upholding dismissal of case against defendant landlord where plaintiff was injured by a non-party who threw a rock off a balcony onto plaintiff and plaintiff “alleged no facts of a contractual or statutory duty imposed on defendant to specially design its buildings to prevent injuries caused by criminally reckless acts of third persons”
How later courts described this case
- upholding dismissal of case against defendant landlord where plaintiff was injured by a non-party who threw a rock off a balcony onto plaintiff and plaintiff “alleged no facts of a contractual or statutory duty imposed on defendant to specially design its buildings to prevent injuries caused by criminally reckless acts of third persons”
- Landlord had no duty to protect tenants from criminal acts of others unless landlord exercises control over the premises and could reasonably discover and make safe the dangerous condition.
- no duty to insure tenants’ safety from another tenant’s act of throwing TV over stair railing
- " '[T]he landlord’s control of the common areas is associated with the obligation to maintain and repair, rather than with a duty to police’ ”
Written by the judges who cited it.
The opinion
Mr. JUSTICE LEIGHTON dissenting: It is a maxim of our civü procedure that pleadings shall be Liberally construed with a view to doing substantial justice between the parties. Crosby v. Weil, 382 Ill. 538 , 48 N.E.2d 386 ; McGill v. 830 So. Michigan Hotel, 68 Ill.App.2d 351 , 216 N.E.2d 273 ; Ill. Rev. Stat. 1969, ch. 110, par. 33(3).
In this mundane case, plaintiff aHeged that on December 12, 1969, she and her son, Ernest, were defendant’s tenants. This allegation stated ultimate facts which would establish the special relation of landlord and tenant. (Insurance Co. of State of Pennsylvania v. O’Connell, 34 Ill.App. 357 ; I.L.P. Landlord and Tenant § 2, 51C C.J.S. Landlord and Tenant § 1.) Plaintiff aHeged that defendant, her landlord, controHed the common area and passageways in the buüding where she and her son were tenants. This allegation stated facts which would establish a legal consequence that follows the relation of landlord and tenant. As my brothers •in the majority recognize, a landlord who retains control of common area and passageways has the duty to exercise reasonable care in keeping those portions of his premises in a reasonably safe condition. Loveless v. Warner, 37 Ill.App.2d 204 , 185 N.E.2d 392 ; Meiners v. Moyer, 119 Ill.App.2d 94 , 255 N.E.2d 201 ; Restatement, Second, Torts § 360; I.L.P. Landlord and Tenant § 302.
In addition, plaintiff aHeged that for a long period of time, in the common area and passageways of the budding in which she lived, there existed a dangerous condition caused by articles being thrown from other stories, a condition about which defendant either knew or should have known. She alleged that in breach of the duty it owed her and her son, defendant carelessly and negligently faffed to take adequate precautions to protect the safety of its tenants after defendant had notice of numerous acts of prior accidents and injuries to tenants from items thrown over fences in various stories of the building; that defendant carelessly and negligently failed to erect higher fences or place barricades or wire over the open areas of the porches in order to protect its tenants in the common area and passageways of defendant’s building; and “[t]hat as a direct and proximate result of one or more of the above set forth wrongful and negligent, and willful and wanton acts, an item was thrown over a railing of the aforementioned fence, striking Ernest Trice [plaintiff’s son and intestate] on the head so that he died on December 18, 1969.”
With the maxim of our civil procedure in mind, my reading of this complaint leads me to conclude that its aHegations were not limited to intentional, deliberate or criminal acts of other tenants or third persons. The aHegations stated facts which would support proof of neghgence by others. Plaintiff aHeged that through the negligence of others, coupled with the negligence of defendant in faffing to make the common area and passageways of its building reasonably safe, her son, Ernest Trice, was injured and died as a result of his injuries. This being so, I do not agree with the majority that the principal issue in this appeal is whether a landlord has the duty to protect his tenants from intentional or deliberate acts of other tenants or third persons. (See Annot, 43 A.L.R.3d 331 .) This formulation of the issue, in my judgment, reflects the error that led to dismissal of plaintiff’s complaint on the ground that it did not state a cause of action. If it were shown, by a trial or some other procedure, that plaintiff’s case rests only on the claim that defendant did not protect her and her son from intentional, deliberate or criminal acts of tenants or others, we will then have before us the issue which the majority decides. In this appeal, the issue is whether the complaint states a cause of action. In my judgment it did. (See Runions v. Liberty Nat. Bank, 15 Ill.App.2d 538 , 147 N.E.2d 380 ; compare Gille v. Winnebago County Homing Authority, 44 Ill.2d 419 , 255 N.E.2d 904 .) Therefore, the trial court erred in sustaining defendant’s motion to dismiss. For these reasons, I respectfully dissent from the majority and concurring opinions of my brethren.