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SECOND DIVISION

March 12, 2002

(NUNC PRO TUNC December 31, 2001)

No. 1-00-3590

PRESIDING JUSTICE BURKE delivered the opinion of the court:

Plaintiff Antonio Salazar, as administrator of the estate ofPedro Salazar, deceased, appeals from an order of the circuit courtgranting the defendants, Crown Enterprise, Inc., Central Transport,Inc., and GLS Leasco, Inc.'s,⁽¹⁾ motion to dismiss plaintiff's fourthamended complaint, alleging a negligence action based on wilful andwanton conduct by defendants that caused decedent's death, pursuantto section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615(West 1998)). On appeal, plaintiff contends that the trial courterred in dismissing his complaint because the trial court relied onprior pleadings in rendering its decision and did not limit itselfto the issues raised by his fourth amended complaint. Substantively, plaintiff contends that his complaint was sufficientto state a cause of action against defendants based on the factthat the condition of defendants' property constituted a dangersufficient to rise to the level of wilful and wanton conduct. Forthe reasons set forth below, we affirm.

Plaintiff's decedent, Pedro Salazar, an alleged homelessperson, was beaten to death by an unknown assailant on March 10,1997, while trespassing on property owned by defendants located at56 East 25th Street in Chicago Heights. Decedent was apparentlyseeking shelter in the vacant building on the property. Plaintifffiled his original complaint on September 17, 1997, allegingordinary negligence on the part of defendants. After defendantsfiled a section 2-615 motion to dismiss, plaintiff voluntarilywithdrew his complaint and filed an amended complaint. The amendedcomplaint again alleged ordinary negligence against defendantsbased on a broken, defective, or unlocked door that allowed accessto the vacant building on the property. Defendants again filed amotion to dismiss. On June 15, 1998, the trial court granteddefendants' motion to dismiss, finding that plaintiff failed tostate a cause of action.

On July 31, 1998, plaintiff filed his second amended complaintand, on August 27, 1999, his third amended complaint. Bothcomplaints were substantially similar to plaintiff's amendedcomplaint and again alleged ordinary negligence on the part ofdefendants based on the defective door. Following each complaint,defendants filed a section 2-615 motion to dismiss. The trialcourt granted both motions.

On May 12, 2000, plaintiff filed his fourth amended complaint(complaint). In this complaint, plaintiff altered his theory, nowalleging wilful and wanton conduct on the part of defendants. Plaintiff based this cause of action upon the entirety of thehazardous conditions on the defendants' premises. He alleged threedifferent types of hazards: structural hazards, sanitary hazards,and social hazards. With respect to structural hazards, plaintiffalleged that the exterior door to the building and the perimeterfence were broken or defective and allowed easy access to theproperty and building. Plaintiff alleged that defendant had beenserved with numerous citations for violations of the municipal codeand had been served with a complaint in 1997, stating that thestructure was dangerous and unsafe because it was abandoned,vacant, vandalized, and open. As a result of this complaint, thebuilding was ultimately demolished on June 30, 1997.

With respect to sanitary hazards, plaintiff alleged thatgarbage, including food, clothes, beer bottles, etc., were lyingaround both inside the building and outside, that human waste wasevident, and that dumping habitually occurred on the property. According to plaintiff, all of these factors demonstrated a regularand continual use of the property as a habitat. Lastly, withrespect to social hazards, plaintiff alleged that there wascontinuing lawlessness on the property resulting in frequent policeand fire department calls and responses with respect to theproperty. He identified 50 specific complaints dating between 1982and 1998.⁽²⁾

According to plaintiff, the state of disrepair of the propertyencouraged a lawless social environment, due to easy access fromthe fence and door and allowed the building to be used as adwelling place for an extended period of time. Plaintiff alsoalleged that the fact the building was used as a dwelling was openand obvious due to the existence of various personal items on theproperty, including inter alia a space heater, chairs, atelevision, a radio, lamps, a couch, and personal necessity items. Additionally, this state of disrepair, according to the complaint,resulted in an "isolated sub-society populated by the indigent,schooled in the ethics of the street--in which the spoils go to thecunning, the swift and the ruthless--and characterized by violentbehavior."

Plaintiff then set forth allegations with respect todefendants' knowledge. According to plaintiff, defendants knew orshould have known, in the exercise of ordinary reasonable care, ofthe condition of the structure and derelict condition of thebuilding via common knowledge that property deteriorates over timeand the numerous violation notices they had received, including twonotices each of a failure to maintain the exterior door and afailure to maintain the perimeter fence. Because defendants failedto do anything with respect to the condition, plaintiff allegedthat this demonstrated defendants' lack of concern andindifference.

Plaintiff also alleged that defendants knew trespassersentered the property in a regular fashion and that they took noaction, even the most ordinary, to remedy the situation. Accordingto plaintiff, the basis of defendants' knowledge was premised upontheir awareness of the openings in the perimeter fence, thevandalized condition of the gate, the beaten paths across theproperty, and the piles of garbage visible on the property.

With respect to the elements of defendants' breach of duty andproximate cause, plaintiff alleged that defendants' failure tocorrect the egregious conditions on the property fostered anillegal community and allowed "this island of lawlessness" tocontinue unabated. Specifically, plaintiff alleged that defendants"actively countenanced conditions [on the property] which a personof reasonable intelligence and outlook would characterize asdangerous, unsanitary, contrary to the public good, and likely toresult in lawless and violent behavior" and allowed the structureon the property to sink "to a condition which invited humanhabitation characterized by violent and chaotic behavior."

Plaintiff further alleged that on March 10, 1997, decedententered the property as a trespasser and encountered this dangerouscondition, "or confluence of dangerous conditions," and was, as aresult, beaten to death. According to plaintiff, defendantsconsciously failed to use ordinary care to guard against thedangerous and hazardous conditions on the property, whichconstituted wilful and wanton conduct, and caused decedent's death.

Defendants subsequently filed a motion to dismiss, which thetrial court granted on September 13, 2000, stating that there wasno just reason to delay enforcement or appeal of the matter. Thisappeal followed.

Plaintiff contends that the trial court erred in dismissinghis complaint. The essence of plaintiff's argument appears to bethat the trial court relied on issues raised by his three priorcomplaints (e.g., liability for criminal attacks, foreseeability,and special relationship) in granting defendants' motion todismiss, rather than the issues raised in plaintiff's fourthamended complaint. According to plaintiff, the only relevant issuewas whether the condition of the property constituted a dangersufficient to rise to the level of wilful and wanton conduct bydefendants, focusing upon the condition of the premises,defendants' knowledge, and defendants' conduct. As such, accordingto plaintiff, the questions of liability for criminal attacks,foreseeability, and special relationships were irrelevant. Plaintiff maintains that landowners have a "duty to refrain fromallowing the formation of a highly dangerous condition upon theirland, a condition which embodied a very grave danger to thosepeople, including trespassers, entering upon the land." Plaintiffargues that he alleged in his complaint that defendants knowinglyallowed the property to exist in a dilapidated dangerous condition,which "encouraged its inhabitation by persons of little socialinhibition, prone to the violence associated with vagrants,vagabonds and drifters." According to plaintiff, defendantstherefore "allowed a terribly dangerous, life-threatening conditionto form upon their abandoned land, and responded with utterindifference," clearly constituting wilful and wanton conduct bydefendants.

Defendants argue that plaintiff was required to plead factsshowing that defendants had knowledge of prior violent attacks ontrespassers on the property and facts showing that defendantsconsciously decided to do nothing about such acts. According todefendants, the "condition" on the property, according toplaintiff, was allegedly the "isolated sub-society" and plaintiffpled no facts showing defendants' knowledge of this condition, noallegations that defendants discovered the condition and ignoredit, and no allegations that defendants were aware of any priorcriminal attacks made on the property and that defendantsdisregarded them.

To set forth a cause of action for premise liability, aplaintiff must plead sufficient facts to establish a duty, breachof that duty, and an injury proximately caused by the breach. Petrauskas v. Wexenthaller Realty Management, Inc., 186 Ill. App.3d 820, 825, 542 N.E.2d 902 (1989). Whether a duty exists is aquestion of law. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d213, 227, 665 N.E.2d 1260 (1996). A landowner's duty to anindividual on his premises varies depending on the individual'sstatus on the premises. Rhodes, 172 Ill. 2d at 227-28. In theinstant case, the only relevant status is that of trespasser asthere is no dispute that decedent was a trespasser. A landownerowes a trespasser only a duty to refrain from wilful and wantonconduct. Green v. Jackson, 289 Ill. App. 3d 1001, 1011, 682 N.E.2d409 (1997). As stated in American National Bank & Trust Co. v.City of Chicago, 192 Ill. 2d 274, 735 N.E.2d 551 (2000):

" ' "A wilful or wanton injury must have beenintentional [with actual or deliberate intentto harm (Bowden v. Cary Fire ProtectionDistrict, 304 Ill. App. 3d 274, 280, 710N.E.2d 548 (1999))] or the act must have beencommitted under circumstances exhibiting areckless disregard for the safety of others["an utter indifference to or consciousdisregard for a person's own safety or thesafety or property of others" (Bowden, 304Ill. App. 3d at 280)], such as a failure,after knowledge of impending danger, toexercise ordinary care to prevent it or afailure to discover the danger throughrecklessness or carelessness when it couldhave been discovered by the exercise ofordinary care." [Citation.]' [Citation.]" American National Bank & Trust Co., 192 Ill.2d at 285.

See also Mostafa v. City of Hickory Hills, 287 Ill. App. 3d 160,170, 677 N.E.2d 1312 (1997); Ozuk v. River Grove Board ofEducation, 281 Ill. App. 3d 239, 245, 666 N.E.2d 687 (1996). Wherea landowner " 'takes no action to correct a condition even thoughit was informed about the dangerous condition and knew that otherpersons had previously been injured because of the dangerouscondition,' [citation]" he may be liable for wilful and wantonconduct. Bialek v. Moraine Valley Community College SchoolDistrict. No. 524, 267 Ill. App. 3d 857, 865, 642 N.E.2d 825(1994). However, when the plaintiff fails to plead facts orallegations that the landowner engaged in any intentional act orknew of other injuries or accidents caused by the allegedlydangerous condition, his conduct does not rise to the level ofwilful and wanton conduct. Bialek, 267 Ill. App. 3d at 865.

Generally, those cases that have addressed dangerousconditions on property that have resulted in an injury to atrespasser involved railroad tracks, electrified rails, electriclines or wires, water hazards, or defects in floors or ground. See, e.g., Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 605N.E.2d 493 (1992) (electric rail); Eshoo v. Chicago TransitAuthority, 309 Ill. App. 3d 831, 723 N.E.2d 339 (1999) (electricrail); Mostafa, 287 Ill. App. 3d 160 (lagoon); Ozuk, 281 Ill. App.3d 239 (warped and uneven gym floor); Carter v. New Trier East HighSchool, 272 Ill. App. 3d 551, 650 N.E.2d 657 (1995) (hole in groundof tennis court); McKinnon v. Northeast Illinois Regional CommuterR.R. Corp., 263 Ill. App. 3d 774, 635 N.E.2d 744 (1994) (railroadtracks); Rodriguez v. Norfolk & Western Ry. Co., 228 Ill. App. 3d1024, 593 N.E.2d 597 (1992) (train track); Miller v. General MotorsCorp., 207 Ill. App. 3d 148, 565 N.E.2d 687 (1990) (electricalwires); Knyal v. Illinois Power Co., 169 Ill. App. 3d 440, 523N.E.2d 639 (1988) (electric lines). However, these cases did notinvolve an injury, as here, based upon criminal conduct, but ratherinjury from the dangerous condition existing upon the land. Noneof these cases supports plaintiff's theory for imposing a duty upondefendants here.

Moreover, generally, those cases that have addressedconditions of property that had fostered criminal conduct, whichresulted in injury to others and may have rendered the ownerliable, involved landlord/tenant situations where a condition ofthe premises enabled an intruder to enter into an apartment andattack the tenant, school or public grounds upon which somecriminal conduct, usually a shooting, occurred, orstore/tavern/restaurant owners where a patron had been attacked onor near the premises.

All of the situations above are distinguishable from the casebefore us, not only factually, but also based upon the duty owed bythe defendants to the plaintiff here. A landlord owes a duty toits tenants to maintain the common areas in a reasonably safecondition. Duncavage v. Allen, 147 Ill. App. 3d 88, 96, 497 N.E.2d433 (1986). Public entities, including schools, owe a duty ofordinary care to individuals upon their property. Lawson v. Cityof Chicago, 278 Ill. App. 3d 628, 640, 662 N.E.2d 1377 (1996). Additionally, store, tavern, or restaurant owners owe a duty ofordinary care to their business invitees. Diebert v. BauerBrothers Construction Co., 141 Ill. 2d 430, 437, 566 N.E.2d 239(1990). In the instant case, defendants only owe a duty to refrainfrom wilful and wanton conduct. Moreover, the cases dealing withconditions of property that have fostered criminal conduct involvedcircumstances where the victims were lawfully upon the property. Additionally, even in the situations described above, the owner hasgenerally been found not liable except for in rare factualcircumstances. See Duncavage, 147 Ill. App. 3d at 96-98 (under theparticular facts of the case, the defendant owed a duty to thevictim who was attacked and killed in her apartment based on thefact that the defendant knew the exterior lights outside theapartment were out, weeds in the yard were high enough to conceala person, and there was a ladder in the yard (which the intruderused in Duncavage to access the victim's apartment) that had beenused on a previous occasion to burglarize the same apartmentthrough the same unlocked window); Stribling v. Chicago HousingAuthority, 34 Ill. App. 3d 551, 555-56, 340 N.E.2d 47 (1975) (wherethe plaintiffs were victims of three burglaries and the burglarsentered the plaintiffs' apartment by demolishing a part of the wallbetween the plaintiffs' unit and adjacent vacant units, thedefendant was notified that the vacant apartments were being usedand was requested to secure the apartments, but failed to do so,the court concluded that, "[g]iven the bizarre facts" of the case,the defendant was liable for the second and third burglaries sinceafter the first burglary, it was foreseeable that similar conductwould occur). But see Lawson, 278 Ill. App. 3d at 642 (schoolboard had no duty to protect a student from criminal attack by atrespassing student on school grounds even though the board hadknowledge that the trespassing student had previously been arrestedon the grounds for trespassing and gambling because these twoincidents were insufficient to charge the board with knowledge thatthe student would enter the property and harm another student andthere were no allegations of prior shootings or confiscation ofguns on the school properties); Hill v. Charlie Club, Inc., 279Ill. App. 3d 754, 758-59, 665 N.E.2d 321 (1996) (hotel had no dutyto protect visitor from criminal attack); Ignarski v. Norbut, 271Ill. App. 3d 522, 527, 648 N.E.2d 285 (1995) (restaurant owner hadno duty to protect customer from criminal attack as he was leavingrestaurant); N.W. v. Amalgamated Trust & Savings Bank, Trust No.4015, 196 Ill. App. 3d 1066, 1077, 554 N.E.2d 629 (1990) (landlordhad no duty to protect tenant from sexual assault). Or, where theowner voluntarily undertook some duty to protect individuals uponits property, such as hiring a security firm, the owner may be heldliable for third party attacks. See, e.g., Pippin v. ChicagoHousing Authority, 78 Ill. 2d 204, 399 N.E.2d 596 (1979); Hernandezv. Rapid Bus Co., 267 Ill. App. 3d 519, 641 N.E.2d 886 (1994);Marshall v. David's Food Store, 161 Ill. App. 3d 499, 515 N.E.2d134 (1987).

Contrary to plaintiff's contention, the relationship betweenthe landowner and injured party, and foreseeability, are questionsrelevant to whether any duty is owed by a defendant. As stated bythe court in Osborne v. Stages Music Hall, Inc., 312 Ill. App. 3d141, 726 N.E.2d 728 (2000):

" 'Whether a duty exists is also an inquiryshaped by public policy [citations] since wemust decide whether defendant and plaintiffstand in such a relationship to one anotherthat the law imposes on defendant anobligation of reasonable conduct for thebenefit of plaintiff [citation]. Accordingly,we consider not only the reasonable (1)foreseeability and (2) likelihood of injury,but also (3) the magnitude of the burden ondefendant in guarding against injury and (4)the consequences of placing that burden ondefendant.' [Citation.]" (Emphasis added.) Osborne, 312 Ill. App. 3d at 146-47.

See also Charleston v. Larson, 297 Ill. App. 3d 540, 546, 696N.E.2d 793 (1998); Hill, 279 Ill. App. 3d at 758-59 (both settingforth the same general principles of law).

Generally, a property owner has no duty to protect individualsupon his property from criminal activity unless a specialrelationship exists, e.g., that of carrier-passenger, innkeeper-guest, business invitee and invitee, or "one who voluntarily takescustody of another in such a manner that it deprives the person ofhis normal opportunities for protection." Osborne, 312 Ill. App.3d at 146. Even if a special relationship exists, a landowner isnot liable for criminal conduct unless the incident is reasonablyforeseeable. Osborne, 312 Ill. App. 3d at 147. To be reasonablyforeseeable, the conduct must be " 'objectively reasonable toexpect, not merely what might conceivably occur.' [Citation.]" Osborne, 312 Ill. App. 3d at 147. Moreover, " '[s]ince anyone canforesee the commission of a crime virtually anywhere at any time*** [t]he question is not simply whether a criminal event isforeseeable, but whether a duty exists to take measures to guardagainst it.' (Emphasis in original) [Citation.]" Osborne, 312Ill. App. 3d at 147. See Rowe v. State Bank of Lombard, 125 Ill.2d 203, 224, 531 N.E.2d 1358 (1988) ("There is an exception [tononliability for criminal conduct] where the defendant's acts oromissions create a condition conducive to a foreseeable interveningcriminal act. If the criminal act is foreseeable at the time ofthe negligence, the causal chain is not necessarily broken by theintervention of such an act"). See also Hills v. Bridgeview LittleLeague Ass'n, 195 Ill. 2d 210, 242, 745 N.E.2d 1166 (2000);Elizondo v. Ramirez, 324 Ill. App. 3d 67, 72, 753 N.E.2d 1123(2001); Landeros v. Equity Property & Development, 321 Ill. App. 3d57, 64, 747 N.E.2d 391 (2001) (all holding that there is no duty toprotect an individual upon the landowner's property unless aspecial relationship exists and the conduct is foreseeable).

Here, plaintiff is actually asking this court to ignore thesewell-established and long-standing principles discussed above andto carve out an exception to a landowner's duty with respect tocriminal conduct, specifically for the benefit of a trespasser. Infact, plaintiff's counsel conceded at oral argument before thiscourt that he was asking us to eliminate the special relationshiprequirement based on the particular facts of this case. No case inIllinois has gone so far as to create a legal duty on a landownerfor third party conduct such as plaintiff seeks here. Moreover,plaintiff has provided this court with no legal authority uponwhich we could do so, nor has he even argued that an extension ofthe general rule should be made or exception to the general rulecreated based on analogous or existing case law. Plaintiff hascited no case to support a conclusion that an artificial conditionon a property makes the owner liable for criminal conduct that hasoccurred on the property. The cases plaintiff does rely oninvolved imposition of liability upon a landlord for attacks ontheir tenants. As noted above, a landlord owes a different dutyand the facts in those cases were unique.

Based on the law as it exists today, we find that plaintifffailed to state a cause of action against defendants based on theiralleged wilful and wanton conduct in failing to protect decedentfrom criminal attacks fostered by the condition of defendants'property. In his argument, plaintiff entirely skirts the issue ofintervening criminal conduct. We cannot, however, do so. Clearly,plaintiff cannot allege facts demonstrating a special relationshipbetween decedent and defendants. Decedent was a trespasser. Again, Illinois law is very limited in imposing a duty upon alandowner to protect individuals from criminal attacks by thirdparties. This is true even where some condition of the property orelement inherent therein may foster a condition conducive tocriminal activities. See Popp v. Cash Station, Inc., 244 Ill. App.3d 87, 93, 613 N.E.2d 1150 (1992) (owner of ATM machines owed noduty to warn customers of criminal hazards or provide security eventhough ATMs may draw criminal attacks because they are located inremote locations and large sums of money are available); Rodgers v.Hook-Superx, Inc., 204 Ill. App. 3d 861, 864, 562 N.E.2d 358 (1990)(no duty to protect customer from attack in parking lot); Taylorv. Hocker, 101 Ill. App. 3d 639, 642, 428 N.E.2d 662 (1981) (noduty to protect customers in parking lot from criminal attacks).

Moreover, plaintiff failed to allege facts sufficient toestablish foreseeability of the conduct in question. In thisregard, "generalized allegations of crime will not suffice toestablish that future criminal attacks are foreseeable." Popp, 244Ill. App. 3d at 93. Compare Popp, 244 Ill. App. 3d at 93(allegation that 1,500 to 5,000 criminal attacks occurred on ATMcustomers nationwide annually insufficient to make criminal attackupon the plaintiff foreseeable); Petrauskas, 186 Ill. App. 3d at879 (allegations that building in "high crime area" and thatanother person had been shot "across the street" insufficient tomake criminal attack foreseeable) with Duncavage, 147 Ill. App. 3dat 97-98 (allegation that same ladder had been used to enter andburglarize the same apartment through the same unlocked windowsufficient to establish foreseeability); Stribling, 34 Ill. App. 3dat 555-56 (allegation that three burglaries were committed bygaining entrance to apartment by demolishing walls betweenapartment and adjacent vacant apartments sufficient to establishforeseeability of subsequent burglaries).

In the instant case, while plaintiff alleged numerous andvarious criminal activities that occurred on the property over theyears, none of the conduct involved murder. In fact, only one ofthe incidents involved a personal injury (not motor vehiclerelated). However, there is no allegations as to what caused thatinjury, whether it occurred on the property, or whether it wascaused by someone else on the property. Moreover, none of theincidents alleged by plaintiff involved crimes of violence orviolent conduct against another individual. Without suchallegations, plaintiff's claim cannot stand. See Kolodziejzak v.Melvin Simon & Associates, 292 Ill. App. 3d 490, 497, 685 N.E.2d985 (1997) (where no evidence of prior incidents of gangintimidation, gang-related violence, or brandishing of weapons bygang members on property and prior incidents involved retail theft,two robberies, and other gang incidents not involving violence,evidence was insufficient to put the defendant on notice of thelikelihood of a gang member entering the property and shooting aninnocent person); Lawson, 278 Ill. App. 3d at 642 (prior arrests ofstudent unlawfully on premises for gambling and trespassinsufficient to put defendant on notice that student would enterthe property and harm or shoot another person; plaintiff failed toallege prior shootings or prior confiscation of guns on schoolproperty); Ignarski, 271 Ill. App. 3d at 527 (complaint failed toallege any prior criminal act, let alone similar conduct).

This court has no authority to impose a duty upon defendantsthat would have required them to protect decedent from criminalattacks based on the dilapidated condition of defendants' property. Although the facts of this case may warrant such an extension, wesimply cannot do so. However, we urge the legislature (or thesupreme court) to consider such a duty. What we have in this caseare nonresident landowners who have allowed their property to fallinto a complete state of disrepair, with various citations beingissued to them over quite a few years concerning the condition ofthe premises. Defendants did nothing to rectify the situation. Rather than repair and/or secure the structure or surroundingperimeter, defendants, like many other landowners in this city,await the government or municipality's response by condemning theproperty and tearing down any structures at its cost. This isprecisely what occurred in the instant case. Approximately threemonths after decedent's death, defendants' property was condemnedand torn down. Based on the law as it exists today, no amount ofnotice or knowledge by a landowner that, because its property is insuch a state of disrepair, vagrants live on it and commit criminalacts, would impose any duty upon the owner to protect individualsentering thereupon, irrespective of their entry status. Thiscourt, however, is not the proper forum to impose such a duty underthe strictures of precedent.

For the reasons stated, we affirm the judgment of the circuitcourt of Cook County.

Affirmed.

CAHILL and McBRIDE, JJ., concur.

1. Although defendant Leroy Davis Truck Service, Inc. filed aspecial and limited appearance in the trial court, there is noevidence in the record of the status of its presence or absence inthis case. Similarly, there is no evidence as to the status ofCrown Engineering or Unknown Owners.

2. The complaints included the following offenses ordisturbances on the property: 4 burglaries; 14 motor vehicle-related complaints and 2 additional complaints involving injurieswith respect to motor vehicles; 5 fires; 3 suspicious persons; 3disturbances; 1 open gate; 1 injured individual (unspecified); 1flood; 4 suspicious activities; 1 trespass; 4 thefts; 1 warrantarrest; 1 illegal dumping; and 5 unidentified complaints.