of Civil Law-Universities/Student Safety
Plaintiff-Appellant, v. ILLINOIS WESLEYAN UNIVERSITY, Defendant-Appellee
(Phi Gamma Delta, Alpha Deuteron Chapter, a/k/a Fiji, et al., Defendants). --
CHERIE RABEL, Plaintiff-Separate Appellee, v. ILLINOIS WESLEYAN
UNIVERSITY, Defendant-Appellee and Separate Appellant (Phi Gamma Delta,
Alpha Deuteron Chapter, a/k/a Fiji, et al., Defendants-Separate Appellees)
Nos. 4-87-0126, 4-87-0182 cons.
Appellate Court of Illinois, Fourth District
161 Ill. App. 3d 348; 514 N.E.2d 552; 1987 Ill. App. LEXIS 3254; 112 Ill. Dec.
September 30, 1987
September 30, 1987, Filed
PRIOR HISTORY: [***1] Appeal from the Circuit Court of McLean County;
the Hon. Harold J. Frobish, Judge, presiding.
DISPOSITION: Judgment affirmed in case No. 4 -- 87 -- 0126; appeal
dismissed in case No. 4 -- 87 -- 0182.
COUNSEL: Christ T. Troupis Law Office, of Mendota, and Michael, Best &
Friedrich, of Madison, Wisconsin (Donna J. Engels and James R. Troupis, of
counsel), for Cherie Rabel.
Thompson, Strong, Blakeman & Schrock, Ltd., of Pontiac (C. Thomas Blakeman, of
counsel), for Illinois Wesleyan University.
James C. Wollrab, of Costigan & Wollrab, of Bloomington, for appellee Jack Wilk.
Livingston, Barger, Brandt & Schroeder, of Bloomington (James R. Ensign, of
counsel), for appellee Phi Gamma Delta.
JUDGES: Presiding Justice Spitz delivered the opinion of the court. Green
and McCullough, JJ., concur.
OPINION BY: SPITZ
[*350] [**554] On April 30, 1984, plaintiff, Cherie Rabel, filed a
complaint in the circuit court of McLean County against defendants Illinois
Wesleyan University, Phi Gamma Delta fraternity, Alpha Deuteron Chapter,
a/k/a Fiji, and Jack Wilk. The complaint alleged that on May 1, 1982, plaintiff
was a student at defendant Illinois Wesleyan University (university)
[***2] in Bloomington, Illinois. At that time, plaintiff resided in Pfeiffer
Hall dormitory on the university's campus. Defendant Phi Gamma Delta fraternity,
Alpha Deuteron Chapter, a/k/a Fiji (fraternity), was a fraternity associated
with the university. Defendant Jack Wilk was also a student at the university at
the time in question and was a member of the fraternity.
Plaintiff's complaint alleged that at approximately 3 p.m. on May 1, 1982, the
plaintiff was in her room at the dormitory and was called by Wilk to come to the
lobby of the dormitory. Plaintiff's complaint further alleged that when she
arrived in the lobby, Wilk "forcibly grabbed [her] and threw her over his
shoulder." Wilk "then ran, with [*351] [plaintiff] over his shoulder, out of
the building onto a sidewalk leading to the street, the sidewalk being situated
on the campus of Illinois Wesleyan University." Upon leaving Pfeiffer
Hall with the plaintiff over his shoulder, Wilk "was to run through a gauntlet
of [fraternity] members who would strike him with bones as he passed." As Wilk
ran he "tripped, stumbled, lost control, slipped and otherwise fell crushing the
skull, head and body of [plaintiff] on the [***3] sidewalk."
The complaint alleged that prior to arriving at Pfeiffer Hall, Wilk and other
fraternity brothers had been participating in a "lengthy party" sponsored by the
fraternity "at which members of the fraternity drank alcohol, painted themselves
and otherwise conducted a lengthy and boisterous party." Wilk had been "drinking
alcohol excessively at the fraternity and had participated in the lengthy
The complaint further alleged that plaintiff sustained injuries to "her head,
body and limbs both externally and internally, and the bone in her head was
broken, and she suffered a basilar skull fracture," and a "brain concussion."
The complaint alleged that the brain injury caused "complete loss of the sense
of smell [and] * * * loss of certain hearing functions." As a result of the
injuries plaintiff allegedly incurred expenses for doctor bills, surgical
treatments, medicine, and nursing care. Further, she alleged that her ability to
work and her earning capacity were impaired.
Counts I, II, and III of plaintiff's complaint alleged negligence on the part of
Wilk, the fraternity, and the university, respectively. Counts IV, V, and VI
alleged wilful and wanton misconduct [***4] on the part of each defendant and
sought punitive damages.
Two defendants, the fraternity and the university, both filed motions to dismiss
the counts against them in plaintiff's original complaint.
Then on September 13, 1984, plaintiff filed her first-amended complaint. This
[**555] complaint realleged all counts contained in her original complaint and
alleged two additional counts against the university, one count alleging
liability based upon a landlord-tenant relationship, and a count alleging
Subsequently, all three defendants filed motions to dismiss the counts against
them in plaintiff's first-amended complaint. Following hearings on the motions,
the trial court dismissed counts I and IV against Wilk with leave to amend and
the court dismissed counts II and VII against the fraternity with leave to
amend. Additionally, the court dismissed the remaining counts against the
university with prejudice.
On June 5, 1985, plaintiff filed her second-amended complaint. [*352] This
complaint contained counts against Wilk, the fraternity, and, in addition, the
complaint named the individual members of the fraternity as defendants.
Plaintiff [***5] sought and was granted leave to amend counts III, IV, V and
VIII of her first-amended complaint against the university.
Then on October 19, 1985, plaintiff filed her third-amended complaint. This
complaint contained counts alleging negligence and wilful and wanton misconduct
against both Wilk and the fraternity, including its individual members. In
addition, the complaint contained five counts against the university. These
included: count III, which alleged negligence; count IV, which alleged liability
based upon a landlord-tenant relationship; count V, which alleged premises
liability; and counts VIII and IX, which alleged wilful and wanton misconduct
and sought punitive damages.
Thereafter, all three defendants filed motions to dismiss. After a hearing, the
trial court ruled with respect to the university that the premises liability
count against the university (count V) should be dismissed with leave to amend,
based on a failure to allege how any defect caused the fall. The trial court
dismissed the remaining counts against the university (counts III, IV, VIII, and
IX) with prejudice, finding the university had no duty under the circumstances
to protect the plaintiff from [***6] the alleged misconduct.
On March 6, 1986, plaintiff filed a motion pursuant to Supreme Court Rule 304(a)
(107 Ill. 2d R. 304(a)) for a finding that there was no just reason for delaying
enforcement or appeal of counts III, IV, VIII, and IX of her third-amended
complaint. This motion was denied on May 30, 1986.
Subsequently, plaintiff filed her fourth-amended complaint. In addition to the
negligence and wilful and wanton counts against Wilk, the fraternity and the
individual fraternity members, the complaint contained one count against the
university alleging premises liability (count III). This complaint did not
reallege or adopt the four counts from the third-amended complaint against the
university that had been dismissed with prejudice.
On December 3, 1986, the university filed a motion for summary judgment as to
count III in plaintiff's fourth-amended complaint.
Sometime thereafter, the plaintiff, Wilk and the fraternity (including its
members) reached a proposed settlement agreement, whereby each of the two
defendants would contribute $ 25,000 in return for a release upon the entry of a
good-faith finding by the trial court. The university filed an "objection to
good faith [***7] finding for proposed settlement agreement," arguing that the
defendants were not contributing [*353] their pro rata share of the
common liability. The plaintiff, Wilk and the fraternity filed a "stipulation
for dismissal." The stipulation for dismissal stated that a settlement had been
reached and that the settlement was made in good faith pursuant to section 2 of
the Contribution Among Joint Tortfeasors Act (Act) (Ill. Rev. Stat. 1985, ch.
70, par. 302). The stipulation indicated that Wilk and the fraternity should be
dismissed with prejudice. The parties moved for a finding by the trial court
that the aforementioned settlement was made in good faith.
A hearing was held on the motion for approval of the settlement and on the
university's motion for summary judgment. At the conclusion of the hearing the
court [**556] found that the $ 25,000 settlement by both Wilk and the
fraternity, totalling $ 50,000, was made in good faith and should be approved
pursuant to section 2 of the Act (Ill. Rev. Stat. 1985, ch. 70, par. 302). Thus,
defendants Wilk and the fraternity, including its members, were dismissed with
prejudice. As to the university's motion for [***8] summary judgment, the court
found that there was no duty owed to the plaintiff by the university and no
issue as to the negligence of the university. Thus, the court entered summary
judgment in favor of the university and against the plaintiff as to count III of
plaintiff's fourth-amended complaint (formerly count V of the third-amended
On February 20, 1987, the plaintiff filed a notice of appeal from, inter alia,
the dismissal with prejudice of counts III, IV, VIII, and IX of her
third-amended complaint against the university. On March 2, 1987, the university
filed a notice of separate appeal, pursuant to Supreme Court Rule 303(a)(3) (107
Ill. 2d R. 303(a)(3)), from the order of the trial court finding that the
settlement between plaintiff, Wilk, and the fraternity had been made in good
faith (case No. 4 -- 87 -- 0182). These two cases have been consolidated for
purposes of appeal on motion by this court.
Case No. 4 -- 87 -- 0126
Plaintiff contends that the dismissal of counts III, IV, VIII, and IX of her
third-amended complaint, against the university, "as a matter of law was
improper as a motion to dismiss may be granted only upon a showing that no
interpretation [***9] of the pleadings can result in a favorable verdict to the
When considering a motion to dismiss, the trial court must assume the truth of
all facts properly pleaded ( Vaughn v. General Motors Corp. (1984), 102
Ill. 2d 431, 466 N.E.2d 195; Acorn Auto Driving School, Inc. v. Board of
Education (1963), 27 Ill. 2d 93, 187 [*354] N.E.2d 722), and all
reasonable inferences which can be drawn from those facts ( Horwath v. Parker
(1979), 72 Ill. App. 3d 128, 390 N.E.2d 72). However, mere conclusions of law,
argumentative matter, or conclusions of fact unsupported by allegations of
specific facts upon which such conclusions rest are irrelevant and must be
disregarded by the trial court in ruling on a motion to dismiss. ( Pierce v.
Carpentier (1960), 20 Ill. 2d 526, 169 N.E.2d 747; Knox College v.
Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.) In order to survive a
motion to dismiss, a complaint must allege facts which, when considered
together, establish the cause of action which the plaintiff seeks to state. (
Segall v. Berkson (1985), 139 Ill. App. 3d 325, 328, 487 N.E.2d 752, 754.) A
cause of action should not be dismissed on the pleadings unless [***10] it
clearly appears that no set of facts can be proved which will entitle the
plaintiff to recover. ( 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 standard of review on appeal is whether the complaint
alleged facts which sufficiently state a cause of action. Carlinville
National Bank v. Rhoads (1978), 63 Ill. App. 3d 502, 380 N.E.2d 63.
In the case at bar, counts III and VIII of plaintiff's third-amended complaint
alleged negligence and wilful and wanton misconduct against the university in
its capacity as a university. Counts IV and IX alleged negligence and wilful and
wanton misconduct against the university in its capacity as a landlord. The
trial court dismissed these four counts with prejudice, finding that the
university had "no duty to protect plaintiff from the alleged misconduct of a
fellow student in this factual situation."
Plaintiff first contends that the trial court erred in dismissing counts III and
VIII of her third-amended complaint, asserting that the university had a duty in
its capacity as a university to "act reasonably in controlling the activities
on [***11] its campus through its fraternities and by its students."
Specifically, count III of plaintiff's complaint alleged:
"[The university] holds itself out to the public,
prospective students and others as a University that does not allow alcoholic
beverages on its campus or in its [**557] fraternity houses, and as a
University whose agents' stated primary concern is the general student welfare.
[The university] by and through its agents and employees stated to [plaintiff
and plaintiff's family], the public and prospective students by direct statement
and otherwise that the University strictly controlled the activities of its
students, including [*355] a ban on alcohol consumption and further, it
represented and held itself out as having a strong religious background with a
tradition of strong supervision and control of student activities and a premium
price was charged to students as tuition to this private University in reliance
upon those statements and others.
[The university] has, by its representations and policies, created a special
relationship with its students, including the Plaintiff * * * such relationship
creating a duty of care to its [***12] students, including the Plaintiff * * *.
[The university's] interest in each student's personal well being, including the
personal well being of [plaintiff], and the University's assumption of the
responsibility of the student's welfare, including [plaintiff's] welfare, is
exemplified by * * * the Illinois Wesleyan University bulletin.
* * *
At all times described herein, [the university] was aware of the excessive
drinking occurring at the Fiji Fraternity and was aware of the lengthy and
boisterous parties and activities associated with that party including the
activities at Pfeiffer Hall described herein on May 1, 1982.
[The university], not regarding its duty to the Plaintiff personally and as a
student at Illinois Wesleyan University, and its duty to others arising
out of its specific representations to [plaintiff and plaintiff's family] the
public and prospective students, its stated policies, its customs and practices,
its high tuition, and the special relationship between [the university] and its
students, failed to take any effective action on April 30, 1982 or May 1, 1982
to discourage the excessive drinking of its students and others, or to
discourage the [***13] lengthy and boisterous party and activities associated
with that party, or to supervise and control said party or to provide adequate
protection to the University community at large and to [plaintiff] in
Count VIII realleged the foregoing allegations and also
alleged wilful and wanton misconduct on the part of the university.
To survive a motion to dismiss for failure to state a cause of action in
negligence, the complaint must set out the existence of a duty owed by the
defendant to the plaintiff, the breach of that duty, and injury proximately
resulting from the breach. ( Bescor, Inc. v. Chicago Title & Trust Co.
(1983), 113 Ill. App. 3d 65, 446 N.E.2d 1209; Marvin v. Chicago Transit
Authority (1983), 113 Ill. App. 3d 172, 446 [*356] N.E.2d 1183.) The
existence of a duty, that is, a legal obligation to conform one's conduct to a
certain standard for the benefit or protection of another, is a matter of law to
be determined by the court. ( Fancil v. Q.S.E. Foods, Inc. (1975), 60
Ill. 2d 552, 555, 328 N.E.2d 538, 540; Alm v. Van Nostrand Reinhold Co.
(1985), 134 Ill. App. 3d 716, 718, 480 N.E.2d 1263, 1265.) It is not sufficient
that the [***14] complaint merely allege a duty, rather the pleader must allege
facts from which the law will raise a duty. ( Duncan v. Rzonca (1985),
133 Ill. App. 3d 184, 478 N.E.2d 603.) "In determining whether the law imposes a
duty, foreseeability of possible harm alone is not the test, for in retrospect
almost every occurrence may appear to be foreseeable. The likelihood of injury
from the existence of a condition, the magnitude of guarding against it, and
consequences of placing the burden upon the defendant must be taken into
account. [Citation.]" ( Barnes v. Washington (1973), 56 Ill. 2d 22, 29,
305 N.E.2d 535, 539; see also Alm v. Van Nostrand Reinhold Co. (1985),
134 Ill. App. 3d 716, 718, 480 N.E.2d 1263, 1265.) The absence of allegations of
fact from which the law will raise a duty justifies the dismissal of the
pleading on motion. Farmer City State Bank v. Guingrich (1985), 139 Ill.
App. 3d 416, 487 N.E.2d 758.
[**558] Similarly, to sufficiently plead wilful and wanton misconduct, a
plaintiff must allege facts demonstrating a duty of the defendant and a breach
of that duty which proximately caused the plaintiff's injury. ( Newby v. Lake
Zurich Community [***15] Unit, District 95 (1985), 136 Ill. App. 3d
92, 482 N.E.2d 1061.) Wilful and wanton misconduct means a course of action
which shows either a deliberate intention to harm or an utter indifference to,
or conscious disregard for, the safety of others. ( Gregor v. Kleiser
(1982), 111 Ill. App. 3d 333, 443 N.E.2d 1162.) Wilful and wanton misconduct
must be manifested by the facts alleged in the complaint, and mere conclusory
allegations or the mere characterization of certain acts as wilful and wanton
misconduct are insufficient to withstand a motion to dismiss. 111 Ill. App. 3d
333, 443 N.E.2d 1162.
It is the plaintiff's position that she has alleged facts from which the law
will raise a duty. Plaintiff asserts that the university is a "strong
disciplined, religious, private, expensive and exclusive University" which due
to its policies, regulations and handbook created a "special relationship" with
its students and a corresponding duty to protect its students against the
alleged misconduct of a fellow student.
In support of her position she first cites cases which have held that a duty
once assumed must be performed to a standard of due [*357] care. (E.g.,
Darling v. [***16] Charleston Community Memorial Hospital (1965),
33 Ill. 2d 326, 211 N.E.2d 253; Nelson v. Union Wire Rope Corp. (1964),
31 Ill. 2d 69, 199 N.E.2d 769.) Both of these cases relied upon by the plaintiff
are distinguishable. First, the Darling court, confronted with a medical
malpractice case, addressed the duty of hospitals to perform medical services in
accordance with the hospital's own standards. ( Darling v. Charleston
Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253.) Next,
in Nelson, the court held that the performance of an inspection created a
duty to perform that inspection with due care. ( Nelson v. Union Wire Rope
Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769.) Neither of these cases held,
nor has plaintiff cited to any cases which have held, that a university by its
regulations or handbook voluntarily assumed a duty to create a "certain safe
environment for its students" which "if properly performed would have prevented
the injuries in this instance."
Next, plaintiff advances the argument that as a matter of social policy, a
defendant who has and exercises the power to control the activities of a person
must be held responsible for failing [***17] to act reasonably in that
capacity. In support of this argument plaintiff cites to Kahn v. James Burton
Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, and Osborne v. Sprowls
(1981), 84 Ill. 2d 390, 419 N.E.2d 913. Neither of these cases is controlling
here. First, Kahn involved an "attractive nuisance" type situation, where
a child was injured after entering a construction site and climbing on a stack
of boards. The Kahn court determined that the expense of setting boards
in a fashion that would not collapse on a small child was very minor when
weighed against the great likelihood of injury given the presence of children in
the area of the construction site. ( Kahn v. James Burton Co. (1955), 5
Ill. 2d 614, 126 N.E.2d 836; see Knapp v. City of Decatur (1987), 160
Ill. App. 3d 498.) Further, Osborne involved injuries resulting from
"horseplay," where the defendant selected an area in which participants would
play football, and a nonparticipating bystander was injured as a result of an
errant pass. The Osborne court determined that the burden of selecting an
area of play free from the presence of nonparticipating individuals was slight
when weighed against [***18] the magnitude of the harm which could be caused in
such a situation. ( Osborne v. Sprowls (1981), 84 Ill. 2d 390, 419 N.E.2d
913.) Neither Kahn nor Osborne involved or discussed a
university's responsibility to control the activities of its students.
The university contends that counts III and VIII fail to allege the existence of
a duty owed by the university to the plaintiff. The university points out that
there is [**559] no reported decision in Illinois addressing [*358] the
issue of whether college regulations place a college in a custodial relationship
with its students for purposes of imposing a duty of protection. The university
cites to a Federal case which has addressed a similar question. (See Bradshaw
v. Rawlings (3d Cir. 1979), 612 F.2d 135, cert. denied (1980), 446
U.S. 909, 64 L. Ed. 2d 261, 100 S. Ct. 1836.) In Bradshaw, the issue was
whether a college may be subject to tort liability for injuries sustained by one
of its students which were caused by another student who had become intoxicated
at a class picnic. The college in Bradshaw had a student disciplinary
regulation prohibiting the possession or consumption [***19] of alcohol by
students on college property or at college-sponsored off-campus activities. The
activity involved, a sophomore class picnic, was an annual affair and a faculty
member assisted in the planning of the picnic and even cosigned a check for
class funds used to purchase beer. The plaintiff in Bradshaw argued that
a disciplinary regulation prohibiting the consumption of alcohol placed the
college in a custodial relationship with its students for purposes of imposing a
duty on the college to protect the plaintiff; that the college had a certain
custodial relationship with its adult students; and that this relationship also
imposed a duty to prevent a student from violating liquor control laws whenever
those students were involved directly or indirectly in a university activity.
The Bradshaw court determined that the university did not have a duty to
prevent student drinking and the failure of the university's officials to stop a
campus drinking party did not constitute an affirmative act of furnishing
alcohol. The Bradshaw court also commented on the relationship between a
college and its students:
"Our beginning point is a recognition that the modern
American [***20] college is not an insurer of the safety of its students.
Whatever may have been its responsibility in an earlier era, the authoritarian
role of today's college administrations has been notably diluted in recent
decades. Trustees, administrators, and faculties have been required to yield to
the expanding rights and privileges of their students. * * * College students
today are no longer minors; they are now regarded as adults in almost every
phase of community life. * * * They may vote, marry, make a will, qualify as a
personal representative, serve as a guardian of the estate of a minor, wager at
racetracks, register as a public accountant, practice veterinary medicine,
qualify as a practical nurse, drive trucks, ambulances and other official fire
vehicles, perform general firefighting duties, and qualify as a private
detective. * * * There was a time when college administrators and faculties
assumed a role in loco parentis. Students [*359] were committed to
their charge because the students were considered minors. A special relationship
was created between college and student that imposed a duty on the college to
exercise control over student conduct and, reciprocally, [***21] gave the
students certain rights of protection by the college. The campus revolutions of
the late sixties and early seventies were a direct attack by the students on
rigid controls by the colleges and were an all-pervasive affirmative demand for
more student rights. In general, the students succeeded, peaceably and
otherwise, in acquiring a new status at colleges throughout the country. These
movements, taking place almost simultaneously with legislation and case law
lowering the age of majority, produced fundamental changes in our society. A
dramatic reappointment of responsibilities and social interests of general
security took place. Regulation by the college of student life on and off campus
has become limited. Adult students now demand and receive expanded rights of
privacy in their college life * * *. College administrators no longer control
the broad arena of general morals. * * *
Thus, for purposes of examining fundamental relationships that underlie tort
liability, the competing interest of the student and of the institution of
higher learning are much different today than they were in the past. At the risk
of oversimplification, the change has occurred because society [***22]
considers the modern college student an adult, not a [**560] child of tender
years * * *." (612 F.2d 135, 138-40.)
Thus, the court held that the disciplinary regulation
prohibiting consumption of alcohol did not place the college in a custodial
relationship with its students for purposes of imposing a duty of protection and
that a college regulation which essentially tracked a State law and prohibited
conduct already prohibited by State law did not establish a college's voluntary
assumption of a custodial relationship imposing a duty of protection. 612 F.2d
The university also cites to Baldwin v. Zoradi (1981), 123 Cal. App. 3d
275, 176 Cal. Rptr. 809. In Baldwin, the plaintiff brought suit against
California Polytechnic State University for injuries sustained in a speed
contest involving automobiles occurring after drinking had occurred in a
university dormitory. The plaintiff alleged that the university and its
employees knowingly permitted other students to possess and consume alcoholic
beverages in university residence halls contrary to regulations of the
university and failed to take other appropriate steps to control the students
consuming [***23] the alcohol who [*360] eventually were responsible for
causing harm to the plaintiff. The plaintiff further alleged that the
foreseeable result of the activity was that the students would become
intoxicated and operate motor vehicles, resulting in harm to the plaintiff. The
plaintiff attempted to establish liability based upon a failure to enforce the
regulations prohibiting alcoholic beverages in university dorms, alleging that
the university allowed these students to consume alcohol on campus negligently,
which action, when combined with the landlord-tenant relationship, created a
duty of care. The trial court in Baldwin dismissed the complaint for
failure to state a cause of action. The appellate court, relying on Bradshaw
v. Rawlings (3d Cir. 1979), 612 F.2d 135, determined that the college
regulation that mirrored a State law prohibiting the consumption of alcohol did
not establish that the college voluntarily assumed a custodial relationship with
its students for purposes of imposing a duty of protection.
Finally, the university cites to Beach v. University of Utah (Utah 1986),
726 P.2d 413, which considered the duty of a university to its students
where [***24] alcoholic consumption was involved. The Beach court
"[Colleges] and universities are educational institutions,
not custodial. [Citation.] Their purpose is to educate in a manner which will
assist the graduate to perform well in the civic, community, family and
professional positions he or she may undertake in the future. It would be
unrealistic to impose upon an institution of higher education the additional
role of custodian over its adult students and to charge it with responsibility
for preventing students from illegally consuming alcohol and, should they do so,
with responsibility for assuring their safety and the safety of others.
[Citations.] Fulfilling this charge would require the institution to babysit
each student, a task beyond the resources of any school. But more importantly,
such measures would be inconsistent with the nature of the relationship between
the student and the institution, for it would produce a repressive and
inhospitable environment, largely inconsistent with the objectives of a modern
college education." 726 P.2d 413, 419.
We have examined the allegations in the plaintiff's complaint together with the
authority cited [***25] by the parties in determining whether the plaintiff has
alleged facts from which the law will raise a duty under the circumstances of
this case. In so doing, we have considered the likelihood of the injury from the
existence of the condition here, the magnitude of guarding against it and the
consequences of placing [*361] the burden on the defendant. Upon
consideration, we do not believe that the university, by its handbook,
regulations, or policies voluntarily assumed or placed itself in a custodial
relationship with its students, for purposes of imposing a duty to protect its
students from the injury occasioned here. The university's responsibility to its
students, as an institution of higher education, is to properly educate them. It
would be unrealistic to impose upon a university the [**561] additional role
of custodian over its adult students and to charge it with the responsibility
for assuring their safety and the safety of others. Imposing such a duty of
protection would place the university in the position of an insurer of the
safety of its students. Hence, the trial court properly dismissed counts III and
VIII of plaintiff's third-amended complaint [***26] with prejudice.
Plaintiff next contends that the trial court erred in dismissing counts IV and
IX of her third-amended complaint. Counts IV and IX alleged negligence and
wilful and wanton misconduct against the university in its capacity as a
landlord. The trial court dismissed these counts finding the university had "no
duty to protect plaintiff from the alleged misconduct of a fellow student in
this factual situation."
Specifically, count IV of plaintiff's third-amended complaint alleged:
"[The university] is the owner of certain property known as
Pfeiffer Hall and [it] rents rooms in that hall and such rental includes the
walkways on and in front of the hall where a part of the incident described
herein occurred and such rentals are limited to students at [the university],
and as such [the] University is a landlord and has the responsibilities of a
[The university], as a landlord, assumed the responsibility of providing for the
security of this tenant.
* * *
[Plaintiff], as a student of [the university], was a tenant of the University at
Pfeiffer Hall on or about April 30, 1982 and May 1, 1982, and as such enjoyed
the rights and privileges of [***27] such status, and became subject to the
landlord's regulations, controls and security measures.
[The university], not regarding its duty to the plaintiff as a tenant and
resident of Pfeiffer Hall, failed to take any action to protect its tenant and
resident from the harmful activities of others."
Count IX realleged the allegations in count IV and also
alleged wilful and wanton misconduct.
It is the plaintiff's position that the university, as a landlord, voluntarily
[*362] undertook certain security programs and it was the university's duty to
carry out those programs with reasonable care. The university contends that a
landlord does not owe a tenant a duty to protect the tenant from harm caused by
the intentional or criminal acts of third persons. We agree.
As the university points out, a tenant's complaint against a landlord is
required to set out the existence of a duty owed by the landlord to the tenant,
a breach of that duty and an injury resulting from the breach. (See Martin v.
Usher (1977), 55 Ill. App. 3d 409, 371 N.E.2d 69; Boyd v. Racine Currency
Exchange, Inc. (1973), 56 Ill. 2d 95, 306 N.E.2d 39.) The question of
whether or not a legal duty [***28] exists is one of law and requires that the
occurrence be reasonably foreseeable, more than a mere possibility of
occurrence. ( Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617.)
Generally, the landlord-tenant relationship in and of itself does not create a
duty on the part of a landlord to protect its tenants from harm caused by
intentional or criminal acts of third persons. ( Pippin v. Chicago Housing
Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596; Cross v. Wells Fargo
Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472.) Further, a
landlord's duty is not to insure the safety of his tenants, but to exercise
reasonable care. See generally Williams v. Alfred N. Koplin & Co. (1983),
114 Ill. App. 3d 482, 448 N.E.2d 1042.
In Martin v. Usher (1977), 55 Ill. App. 3d 409, 371 N.E.2d 69, the court
discussed section 315 of the Restatement (Restatement (Second) of Torts sec. 315
(1965)) of Torts, which states that there is no duty to control the conduct of a
third person to such a degree as to prevent him from causing physical harm to
another, unless a "special relationship" exists between the actor and the other.
Sections 314 and 320 of the Restatement list [***29] certain "special
relationships," such as common carrier-passenger, business invitor-invitee, and
innkeeper-guest. (Restatement (Second) [**562] of Torts secs. 314, 320 (1965);
Martin v. Usher (1977), 55 Ill. App. 3d 409, 371 N.E.2d 69.) In Illinois
the landlord-tenant relationship has not been considered a special relationship
which could create the existence of a duty. Trice v. Chicago Housing
Authority (1973), 14 Ill. App. 3d 97, 302 N.E.2d 207; Fancil v. Q.S.E
Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.
While there is no duty in Illinois or at common law upon a landlord to protect
tenants from harm caused by the intentional or criminal acts of third parties,
by contracting with a third party to provide protection or security services,
the landlord may voluntarily assume certain duties. ( Cross v. Wells Fargo
Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472; Carrigan v. New
World Enterprises, Ltd. [*363] (1983), 112 Ill. App. 3d 970, 446 N.E.2d
265.) The cases relied upon by the plaintiff here involved instances where a
duty was imposed upon a landlord who contractually agreed or voluntarily
undertook to provide security to [***30] tenants, but performed the undertaking
negligently. In this case, however, plaintiff does not allege that the
university contractually agreed or promised to provide protection or security
services to the plaintiff. All that is alleged is that the university equipped
its building with security devices and provided security personnel. This does
not rise to the level of a contractual obligation on the part of the university
to provide "protection" from the activities leading to the plaintiff's injuries
in this case. Thus, in its capacity as a landlord, the university had no duty to
protect its tenants from harm caused by intentional or criminal acts of third
parties. Further, the university's duty as a landlord is not to insure the
safety of its tenants, but to exercise reasonable care. Accordingly, the trial
court properly dismissed counts IV and IX of plaintiff's third-amended complaint
We note that in light of our foregoing determination we need not address the
university's waiver argument.
For the foregoing reasons, the judgment of the circuit court of McLean County is
Case No. 4 -- 87 -- 0182
The university brings this separate appeal arguing [***31] that the trial court
erred in finding the settlement between the plaintiff and defendants Jack Wilk
and Phi Gamma Delta Fraternity was made in good faith pursuant to section 2 of
the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, par.
302). Preliminarily, we point out that our decision in case No. 4 -- 87 -- 0126
has rendered the instant appeal by the university moot.
An issue is moot where no actual rights or interests of the parties remain or
where events occur which render it impossible for the reviewing court to grant
effective relief to either party. ( People ex rel. Hartigan v. Illinois
Commerce Com. (1985), 131 Ill. App. 3d 376, 475 N.E.2d 635; George W.
Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 491
N.E.2d 1160.) Events occurring during the pendency of litigation which
"dissipate" the controversy on which the litigation was founded may render the
case moot. ( People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 237,
278 N.E.2d 81.) A reviewing court will dismiss a pending appeal where the court
has notice of facts which have rendered the question moot. People v. Lynn
(1984), 102 Ill. 2d 267, 464 N.E.2d 1031; [***32] Bluthardt v. Breslin
(1979), 74 Ill. 2d 246, [*364] 384 N.E.2d 1309.
As we have affirmed the circuit court's judgment in case No. 4 -- 87 -- 0126,
dismissing with prejudice counts III, IV, VIII, and IX of plaintiff's
third-amended complaint against the university, then no actual interests of the
university remain, rendering this appeal moot.
Accordingly, this appeal is dismissed.
Case No. 4 -- 87 -- 0126 is affirmed; case No. 4 -- 87 -- 0182 is dismissed.
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