dissenting:
I find the allegations of plaintiff’s first amended complaint are insufficient to raise a duty on Condell’s part toward plaintiff’s decedent.
Plaintiff claims that the instant cause “falls squarely within the fourth special relationship recognized” in Cross v. Chicago Housing Authority (1979), 74 Ill. App. 3d 921, that is, “a person taking charge of persons having dangerous propensities. (Restatement (Second) of Torts secs. 316-19 (1965).)” (74 Ill. App. 3d 921, 925.) However, I do not find it can be reasonably inferred from the allegations of plaintiff’s complaint that Condell had “taken charge of” or “assumed custody” of a person who it knew or should have known was likely to cause bodily harm to others if not controlled. It alleged only that Holt was “a patient.” Although the majority concludes it may be inferred Condell was a mental health facility as that term is defined in the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1983, ch. 91V2, pars. 1 — 114, 3 — 600, 3 — 200), I find such inference conflicts with the further allegation that Condell “failed to have JANICE HOLT involuntarily admitted to an appropriate mental or physical health care facility, in violation of the aforementioned statute and duty.” Even if Condell’s attempt to restrain Holt could be inferred as a voluntary assumption of custody of her, I would find plaintiff’s complaint insufficient to allow the inference that Condell “knew or should have known of JANICE HOLT’S mental disorders, drug addiction, and propensity toward violence and flight from authorities.” As plaintiff himself suggests in his reply brief, “[t]he mechanism which triggers a duty is the knowledge that its patient has dangerous propensities toward others or is otherwise exhibiting irrational behavior.” Plaintiff does not make such allegations in his complaint, nor from the facts alleged can it be inferred that Condell had the opportunity or the time to acquire any such knowledge about its patient. It simply alleged that Holt was a patient at Condell “shortly before said occurrence.” Plaintiff suggests that Holt’s dangerous propensities could be ascertained from her actual conduct in leaving the hospital. However, although such conduct would serve to allow the inference that the hospital knew Holt should be controlled in the future, it certainly cannot be construed retrospectively as the knowledge which would have been necessary to find a duty on the part of the hospital to have controlled her in the first place.
I conclude the allegations of plaintiff’s complaint were factually insufficient to raise a duty of law owed by Condell to plaintiff's decedent, and I would affirm the judgment of the circuit court of Lake County which struck plaintiff’s counts V, VI and XI of the first amended complaint.