Case Law Update: Criminal Act Of Third Party – MSJ Granted & Upheld For Restaurant

The Illinois Appellate Court recently issued a ruling regarding criminal acts of third parties that will be very useful in defending retail, restaurant and hospitality companies for years to come. The following is a summary of the opinion and a copy of the opinion is attached:

In Witcher v. 1104 Madison St. Restaurant, 2019 IL App (1st) 181641, the plaintiff’s-decedent was stabbed in the neck and killed while at a restaurant and lounge in Chicago.  The Estate filed a wrongful death suit against the owner of the restaurant and alleged the restaurant failed to provide proper security.

Judge Patricia O’Brien Sheahan granted the restaurant’s motion for summary judgment, ruling the murder was not reasonably foreseeable and the Estate appealed.  The First District Appellate Court affirmed the ruling.

Summary Of Incident

The decedent was at the restaurant with a woman and according to the opinion, she was “referred to as his wife.” (Note: There was nothing further about this in the opinion but I am assuming this means she was not really his wife and the Administrator of the Estate is probably his real wife.  That’s a bummer!)

As the decedent was leaving, he spoke with a man who was unknown to the restaurant owner or other patrons.  The discussion was viewed as cordial until, suddenly, the unknown man appeared to slap the decedent’s face.  (Note: Does this have anything to do with the girlfriend – we don’t know but that is what we are all thinking isn’t it!).

No weapons were seen by anyone.  The decedent and unknown man then left the restaurant.  Soon thereafter, the decedent was found outside the restaurant bleeding heavily from his neck and ultimately died from the injury.  The unknown man quickly left in a car.  He was never identified or apprehended.  (Note: But what about the girl???)

Prior Incidents At The Restaurant & Security

The restaurant experienced some minor disturbances in the years before the stabbing and there were some public complaints made about the patrons of the restaurant by the community during the three years before the stabbing.  The restaurant owner hired security for Friday and Saturday nights because of the increase in customers.  In fact, on the night of the stabbing (a Wednesday), there were only approximately 30 customers, compared to 80-100 on a typical weekend night. 

The plaintiff produced a Chicago Police Dept. Incident Check Report for a 5 ½ year period prior to the incident.  According to the report, during that time the following calls were made to the police from the address of the restaurant (which also contained 4 apartments):  11 battery incidents; 1 assault; 5 thefts; 3 motor vehicle thefts.  Of those 20 incidents, only one took place on a Wednesday, 13 occurred on other weeknights and 6 occurred on the weekend. 

Appellate Court’s Analysis – Murder Was Not Reasonably Foreseeable

The issue in this case was whether the restaurant had a duty to protect its patron from the criminal act of a third party. As a general rule, there is no duty imposed on landowners to protect others from criminal attacks by third persons on their property. Popp v. Cash Station, Inc., 244 Ill.App.3d 87, 92 (1992). However, the owner of a restaurant or bar might have a duty to protect its patrons against criminal attacks on the property if circumstances such as prior incidents give the owner knowledge of the danger facing the patrons. Cooke v. Maxum Sports Bar & Grill, Ltd., 2018 IL App (2d) 170249, ¶ 55; Ignarski v. Norbut, 271 Ill.App.3d 522, 526 (1995). In determining whether such a duty exists in a given case, the question is whether the criminal activity was reasonably foreseeable such that the business should be held to have a duty to protect its patrons from such activity. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 243 (2000).

Before a duty to protect will be imposed on a business, the court must also consider: (1) whether the criminal attack was reasonably foreseeable, (2) the likelihood of the injury, (3) the magnitude of the burden to guard against the injury, and (4) the consequences of placing that burden upon the possessor. Marshall v. Burger King Corp., 222 Ill.2d 422, 436-37 (2006).

In this case, the court ruled the evidence was clear that the attack was a sudden, unforeseeable and targeted murder.  The unknown man entered the restaurant, did not order a drink, spoke directly to the decent, stabbed him in the neck and then left the premises.  There was no evidence the murder related to anything that happened at the restaurant or that it occurred because of the decedent’s presence at the restaurant.  There was also no evidence any event even remotely similar to this crime ever taking place at the restaurant.  Therefore, the murder was not reasonably foreseeable and the defendant did not have a duty to protect the decedent. (Note: I highlighted the above sentence because it will be used by defense lawyers for years to come – it is a great summation of what the courts should be looking at.)

After making its ruling, the court analyzed reasonable foreseeability law and why the evidence submitted by the plaintiff was insufficient to prove the attack was foreseeable to the defendant.  To establish that a restaurant has a duty to protect its customers from criminal acts of third parties, the criminal act at issue “must have resulted from the same risk as was present in the prior incidents of criminal activity.” Ignarski v. Norbut, 271 Ill.App.3d 522, 527 (1995).  The court noted that according to witnesses, they had never seen anyone in the restaurant with a weapon, there were never fights and on the night of the incident the crowd was “mature and jovial.”

To support her case, the plaintiff introduced only the police reports regarding the 20 prior calls to the restaurant address in the 5 ½ years before the incident.  However, the court noted that none of the documented incidents shared the characteristics of the murder at issue so as to make the murder reasonably foreseeable. Generalized allegations of prior crimes do not suffice to establish a duty on the part of business to protect patrons. Popp, 244 Ill.App.3d at 93.  The court went on to state that the print-out of prior police calls to the property was the very definition of “generalized allegations of prior crimes” because they lack important information  about the specific location of the incident, who made the call or the disposition of the incident.

The court noted that even though there had been “crimes” at or near restaurant in the years prior to the murder, those incidents were not of the same character of the crime at issue and do not render the crime in this case to be foreseeable. See Kolodziejzak v. Melvin Simon & Associates, 292 Ill.App.3d 490, 496-97 (1st Dist. 1997).  Even if the restaurant should have been able to foresee “crime” occurring generally, there is no evidence that it should have foreseen this crime occurring. See Ignarski, 271 Ill. App. 3d at 527.

The plaintiff argued that because the restaurant had security on Friday and Saturday nights, it knew of the risk of crime and should have had security on Wednesday night as well, but the court did not agree.  The facts showed only one of the 20 incidents presented by the plaintiff took place on a Wednesday night and the owner testified he hired security on those nights because there were typically three times the number of patrons.  The court found the evidence supported that Wednesday nights at the restaurant were “historically calm” and weeknight crowds did not require security.

In sum, the appellate court ruled there was no evidence the crime was reasonably foreseeable because there was no evidence in the record that any event even remotely similar to this crime had ever occurred at the restaurant. The evidence of general disturbances submitted in the incident list was insufficient to create a triable question because it consists of general, unsubstantiated reports of “crimes.” The court noted that no matter how favorably it read the incident list in plaintiff’s favor, there was nothing in the report that could have led the restaurant to foresee that a targeted stabbing of one of its patrons was likely to occur. Therefore, the defendant could not be charged with having committed a wrong for failing to take steps to prevent this attack which it could not be fairly held to have anticipated in any way.

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