Iseberg v. Gross

Docket No. 103332.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
MITCHELL M. ISEBERG, Indiv. and as an Officer and Director of
the Leikam Farm Development Corporation, et al., Appellants, v.
SHELDON GROSS, Indiv. and as an Officer, Director, Partner,
Agent, and/or Joint Adventurer of the Vernonshire Auto Laundry
Group, Inc., et al., Appellees.
Opinion filed September 20, 2007.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman,
and Karmeier concurred in the judgment and opinion.
Justice Freeman took no part in the decision.
OPINION
In this interlocutory appeal, plaintiffs, Mitchell Iseberg (Iseberg)
and his wife, Carol, seek reversal of the order dismissing with
prejudice count I of their third amended complaint, brought against
defendants, Sheldon Gross (Gross) and Henry Frank (Frank). In count
I, plaintiffs alleged that Gross and Frank were negligent because they
failed to warn Iseberg that a former mutual business partner, Edward
Slavin (Slavin), had made threats against Iseberg’s life. Slavin later
acted on his threats and shot Iseberg, rendering him a paraplegic.
The trial court dismissed the claim pursuant to section 2–615 of
the Code of Civil Procedure (735 ILCS 5/2–615 (West 2002)), finding
that plaintiffs failed to state a cause of action because, under the facts
alleged, Gross and Frank owed no duty to warn Iseberg or to protect
him from the criminal conduct of Slavin. A divided appellate court
affirmed the dismissal. 366 Ill. App. 3d 857.
For reasons that follow, we affirm the judgment of the appellate
court.
BACKGROUND
The facts of this case are taken from plaintiffs’ complaint and the
documents attached thereto. They are not materially in dispute.
In 1995, Slavin and Gross formed the Vernonshire Auto Laundry
Group, Inc. (VAL), an Illinois corporation created for the purpose of
developing Slavin’s idea of building a car wash in the Vernon Hills-
Lincolnshire area. Thereafter, Gross contacted Iseberg, an attorney
and real estate broker, who Gross had learned was in the process of
purchasing land in the Vernon Hills area (the Leikam Farm property).
Iseberg planned to purchase the Leikam Farm property and develop
it into a strip mall. To that end, Iseberg had joined with Frank to form
the Leikam Farm Development Corporation (LFD).
In October 1996, VAL and LFD entered into a partnership
agreement, with each contributing funds toward the purchase of the
Leikam Farm property. Title to the property was then placed in a land
trust, with VAL and LFD each having 50% beneficial ownership in the
trust. The partnership agreement included a provision that VAL could
purchase LFD’s interest in the trust if the partnership was not
terminated by April 15, 1997.
On April 14, 1997, VAL tendered an offer to purchase LFD’s
beneficial interest in the trust. LFD refused to sell. Previously LFD,
without VAL’s knowledge, had assigned its 50% beneficial interest in
the land trust to Frank and executed a promissory note in the amount
of $352,000 in Frank’s favor. VAL filed suit against LFD to enforce
its rights under the partnership agreement. This legal suit was settled
-2-
in September 1997 when the parties entered into a “Settlement and
Joint Venture Agreement.”1
Pursuant to the agreement, Frank, VAL, Gross and Slavin, wanted
“to eliminate all Iseberg involvement with respect to the Property.”
Therefore, the settlement provided for the termination of the VAL-
LFD partnership and the creation of the Leikam Farm Joint Venture
(Venture), which had as its sole purpose the sale of the Leikam Farm
property. The settlement agreement specifically provided that Iseberg
was not to be a party to the Venture, that LFD’s and Iseberg’s
interests, if any, in the property and the land trust were terminated,
and that Iseberg shall “[d]eliver all business, financial and accounting
records relating to the [Leikam Farm] Property to the Venture and
shall cease and desist from having any involvement with the Property,
its development or its future transactions unless as requested in
writing by the Venture, and then at Iseberg’s discretion other than as
an attorney for a third party.”2
Despite the Venture’s efforts, the Property was not sold by
December 31, 1998, when monthly interest payments on the mortgage
note for the property came due. Slavin, having already invested all of
his savings in the project, was unable to meet his share of the monthly
interest obligation. As a result, in February 1999, Slavin was forced
to surrender his interest in the property, losing his entire investment.
Plaintiffs alleged that Slavin’s financial demise caused him to
become mentally unbalanced and that Slavin focused his anger on
1
A copy of this settlement was attached to, and made part of, Iseberg’s
complaint.
2
Notwithstanding the express provisions of the settlement agreement,
Iseberg alleged in his complaint that, from September 12, 1997, through
January 2000, Frank “requested and utilized Iseberg’s legal skills and real
estate marketing and development expertise” with respect to the Leikam
Farm Joint Venture and that this was done with the knowledge and approval
of Gross, Slavin and the Venture. Iseberg further alleged that his services
included: reviewing proposals; suggesting changes to certain real estate sales
agreements; giving legal opinions on zoning issues, easement restrictions, and
water retention issues; negotiating solicitations for the Leikam Farm
property; and drafting a sales contact for the property.
-3-
Iseberg, whom he blamed for his financial situation. According to
statements Gross gave to the Lake County police,3 Slavin spoke to
Gross on several occasions between the fall of 1998 and the early
months of 1999 about wanting to harm Iseberg. In the beginning,
Slavin talked about punching Iseberg in the face with brass knuckles.
But as time passed and Slavin became more agitated, he talked about
wanting to find a “hit man” and, later, he outlined a plan for killing
Iseberg himself and then committing suicide. Slavin told Gross that,
once the suicide exemption clause in his life insurance policy was no
longer in effect, he would go to Iseberg’s home, ring the doorbell,
shoot Iseberg, and then kill himself so his family could collect his
insurance. On at least one occasion, Slavin spoke about a plan that
included killing Frank as well. Slavin also told Gross that he had
purchased a gun and asked whether the caliber was large enough to
kill someone.
Gross contacted Slavin’s brother, Earl, to express his concerns
about Slavin’s threats. Gross suggested, more than once, that Earl
obtain psychiatric help for his brother. Earl always demurred, assuring
Gross that Slavin would never act on his threats. Gross told Frank
about the threats, but neither Gross nor Frank told Iseberg.
According to Gross’ statements to the police, after Slavin
surrendered his interest in the Leikam Farm property in February
1999, Gross had almost no contact with Slavin. Gross said he spoke
to Slavin on only three occasions over the next 11 months. Although
Slavin voiced no more threats against Iseberg during this time, on one
occasion Slavin asked Gross if he knew Iseberg’s new address. Gross
said he told Slavin he did not know the address and would not give it
to him if he did.
On January 24, 2000, Slavin rang the doorbell at Iseberg’s
residence. When Iseberg answered the door, Slavin shot him four
times. Iseberg was not killed, but was rendered a paraplegic.
In October 2001, Mitchell and Carol Iseberg filed a complaint,
which was later amended to include claims against Gross and Frank.
3
After Iseberg was shot, Gross gave statements to the Lake County Major
Crime Task Force concerning Slavin’s threats toward Iseberg. These police
reports were attached to and made a part of Iseberg’s complaint.
-4-
The third amended complaint, which is at issue here, sought recovery
from Gross and Frank for negligence (count I), negligent performance
of a voluntary undertaking (count II), breach of fiduciary duty (counts
III and IV), civil conspiracy (count V) and loss of consortium (count
VI).
In the negligence count, it was alleged that Iseberg was “a former
partner and joint adventurer” of both Gross and Frank and that he was
“the current agent, attorney, and co-adventurer” of the Leikam Farm
Joint Venture “with respect to the sale and/or development of the
Leikam Farm property.” It was not alleged, however, that a duty arose
because of these relationships. Rather, the complaint alleged that
Gross and Frank had “actual, independent and superior knowledge”
that Slavin blamed Iseberg for Slavin’s financial demise, that Slavin
had threatened to kill Iseberg, and that he had purchased a gun. It was
further alleged that, based on this knowledge, Gross and Frank “were
in a unique position to prevent the harm done to Iseberg” by either
communicating the threats to Iseberg or by contacting the police.
Plaintiffs then asserted that, because of this knowledge, Gross and
Frank owed a duty to warn and protect Iseberg, which they breached
by failing to tell Iseberg about Slavin’s threats.
In an order dated August 13, 2004, the trial court dismissed with
prejudice the counts alleging negligence, negligent performance of a
voluntary undertaking, and civil conspiracy. In a subsequent order, the
trial court held, pursuant to Supreme Court Rule 304(a), that there
was no just reason to delay appeal of its August 13, 2004, order.
Thereafter, plaintiffs brought an interlocutory appeal in the appellate
court seeking reversal of the dismissal order with respect to counts I
(negligence) and II (negligent performance of a voluntary
undertaking). The claims alleging breach of a fiduciary duty against
Frank (count III) and Gross (count IV) and loss of consortium (count
VI) were stayed pending appeal.
On appeal, the appellate court affirmed the dismissals, with one
justice dissenting. 366 Ill. App. 3d 857. With respect to count I, the
appellate court majority held that, under Illinois law, the general rule
is that one does not have an affirmative duty to protect another
against criminal attack by third persons. The court noted that Illinois
recognizes four exceptions to the general no-duty rule, but that
plaintiffs’ “superior knowledge theory” was not one of those
-5-
exceptions. Finding that this theory did not provide a basis for
imposing a duty on defendants, the majority affirmed the dismissal of
the negligence claim. 366 Ill. App. 3d at 862-63. One justice dissented
in part, stating that “the allegations of the third amended complaint
establish the necessary elements for the application of the
principal/agent exception to the general rule.” 366 Ill. App. 3d at 866
(Hall, J., concurring in part and dissenting in part).
We granted plaintiffs’ petition for leave to appeal. In addition, we
granted leave to the Pacific Legal Foundation to file an amicus curiae
brief. The amicus brief is not offered in support of either party, but
advocates judicial restraint in the expansion of legal theories and
remedies.
ANALYSIS
Before this court, plaintiffs’ only challenge is to the dismissal of
count I, the claim charging Gross and Frank with negligence for their
failure to warn Iseberg of Slavin’s threats. The circuit court dismissed
this count pursuant to defendants’ section 2–615 motions (735 ILCS
5/2–615 (West 2002)), finding that the facts alleged in the complaint
failed to establish any basis for imposing a duty on defendants to warn
or protect Iseberg from the criminal conduct of Slavin. Orders
granting or denying section 2–615 motions are reviewed de novo.
Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006); City of
Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 364 (2004);
Ferguson v. City of Chicago, 213 Ill. 2d 94, 96-97 (2004).
When conducting our review, all well-pleaded facts and all
reasonable inferences that may be drawn from those facts must be
taken as true and allegations in the complaint must be construed in a
light most favorable to the plaintiff. King v. First Capital Financial
Services Corp., 215 Ill. 2d 1, 11-12 (2005); Connick v. Suzuki Motor
Co., 174 Ill. 2d 482, 490-91 (1996). A claim should not be dismissed
pursuant to section 2–615 unless no set of facts can be proved which
would entitle the plaintiffs to recover. Marshall, 222 Ill. 2d at 429.
However, because Illinois is a fact-pleading jurisdiction, plaintiffs must
allege facts, not mere conclusions, to establish their claim as a viable
cause of action. Marshall, 222 Ill. 2d at 429-30; Vernon v. Schuster,
179 Ill. 2d 338, 344 (1997).
-6-
To state a legally sufficient claim of negligence, the complaint
must allege facts establishing the existence of a duty of care owed by
the defendants to the plaintiffs, a breach of that duty, and an injury
proximately caused by that breach. Bajwa v. Metropolitan Life
Insurance Co., 208 Ill. 2d 414, 421 (2004); Hills v. Bridgeview Little
League Ass’n, 195 Ill. 2d 210, 228 (2000). Whether a duty is owed is
a question of law for the court to decide, while breach and proximate
cause are factual matters for the jury. Adams v. Northern Illinois Gas
Co., 211 Ill. 2d 32, 43-44 (2004); Chandler v. Illinois Central R.R.
Co., 207 Ill. 2d 331, 340 (2003); Kirk v. Michael Reese Hospital &
Medical Center, 117 Ill. 2d 507, 525 (1987); Pelham v. Greisheimer,
92 Ill. 2d 13 (1982).
Because of the procedural posture of this case, the only issue
before us is whether a legal duty existed. Plaintiffs do not allege that
defendants owed a duty by virtue of any contract or statute. Rather,
they seek to hold defendants liable for negligence under common law
principles.
This case presents a question of “duty” in its most basic or
“primary” sense, i.e., duty as obligation. See Marshall, 222 Ill. 2d at
436, citing J. Goldberg & B. Zipursky, The Restatement (Third) and
the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657 (2001).
What we must decide is whether Iseberg and defendants stood in such
a relationship to one another that the law imposed on defendants an
obligation of reasonable conduct for the benefit of Iseberg. Bajwa,
208 Ill. 2d at 421-22; Bucheleres v. Chicago Park District, 171 Ill. 2d
435 (1996). Under common law, the universally accepted rule,
articulated in section 314 of the Restatement (Second) of Torts, and
long adhered to by this court, is that a private person has no duty to
act affirmatively to protect another from criminal attack by a third
person absent a “special relationship” between the parties. See Rowe
v. State Bank of Lombard, 125 Ill. 2d 203 (1988); Restatement
(Second) of Torts §§314, 314A (1965); E. Kellett, Comment Note:
Private Person’s Duty and Liability for Failure to Protect Another
Against Criminal Attack by Third Person, 10 A.L.R. 3d 619 (1966).
Historically, there have been four “special relationships” which this
and other courts have recognized, namely, common carrier-passenger,
innkeeper-guest, business invitor-invitee, and voluntary custodian-
protectee. Marshall, 222 Ill. 2d at 438; Restatement (Second) of
-7-
Torts §314A (1965). When one of these special relationships exists
between the parties and an unreasonable risk of physical harm arises
within the scope of that relationship, an obligation may be imposed on
the one to exercise reasonable care to protect the other from such risk,
if the risk is reasonably foreseeable, or to render first aid when it is
known that such aid is needed. See Fancil v. Q.S.E. Foods, Inc., 60
Ill. 2d 552, 559-60 (1975); Restatement (Second) of Torts §314A
(1965). The existence of one of these four “special relationships” has
typically been the basis for imposing an affirmative duty to act where
one would not ordinarily exist.4
In the case at bar, plaintiffs do not allege that one of the above-
listed “special relationships” existed. Nor do they contend in this
court, as they did in their third-amended complaint, that a duty arose
from defendants’ “superior knowledge” of Slavin’s threats. Instead,
plaintiffs ask us to find, as did the dissenting appellate justice, that the
facts alleged in the third amended complaint, viewed in a light most
favorable to them, are sufficient to bring this case within an exception
to the no-affirmative-duty rule. Specifically, plaintiffs now claim that
the facts alleged in the third amended complaint sufficiently establish
that, at the time of the shooting, Iseberg was an agent of both Gross
and Frank with respect to the Leikam Farm Property Venture and, as
a result of this relationship and in accordance with section 471 of the
Restatement (Second) of Agency, Gross and Frank owed a duty to
warn Iseberg of Slavin’s threats.
Plaintiffs also advance a second argument. Plaintiffs contend that
decisions of this court have demonstrated that the “special
relationship” doctrine is no longer the sine qua non for determining
whether to impose an affirmative duty to protect against the tortious
acts of a third party. Rather, plaintiffs contend, in situations where
some type of relationship exists between the parties (i.e., where the
parties are not mere strangers), whether an affirmative duty may be
imposed will be decided based upon consideration of the four
4
We note that the Restatement (Third) of Torts: Liability for Physical
Harm §40, Proposed Final Draft No.1 (April 6, 2005), has added employer-
employee, school-student, and landlord-tenant as additional “special
relationships.”
-8-
traditional negligence factors: foreseeability, likelihood of injury,
magnitude of the burden, and consequences of placing the burden on
the defendants. Plaintiffs urge us to clarify that this is the current
status of the law of this state and to apply this analysis to find a duty
in this case. Alternatively, plaintiffs argue that, if we find that the
“special relationship” analysis has not already been discarded, we
should take this opportunity to do so now because the no-affirmative-
duty rule is out of step with modern notions of morality.
Principal-Agent Relationship and the Duty to Warn
As noted above, plaintiffs’ initial argument is that the negligence
count should not have been dismissed because this case fits within an
exception to the no affirmative duty rule. Specifically, plaintiffs rely on
section 471 of the Restatement (Second) of Agency (Restatement
(Second) of Agency §471 (1958)), to assert that defendants owed a
duty to warn Iseberg of Slavin’s threats.
This court has never before addressed the application of section
471 of the Restatement (Second) of Agency, although our appellate
court has. See MacDonald v. Hinton, 361 Ill. App. 3d 378 (2005);
Petersen v. U.S. Reduction Co., 267 Ill. App. 3d 775 (1994). Section
471 provides as follows:
“A principal is subject to liability in an action of tort for
failing to use care to warn an agent of an unreasonable risk
involved in the employment, if the principal should realize that
it exists and that the agent is likely not to become aware of it,
thereby suffering harm.” Restatement (Second) of Agency
§471, at 405 (1958).
Comment a, following this section, explains the rationale for the
rule:
“One who is requested or directed by another to act on his
account has reason to believe that the other will give him
information of the risks to be encountered of which the other
knows and which he should realize are unknown to the one so
requested to act. Further, if the one making the request is in a
better position to know of the risks to be encountered, the one
of whom the request is made may reasonably believe that he
will be informed of facts which the other, because of his
-9-
position, should know. From this it follows that a principal
requesting or directing an agent to act is under a duty to
disclose to the agent the risks which he knows or should know
are likely to be encountered by the agent [in performing the
requested acts.]”5 Restatement (Second) of Agency §471,
Comment a, at 405 (1958).
Applying this rationale, courts which have found a duty to warn
in reliance on section 471 of the Restatement (Second) of Agency
have treated the duty as an extension of an employer’s general
obligation to provide a safe workplace for his employees. See, e.g.,
Blake v. Consolidated R. Corp., 176 Mich. App. 506, 516, 439
N.W.2d 914, 919 (1989) (railroad was held liable to the estates of
three railroad employees who were murdered by an individual known
to be carrying out a vendetta against the railroad based on court’s
finding that railroad had a duty to warn and protect its employees
from criminal assault against them during the course of employment;
duty could be inferred from employer’s duty to provide a safe
workplace for its employees); Dahlgren v. Coe, 311 Mass. 18, 40
N.E.2d 5 (1942) (employer liable for injuries to laundress scalded by
hot water when employer knew water was excessively heated but did
not warn laundress).
In the case at bar, plaintiffs contend that the facts alleged in their
third amended complaint support a finding that a principal-agent
relationship existed between Iseberg and defendants at the time of
Iseberg’s injury and that, as a result of that relationship, defendants
had a duty to warn, as set forth in section 471 of the Restatement
(Second) of Agency. We disagree.
The complaint alleges that Iseberg was defendants’ former partner
and joint adventurer, as well as the current agent, attorney, and
coadventurer of the defendants and the Leikam Farm Joint Venture
5
An additional purpose for imposing a duty of warning on principals is
to permit the agent to make an informed decision about whether he wishes to
continue to maintain the agency relationship and assume the risk that it
entails, or terminate the relationship. See Restatement (Second) of Agency
§471, Comment a, at 405 (1958) (“if the agent becomes aware of the risks
before it is too late for him to withdraw, the principal’s liability terminates”).
-10-
with respect to the sale and/or development of the Leikam Farm
property. The complaint further alleges that Iseberg provided legal,
brokerage, development, and marketing services to defendants and the
Venture with respect to the Leikam Farm property from September
1997 through January 2000. Plaintiffs now contend that these
allegations in their complaint sufficiently establish the existence of a
principal-agent relationship between defendants and Iseberg at the
time of Iseberg’s injury.
As defendants point out, however, the allegations in plaintiffs’
complaint which support a finding that an agency relationship existed
are directly contradicted by the documents attached to the complaint.
For example, plaintiffs’ assertions that Iseberg acted as an attorney
and/or brokerage agent for the Leikam Farm Joint Venture are belied
by the terms of the settlement, which specifically provide that Iseberg
was not to have any involvement in the Leikam Farm property unless
requested by the Venture in writing. Plaintiffs do not allege that
Iseberg was ever authorized, in writing, to represent the interests of
the Venture.
Defendants also argue that, even if we accept as true plaintiffs’
allegations that Iseberg provided professional legal and brokerage
advice to defendants and the Venture during the relevant time period,
we should find that Iseberg was acting as an independent contractor
and, for this reason, the allegations in the complaint fail to
demonstrate that a principal-agent relationship existed between
Iseberg and the defendants. While it may be true that Iseberg was an
independent contractor rather than defendants’ agent (see Petersen v.
U.S. Reduction Co., 267 Ill. App. 3d at 782-85), we need not decide
whether plaintiffs’ complaint sufficiently alleged the existence of an
agency relationship. Even if the allegations in plaintiffs’ complaint
supported a finding that Iseberg had been, in some capacity,
defendants’ agent during the relevant time period, it would not alter
our determination with regard to the duty to warn.
The duty to warn, identified in section 471 of the Restatement
(Second) of Agency, does not arise unless the unreasonable risk of
harm is “involved in the employment.” See MacDonald v. Hinton, 361
Ill. App. 3d at 385 (to state a claim for negligent failure to warn of a
risk “involved in the employment,” the risk must arise from the
particular nature of the employment). To understand what it means to
-11-
be “involved in the employment,” we turn to comment b of section
471 of the Restatement Second (Agency). There, the Restatement sets
forth an example of a situation where a principal might be held liable
for physical harm to his agent based on the principal’s breach of his
duty of disclosure. Comment b provides that a landlord may be held
liable if he directs his agent to collect rent from a tenant without
warning the agent that the tenant has a propensity to assault rent
collectors and the agent, while collecting rent, is physically assaulted
by the tenant. Also, an illustration following comment b provides that
P may be subject to liability to A where P claims title to land occupied
by T, P directs A to work the land without warning A that T has
threatened to “resist by force” attempts by anyone to work the land,
and T shoots A while A is working the land.
In the case at bar, plaintiffs do not suggest that Iseberg
encountered a risk of harm because of any task Iseberg was directed
to perform by defendants. Nor was Iseberg injured while he was
performing any tasks for defendants. Slavin attacked Iseberg at
Iseberg’s home. As noted above, the complaint alleged that the reason
for the attack was that Slavin blamed Iseberg for the financial losses
Slavin experienced. Those financial losses were the result of the
inability to sell the Leikam Farm property. Plaintiffs do not allege that
the inability to sell the property was due to anything Iseberg did in his
capacity as the purported agent of Gross and Frank.
Based on the facts alleged in plaintiffs’ complaint, the risk of harm
to Iseberg which Slavin posed did not “arise from the particular
nature” of Iseberg’s alleged agency relationship with Gross and Frank.
See MacDonald v. Hinton, 361 Ill. App. 3d at 385. We conclude,
then, that the risk of harm was not “involved in” Iseberg’s
employment within the meaning of section 471 of the Restatement
(Second) of Agency. The duty to warn, which may be owed by a
principal to his agent, as provided in section 471 of the Restatement
(Second) of Agency, was not implicated under the facts of this case.
Abandoning the “Special Relationship” Doctrine
As noted above, in arguing that their negligence claim should not
have been dismissed, plaintiffs offer an alternative argument. They
contend that our recent case law demonstrates that the “special
-12-
relationship” doctrine has been eroded in this state and that “the
evolution of our case law has clearly been away from the formulaic
application of the special relationship doctrine.” Plaintiffs argue that
the “special relationship” doctrine, in particular, and the no-duty rule,
in general, are “antiquated” and out of step with contemporary
societal morals. Thus, according to plaintiffs, the existence of an
affirmative duty to warn or protect, particularly in situations where the
parties are not strangers, should be a policy determination, made on
a case-by-case basis, upon consideration of factors commonly used to
determine the existence of a duty in ordinary negligence situations,
i.e., the reasonable foreseeability of the injury; the likelihood of the
injury; the magnitude of the burden of guarding against the injury; and
the consequences of placing that burden on the defendants. Plaintiffs
urge us to abandon the “special relationship” framework for
determining whether to impose an affirmative duty to protect against
third-party attacks and to find a duty in the case at bar by applying the
above four-factor negligence test.
Earlier in this opinion, we noted this court’s long history of
adherence to the rule that private persons owe no duty to act
affirmatively to protect others from criminal attack by a third persons
absent a “special relationship” between the parties. Rowe v. State
Bank of Lombard, 125 Ill. 2d 203 (1988); Fancil v. Q.S.E. Foods,
Inc., 60 Ill. 2d 552 (1975); Neering v. Illinois Central R.R. Co., 383
Ill. 366 (1943); Restatement (Second) of Torts §§314, 314A (1965).
Abandonment of this rule, therefore, would necessarily implicate stare
decisis. We held in Chicago Bar Ass’n v. Illinois State Board of
Elections, 161 Ill. 2d 502, 510 (1994):
“The doctrine of stare decisis is the means by which courts
ensure that the law will not merely change erratically, but will
develop in a principled and intelligible fashion. Stare decisis
permits society to presume that fundamental principles are
established in the law rather than in the proclivities of
individuals. The doctrine thereby contributes to the integrity
of our constitutional system of government both in appearance
and in fact. Stare decisis is not an inexorable command.
However, a court will detour from the straight path of stare
decisis only for articulable reasons, and only when the court
must bring its decisions into agreement with experience and
-13-
newly ascertained facts. Vasquez v. Hillery (1986), 474 U.S.
254, 265-66, 88 L. Ed. 2d 598, 610, 106 S. Ct. 617, 624-25.”
Plaintiffs contend that we would not be straying very far from the
path of stare decisis because the “special relationship” doctrine has
already been eroded by Illinois courts, including this court, which have
eschewed the “special relationship” analysis and, instead, applied the
traditional negligence factors when deciding whether a duty exists.
Plaintiffs cite as examples Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d
179 (2002), Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d
414 (2004), Kohn v. Laidlaw Transit, Inc., 347 Ill. App. 3d 746
(2004), and Orrico v. Beverly Bank, 109 Ill. App. 3d 102 (1982).
However, we find that these cases do not support plaintiffs’ erosion
theory. In none of these cases was the question at issue whether an
affirmative duty should be imposed on a person to warn or protect
another against the criminal acts of a third party.
In Happel, the plaintiff, a regular customer of the defendant’s
pharmacy, brought suit because the pharmacy dispensed to her a
prescription medication which was contraindicated based on her
allergy to aspirin. The pharmacy maintained a computer database that
was programmed to alert the pharmacist if a contraindicated
medication was accidentally prescribed by a customer’s physician and
this database contained the plaintiff’s allergy information. Although
the pharmacy knew or should have known of the contraindication, it
dispensed the medication without any warning either to the customer
or to the prescribing physician. Based on these special circumstances,
we affirmed the appellate court’s finding of a narrow duty to warn,
which was encompassed within the pharmacist’s duty of ordinary care.
Happel, 199 Ill. 2d at 189.
In Bajwa, a wrongful-death claim was brought against the
defendant insurance company, alleging that the defendant had
negligently issued an insurance policy on the life of the plaintiffs’
decedent, who had been murdered for the proceeds of that policy. The
alleged facts established that the defendant’s agent had misrepresented
on the policy application that he had witnessed the proposed insured’s
signature, although he had not, in fact, done so.
As a result, a life insurance policy was issued in favor of a
beneficiary who did not possess an insurable interest and the insured
was never seen personally or provided notice of the policy. We held
-14-
that an insurer had a duty to refrain from providing “ ‘coverage on
someone’s life without undertaking reasonable precautions to
ascertain whether the insured [was] aware of and [had] consented to
the issuance of the policy.’ ” Bajwa, 208 Ill. 2d at 427, quoting Bajwa
v. Metropolitan Life Insurance Co., 333 Ill. App. 3d 558, 578 (2002).
In Kohn, the plaintiff alleged that a school bus driver employed by
the defendant transit company had been negligent because she failed
to extend the mechanical arm and stop sign on the bus when she
dropped off a minor-passenger. The plaintiff further alleged that, as a
result of that negligence, he proceeded past the bus, struck the minor,
and then was, himself, attacked by bystanders as he attempted to assist
the minor. The plaintiff brought suit against the transit company to
recover for injuries he suffered at the hands of the bystanders, which
the plaintiff claimed were proximately caused by the defendant’s
negligent operation of the bus. Although the defendant argued that it
owed no duty to protect the plaintiff from third-party attacks absent
a “special relationship,” the court addressed the plaintiff’s claim that
a duty arose because the defendant’s negligence caused the attack. In
response to that argument, the court considered the four negligence
factors and found that a physical attack was not a foreseeable
consequence of the defendant’s negligent conduct. Kohn, 347 Ill. App.
3d at 755.
Finally, in Orrico, a 31-year-old mentally disabled man was found
murdered shortly after he withdrew a large sum of money from his
account at the defendant’s bank. When the bank dispensed the money
to the decedent, it had in its possession a court order appointing the
plaintiff (the decedent’s mother) conservator of the decedent’s
account. In addition, the bank had actual knowledge that the plaintiff
did not want the decedent to have access to his funds. Based on these
circumstances, it was held that the defendant had an obligation to
dispense the decedent’s funds in a manner which was not “in
contravention of the court-appointed conservator’s demands.” Orrico,
109 Ill. App. 3d at 106.
Unlike the case at bar, Happel, Bajwa, Kohn and Orrico are not
affirmative duty cases. In each instance, it was the defendants’
negligent affirmative conduct (dispensing medication, issuing a life
insurance policy, failing to extend the mechanical stop sign, dispensing
money) which was alleged to have created or contributed to the risk
-15-
of harm to plaintiff. See Restatement (Third) of Torts: Liability for
Physical Harm, §37, Comment d, Proposed Final Draft No.1 (April 6,
2005) (when defendant’s conduct creates the risk of harm, an
affirmative duty of reasonable care exists. This duty is not imposed as
an exception to the no-duty rule, but derives from the general duty of
ordinary care which an actor owes when his affirmative conduct
creates the risk); see also D. Robertson, Negligence Liability for
Crimes and Intentional Torts Committed by Others, 67 Tul. L. Rev.
135 (1992) (discussion therein of the difference between conduct that
creates a risk and exceptions to the no-duty rule). For this reason,
Happel, Bajwa, Kohn, and Orrico are inapposite.
Further, we can find no case in which this court has recognized an
affirmative duty, based upon consideration of the four factors cited by
plaintiffs, in the absence of a special relationship. Rather, the special
relationship doctrine has been cited by this court in a number of recent
cases, indicating our continued adherence to its general principles.
See, e.g., Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006);
Young v. Bryco Arms, 213 Ill. 2d 433 (2004); Hills v. Bridgeview
Little League Ass’n, 195 Ill. 2d 210 (2000). Accordingly, we reject
plaintiffs’ claim that the “special relationship” doctrine has been
eroded in Illinois.
Plaintiffs only remaining argument for abandoning the “special
relationship” doctrine is that the doctrine and the no-duty rule, in
general, are antiquated and out-of-step with today’s morality. While
it is true that the no-duty rule has suffered criticism from a number of
legal scholars, criticism of the rule is not new. Legal pundits have
assailed the rule, citing its lack of social conscience, for as long as it
has existed. See Restatement (Third) of Torts: Liability for Physical
Harm §37, Comment e, Proposed Final Draft No.1 (April 6, 2005); J.
Adler, Relying upon the Reasonableness of Strangers: Some
Observations About the Current State of Common Law Affirmative
Duties to Aid or Protect Others, 1991 Wis. L. Rev. 867, 867 (1991)
(“For more than eighty years, commentators have argued about
whether courts should require one to act affirmatively to protect a
stranger in peril”).
Plaintiffs cite Soldano v. O’Daniels, 141 Cal. App. 3d 443, 190
Cal. Rptr. 310 (1983) and Lombardo v. Hoag, 237 N.J. Super. 87,
566 A.2d 1185 (1989), in support of their position that the current
-16-
trend in the law is toward the abandonment of the no-duty rule and
“special relationship” exceptions. But Lombardo, and the affirmative
duty it recognized, were expressly overruled in Lombardo v. Hoag,
269 N.J. Super. 36, 634 A.2d 550 (1993), and Soldano, though not
overruled, has not been well received. Subsequent California courts
have criticized the Soldano opinion, limiting it to its specific facts. See
Restatement (Third) of Torts: Liability for Physical Harm §37,
Reporter’s Note, at 718, Proposed Final Draft No.1 (April 6, 2005).
Contrary to plaintiffs’ assertions, the no-affirmative-duty rule, as
a common law tort principle, has been retained in every jurisdiction.
See Restatement (Third) of Torts: Liability for Physical Harm §37,
Reporter’s Note, at 719, Proposed Final Draft No.1 (April 6, 2005)
(“no court has adopted an affirmative duty to assist in a rescue”); J.
Adler, Relying upon the Reasonableness of Strangers: Some
Observations About the Current State of Common Law Affirmative
Duties to Aid or Protect Others, 1991 Wis. L. Rev. 867, 868 (1991)
(“But in spite of early and repeated calls for reform, no recorded case
has expressly adopted the requirement–which at first blush would
appear to be relatively harmless–that people have a responsibility to
engage in even an “easy rescue”). Some states have legislatively
created narrow exceptions to the no-affirmative-duty rule, imposing
criminal sanctions if a person who is present when certain violent
crimes are taking place fails to notify police or, in some instances, fails
to render assistance to the victim.6 However, none of these statutes
6
Some states have enacted laws imposing criminal sanctions if a person,
present at the scene, fails to notify police that a sexual assault (Florida,
Massachusetts, Rhode Island) or other violent crime (Vermont, Minnesota,
Ohio, Washington, and Wisconsin) is taking place; Wisconsin permits one
who witness a violent crime to either notify police or render assistance to the
victim; two states (Rhode Island and Vermont) require one who is present at
the scene of a violent crime to render “reasonable assistance” to persons
known to be exposed to grave physical harm, when the provision of such aid
can be accomplished without danger to oneself or others. See S. Heyman,
Foundations of the Duty to Rescue, 47 Vand. L. Rev. 673, 689 n.66 (1994).
-17-
provide for a civil cause of action. 7 Thus, given the wide acceptance
of the no duty rule and the “special relationship” doctrine, it cannot be
said that they are “antiquated” or “outmoded.”
Moreover, abandonment of the no-duty rule would create a
number of practical difficulties–defining the parameters of an
affirmative obligation and enforcement, to name just two. See Rhodes
v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 234 (1996). See also S.
Heyman, Foundations of the Duty to Rescue, 47 Vand. L. Rev. 673,
675 (1994). As noted by Prosser and Keeton,
“the difficulties of setting any standards of unselfish service to
fellow men, and of making any workable rule to cover possible
situations where fifty people might fail to rescue one, has
limited any tendency to depart from the rule to cases where
some special relation between the parties has afforded a
justification for the creation of a duty, without any question of
setting up a rule of universal application.” W. Keeton, Prosser
& Keeton on Torts §56, at 376 (5th ed. 1984).
In Rhodes, we said, “the impracticality of imposing a legal duty
to rescue between parties who stand in no special relationship to each
other would leave us hesitant to do so.” Rhodes, 172 Ill. 2d at 234.
That statement is no less true today.
We may not depart from stare decisis without special justification.
Vitro v. Mihelcic, 209 Ill. 2d 76, 82 (2004), citing Chicago Bar Ass’n
v. Illinois State Board of Elections, 161 Ill. 2d at 510. Where the rule
of law has been settled and does not contravene any statute or
constitutional principle, it may be disregarded only for “good cause”
or “compelling reasons.” See Vitro, 209 Ill. 2d at 82. In the case at
bar, plaintiffs have not provided good cause or compelling reasons to
judicially abandon the “special relationship” doctrine for finding an
exception to the no-affirmative-duty rule. We will continue to adhere
to its principles.
7
A Vermont statute (12 Vt. Stat. Ann. tit. 12, §519 (2002)) provides for
a civil cause of action if a rescuer, in providing assistance, acts with gross
negligence, but the statute does not recognize a civil cause of action for the
failure to give reasonable assistance.
-18-
CONCLUSION
The no-affirmative-duty rule and the “special relationship”
doctrine stand as the law of this state. Accordingly, an affirmative
duty to warn or protect against the criminal conduct of a third party
may be imposed on one for the benefit of another only if there exists
a special relationship between them. In the case at bar, no such
relationship existed between the defendants and Iseberg. Nor was it
shown that a principal-agent relationship existed between the parties
which gave rise to a duty to warn as provided in section 471 of the
Restatement (Second) of Agency. For these reasons, we affirm the
judgment of the appellate court.
Appellate court judgment affirmed.
JUSTICE FREEMAN took no part in the consideration or
decision of this case.
-19-