Duty to Protect

A possessor of land does not generally owe a duty to protect lawful entrants from criminal attacks by third
parties. Hills v. Bridgeview Little League Assoc., 195 Ill.2d 210, 228-229, 253 Ill.Dec. 632, 745 N.E.2d
1166 (2000). An exception is recognized where the landholder and the entrant stand in a special
relationship with each other that warrants imposing such a duty. Hills, at 228-229, 253 Ill.Dec. 632, 745
N.E.2d 1166.

Illinois Courts recognize four "special relationships" which impose a legal duty to warn or protect a person
from harm: (1) carrier-passenger; (2) innkeeper-guest; (3) business inviter-invitee; and (4) voluntary
custodian-protectee. Osborne v. Stages Music Hall, Inc., 312 Ill.App.3d 141, 147, 244 Ill.Dec. 753, 726
N.E.2d 728 (2000). "The existence of a special relationship does not, by itself, impose a duty upon the
possessor of land * * * Before a duty to protect will be imposed it must also be shown that the criminal
attack was reasonably foreseeable." Hills, at 243, 253 Ill.Dec. 632, 745 N.E.2d 1166. Plaintiff must
establish it was objectively reasonable to expect the incident, not merely that it was conceivable that it
might occur. Osborne, 312 Ill.App.3d at 147, 244 Ill.Dec. 753, 726 N.E.2d 728.

A duty may also arise where the landowner voluntarily undertakes to provide for the security of its entrants.
Vaughn v. Granite City Steel Division, 217 Ill.App.3d 46, 52, 159 Ill.Dec. 951, 576 N.E.2d 874 (1991). In
such cases, a breach of that duty is established where the plaintiff shows the landowner failed to exercise
reasonable care in the voluntary undertaking, and the failure increased the risk of harm to the plaintiff.
Vaughn, 217 Ill.App.3d at 52, 159 Ill.Dec. 951, 576 N.E.2d 874. Where a landlord voluntarily undertakes
to provide security services, is negligent in his performance of the undertaking, and the negligence is the
proximate cause of injury to the plaintiff. Rowe v. State Bank, 125 Ill.2d at 215-16, 126 Ill.Dec. 519, 531
N.E.2d 1358 (and cases cited therein). Thus, although there may be no common law duty to protect others,
when a party agrees to provide security services for another, a duty arises, under the doctrine of voluntary
undertaking, to exercise reasonable care in providing such protection. O'Brien v. City of Chicago, 285
Ill.App.3d 864, 874, 221 Ill.Dec. 134, 142, 674 N.E.2d 927, 935 (1996).

As one court has noted, a "courtesy patrol's main reason for being was to protect both the employees and
the patrons of the club from all types of harm that might befall them on the parking lots." (Emphasis
added.) Urbas v. Saintco, Inc., 264 Ill.App.3d 111, 126, 201 Ill.Dec. 782, 792, 636 N.E.2d 1214, 1224
(1994). In the instant case, there was a stronger indication in that the post orders specifically stated that the
security guard's role was to reduce the risk of assault. The court in Berg v. Allied Sec., Inc., Chicago,
(Ill.App. 1 Dist. 1998) 697 N.E.2d 769, 297 Ill.App.3d 891, stated that the fact that the security company’s
personnel were not police and could not control access to the parking lot did not negate the existence of this
duty. The evidence showed that the attacker fled at the sound of the horn; thus, whether the guards'
presence would have been a sufficient deterrent, in spite of an inability absolutely to control access to the
parking lot and an alleged lack of "authority to intervene" or act as police, is a question for the trier of fact.
Material questions of fact exist as to whether the duty, which included maintaining high visibility and
reducing the risk of assault, was breached and whether, as a proximate cause of any breach, the attack could
have been prevented altogether or plaintiff's injuries reduced.

Cases
In Colombo v. Wal-Mart Stores, Inc., (Ill.App. 5 Dist. 1999) 709 N.E.2d 301, 303 Ill.App.3d 932, a patron
sued department store for injuries that happened when he was knocked over by fleeing shoplifting suspect
who had been detained by store security. The Appellate Court held that once security personnel undertook
the duty of detaining the suspect and escorting him back into the store, they were under a duty to use
reasonable care in carrying out that process. See Phillips v. Chicago Housing Authority, 89 Ill.2d 122,
127-29, 59 Ill.Dec. 281, 431 N.E.2d 1038, 1040-41 (1982) (the failure to properly complete or carry out an
assumed duty imposes liability in the same manner as for dangers affirmatively created during the course of
the assumed undertaking).

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Compare with the case of Brown v. Jewel Cos., 175 Ill.App.3d 729, 125 Ill.Dec. 139, 530 N.E.2d 57
(1988) where the plaintiff was knocked down in a retail store by a fleeing shoplifting suspect who was
being chased by guards. Brown, 175 Ill.App.3d at 731, 125 Ill.Dec. 139, 530 N.E.2d at 58. In that case,
the security personnel had not yet asserted any control over the suspected shoplifter when he began to run.
Security had only confronted him inside the store. Brown, 175 Ill.App.3d at 731, 125 Ill.Dec. 139, 530
N.E.2d at 58, and the court held that "security guards have no duty to refrain from pursuing suspected
shoplifters under the facts alleged." Brown, 175 Ill.App.3d at 734, 125 Ill.Dec. 139, 530 N.E.2d at 59-60.
The court explained that a rule against pursuit would be a substantial encouragement to shoplifting and
would place an unreasonable burden upon the retailer because shoplifters who are stopped will flee whether
they are chased or not. Brown, 175 Ill.App.3d at 734, 125 Ill.Dec. 139, 530 N.E.2d at 59-60. The court
also pointed out that the likelihood of very serious injury is not great and is not increased because of a
guard's pursuit. Brown, 175 Ill.App.3d at 734, 125 Ill.Dec. 139, 530 N.E.2d at 59.

Office tenant brought negligence action against security company after tenant was raped in her office suite
by an unknown attacker. The Appellate Court held that there was insufficient evidence to support tenant's
claim that security company acted or failed to act in some way that allowed an attacker entry to the office
building in light of the fact that the unknown attacker could have entered the building at a time when there
was no security services provided and waited to commit the attack at a later time when there was a guard
on duty. Friedman v. Safe Sec. Services, Inc., (Ill.App. 1 Dist. 2002) 765 N.E.2d 104, 328 Ill.App.3d 37,

Shopping center patrons sued operators for negligence based on alleged failure to provide adequate security
in parking lot where one patron was shot by third party and pushed other patron to ground. The court held
that the patron failed to establish that the inadequate security was the cause of the injuries and damages.
Landeros v. Equity Property and Development, (Ill.App. 1 Dist. 2001) 747 N.E.2d 391, 321 Ill.App.3d 57,

Invasion of Privacy

There are four privacy torts. They are (a) the intrusion upon the seclusion of another, (b) the appropriation
of name or likeness of another, (c) publicity given to private life, and (d) publicity placing a person in a
false light. Lovgren v. Citizens First National Bank, 126 Ill.2d 411, 416, 128 Ill.Dec. 542, 534 N.E.2d 987
(1989), citing Restatement (Second) of Torts §§ 652B through E, at 378-94 (1977). As noted in Lovgren,
the core of the tort of intrusion upon seclusion is the offensive prying into the private domain of another.
Lovgren, 126 Ill.2d at 417, 128 Ill.Dec. 542, 534 N.E.2d 987. Examples of actionable intrusion upon
seclusion would include invading someone's home, illegally searching someone's shopping bag in a store,
eavesdropping by wiretapping, peering into the windows of a private home, or making persistent and
unwanted telephone calls. Lovgren, 126 Ill.2d at 417, 128 Ill.Dec. 542, 534 N.E.2d 987, citing W. Keeton,
Prosser & Keeton on Torts § 117, at 854-55 (5th ed.1984).

In Benitez v. KFC Nat. Management Co., (Ill.App. 2 Dist. 1999) 714 N.E.2d 1002, 305 Ill.App.3d 1027, a
former female employees of fast-food restaurant sued coworkers, supervisor, and restaurant for intentional
infliction of emotional distress and invasion of privacy based on alleged spying on the female employees
through hole in ceiling of women's bathroom. The trial court held a bench trial and entered judgment for
plaintiffs.

Negligent Hiring

To establish negligent hiring, a plaintiff must prove: (1) that the employer knew or should have known that
the person hired had a "particular" unfitness for the job that would create a foreseeable danger to others;
and (2) this particular unfitness was the proximate cause of the plaintiff's injury. See Mueller v.
Community Consolidated School District 54, 287 Ill.App.3d 337, 341-42, 222 Ill.Dec. 788, 678 N.E.2d
660 (1997); Strickland v. Communications and Cable of Chicago, Inc., (Ill.App. 1 Dist. 1999) 710 N.E.2d
55, 304 Ill.App.3d 679.
Cases

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In Easley v. Apollo Detective Agency, Inc., 69 Ill.App.3d 920, 26 Ill.Dec. 313, 387 N.E.2d 1241 (1979), an
armed security guard used a passkey to enter the plaintiff's apartment and then assaulted her. The plaintiff
sought to hold the employer detective agency liable on two theories. Count I alleged that the detective
agency's conduct in hiring the offending security guard was willful and wanton. Count II alleged that, by
statute, the agency was strictly liable for its employee's conduct, citing Ill.Rev.Stat.1975, ch. 38, par. 201--
10(b). The evidence at trial showed that the guard had a criminal history and had been discharged by two
previous employers for misconduct, including "making eyes" at a female employee, abandoning his post,
and sleeping on the job. A jury found the detective agency liable under count I, and a directed verdict for
the plaintiff was entered on count II.

The Appellate Court held, based on the evidence, that: a jury could have properly found the security guard
to be unfit; a reasonably adequate investigation would have determined this fact; the detective agency's
investigation exhibited a reckless disregard for the plaintiff's safety; and the inadequate investigation was
the proximate cause of the plaintiff's injury. Easley, 69 Ill.App.3d at 932, 26 Ill.Dec. 313, 387 N.E.2d
1241.

In Giraldi v. Community Consolidated School District No. 62, 279 Ill.App.3d 679, 216 Ill.Dec. 272, 665
N.E.2d 332 (1996), the plaintiff, who was sexually molested by a school bus driver, sued the bus company
and the school district for negligently hiring, investigating and supervising the bus driver. The driver had a
history of arriving late to work. The trial court refused to submit the negligent hiring count to the jury. We
affirmed, holding that the only conduct the bus company could have been warned of, had it investigated the
driver's past conduct, was a tendency to be late. The Appellate Court concluded that "[t]here [was] no
factual or logical relationship between that knowledge and the attack on [plaintiff]." Giraldi, 279
Ill.App.3d at 692, 216 Ill.Dec. 272, 665 N.E.2d 332.

In Strickland v. Communications and Cable of Chicago, Inc., (Ill.App. 1 Dist. 1999) 710 N.E.2d 55, 304
Ill.App.3d 679, a cable television customer, who was sexually assaulted in her home by cable installer,
brought claims against cable television provider and cable installation company for negligently hiring the
installer. The Appellate Court held that the customer did not establish that defendants' failure to conduct
pre-hiring investigation of installer's criminal background was the proximate cause of the customer's
injuries.

In Malorney v. B & L Motor Freight, Inc., 146 Ill.App.3d 265, 100 Ill.Dec. 21, 496 N.E.2d 1086 (1986),
the plaintiff was raped and beaten by a truck driver whose prehiring record showed that he had a history of
violent sex crimes, including raping two teenagers while driving a truck for another company. Likewise, in
Mueller v. Community Consolidated School District 54, 287 Ill.App.3d 337, 222 Ill.Dec. 788, 678 N.E.2d
660 (1997), the plaintiff, a junior high school student, was sexually assaulted by a wrestling coach whom
the defendant school district had employed even though he had a criminal background exhibiting "moral
turpitude." See also Carter v. Skokie Valley Detective Agency, Ltd., 256 Ill.App.3d 77, 79, 195 Ill.Dec.
138, 628 N.E.2d 602 (1993) (employee murdered, raped and kidnapped plaintiff's decedent); Bryant v.
Livigni, 250 Ill.App.3d 303, 305, 188 Ill.Dec. 925, 619 N.E.2d 550 (1993) (employee physically attacked
child); Gregor v. Kleiser, 111 Ill.App.3d 333, 338-39, 67 Ill.Dec. 38, 443 N.E.2d 1162 (1982) (employee
physically attacked plaintiff).

Employer Liability For Sexual Molestation

Employer are not be vicariously liable for the sexual misconduct of an employee where the conduct is
beyond the scope of the employment and the employer was not negligent in hiring the employee. Stern v.
Ritz Carlton Chicago, (Ill.App. 1 Dist. 1998) 702 N.E.2d 194, 299 Ill.App.3d 674, (hotel guests sexually
assault guests during massages); Deloney v. Board of Education, 281 Ill.App.3d 775, 217 Ill.Dec. 123, 666
N.E.2d 792 (1996) (truant officer allegedly committed aggravated criminal sexual assault); Randi F. v.
High Ridge YMCA, 170 Ill.App.3d 962, 120 Ill.Dec. 784, 524 N.E.2d 966 (1988) (day care worker beat
and fondled child); Webb v. Jewel Companies, Inc., 137 Ill.App.3d 1004, 92 Ill.Dec. 598, 485 N.E.2d 409
(1985) (security guard searched and fondled girl customer); Hoover v. University of Chicago Hospitals,
51 Ill.App.3d 263, 9 Ill.Dec. 414, 366 N.E.2d 925 (1977) (doctor had carnal knowledge of patient against

3
her will). However, sexual activity is totally outside the job duties of a truant officer, day care worker or
security guard. While there may be cases where a doctor will touch the genitals or breasts of a patient,
Hoover involved alleged forced sexual intercourse based on a pretext of treatment. Hoover, 51 Ill.App.3d
at 264, 9 Ill.Dec. 414, 366 N.E.2d at 927.

Malicious Prosecution

To state a cause of action for malicious prosecution, the plaintiff must allege facts showing " '(1) the
commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the
termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such
proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff.' " ( Joiner v. Benton
Community Bank (1980), 82 Ill.2d 40, 45, 44 Ill.Dec. 260, 411 N.E.2d 229, quoting Ritchey v. Maksin
(1978), 71 Ill.2d 470, 475, 17 Ill.Dec. 662, 376 N.E.2d 991.) Meerbrey v. Marshall Field and Co., Inc.,
(Ill. 1990) 564 N.E.2d 1222, 139 Ill.2d 455.

In order to establish a malicious prosecution action, plaintiff must prove: (1) the commencement or
continuation of a legal proceeding by the defendants; (2) the termination of the proceeding in favor of the
plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5)
damages resulting to the plaintiff. Swick v. Liautaud, 169 Ill.2d 504, 512, 215 Ill.Dec. 98, 662 N.E.2d
1238 (1996). Probable cause to arrest similarly defeats any claim for false arrest. Lappin v. Costello, 232
Ill.App.3d 1033, 1042, 174 Ill.Dec. 114, 598 N.E.2d 311 (1992). A defendant has probable cause to arrest
if, at the time of the arrest, after pursuing reasonable avenues of investigation, the defendant knew facts that
would have led a person of ordinary prudence to entertain an honest and strong suspicion that the person
arrested was guilty. Lappin, 232 Ill.App.3d at 1042, 174 Ill.Dec. 114, 598 N.E.2d 311. Mere suspicion of
guilt is not sufficient. Lappin, 232 Ill.App.3d at 1044, 174 Ill.Dec. 114, 598 N.E.2d 311. Kincaid v. Ames
Dept. Stores, Inc., (Ill.App. 1 Dist. 1996) 670 N.E.2d 1103, 283 Ill.App.3d 555,

In Gaszak v. Zayre of Illinois, Inc., (Ill.App. 1 Dist. 1973) 305 N.E.2d 704, 16 Ill.App.3d 50, the plaintiff,
was shopping at the store of defendant Zayre. While in the store, an encounter took place with the store
manager, and a store security guard. As the result of this encounter, plaintiff filed a three-count complaint
charging false arrest, assault and battery, and malicious prosecution.

The security guard was called by the plaintiff as an adverse witness. He testified that he was employed by
Zayre as an undercover agent to prevent employee shoplifting and had no credentials from any police or
governmental agency; that he stopped the plaintiff on November 19, 1963 at approximately 10:00 P.M.
when she was attempting to leave the store through the north door, whereupon he asked her to use the west
exit since the north exit was locked; that plaintiff, instead of proceeding to the west exit, turned east, re-
entered the store through one of the vacant check out aisles, walked past the east end of the counters in a
southerly direction until she reached the middlemost check out aisle, where she took some articles from
under her coat and placed them on the display counter in front of the cash register. At this point plaintiff
was directly east of the point where the witness was standing. Spranzo identified the articles as baby
apparel. He further testified that plaintiff then continued walking in a southerly direction to the last check
out counter where she stood behind three or four customers, waited her turn, and made a purchase; that he
then approached plaintiff just as she was leaving the check out aisle and stated that the manager would like
to see her in his office if she didn't mind; that plaintiff said 'Okay' and Spranzo escorted plaintiff in a
'gentlemanly fashion,' by placing his hand beneath her forearm, to defendant Barnes' office; that he had no
other conversation with plaintiff before entering the manager's office. The security guard then testified that
he could not recall all that was said in defendant Barnes' office, but did remember asking plaintiff if she had
'ever done anything like this before' intending to find out whether she had ever stolen anything; that
plaintiff replied, in essence, that she did not know what he was talking about and began to cry. The
security guard then mentioned that, if necessary, he would get a police matron, whereupon plaintiff opened
her coat in such fashion that the buttons popped off; that plaintiff refused to tell the defendants her name
but, instead, threw her wallet on the desk. The security guard guessed that they were in defendant Barnes'
office for approximately ten minutes and stated that the only other conversation was plaintiff's statement
that her husband made $200 per week, she was a Catholic, and did not need to steal.

4
The security guard further testified that, after plaintiff left the office, she began to yell 'What kind of nuts
are yous (sic) that are working here?' and continued to holler until she reached the exit door; that he did not
hear the plaintiff use any profane or vulgar language that evening in the store.

The security guard then stated that, while he stood in front of the store, plaintiff slowly drove her car past
the store, blowing the horn for one-half minute or so, yelling vulgar words, and hollering out loud; that he
subsequently went to the police station and filed a complaint for disorderly conduct against plaintiff based
on her conduct inside the store as well as in the parking lot.

Barnes testified for the plaintiff as an adverse witness. His testimony was essentially the same as that of
defendant the security guard. The only substantial difference in The store manager' account of the incident
occurred when he stated that, after plaintiff was told to use the west exit, she re-entered the store and
proceeded all the way down to the first or second check out aisle where she pulled out an article and placed
it on the cashier's counter.

Plaintiff testified that, after visiting a laundromat, she intended to stop at a nearby drug store to obtain a
prescription for a sick child. On the way she stopped at the nearby Zayre store and, while in the Zayre
store, she picked up a pair of baby pants and went to the only check out line that remained open, and, as she
waited in line, she realized that if she stayed in the Zayre store any longer, the drug store would close and
she would be unable to have the prescription filled; that she then proceeded to the door, realized she still
had the pants in her hand, placed them on a counter, and continued toward the north door; that a man called
to her saying that that door was closed and instructed her to 'go back out through the registers and go out
the front door'; that she then picked up the baby pants, proceeded to the check out counter and paid for the
item; that, as she was leaving, The security guard grabbed her saying he had some questions to ask her,
whereupon holding her like she had handcuffs on, The security guard escorted her to the office; that a
discussion followed between herself, The security guard, and The store manager; that The store manager
searched her coat; that she opened her suit jacket to show she was concealing nothing, and after about one-
half hour she was allowed to leave.

Plaintiff further testified she was crying and upset as she left the store, proceeded to her car in the parking
lot and, as she was driving past the front of the store, saw The security guard standing outside, whereupon
she blew her automobile horn for about three seconds; that she did not holler or use vile language; that as
she was leaving the parking lot the police stopped her and after a brief discussion, a policeman offered to
drive her home which offer she declined.

On the following Saturday at her home, a policeman of the Village of Bridgeview arrested her for
disorderly conduct. Bond was posted and later the case was transferred from Bridgeview to Lyons.
Plaintiff testified she appeared in the Village of Lyons court three times and upon the failure of The
security guard to appear, the case was dismissed.

According to plaintiff, after her arrest, she detected a change in the attitude of the neighbors toward her and
the children. A neighbor testified that after the police car was at plaintiff's house the reaction of the
neighborhood was to treat the plaintiff coldly and stay away.

Rebecca Livigni, an employee of Zayre's, testified that on the night in question, at about 10:00, she had
heard a woman yelling in the manager's office; that after plaintiff left the store, for about ten seconds she
heard a car horn blowing and the horn stopped when a squad car pulled up next to plaintiff's car.

Edward Vopelak, a police officer for the Village of Bridgeview, testified he was in a car with the police
chief, heard the horn, stopped plaintiff who was upset and crying, that they talked to her about five to eight
minutes before she drove off; that The security guard then told the police he stopped plaintiff because he
thought she was a shoplifter but found nothing; that The security guard was disturbed about the horn
blowing and wanted to sign a complaint against her, and that The security guard proceeded to the police
station and did sign a complaint. The witness further testified that the police did not file any charges
against the lady.

5
The complaint, sworn to by the security guard, which was the basis for the arrest of plaintiff, was for the
alleged offense of disorderly conduct. The security guard testified that The store manager was with him at
the Bridgeview police station when the complaint was signed. On the other hand, The store manager
testified he did not go to the police station.

In that case the court held that the plaintiff was entitled to a trial on the complaint and upheld the jury
verdict for “malicious prosecution.”

False Arrest & False Imprisonment

False imprisonment is an unreasonable restraint of an individual's liberty, against his will, caused or
procured by the defendant. (Hajawii v. Venture Stores, Inc. (1984), 125 Ill.App.3d 22, 80 Ill.Dec. 461,
465 N.E.2d 573; Dutton v. Roo-Mac, Inc. (1981), 100 Ill.App.3d 116, 55 Ill.Dec. 458, 426 N.E.2d 604.)
The essential elements of a cause of action for false arrest or false imprisonment are that the plaintiff was
restrained or arrested by the defendant, and that the defendant acted without having reasonable grounds to
believe that an offense was committed by the plaintiff. See Karow v. Student Inns, Inc. (1976), 43
Ill.App.3d 878, 2 Ill.Dec. 515, 357 N.E.2d 682; Shelton v. Barry (1946), 328 Ill.App. 497, 66 N.E.2d 697;
R. Michael, 3 Illinois Practice § 24.7, at --- n. 5; see also Fort v. Smith (1980), 85 Ill.App.3d 479, 484, 40
Ill.Dec. 886, 407 N.E.2d 117 (Jones, P.J., dissenting).

720 ILCS 5/16A-5

Formerly cited as IL ST CH 38 ¶ 16A-5

WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED

CHAPTER 720. CRIMINAL OFFENSES
CRIMINAL CODE
ACT 5. CRIMINAL CODE OF 1961
TITLE III. SPECIFIC OFFENSES
PART C. OFFENSES DIRECTED AGAINST PROPERTY
ARTICLE 16A. RETAIL THEFT

Current through end of the 2001 Regular Session of the 92nd General Assembly

5/16A-5. Detention

§ 16A-5. Detention. Any merchant who has reasonable grounds to believe that a person has
committed retail theft may detain such person, on or off the premises of a retail mercantile establishment, in
a reasonable manner and for a reasonable length of time for all or any of the following purposes:

(a) To request identification;

(b) To verify such identification;

(c) To make reasonable inquiry as to whether such person has in his possession unpurchased
merchandise and, to make reasonable investigation of the ownership of such merchandise;

(d) To inform a peace officer of the detention of the person and surrender that person to the
custody of a peace officer;

6
 (e) In the case of a minor, to immediately make a reasonable attempt to inform the parents,
guardian or other private person interested in the welfare of that minor and, at the merchant's discretion, a
peace officer, of this detention and to surrender custody of such minor to such person.

A merchant may make a detention as permitted herein off the premises of a retail mercantile
establishment only if such detention is pursuant to an immediate pursuit of such person.

A merchant shall be deemed to have reasonable grounds to make a detention for the purposes of
this Section if the merchant detains a person because such person has in his possession either a theft
detection shielding device or a theft detection device remover.