dissenting:
The majority holds that defendants did not owe a duty to plaintiff because the stabbing of plaintiff was not reasonably foreseeable. The majority concludes “notwithstanding Khalil’s incident, [i.e., the fact that he was punched in the face and dragged through the lobby, in the presence of security while yelling for help,] the record is devoid of any evidence that shows that the attack on plaintiff was reasonably foreseeable.” 343 Ill. App. 3d at 89. The majority’s conclusion seems to rest on a lack of evidence that defendants had knowledge of the Khalil incident thereby tacitly conceding that had defendants been aware of the attack on Khalil its holding today would be different.
However, under both section 344 of the Restatement (Second) of Torts, and under Comment f, cited by the majority, actual knowledge is not required to impose liability. Rather, the proper inquiry is whether the defendants have “reason to discover that the acts of third persons are occurring or about to occur.” Here, the foreseeability of the criminal act perpetrated on plaintiff should be judged on the basis of what defendants should have discovered given the evidence presented. Viewing the evidence in a light most favorable to plaintiff, the evidence establishes that Khalil was punched in the face while still in the lobby, which was “not too crowded,” and yelled for help while being dragged out of the theatre. Luna Security had two guards positioned inside the second set of doors on the main floor and the Aragon had six security guards on the stairs of the lobby, wearing orange vests. Certainly, a screaming man being dragged through the lobby would give defendants “reason to know” of a likelihood of conduct on the part of Butt which would endanger Khalil and others leaving the theatre. Moreover, Aragon hired additional security for the event. This leads one to conclude that Aragon had a “reason to know” that additional security was necessary and that its own security was inadequate to supply ample protection for this event. And yet, even with the additional security, Aragon failed to place guards in the vestibule and additional guard in the lobby.
Under Shortall, a criminal act becomes foreseeable when a serious altercation has already begun. Shortall, 283 Ill. App. 3d at 443. By limiting the application of Shortall to instances where defendants are actually aware of the altercation, the majority too easily allows a defendant to escape liability by simply stating “I did not see anything.” Here, Aragon and Luna Security are escaping liability because they did not see anything. But why did they not see anything? Luna Security claims it was not instructed to place guards in the vestibule. Had guards been placed in the vestibule, they would have witnessed Khalil being dragged out and attacked. Then, under the majority’s reasoning, defendants would have been liable. As a licensed facility, Aragon should not be allowed to pick and choose the areas of the club it wishes to protect and then avoid liability for injury to its patrons by turning a blind eye.
The majority asks, “With about 1,000 concertgoers inside of a large building, how many guards would the Aragon have to hire to protect against any and all potential criminal acts that could occur in the common area?” 343 Ill. App. 3d at 91. There were guards in the main hall, two guards in the lobby, and guards by the stairs and fire exits; there were no guards in the vestibule, a common area. Clearly, there should have been guards in the vestibule as well as additional guards in the lobby. Contrary to the majority’s belief, placing additional guards in the vestibule, i.e., the area between the glass entry doors and the wooden doors opening to the lobby, would not “place too onerous an economic burden on the Aragon.” 343 Ill. App. 3d at 91. Rather, it more likely would have prevented the attack on both Khalil and plaintiff. For these reasons, I respectfully dissent.