Iseberg v. Gross

SECOND DIVISION
March 14, 2006

No. 1-04-3567

MITCHELL M. ISEBERG, Individually and as an )
Officer and Director of the Liekam Farm Development )
Corporation, and CAROL ISEBERG, His Wife, )
) Appeal from the
Plaintiffs-Appellants, ) Circuit Court of
) Cook County.
v. )
)
SHELDON GROSS, Individually and )
as an Officer, Director, Partner, Agent and/or )
Joint Adventurer of the Vernonshire Auto Laundry )
Group, Inc., and the Leikam Farm Joint Venture; and )
HENRY FRANK, Individually and as a Partner and/or )
Joint Adventurer with the Leikam Farm Development )
Corporation, and as a Partner, Agent, and/or Joint ) Honorable
Adventurer of Mitchell Iseberg and the Leikam ) Lynn M. Egan,
Farm Joint Venture, ) Judge Presiding.
)
Defendants-Appellees. )

JUSTICE SOUTH delivered the opinion of the court:

This interlocutory appeal arises from an order of the circuit court that dismissed with

prejudice counts I, II, and V of plaintiff=s third-amended complaint pursuant to section 2-615 of

the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2004)). This appeal is only with

respect to the dismissal of counts I and II.

According to the facts as alleged in the third-amended complaint, plaintiff is an attorney

who was a partner, joint adventurer, agent with and legal counsel for defendants, Sheldon Gross

and Henry Frank, with respect to various real estate business enterprises. Edward Slavin, who is
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not a party to this action, was a major investor in one of those enterprises, as well as its officer,

director and employee. Plaintiff provided legal and marketing advice to defendants with respect

to the enterprises, in addition to being their partner and joint adventurer. Ultimately, the

business partnership failed, and Slavin lost his entire investment. He became emotionally

disturbed as a result thereof and blamed plaintiff for his financial losses. On several occasions

he spoke with Gross about his anger toward plaintiff and told Gross that plaintiff had ruined his

life, so he was going to ruin his. He described several scenarios to Gross, such as going to

plaintiff=s house, ringing his doorbell, and punching him in the face with brass knuckles; or

finding a hit man to kill plaintiff; or killing plaintiff himself and then committing suicide.

According to the allegations, Slavin told Gross he had purchased a gun to kill plaintiff and asked

him whether the caliber of the weapon would be sufficient to kill someone. The complaint

further alleged that Gross suggested to Slavin it would be a bad idea to kill plaintiff in front of

his family, and that it would be better to do it at his downtown office. Slavin told Gross he

would wait until the suicide clause in his life insurance policy expired because he had made

arrangements for him, Gross, to recoup his financial losses.

After one or more of these conversations with Slavin, Gross called Slavin=s brother, Earl,

and told him of the threats against plaintiff and asked him to take some action to protect him and

others from Slavin. He also called Frank on several occasions to warn him about Slavin=s

threats and of his intention to shoot plaintiff at his house. The complaint further alleged that

Slavin spoke with Frank several times, expressing his hostility toward plaintiff, and that Frank

called Gross and asked him to get Slavin to stop calling him. Gross told Frank that Slavin had

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purchased a handgun and asked him whether he, Gross, thought the caliber was sufficient to kill

plaintiff. Based upon Slavin=s behavior and threats, both defendants took steps to protect

themselves because they believed he was a potential threat to them. However, according to the

complaint, at no time did they warn plaintiff or contact a law enforcement agency about these

threats. Slavin=s threats were made over an undisclosed period of time, but according to

plaintiff=s allegations, they were made during the period of time when defendants were still

accepting the benefit of plaintiff=s professional services on behalf of the joint venture and while

they were still partners and joint adventurers with him.

On January 24, 2000, at approximately 8:15 p.m., Slavin drove to plaintiff=s house, rang

his doorbell, and shot him four times in the chest, right wrist, left arm and right shoulder. As a

direct result of his injuries, plaintiff has been rendered a complete paraplegic.

Count I of the complaint alleged a breach of the duty to warn based upon defendants=

independent and superior knowledge of Slavin=s threats against plaintiff, their knowledge that

plaintiff was unaware of those threats, and the foreseeability of the harm based upon Slavin=s

numerous threats, and that defendants had a duty to warn plaintiff Aas evidenced by their mutual

telephone calls warning each other and the calls made to Earl Slavin seeking help and

assistance.@ Count II of the complaint alleged negligent performance of a voluntary

undertaking in that defendants took steps to prevent Slavin from carrying out his threats by

trying to discourage him and calling his brother and suggesting to him that he not kill plaintiff at

his home in front of his family.

Defendants filed a motion to dismiss the complaint under section 2-615 of the Code of

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Civil Procedure (Code) (735 ILCS 5/2-615 (West 2004)), which the circuit court granted with

prejudice as to count I, II and V. The court held there is no duty to warn of potential criminal

conduct and that such a duty did not arise in this particular case simply because the parties had

an ongoing business relationship. The court concluded that in order for such a duty to arise,

there must have been a special relationship between the parties, but since there was no such

relationship, a duty to warn did not arise. Plaintiff=s motion to reconsider was denied, and this

appeal followed.

The issue on this appeal is whether the trial court erred in dismissing counts I and II of

the third-amended complaint.

A motion to dismiss under section 2-615 of the Code challenges the legal sufficiency of

the complaint by alleging defects on its face. City of Chicago v. Beretta U.S.A. Corp., 213 Ill.

2d 351, 364 (2004). We review an order granting or denying a section 2-615 motion de novo.

Beretta U.S.A. Corp., 213 Ill. 2d at 364. In reviewing the sufficiency of a complaint, we accept

as true all well-pled facts and reasonable inferences that may be drawn from those facts.

Brewster v. Rush-Presbyterian-St. Luke=s Medical Center, 361 Ill. App. 3d 32, 35 (2005). Our

review also requires that we construe the allegations in the complaint in the light most favorable

to the plaintiff. Brewster, 361 App. 3d at 35.

"An appeal from a section 2-615 dismissal for failure to state a cause of action reviews

only the question of the legal sufficiency of the complaint, by ascertaining whether the essential

elements of the cause of action were alleged." Bank of Northern Illinois v. Nugent, 223 Ill. App.

3d 1, 9 (1991). "The ultimate facts to be prove[n] must be alleged, and any evidentiary support

or conclusions drawn from the allegations should not be considered in a section 2-615 motion."

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Nugent, 223 Ill. App. 3d at 9. "The complaint is to be construed liberally and should only be

dismissed when it appears that plaintiff could not recover under any set of facts." Elson v. State

Farm Fire & Casualty Co., 295 Ill. App. 3d 1, 5 (1998).

The essential elements of a cause of action based on common law negligence may be

stated briefly as follows: the existence of a duty owed by the defendant to plaintiff, a breach of

that duty, and an injury proximately caused by that breach. Kirk v. Michael Reese Hospital &

Medical Center, 117 Ill. 2d 507, 525 (1987). There can be no recovery in tort for negligence

unless the defendant has breached a duty owed to the plaintiff. Boyd v. Racine Currency

Exchange, Inc., 56 Ill. 2d 95, 97 (1973). Whether a duty of care exists is a question of law to be

determined by the court. Beretta U.S.A. Corp., 213 Ill. 2d at 391.

Here, the sole inquiry before us concerns the existence of a legal duty. Plaintiff asserts

that defendants owed him a duty to warn him that Slavin was going to come to his house and

shoot him. Defendants deny they had such a duty because the law did not require them to protect

plaintiff from the criminal attack by a third person.

We find that there is no Illinois law directly on point that would support a finding that

defendants owed plaintiff a duty to warn of Slavin=s threats. Plaintiff=s assertion that defendants

owed him a duty is based on the theory of their superior knowledge that Slavin planned to attack

plaintiff. Generally speaking, Illinois law does not impose a duty to protect another from a

criminal attack by a third person (Hills v. Bridgeview Little League Ass'n, 195 Ill. 2d 210, 228

(2000)), unless the attack is reasonably foreseeable and the parties stand in one of four special

relationship, namely, (1) common carrier and passenger, (2) innkeeper and guest, (3) business

invitor and invitee, and (4) voluntary custodian and protectee. Fancil v. Q.S.E. Foods, Inc., 60

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Ill. 2d 552, 559-60 (1975); Hernandez v. Rapid Bus Co., 267 Ill. App. 3d 519, 524 (1994).

There are four exceptions to the rule that a party does not owe a duty of care to protect another

from the criminal acts of third persons: (1) when the parties are in a special relationship and the

harm is foreseeable; (2) when an employee is in imminent danger and this is known to the

employer; (3) when a principal fails to warn his agent of an unreasonable risk of harm involved

in the agency; and (4) when any party voluntarily or contractually assumes a duty to protect

another from the harmful acts of a third party. Petersen v. U.S. Reduction Co., 267 Ill. App. 3d

775, 779 (1994). The general rule that one has no affirmative duty to control others in the

absence of a special relationship has been, and continues to be, much debated among legal

commentators, but has not been amended or modified by our supreme court. See Hills, 195 Ill.

2d at 228-29.

Accordingly, we find that the general rule controls - that no affirmative duty existed for

defendants to prevent a criminal attack on plaintiff by a third party. The complaint does not

allege that one of the special relationships between plaintiff and the defendants exists that would

impose a duty on defendants; accordingly, we must apply the general rule. Plaintiff asks that we

take a broader view of his pleadings and apply Aordinary negligence principles@ to the facts in

this case to determine whether a duty was present, as the court did in Kohn v. Laidlaw Transit,

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Inc., 347 Ill. App. 3d 746 (2004). This we decline to do. 1 Our supreme court has chosen to

adopt the principles governing the duty to control the conduct of third parties as set forth in

sections 314 through 320 of the Restatement (Second) of Torts (Restatement (Second) of Torts

''314 through 320 (1965)), and we are bound by the decisions of our supreme court. Cf.

Brewster, 361 Ill. App. 3d at 37.

Plaintiff cites several cases to support his theory that the superior knowledge theory

applies. We find that each of the major cases cited by plaintiff is inapposite to the circumstances

presented in the case at bar.

Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179 (2002), involved a situation in which a

regular customer of defendant=s pharmacy was injured when she was prescribed a medication

that was related to one she was allergic to. Happel, 199 Ill. 2d at 181. Defendant=s pharmacy

violated its policy that required the pharmacist to check for medical allergies before dispensing

new medication, and the failure to adhere to this policy caused the plaintiff=s injury. Happel, 199

1
We note that although the court in Kohn took an extra step by applying Aordinary

negligence principles@ after determining that plaintiff did not fall within the relationships that

provide an exception to the general rule, the ultimate outcome was the same - that defendants

owed no duty to plaintiff to prevent the criminal activity of a third party.

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Ill. 2d at 182-84. The supreme court found that a duty to warn existed, encompassed within the

pharmacist=s duty of ordinary care. Happel, 199 Ill. 2d at 189. That is in sharp contrast to the

instant case, where there is no duty of ordinary care imposed under the law.

In Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414 (2004), defendant=s

insurance agent violated its policy that required that the agent personally meet with the proposed

insured, witness the proposed insured=s signature on the policy and question the proposed

insured. The failure to adhere to this policy allowed a fraudulent insurance policy to be obtained

which resulted in a fatality. Bajwa, 208 Ill. 2d at 417-19. The court concluded that a duty of due

care to advise a proposed insured of a life insurance policy taken out on his life arises where it is

reasonably foreseeable that a policy taken out on someone=s life without his knowledge or

consent can lead to injury or death at the hands of the person who procured the policy, and there

is a sufficient likelihood of injury, and is supported by the rule against issuing these kinds of

policies. Bajwa, 208 Ill. 2d at 427-28. Thus, unlike in the case at bar, the court=s decision was

based at least in part on a preexisting duty for insurance companies in issuing policies.

Finally, in Orrico v. Beverly Bank, 109 Ill. App. 3d 102, 103 (1982), decedent, who was

mentally disabled, maintained a checking and savings account in defendant=s bank, wherein he

deposited a disability check in the amount of $4,500. An officer of defendant contacted plaintiff,

decedent=s mother, to tell her that decedent had been in the bank wanting a large sum of money

to go to Hong Kong. Plaintiff discussed her fears about what could happen to the decedent if he

were given such a large amount of money, and told the officer that she did not want decedent to

have the money. Plaintiff, on the bank=s advice, obtained a court order to become the

conservator over the decedent=s estate. Orrico, 109 Ill. App. 3d at 103-04. She delivered a copy

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of the court order naming her as the temporary conservator over decedent=s estate to defendant

on July 29, 1975. However, contrary to defendant=s usual policy of immediately placing a

restraint on accounts where a conservator has been appointed, no restraint was placed on

decedent=s account, and he subsequently withdrew a large sum of money and went to a park

where he flashed it to strangers. Orrico, 109 Ill. App. 3d at 104-05. His body was later found

with a gunshot wound to the back of the head, and the money was gone. Plaintiff initiated and

won a wrongful death lawsuit in which the trial court entered judgment notwithstanding the

verdict because the defendant owed no duty to decedent once he left its premises. Orrico, 109

Ill. App. 3d at 105. On appeal, this court held the trial court had erred in ruling that the bank did

not owe a duty to decedent. The court stated:

"[T]he case is governed by the *** general principle that a

defendant owes a duty not to increase foreseeable risk of harm to

another." Orrico, 109 Ill. App. 3d at 105.

The court further held that the duty did not extend to the world at large but was limited

by various considerations, such as the "relation between the parties, the gravity and

foreseeability of the harm, the utility of the challenged conduct and the burden of guarding

against the injury." Orrico, 109 Ill. App. 3d at 105-06. The court found that defendant owed a

duty to decedent because of its relationship to him, that the burden on the bank was minimal

because of the court order, and that the risk of harm to decedent was foreseeable given his

mental condition. Orrico, 109 Ill. App. 3d at 106. Here, again, the duty turned on the parties'

relationship and the fiduciary duty owed by the defendant because of that relationship.

In contrast, in the case at bar, there was no such preexisting duty on the defendants. The

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parties are individuals who at one time had business relationships with one another. The third-

amended complaint=s allegation that the business relationship was ongoing at the time of the

attack is of no consequence to the issue of whether defendants owed plaintiff a duty.

Our analysis of the case law leads us to the conclusion that plaintiff=s complaint did not

sufficiently allege facts to withstand a section 2-615 motion to dismiss and that count I was

properly dismissed.

Finally, plaintiff argues the court erred in dismissing count II of the third-amended

complaint, which alleges the negligent performance of a voluntary undertaking. In that count, it

is alleged that defendant Gross tried to discourage Slavin from carrying out his plan and

suggested to him that he not attempt to kill plaintiff at his home in front of his family; called

Slavin=s brother to warn him of the threats against plaintiff; warned Frank of Slavin=s threats

against plaintiff; and called Slavin and tried to discourage him during the course of the phone

calls. Count II further alleges that Gross owed a duty to plaintiff as a result of his voluntary

undertaking to warn and breached that duty when he failed to directly call plaintiff; failed to

make sure that Frank communicated Gross=s concerns to plaintiff; failed to make sure that Frank

communicated Slavin=s threats to plaintiff; unreasonably accepted Slavin=s brother=s assurances

that Slavin would not harm plaintiff; and failed to notify the police.

"Whether a defendant has voluntarily undertaken a legal duty to a plaintiff is a question

of law." Rogers v. Clark Equipment Co., 318 Ill. App. 3d 1128, 1132 (2001). "Any duty

imposed on a defendant under this theory is limited to the extent of the undertaking." Rogers,

318 Ill. App. 3d at 1132.

Illinois courts have adopted section 324A of the Restatement (Second) of Torts to

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analyze voluntary undertaking claims. Bailey v. Edward Hines Lumber Co., 308 Ill. App. 3d 58,

65 (1999); citing Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 415-16 (1991);

Charleston v. Larson, 297 Ill. App. 3d 540, 546 (1998). Section 324A provides:

"One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as necessary

for the protection of a third person or his things, is subject to

liability to the third person for physical harm resulting from his

failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk

of such harm, or

(b) he has undertaken to perform a duty owed by the other

to the third person, or

(c) the harm is suffered because of reliance of the other or

the third person upon the undertaking." Restatement (Second) of

Torts '324A (1965).

The essential element of the voluntary undertaking doctrine is an undertaking, and the

duty of care imposed on a defendant is limited to the extent of his undertaking. Bailey, 308 Ill.

App. 3d at 66.

Here, plaintiff has not established that either defendant undertook to provide for his

safety from Slavin. Plaintiff contends that count II is Afor [Gross=s] failure to discourage Slavin,@

which is not an accurate statement of the voluntary undertaking doctrine. Plaintiff has failed to

show how the conversations between Gross and Slavin rose to the level of rendering services

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necessary for the protection of a third person, in this case, plaintiff. The cases cited by plaintiff

in support of his argument are distinguishable, also. In Vesey, 145 Ill. 2d at 415, the housing

authority was found liable for bodily harm resulting from the voluntary negligent installation of a

protective guard over a steam pipe in plaintiff=s apartment. In Cross v. Wells Fargo Alarm

Services, 82 Ill. 2d 313, 317 (1980), the supreme court in dicta stated that the housing authority

voluntarily undertook to provide part-time guard service at the project, and in providing that

service it was obligated to use reasonable care not to create increased dangers to persons

lawfully on its property. In Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 85 (1964), the

supreme court noted that the defendant was liable for physical injury resulting from the negligent

performance of its voluntary undertaking to perform safety inspections of elevators or hoists. No

such situation existed in the case at bar, and plaintiff has not demonstrated that the alleged

conversations between Gross and Slavin or Gross and Frank were intended to protect plaintiff or

intended to do so. We therefore conclude that count II was properly dismissed by the trial court.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

WOLFSON, J., specially concurs.

HALL, J., concurs in part and dissents in part.

JUSTICE WOLFSON, specially concurring:

I agree that our decisions do not provide for a legal duty

in the circumstances presented by this case. But that does not

soothe the disquiet one feels at the result we have reached. If

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a simple phone call to Mr. Iseberg would have prevented the

events of that tragic day, it seems to me the failure to make

that call should be of greater interest to our jurisprudence.

Justice Hall, concurring in part and dissenting in part:

The majority correctly recognizes the general rule that, ordinarily, a party owes no duty of

care to protect another from the harmful or criminal acts of third persons. In upholding the

dismissal of the plaintiff's complaint, they further recognize and address two exceptions to the

general rule, i.e., (1) when the parties are in a special relationship and the harm is foreseeable,

and (2) when any party voluntarily or contractually assumes a duty to protect another from the

harmful acts of third parties. However, the majority's analysis of count I fails to address the

applicability of a third exception to the general rule, namely, when a principal fails to warn his

agent of an unreasonable risk of harm involved in the agency. Petersen v. U.S. Reduction Co.,

267 Ill. App. 3d 775, 779, 641 N.E.2d 845 (1994); Restatement (Second) of Agency ' 471

(1958).

Based on section 471 of the Restatement (Second) of Agency, a duty for a principal to issue a

warning to an agent would arise only where the risk is (1) unreasonable, (2) involved in the

employment, (3) foreseeable, and (4) the agent is not likely to become aware of it. Restatement

(Second) of Agency '471 at 405 (1958); see MacDonald v. Hinton, 361 Ill. App. 3d 378, 386,

836 N.E.2d 893 (2005). Therefore, if the plaintiff was an agent of the defendants and faced an

unreasonable risk of harm, known to the defendants, but unknown to him, the defendants owed a

duty to the plaintiff to warn him of the danger. See Petersen, 267 Ill. App. 3d at 775.

The allegations of the third amended complaint establish the necessary elements for the

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application of the principal/agent exception to the general rule. As the majority acknowledges,

the plaintiff was an agent of the defendants. The plaintiff alleged that he acted as real estate

agent for the defendants as well as provided legal advice in the Leikam Farm Joint Venture. Mr.

Slavin blamed his loss in connection with that venture on the plaintiff and communicated to the

defendants that he would harm the plaintiff. As to foreseeability, the risk of a criminal assault on

an employee is foreseeable if the employer knew or should have known of facts evidencing a

threat of harm particular to his employees but not common to all persons in the area.

MacDonald, 361 Ill. App. 3d 386. Here, the threats communicated to the defendants by Mr.

Slavin were directed specifically against the plaintiff. Finally, since Mr. Slavin was no longer

involved in the investment, it was unlikely that the plaintiff would have become aware of Mr.

Slavin's threats on his own.

I agree that count II failed to establish a voluntary undertaking. However, I conclude that

count I of the third amended complaint alleged sufficient facts to establish the principal/agent

exception to the general rule that there is no duty to defend against criminal attacks by third

parties. I would reverse the circuit court's dismissal of count I of the third amended complaint

and remand for further proceedings. Therefore, I respectfully dissent in part.

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