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FIFTH DIVISION
June 25, 2005

No. 1-04-0625

JUSTICE GALLAGHER delivered the opinion of the court:

Plaintiff, Richard Lange, appeals from the trial court's grant of summary judgment in favor of defendants Fisher Real Estate Development Corporation (Fisher) and Midwest Carpentry, Inc. (Midwest) (collectively defendants). We affirm.

FACTUAL BACKGROUND

The facts are not in dispute. This personal injury case arose out of an incident that occurred in the early morning hours of April 6, 2000, when plaintiff was injured on Fisher's property. Defendant Fisher is a company engaged primarily in the business of construction. At the time of the incident in question here, Fisher was the general contractor of a six-flat condominium construction project in Lincoln Park, Chicago, that was still in the process of being built. Midwest Carpentry did the carpentry for this project.

Plaintiff, a taxi cab driver, had been in the process of dropping off a female passenger when she decided to "skip-out" without paying the fare. Plaintiff testified in his deposition that he did not call the police because "she would have been long gone before the police ever got there." Plaintiff chased the woman down an alley because he "wanted to catch her." Still under the cover of darkness, plaintiff followed the woman into the construction site owned by Fisher. He knew it was a construction site because he saw mounds of dirt piled a few feet high, construction fencing, construction equipment, a port-o-potty and construction supplies on the jobsite. The fencing on the construction site was strewn on the sides of the dirt mounds.

As plaintiff chased the woman, he saw her run into a doorway of a building that was under construction, and then disappear. He continued his chase. Plaintiff entered through an open doorway. In order to reach this doorway, plaintiff had to dodge broken boards, bricks and mud. As he entered, he saw that the walls on both sides were completed, but the front of the building was only covered with a sheet of plastic.

There were no lights on inside the doorway, but the area was partially illuminated by the streetlights. The light was sufficient for him to see the floor, and he was able to tell that there was nothing on the floor. The woman was not in this room and plaintiff "surmised that she had cut through" to get back out of the building. He noted that there was a hallway to his right. Plaintiff could see that the hallway led to another room. The wall to the second room was visible on the other side of the hallway, but the hallway itself was dark. Plaintiff testified that the wall was 20 or more feet from the opening of the doorway, and he estimated that the length of the hallway was five to seven feet.

Plaintiff decided to enter the hallway. Unfortunately, the hallway had no floor. Plaintiff took one step into the hallway and fell approximately 10 feet, landing on a pile of construction materials. He sustained a shattered femur, bruises and contusions.

PROCEDURAL BACKGROUND

Plaintiff filed suit against defendants in December 2000. His original complaint alleged negligence. Defendants were granted summary judgment. Plaintiff subsequently filed an amended complaint alleging willful and wanton misconduct by both defendants. Defendants again filed a motion for summary judgment. In their motion, defendants argued that, even according to plaintiff's own testimony, the hole into which the plaintiff fell was not a hidden or concealed defect. They contended that, under Illinois law, the subject hole was an open and obvious condition and, therefore, defendants had no duty to warn the plaintiff of the open and obvious condition. Furthermore, defendants noted that an open and obvious hole concealed by darkness, under Illinois law, does not lose its open and obvious character. The trial court made no ruling but, instead, granted plaintiff leave to file a second amended complaint alleging that defendants had a duty under a voluntary undertaking theory.

Plaintiff filed a two-count second amended complaint. Count I alleged willful and wanton misconduct; count II alleged that defendants had assumed a duty under a voluntary undertaking theory. On February 17, 2004, the trial court entered summary judgment in favor of both defendants. Plaintiff now appeals.

ANALYSIS

We review de novo a grant of summary judgment. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992). The issue before us is whether defendants owed a duty to plaintiff. Whether a duty exists is a question of law for the court to determine. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 227, 665 N.E.2d 1260 (1996); Salazar v. Crown Enterprises, Inc., 328 Ill. App. 3d 735, 740, 767 N.E.2d 366, 371 (2002). A landowner's duty to an individual on the landowner's premises depends upon that individual's status.Rhodes, 172 Ill. 2d at 227-28, 665 N.E.2d 1260, 1267-68; Salazar, 328 Ill. App. 3d at 740, 767 N.E.2d at 371. The status of "trespasser" belongs to one who enters upon another's land for his or her own purposes without permission, invitation, or right. Helms v. Chicago Park District, 258 Ill. App. 3d 675, 630 N.E.2d 1016 (1994). Plaintiff was a trespasser.

The limited duty owed to a trespasser by a landowner is well established in Illinois. Miller v. General Motors Corp., 207 Ill. App. 3d 148, 158, 565 N.E.2d 687, 692 (1990). "Generally, under Illinois law, a landowner owes no duty of care to a trespassing adult except to refrain from willfully and wantonly injuring him. Rhodes, 172 Ill. 2d at 229, 665 N.E.2d at 1268; Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863 (1995); Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 446, 605 N.E.2d 493, 498 (1992). The law does not require a landowner to assume that a trespasser will expose himself to injury on the landowner's property. Miller v. General Motors Corp., 207 Ill. App. 3d 148, 158, 565 N.E.2d 687, 692 (1990). In addition, a landowner is not required to keep his land in any particular state or condition to promote the safety of trespassers. Miller, 207 Ill. App. 3d at 158, 565 N.E.2d at 692. Nevertheless, exceptions to the general rule limiting a landowner's duty of care to a trespasser have been created. Rhodes, 172 Ill. 2d at 229, 665 N.E.2d at 1268. One of these exceptions that has been recognized by Illinois courts is the private necessity privilege found in section 345 of the Restatement (Second) of Torts (1965). See Benamon v. Soo Line R.R. Co., 294 Ill. App. 3d 85, 689 N.E.2d 366 (1997); West v. Faurbo, 66 Ill. App. 3d 815, 384 N.E.2d 457 (1978).

Section 345 states as follows:

"(1) Except as stated in Subsection (2), the liability of a possessor of land to one who enters the land only in the exercise of a privilege, for either a public or a private purpose, and irrespective of the possessor's consent, is the same as the liability to a licensee.

(2) The liability of a possessor of land to a public officer or employee who enters the land in the performance of his public duty, and suffers harm because of a condition of a part of the land held open to the public, is the same as the liability to an invitee." Restatement (Second) of Torts