specially concurring:
I concur with the majority’s conclusion that this case presents disputed issues of material fact which cannot be resolved on a motion for summary judgment. Each of us, however, has reached this conclusion through such a widely divergent interpretation of the facts in this case that a separate concurrence seems in order. I also write out of concern for what I view as the erosion of a very sensible legal principle, namely, that a landowner is not generally liable for the criminal acts of third parties.
In the instant case, plaintiff Bourgonje sued defendant Machev under a theory of negligence. A threshold question here, as in any cause of action for negligence, is whether defendant owed plaintiff a duty. See Puttman v. May Excavating Co., 118 Ill. 2d 107, 116 (1987) (“Necessary to any recovery based on negligence is the existence of a duty to conform to a certain standard of conduct for the protection of the plaintiff”), citing Barnes v. Washington, 56 Ill. 2d 22, 26 (1973). It is axiomatic that if one owes no duty to another, then there is no cause of action in negligence between the two. Dunn v. Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 365 (1989) (existence of a legal duty is a requirement of any cause in negligence). As the majority opinion notes, the Illinois Supreme Court has recognized that as a matter of course, a landlord does not owe any special duty to a tenant to protect the tenant from the criminal acts of a third party. Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 215 (1988).
Despite this general rule, we remand this case to the circuit court because the record contains some evidence which could permit a trier of fact to conclude that a voluntary undertaking occurred where defendant allegedly promised to maintain the external lighting at 2410 North Kedzie as a security measure. See N.W. v. Amalgamated Trust & Savings Bank, 196 Ill. App. 3d 1066, 1072-73 (1990) (holding that a landlord owed a legal duty to a tenant when the landlord voluntarily undertook actions to protect the tenant from the actions of or presence of unauthorized persons). In the instant case, the plaintiff alleges that defendant acknowledged that the external lights were an important safety feature and promised to keep the grounds well-lit, though defendant denied making any such promise to plaintiff. This conflict can only be resolved by determining the credibility of the respective witnesses; credibility determinations are always questions of fact. Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 171 (1994) (“The credibility of witnesses and the weight to be given their testimony are matters for the jury to determine ***”). The question is material in this case because a finding of fact is necessary before one could say that a duty exists (Puttman, 118 Ill. 2d at 116); thus, it is appropriate to remand this matter to the circuit court. Wood v. National Liability & Fire Insurance Co., 324 Ill. App. 3d 583, 585 (2001) (summary judgment should be denied if there exists disputed issues of material fact).
It is critical to note, however, that if there had been no evidence that defendant made an explicit promise to the plaintiff to maintain the external lights at 2410 North Kedzie, the defendant landlord would have owed no special duty of care to the plaintiff. The Illinois Supreme Court has recognized that a landlord who provides a property with external lighting, door locks, buzzers, or similar general security-related features is not engaging in a “voluntary undertaking” that creates a legal duty; such features are routinely provided by landlords as a matter of course and thus do not create any special or elevated duty owed to the tenant. See Rowe, 125 Ill. 2d at 218 (noting that providing external lighting at a property is commonplace and furnished by virtually every landlord to every tenant and thus “cannot reasonably be regarded as the assumption of a duty to protect against criminal acts”). I therefore agree with a remand only because the record in this case contains a unique piece of evidence, namely, the plaintiffs allegation that defendant promised to keep the grounds at 2410 North Kedzie well-lit. Absent evidence of this purported promise, it would be improper to find a duty existed merely because the landlord provided external lighting. Rowe, 125 Ill. 2d at 215, 218. To hold otherwise would swallow the general rule that a landlord is not liable for the criminal actions of a third party and would seriously undermine basic principles of premises liability. See Petrauskas v. Wexenthaller Realty Management, Inc., 186 Ill. App. 3d 820, 829 (1989) (finding that a landlord owed no duty to a tenant who was injured by an intruder who gained entry to an apartment through a propped-open fire door; this court held that the landlord owed no duty to any tenant to keep fire escape doors closed, a laundry room window open, or hallway lights on; “[t]o impose a duty in this case would serve to greatly expand the scope of a landlord’s duty almost to the point of abolishing the general rule that a landlord has no duty to protect his tenants from the criminal acts of third persons”).
If the trier of fact determines that based upon these facts a duty exists, the next inquiry concerns whether defendant breached this duty. It is here that my interpretation of the facts differs significantly from that of the majority. The record shows that plaintiff met with defendant in late July or early August 2001 and signed her lease sometime in early August 2001. Plaintiff had numerous discussions with defendant regarding improvements to the apartment, such as paint colors, as well as conversations about the history of the building. Plaintiff claims that diming one of these conversations she spoke with defendant regarding the need for good lighting on the property. Although defendant denies it, according to plaintiff, defendant stated that, as a fellow single woman, she appreciated the connection of lights to security and also made assurances that the lights on and around the building would be maintained. At this time there was no indiction that the lights around the building were inoperable. It is only after plaintiff moved in, during a three-day period between September 10 to 13, 2001, that the plaintiff noticed that some of the lights were not functioning, it was “too dark,” and plaintiff felt some timed lights went on and off at inappropriate intervals. The plaintiff claimed that she also notified the defendant of the lighting problem. The handyman testified that he was notified of the problem by plaintiff, “right after Carla moved in,” or “about two weeks” before the attack, which is roughly the same 2- to 21/2-week time period. The notification could have been even later because at one point, plaintiff testified she notified defendant sometime between September 13 to 20, 2001. Although the handyman testified that he was able to do some electrical work such as installing fixtures, he attempted to fix the lights but was unable to do so. Within several days he informed defendant of this. According to the handyman, defendant then responded that she would find an electrician to repair the lights. An approximation of this time frame favorable to the plaintiff would bring us to at least the 16th or 17th of September. Nonetheless, defendant maintained that she did not remember these events and first learned of the problem with the lights on October 2, 2001, when plaintiff delivered a letter to her apartment building on that day.
Based upon the foregoing facts, the majority appears to have concluded that there was a breach of duty (assuming one exists) because it characterized this case as one of “nonfeasance,” that is, a failure to do a voluntary undertaking altogether where the plaintiff relied on that undertaking. See Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 419 (1991); N.W. v. Amalgamated Trust & Savings Bank, 196 Ill. App. 3d 1066, 1073 (1990) (a plaintiff could recover for nonfeasance if he showed “(1) a promise by the defendant to do an act or to render a service; (2) reliance upon the defendant’s promise; and (3) injury which was a proximate result of the defendant’s omission to perform the voluntary undertaking”); Chisolm v. Stephens, 47 Ill. App. 3d 999, 1007 (1977); Stephen v. Swiatkowski, 263 Ill. App. 3d 694, 704 (1994). The majority also notes that “there appears to be evidence of misfeasance [performing a voluntary undertaking negligently] in the record as well.” 362 Ill. App. 3d at 997 n.1. See Restatement (Second) of Torts §§ 323(a), (b) (1965); Cross v. Wells Fargo Alarm Services, 82 Ill. 2d 313, 317 (1980). I disagree with the majority that the evidence here supports a conclusion that this is a case of nonfeasance, since it is clear from a reading of record that is more favorable to the plaintiff that defendant undertook to repair the lights through her handyman virtually immediately after she was informed that something was wrong with the lights. Moreover, I completely reject the notion that it is “misfeasance” to first contact a handyman instead of an electrician as the majority concludes without citation. I offer the following observations also without citation. Most property owners keep touch with handymen who are capable of doing simple plumbing, carpentry, and electrical work. Generally, I think it is only common sense to observe that a property owner does not usually summon a $38-per-hour plumber, at least initially, to clear a clogged toilet in a tenant’s apartment. So, too, the defendant here was not required to immediately summon a electrician to fix some unknown problem with the lights, which may have been merely burned-out bulbs or a simple timer malfunction. According to the majority, further misfeasance occurred where defendant “fail[ed] to promptly call an electrician when Troche informed her that he could not repair the lights.” 362 Ill. App. 3d at 997 n.1. Following the majority’s lead into the land of opinion, I believe most reasonable people would not regard malfunctioning lights as an emergency requiring immediate action, such as a malfunctioning furnace in mid-winter. Defendant needed a few days to locate and contact an electrician. In my view, there is no suggestion of misfeasance in this record.
With regard to nonfeasance, it is notable that the majority stresses there is a “two month” time frame in which this purported nonfeasance occurred, presumably from the date of the voluntary undertaking in early August 2001 until the attack on October 2, 2001. It is puzzling to me how defendant’s conduct could be called nonfeasance because, as previously noted, defendant acted promptly by having her handyman attempt to repair the lights after being notified that they were not working. The majority’s opinion implies that the defendant owed a duty from the time of the purported promise to inspect the lights rather than simply a duty to repair the lights upon request from a tenant. There is no support in the law for such a proposition and at least one Illinois case has held that a promise to repair and maintain does not amount to a duty to “police” the grounds. See N.W., 196 Ill. App. 3d at 1074 (“The landlord’s duty to keep the common areas of the building in a reasonably safe condition is customarily regarded as an obligation to maintain and repair, not to police”). Such a rule would be an impermissible expansion of the duty of landlords. See N.W., 196 Ill. App. 3d at 1074-75 (rejecting plaintiffs argument to find a landlord liable for failing to police grounds or protect tenants from actions of third-party criminals). In any event, this defendant would have fulfilled any duty to inspect where she hired a handyman who was “frequently” at the building and worked for her “five days a week,” including engaging in routine repairs of the building and its grounds. In short, should a jury decide that defendant owed plaintiff a duty, there is scant evidence of any breach. I acknowledge, however, that there exists a question of fact as to whether defendant’s conduct in the two weeks before the attack was reasonable.
The final element to consider is proximate cause. See N.W., 196 Ill. App. 3d at 1071 (noting that in an action for negligence, a plaintiff must set out facts establishing, inter alia, that the defendant’s alleged breach of duty proximately caused plaintiff’s injury). Like the trial judge, I think the evidence concerning this element is largely speculative. The term “proximate cause” describes two distinct requirements, cause in fact and legal cause. Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466, 476 (2001) (Harrison, C.J., specially concurring, joined by Kilbride, J.). Cause in fact exists where there is a reasonable certainty that a defendant’s acts caused the injury or damage. A defendant’s conduct is a cause in fact of the plaintiff’s injury only if that conduct is a material element and a substantial factor in bringing about the injury. A defendant’s conduct is a material element and a substantial factor in bringing about an injury if, absent that conduct, the injury would not have occurred. Harrison, 197 Ill. 2d at 476 (Harrison, C.J., specially concurring, joined by Kilbride, J.). “Legal cause,” by contrast, is essentially a question of foreseeability. Harrison, 197 Ill. 2d at 476-77 (Harrison, C.J., specially concurring, joined by Kilbride, J.). The relevant inquiry concerning legal cause is whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct. See Yates v. Shackelford, 336 Ill. App. 3d 796, 803 (2002).
Thus, to determine whether defendant’s actions constituted “cause in fact” in the instant case, one must look to whether defendant’s purported failure to have the lights repaired more promptly was a substantial factor in causing plaintiffs injury. Unlike the majority, I view the evidence presented as gossamer thin. There is little or no evidence to establish that the attack would not have occurred if all the lights were operating and a question as to whether the situs of the rape would have been illuminated even if the lights were working. Would there then be a duty to light every square inch of the grounds? Moreover, the perpetrator, who stated that he first intended only to rob plaintiff, attacked plaintiff outside the building grounds on a city street. It is a reasonable inference from the evidence that since it was late in the evening, street lights were on. Thus, in all likelihood, the criminal began his attack in some light, so the mere presence of light was not enough to deter his initial crime. In what appears to be a spontaneous chain of events, the criminal became aroused during the mugging and decided to rape the plaintiff. The criminal said in his confession that he took Bourgonje to a “dark place” to accomplish this. Plaintiff was not specifically singled out ahead of time as being vulnerable because her home lacked adequate lighting. The criminal act in this case appears to be completely random as is the choice of a “dark place” on defendant’s property as opposed to any other nearby property.
As previously noted, legal cause rests on the principle that the crime is foreseeable to a reasonable person. Harrison, 197 Ill. 2d at 476-77 (Harrison, C.J., specially concurring, joined by Kilbride, J.); Yates, 336 Ill. App. 3d at 803. To support her contention that the crime was foreseeable, plaintiff offered what amounts to hearsay or at least anecdotal evidence from two local policemen and a member of a neighborhood watchdog group. They testified that this was a “high crime” area, that there had been “numerous rapes” in the area, that someone had discharged a firearm across the street from the building, and that there had been five community alerts in the district prior to October 2, 2001. We have no way of knowing whether five is a high number or a low number of community alerts for similarly situated communities, or how “numerous” numerous rapes are. Consequently, the question remains, “high crime” means high compared to what? Similar evidence that the property in that case was in a higher crime area was rejected by the court in Petrauskas as being unrelated to the landowner’s building. Petrauskas, 186 Ill. App. 3d at 827 (“In the present case, plaintiff alleged that the building was in a ‘high crime’ area and that a person was fatally shot across the street from the building. These allegations of criminal activity have no connection to the building [in question]”). Random, violent street crime is a generally foreseeable and an unfortunate fact of urban life but the above evidence, in my view, does not prove that this defendant was responsible for foreseeing the crime in question.
In the first place, there is no indication that defendant ever knew about any of the above information. There had been no previous violent crimes on the property in question, defendant did not live in this area, and she did not belong to neighborhood groups such as C.A.ES. Thus, there is no reason that defendant should have been alerted to the impending crime based upon the testimony of plaintiffs witnesses.
If one rejects, as did the court in Petrauskas, the speculative, anecdotal evidence concerning the purported “high crime” rate of the neighborhood, the only evidence of proximate cause is the perpetrator’s statement that he took plaintiff to a “dark place” so that no one would see him rape her. To illustrate how random this act was, it appears that the criminal himself did not even foresee the more violent aspect of his crime in that he stated that he initially set out only to rob plaintiff, then, in what seems to be a split-second decision, decided to rape her as well. Thus, unlike the majority, I would not say there is “more than enough” evidence to establish a question of fact regarding proximate cause. Although I find that the evidence raises an issue of fact, it hangs on the questionable word of a convicted criminal.
Finally, I am concerned about what I regard as an erosion of an entirely reasonable rule protecting landowners from liability for the criminal acts of others. The majority might argue the case simply follows established exceptions to the rule, conferring liability for voluntary undertakings as was done in Rowe, and I acknowledge that it does. The supreme court in Rowe, however, stated that no duty arises when a landlord simply provides external lights, though here the majority thinks that a purported promise to maintain those lights may be sufficient for liability to accrue. I fear that the next case may continue to expand this exception even further, holding that the brightness, placement, or type of light may be deemed inadequate and thus liability will attach. Eventually, the exception will become the rule.
Moreover, as a matter of public policy, any expansion of the exception would prove such a burden on landowners that it would effectively deter any owner from ever providing even minor improvements at his property for the security and convenience of his tenants. See Petrauskas, 186 Ill. App. 3d at 829 (even if the financial cost of upkeep of security features to a building is relatively low, to expand the duty landlords owe to tenants merely because landlords provide certain basic security features in a building would place an unfair burden on landlords and would “expand the scope of a landlord’s duty almost to the point of abolishing the general rule that a landlord has no duty to protect his tenants from the criminal acts of third persons”).