dissenting:
Campus rape is a serious problem. A woman is more likely to be raped while she is at college than at any other time in her life.1 More than one in four female students will be the victim of sexual assault, including rape and attempted rape, while at college.2 No longer is it enough to shake our heads and mutter sympathetic platitudes. We must recognize that the relationship between a university and its students imposes upon the university a duty to warn its students of the risk of sexual assault on its campus. The majority of this court, however, declines to do so based on its conclusion that no business inviterinvitee relationship existed between the plaintiff in the case at bar and Bradley University.
The majority opinion holds that a business inviter-invitee relationship may exist between a university and its students but limits that relationship to activities which take place on the university’s campus and are conducted or sponsored by the university. It concludes that the plaintiff has not alleged sufficient facts to establish such a relationship and further denies her the opportunity to replead. I cannot join in this ruling.
First, I take issue with the majority’s conclusion that the plaintiff has failed to adequately allege that the rape occurred on the university’s campus. It arrives at this conclusion after reviewing the third amended complaint, which was filed solely against Sanders. Although clearly improper, it was the only way the majority could avoid the plain language of the second amended complaint, addressed to Bradley: “said rape occurred on this defendant’s campus.”
In support of its position, the majority cites Hendrix v. Board of Education (1990), 199 Ill. App. 3d 1, 556 N.E.2d 578, and Burdin v. Jefferson Trust & Savings Bank (1971), 133 Ill. App. 2d 703, 269 N.E.2d 340. However, neither of these cases stands for the proposition that the sufficiency of one pleading may be determined by examining another pleading.
It is axiomatic that a complaint for one cause of action will not contain all the elements necessary to plead a second cause of action. The plaintiff does not have to prove that Sanders raped her on Bradley’s campus to prevail against Sanders. Therefore, she need not allege that fact in her complaint against him and the majority should not look to that complaint to determine whether the plaintiff has properly pled a cause of action against Bradley. The only proper way to judge the sufficiency of the second amended complaint is to examine the second amended complaint. No other pleading will do.
Further, the majority concludes that it must accept the more specific allegation of the location of the attack and yet it cites no authority for this conclusion. Nor does it show that the varying allegations are not reconcilable. If the attack occurred in the fraternity house (as alleged in the third amended complaint) and on the campus (as alleged in the second amended complaint), then is it not logical to conclude that the fraternity house is located on the campus? Just this question was posed during oral argument and the answer given was that the fraternity house was indeed located on the Bradley campus.
Second, the majority holds that the plaintiff has failed to allege facts sufficient to support the conclusion that a business inviter-invitee relationship existed.
The business inviter-invitee relationship consists of three elements: (1) the invitee must enter the premises of the inviter by express or implied invitation; (2) the plaintiff’s entry must be connected with the owner’s business or with an activity the owner conducts or permits to be conducted on its premises; and (3) there must be mutuality of benefit or a benefit to the owner. Grimwood v. Tabor Grain Co. (1985), 130 Ill. App. 3d 708, 474 N.E.2d 920.
There appears to be no question that the plaintiff satisfied the first element by alleging that she was expressly invited onto the university’s campus when she was offered admission. However, the majority concludes that the plaintiff has failed to allege that her presence in the fraternity house was connected to the university’s business or an activity sponsored by the university or that it benefit-ted the university. In doing so, the majority ignores more than 70 years of precedent in Illinois law which provides that a person may be classified an invitee if her presence is related to an activity conducted by the premises owner or permitted to be conducted by the owner and that the benefit of the plaintiff’s presence need not run exclusively to the premises owner but may be a mutual benefit to both the owner and the invitee. See Milauskis v. Terminal R.R. Association (1919), 286 Ill. 547, 122 N.E. 78; Drews v. Mason (1961), 29 Ill. App. 2d 269, 172 N.E.2d 383; Madrazo v. Michaels (1971), 1 Ill. App. 3d 583, 274 N.E.2d 635; Grimwood v. Tabor Grain Co. (1985), 130 Ill. App. 3d 708, 474 N.E.2d 720.
In the case at bar, the plaintiff has alleged that the attack occurred on the Bradley campus. The fact that it may also have occurred in a fraternity house is immaterial. The fraternity could not occupy a building on the campus without the permission of the university. By permitting the fraternity to occupy a building on its campus, the university was permitting the fraternity to conduct its activities on the campus. When the plaintiff went to the fraternity house, she was entering upon Bradley’s premises in connection with an activity Bradley permitted to be conducted upon its land. Thus the plaintiff has sufficiently stated this element of a business-invitee relationship.
The majority’s conclusion that the plaintiff’s presence in the fraternity house must be a benefit to the university is not well taken. It is not her presence at the fraternity house that is important. It is her presence on the campus — on the university’s premises — that provides a benefit to the university.
Thus, I would conclude that the plaintiff has alleged sufficient facts to establish a business inviter-invitee relationship. First, she was expressly invited onto the university’s premies. Second, the university permits the activities of the fraternity to be conducted upon its premises. Third, the university benefitted from the plaintiff’s presence on its campus.
However, even if the plaintiff has failed in some way to sufficiently allege a business inviter-invitee relationship, she should be allowed a chance to replead her cause of action.
The rule is clear and well settled that a dismissal with prejudice is proper only where no set of facts could be pled which would establish the existence of a duty. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 466 N.E.2d 224; Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.) The plaintiff’s complaint against Bradley was dismissed because the trial court found as a matter of law that Bradley owed no duty to protect the plaintiff from the reasonably foreseeable criminal acts of third parties on its campus. No amount of repleading was going to change that ruling. Asking for leave to amend her complaint would have been futile. Now this court has held that there may be circumstances which would establish the existence of a duty on the part of the university. Therefore, the plaintiff is entitled to an opportunity to replead her complaint to bring it into line with the court’s requirements.
Since I would find that a special relationship existed between the plaintiff and the defendant, I would continue with the traditional duty analysis. The factors to be considered in that analysis include the foreseeability of harm, the likelihood of injury, the magnitude of guarding against the harm and the consequences of placing the burden on the defendant. Rabel v. Illinois Wesleyan University (1987), 161 Ill. App. 3d 348, 514 N.E.2d 552.
When one in four women will be sexually assaulted during her college years, there can be no doubt that the risk of harm is foreseeable. For those universities and colleges that know of or allow the existence of fraternities on or near their campuses, the risk is even higher because statistics show that men who belong to fraternities are twice as likely to commit rape as men who are not members, and fraternity members are more likely to commit gang rape.3 In the case at bar, the plaintiff has alleged that a study conducted by the defendant’s own psychology department indicates that on Bradley’s campus more than one out of every five women has been sexually assaulted. Thus the risk of sexual assault on the defendant’s campus is foreseeable and the plaintiff has met the first factor in establishing a duty.
There also can be no doubt that the likelihood of injury is high. Gone are the days when a defendant could say, “I didn’t hurt her; I only raped her.” The act of rape itself constitutes an injury to the victim. (See People v. Leckrone (1985), 134 Ill. App. 3d 978, 984, 481 N.E.2d 343, 347 (“the crime of rape is among the most heinous and brutal of offenses”).) Further, almost half of all rape victims suffer bruises, black eyes, cuts, scratches, or swelling. Almost one in seven suffers gunshot or knife wounds, broken bones, loss of teeth, internal injuries or loss of consciousness.4 Women who are raped suffer from a medically verifiable psychiatric disorder called rape trauma syndrome.5 Other injuries include nightmares, anxiety reactions, impaired interpersonal relationships, depression, sexual dysfunction, shame, guilt and eating and sleeping disorders.6 Moreover, the plaintiff in the case at bar has alleged that she suffered injury. Thus the second factor in the duty analysis has been met.
The magnitude of guarding against the risk and the consequences of placing the burden on the university are low. Colleges inundate their students with a vast amount of information regarding classes, housing, campus clubs and recreation. They also inform students of the best ways to protect their rooms, apartments, cars and bicycles from theft or vandalism. Surely a woman’s physical and mental health deserves as much protection as her clock radio and her hair dryer. The burden of including data on the incidence of sexual assault along with the host of other information disseminated is slight.
None of this is to say that every claim of this type will have merit. As in every negligence action, the plaintiff has the burden of proving the standard of care and a breach thereof as well as proximate cause. Only if the plaintiff can prove all of the elements of a negligence cause of action should she recover against the university or college.
Each year millions of young women spend vast sums of money to receive a higher education. It is not outrageous or overly burdensome to require that the institutions which entice these women to their campuses and which profit enormously from having them as students warn these women of the risk of campus rape. I dissent.
Steinberg, Rape on College Campuses: Reform Through Title IX, 18 J.C. & U.L. 39 (1991) (hereinafter Steinberg.)
Steinberg, 18 J.C. & U.L. 39 (1991).
Steinberg, Rape on College Campuses: Reform Through Title IX, 18 J.C. & U.L. 39 (1991).
Steinberg, 18 J.C. & U.L. 39 (1991).
Steinberg, 18 J.C. &U.L. 39 (1991).
Mantese, Medical and Legal Aspects of Rape and Resistance, 12 J. Legal Med. 59 (1991).