d 242, 247, 571 N.E.2d 1107 (1991). Inorder to authenticate a document, evidence must be presented todemonstrate that document is what its proponent claims. Gardner,213 Ill. App. 3d at 247-48. Plaintiffs failed to properlyauthenticate the case reports; as such, they were not admissibleevidence. Gardner, 213 Ill. App. 3d at 248.

The second exhibit attached to plaintiffs' response was theaffidavit of Patrick Halpin, plaintiffs' security expert. In hisaffidavit, Halpin concluded, "[T]he security at Ford CityShopping Center did not comply with the standard of careapplicable in the Chicago area." He did not list any facts orevidence on which he relied in reaching this conclusion.

Supreme Court Rule 191 requires:

"Affidavits in support of and in opposition to a motionfor summary judgment *** shall be made on the personalknowledge of the affiants; shall set forth withparticularity the facts upon which the claim,counterclaim, or defense is based; shall have attachedthereto sworn or certified copies of all papers uponwhich the affiant relies; shall not consist ofconclusions but of facts admissible in evidence; andshall affirmatively show that the affiant, if sworn asa witness, can testify competently thereto." 145 Ill.2d R. 191(a).

Because Halpin's affidavit was conclusory and did notinclude the facts upon which he based his opinions, the affidavitdid not comply with Rule 191. 145 Ill. 2d R. 191; Northrop v.Lopatka, 242 Ill. App. 3d 1, 8, 610 N.E.2d 806 (1993). While anexpert may give opinion testimony at trial without disclosing thefacts underlying that opinion, under Supreme Court Rule 191 thosefacts must be laid out in an affidavit used to oppose a summaryjudgment motion. Northrop, 242 Ill. App. 3d at 8 (plaintiffcannot create an issue of fact by the conclusory affidavit of itsexpert).

A review of the exhibits indicates they were properlystricken. However, the record on appeal does not include atranscript of the hearing on the motion to strike or abystander's report in compliance with Supreme Court Rule 323. 166 Ill. 2d R. 323. An appellant has the burden of presenting asufficiently complete record of the proceedings to support aclaim of error. In the absence of such a record on appeal, itwill be presumed that the order entered by the trial court was inconformity with the law. Foutch v. O'Bryant, 99 Ill. 2d 389,391, 459 N.E.2d 958 (1984). Without an adequate report of theproceedings showing the basis for the trial court's ruling on themotion to strike, we must presume its decision was appropriate. Foutch, 99 Ill. 2d at 391; see also In re Estate of Jacobs, 189Ill. App. 3d 625, 629, 545 N.E.2d 502 (1989)(Any doubt raised byan incomplete record will be resolved against the appellant).

Summary Judgment Motion

Plaintiffs contend the trial court erred in grantingdefendants' motion for summary judgment, claiming the trial courtfailed to consider evidence which supported their allegations ofnegligence.

Review of the trial court's ruling on a motion for summaryjudgment is de novo. Lajato v. AT&T, Inc., 283 Ill. App. 3d 126,135, 669 N.E.2d 645 (1996). Summary judgment is proper when thepleadings, depositions, and affidavits on file, construed in thelight most favorable to the nonmoving party, establish there isno genuine issue of material fact and the moving party isentitled to judgment as a matter of law. Lajato, 283 Ill. App.3d at 135. The purpose of the summary judgment procedure is notto decide the facts but to ascertain whether a factual disputeexists. Barber-Colman Co. v. A&K Midwest Insulation Co., 236Ill. App. 3d 1065, 1070-71, 603 N.E.2d 1215 (1992).

A possessor of land does not generally owe a duty to protectlawful entrants from criminal attacks by third parties. Hills v.Bridgeview Little League Assoc., Nos. 87895 & 87910, slip op. at14 (2000). An exception is recognized where the landholder andthe entrant stand in a special relationship with each other thatwarrants imposing such a duty. Hills, slip op. at 14. IllinoisCourts recognize four "special relationships" which impose alegal duty to warn or protect a person from harm: (1) carrier-passenger; (2) innkeeper-guest; (3) business inviter-invitee; and(4) voluntary custodian-protectee. Osborne v. Stages Music Hall,Inc., 312 Ill. App. 3d 141, 147, 726 N.E.2d 728 (2000).

"The existence of a special relationship does not, byitself, impose a duty upon the possessor of land *** Before aduty to protect will be imposed it must also be shown that thecriminal attack was reasonably foreseeable." Hills, slip op. at27. Plaintiff must establish it was objectively reasonable toexpect the incident, not merely that it was conceivable that itmight occur. Osborne, 312 Ill. App. 3d at 147.

A duty may also arise where the landowner voluntarilyundertakes to provide for the security of its entrants. Vaughnv. Granite City Steel Division, 217 Ill. App. 3d 46, 52, 576N.E.2d 874 (1991). In such cases, a breach of that duty isestablished where the plaintiff shows the landowner failed toexercise reasonable care in the voluntary undertaking, and thefailure increased the risk of harm to the plaintiff. Vaughn, 217Ill. App. 3d at 52.

Plaintiffs' contentions on appeal suggest the trial courtignored evidence which showed numerous violent criminal attacks occurred at Ford City prior to this one, as well as evidenceshowing defendants voluntarily undertook to provide security atthe mall. Plaintiffs also claim the trial court failed toconsider evidence showing defendants' security was performed in anegligent manner, and that this negligence proximately causedplaintiffs' damages. According to plaintiffs, this evidenceestablished a material issue of fact sufficient to withstand asummary judgment motion.

In fact, the trial court struck the only two exhibitsattached to plaintiffs' response to the summary judgment motion. After striking the exhibits, the trial court was left with theuncontradicted affidavit of defendants' security expert, attachedto the summary judgment motion. In this affidavit, defendants'expert said the security at Ford City complied with the standardof care.

Though plaintiffs now contend this affidavit does not complywith Supreme Court Rule 191, they failed to raise that issue inthe trial court. They cannot raise it for the first time onappeal. See King v. Linemaster Switch Corp., 238 Ill. App. 3d729, 731, 606 N.E.2d 584 (1992)(party must obtain ruling on amotion to strike from trial court in order to preserve issue forappeal).

Based on the evidence before the trial court when it ruledon the summary judgment motion, we find the trial court'sdecision was appropriate. Plaintiffs failed to establishdefendants had a legal duty to prevent criminal attack by a thirdparty. "In the absence of any showing upon which the court couldinfer the existence of a legal duty on the part of the defendant,no recovery would be possible as a matter of law, and summaryjudgment in favor of the defendant *** [is] proper." Hagy v.McHenry County Conservation District, 190 Ill. App. 3d 833, 843,546 N.E.2d 77 (1989).

Motion to Reconsider

Plaintiffs also contend the trial court erred in refusing togrant its motion to reconsider the summary judgment ruling.

The decision to grant or deny a motion for reconsiderationlies within the discretion of the circuit court, and will not bereversed absent an abuse of that discretion. American NationalTrust Co. v. Kentucky Fried Chicken of Southern California, Inc.,308 Ill. App. 3d 106, 120, 719 N.E.2d 201 (1999). The intendedpurpose of a motion to reconsider is to bring to the court'sattention newly discovered evidence, changes in the law, orerrors in the court's previous application of existing law. Gardner, 213 Ill. App. 3d at 248.

"Newly discovered" evidence is evidence that was notavailable prior to the hearing on the motion for summaryjudgment. Gardner, 213 Ill. App. 3d at 248. "Trial courtsshould not allow a litigant to stand mute, lose a motion, andthen frantically gather evidentiary material to show that thecourt erred in its ruling." Gardner, 213 Ill. App. 3d at 248.

Here, plaintiffs attached the affidavits of Joseph Flynn, asecurity guard at Ford City, and Officer Mary Biggane, a Chicagopolice officer, claiming they constituted "newly discoveredevidence." However, in their June 1997 answers to plaintiffs'supplemental interrogatories, defendants identified Flynn as oneof the security officers assigned to Ford City on the day of theshooting. The "security log" authenticated by Flynn in hisaffidavit was used as an exhibit during Donald Story's depositionin April 1998. Because plaintiffs had the security log and couldhave obtained an affidavit from Flynn prior to the summaryjudgment hearing, this evidence cannot be said to have been"newly discovered."

Nor does the affidavit from Officer Biggane qualify as"newly discovered" evidence. The number of the case report (Y-002873) listing Mary Biggane as the responding officer in theJanuary 2, 1994, incident was included on the "Listing of CaseReports" attached to plaintiffs' response to defendants' summaryjudgment motion. This information was readily discoverable priorto the hearing on defendants' motion for summary judgment. Assuch, it is not considered "newly discovered."

Plaintiffs rely on a document entitled "Responsibilities ofSecurity," which they claim shows defendants voluntarilyundertook to provide security in the mall's parking lot. Thisdocument was used as an exhibit during Donald Story's deposition,and was attached to the motion to reconsider as part of hisdeposition transcript. Story testified he had never seen thedocument before the deposition, and couldn't testify to itscontents. Plaintiff did not attach it to the motion toreconsider as a separate exhibit, and it was not authenticated byanyone affiliated with Ford City security. The document is not"newly discovered" since it was available to plaintiffs at thetime of the summary judgment hearing, and is inadmissible sinceit has not been authenticated.

None of the remaining exhibits attached to plaintiffs'motion to reconsider can be considered "newly discovered" andplaintiffs offer no explanation as to why these exhibits were notattached to their response to the initial summary judgmentmotion. The deposition testimony of Eleazar, Luz Maria, andIleana Landeros was taken in 1996, three years before the summaryjudgment motion was filed. Don Story's deposition was takenApril 21, 1998, a year before the hearing on the summary judgmentmotion. Patrick Halpin's revised affidavit is not "newlydiscovered" evidence, nor is Sergeant O'Reilly's affidavitauthenticating the "Listing of Case Reports."

Simply put, plaintiffs failed to attach any evidence totheir motion to reconsider which was not available at the time ofthe hearing on defendants' summary judgment motion. Such evidence"should not be allowed in the absence of a reasonable explanationof why it was not available at the time of the original hearing.*** In the absence of any such valid explanation, there [is] noreason to change the ruling." Delgatto v. Brandon Associates,Ltd., 131 Ill. 2d 183, 195, 545 N.E.2d 689 (1989). The onlyexplanation offered by plaintiffs' attorney was that he did nothave a complete copy of his clients' file. We do not considerthat a "valid" explanation.

We note the long history of this case, if only because itmay have played a role in the trial court's exercise of itsdiscretion to deny the motion for reconsideration. Afterplaintiffs filed the original complaint in December 1994, thecase was twice dismissed for want of prosecution. The attorneywho represented plaintiffs when the motion for reconsiderationwas filed was their fifth attorney of record. By the timeplaintiffs' motion for reconsideration was filed, this case hadbeen pending for close to five years.

After reviewing the exhibits attached to plaintiffs' motionfor reconsideration, the trial court does not appear to haveabused its discretion in denying the motion. However, plaintiffsagain failed to include either a transcript of the hearing on themotion to reconsider or a bystander's report in the record onappeal. We have no way of knowing whether the trial court'sdecision was based on a finding that the evidence was not "newlydiscovered," or a finding that the evidence did not create amaterial issue of fact. Without an adequate report ofproceedings showing the basis for its decision, we presume thetrial court's denial of the motion to reconsider was appropriate. Foutch, 99 Ill. 2d at 391.

CONCLUSION

Our examination of the information supplied with the Motionto Reconsider persuades us this could have been a far differentcase had there been a timely submission. We understand theresult we reach today penalizes litigants for the conduct of thelawyers they chose on five different occasions. But there issomething to be said for an orderly procedure that producespredictable results. The rules that apply to summary judgmentproceedings were designed to reduce the time and expense that canbe produced by adversary proceedings. In addition, they save thecommunity from congested court calendars and costly trials. SeeAllen v. Meyer, 14 Ill. 2d 284, 292, 152 N.E.2d 576 (1958). Litigants have the right to rely on the rules. Judges have theduty to enforce them. In that way, in the long run, theadministration of justice is better served.

We affirm the trial court's rulings on both the summaryjudgment motion and the motion to reconsider.

Affirmed.

CERDA, and BURKE, JJ., concur.