Daily Development for Wednesday, July 31, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

LANDOWNER LIABILITY; LIABILITY TO TRESPASSERS:

Nonresident property owners who allowed their vacant building to fall into a complete state of disrepair, were not liable for the death, on said property, of a homeless person who was beaten to death by an unknown assailant.

Salazar v. Crown Enterprises, Inc. 767 N.E.2d 366 (Ill.App. 1 Dist.).

Decedent was beaten to death by an unknown assailant while trespassing on property owned by Defendants in Chicago Heights. As administrator of the estate Decedent, Decedent's son filed several amended complaints alleging ordinary negligence on the part of Defendants. All were dismissed by the court. Then Plaintiff filed a fourth amended complaint alleging wilful and wanton conduct on the part of Defendants, basing the cause of action on the entirety of the hazardous conditions at the Premises. Plaintiff alleged three different types of hazards: structural (alleging that the exterior door and perimeter fence were broken or defective allowing easy access); sanitary (alleging that garbage was in and around the building and that dumping habitually occurred on the property); and social (alleging there was continuing "lawlessness" on the property).

According to the Plaintiff, the foregoing hazards resulted in an "isolated sub-society populated by the indigent, schooled in the ethics of the street- in which the spoils go to the cunning, the swift and the ruthless-

and characterized by violent behavior." Plaintiff alleged that Defendants knew or should have known, in the exercise of ordinary reasonable care, of the condition of the structure; that because of openings, the vandalized condition of the gate, the beaten paths across the property, and the piles of garbage on the property, Defendants knew trespassers entered the property regularly; and that they took no action to remedy the situation.

Plaintiff alleged that Defendants' failure to use ordinary care to guard against the dangerous and hazardous conditions on the property, constituted wilful and wanton conduct and caused decedent's death. The trial court granted Defendants' motion to dismiss; Plaintiff appealed stating that the trial court erred by relying on the issues raised by his three prior complaints, rather than the issue of whether the condition of the property constituted a danger sufficient to rise to the level of wilful and wanton conduct.

On appeal: Held: Affirmed.

For "premises liability" the plaintiff must establish: landowner's duty, which varies depending on the status of the individual on the premises, breach and an injury proximately caused by that breach. A landowner owes trespassers only a duty to refrain from wilful and wanton conduct; liability for wilful or wanton conduct could arise if the injury were intentional, or if the landowner knew about a dangerous condition and knew that others had been injured because of the same condition. The court noted, however, that most cases involving such liability involved injury from a dangerous condition rather than from criminal conduct.

And the victims in cases that addressed property conditions that fostered violence were lawfully on the property and were thus owed a greater duty than a trespasser.

The court stated that generally, a land owner has no duty to protect individuals on its property from criminal activity unless a special relationship exists, but even in the case of a special relationship (innkeeper-guest), a landowner is not liable unless the incident is reasonably foreseeable. The court further noted that since a crime is foreseeable virtually anywhere, the question becomes whether a duty exists to take protective measures against the foreseeable crime. The court affirmed the lower court's decision, stating that Plaintiff did not provide the court with any legal authority to either extend or make an exception to the general rule of duty and special relationship. Further, Plaintiff did not sufficiently establish the foreseeability of the crime, particularly since his allegations of many different criminal activities on the property did not involve murder.

The court concluded by urging the legislature or the state supreme court to consider the imposition of a duty on landowners to protect even trespassers from criminal attacks based on the "dilapidated condition" of their property.

Comment 1: This case starts out simply as one involving an attempt to extend the very limited "wanton and wilful" conduct standard to simple abandonment of premises. The court seems to feel that such an extension is beyond the scope of the intermediate appeals court, but appears to see a policy issue here. In the editor's view, here's another example of the problem when tort lawyers dominate appeals courts. The impact of the conclusion that neglect of an abandoned building amounts to tortious "wanton and wilful conduct" would be widespread, imposing significant costs upon many careful landowners who are neither wanton or wilful but are unwilling to trust to luck the possibility that some clever lawyer can't prove them so to a jury when some homeless person gets criminally attacked on their premises. Fortunately, the court is cautious enough to restrain its own policy judgment here.

Comment 2: The case is packed with other interesting analytic tidbits.

For instance the court expressly refuses to change what it regards as established precedent that a landowner cannot be liable based upon an argument that an artificial condition on the property has led to criminal conduct. There must be some other basis upon which to conclude that a criminal attack is imminent.

Comment 3: The court also emphasizes at several points the fact that the determination of whether one should be liable for criminal attacks is never strictly a question of forseeability or factual analysis. There is a policy issue as to the appropriateness of imposition of a particular burden to prevent third party attacks. This is a vital element that is not so clear from many opinions, and often lifts the analysis of forseeability from a jury issue to a court issue, a major benefit for tort defendants.

Once one of these horrible cases goes to the jury, the landowner had better start counting out the damages. Juries tend to believe that someone needs to be blamed for these horrible criminal attacks, and of course the criminal either isn't there at all or is broke.

Even though we still get former tort lawyers making the policy judgment on forseeability, it's still a significant benefit over leaving the issue to juries.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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