                                       2015 IL App (1st) 133735

                                                                                FOURTH DIVISION
                                                                                    April 16, 2015


No. 1-13-3735

JANE DOE and JOHN DOE,                                 )                       Appeal from the
                                                       )                       Circuit Court of
        Plaintiffs-Appellants,                         )                       Cook County.
                                                       )
v.                                                     )                       No. 11 L 1605
                                                       )
THE UNIVERSITY OF CHICAGO MEDICAL                      )                       Honorable
CENTER, a/k/a University of Chicago Hospitals,         )                       Jeffrey Lawrence,
and THE UNIVERSITY OF CHICAGO,                         )                       Judge Presiding.
                                                       )
        Defendants-Appellees.                          )

        JUSTICE ELLIS delivered the judgment of the court, with opinion.*
        Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and
        opinion.

                                                OPINION

¶1      Plaintiff Jane Doe was beaten and raped by an unknown assailant as she walked to her car

after her night shift at the hospital operated by defendants, the University of Chicago Medical

Center and the University of Chicago. Plaintiff sued defendants for negligence and breach of

contract, alleging they had voluntarily and contractually assumed a duty to provide transportation

or an escort to and from plaintiff's parked vehicle, as well to provide security desks manned by

security personnel at all hours of the night that could call for such transportation or escort. She

further alleged that, on the night she was attacked, she first tried to request these services at the

security desk in the lobby of defendants' Goldblatt Pavilion, but it was unmanned, prompting

plaintiff to set out alone on foot to reach her vehicle.




*This case was recently reassigned to Justice Ellis.
No. 1-13-3735


¶2     Defendants filed a motion to dismiss pursuant to section 2-619 of the Code of Civil

Procedure (735 ILCS 5/2-619 (West 2012)) and attached an affidavit of defendants' director of

public safety and security. The trial court granted defendants' motion to dismiss with prejudice.

The court first held that defendants did not breach their promise to provide certain security

services because plaintiff did not request them on the night in question, despite having the option

of using a cell phone, a security phone, or an emergency phone outside the building to do so.

Second, the court held that defendants owed no duty to plaintiff with regard to a criminal assault

by a third person off of defendants' premises. Plaintiff now appeals. For the reasons that follow,

we reverse and remand.

¶3                                I. FACTUAL BACKGROUND

¶4     A section 2-619(a)(9) motion to dismiss admits all well-pleaded allegations in the

complaint and, for purposes of this appeal, we also take them as true. Village of Bloomingdale v.

CDG Enterprises, Inc., 196 Ill. 2d 484, 486 (2001); Fireman's Fund Insurance Co. v. SEC

Donohue, Inc., 176 Ill. 2d 160, 161 (1997). Plaintiff's pertinent factual allegations follow.

¶5     Defendants operated a hospital in Chicago, where plaintiff had been employed as a

phlebotomist since May 2008. Several months after she started, defendants asked plaintiff to

work the night shift. Defendants knew that the area around the hospital was unusually dangerous

and that a significant amount of violent crime occurred around that area. Defendants operated a

program called SafeRide, which was a service designed to provide its faculty, staff, and students

with safe transportation in the area during late night and early morning hours within a designated

area. That area included all of Midway Plaisance, though it was not defendants' property.

Defendants also offered a security personnel escort service, whereby defendants' security




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personnel, upon request, would walk users to their destination within a designated area that

included the park in the 1100 block of 59th Street and all of Midway Plaisance.

¶6     In exchange for plaintiff's agreement to work the night shift, defendants "promised they

would provide personnel and services to get her to and from her parked vehicle safely." They

"expressly promised" her that: (1) there would be adequate parking in close proximity to the

hospital; (2) the areas where plaintiff parked and walked to and from her vehicle would be well

lit; (3) defendants would provide SafeRide and escort services to transport plaintiff to and from

her parked vehicle; and (4) defendants would provide security desks manned by security

personnel at all hours of the night so that plaintiff could request said services. These promises

were made on numerous occasions during plaintiff's employment by several of defendants'

agents and employees, including Robin Kurjurna-Mills, Alicia Dillard, and John Walker, who

were all supervisors in the phlebotomy department. Defendants voluntarily made these promises

and voluntarily offered these services because they recognized the services were necessary to

protect their employees who worked at night. Plaintiff agreed to work the night shift in reliance

on these promises.

¶7     Defendants specifically instructed plaintiff to obtain transportation to her vehicle by

approaching security personnel at any security desk and asking the personnel to call for a

SafeRide pick-up and drop-off. There was a security desk in the lobby of defendants' Goldblatt

Pavilion. According to plaintiff, defendants promised to provide security personnel stationed at

security desks, including the security desk in the lobby of the Goldblatt Pavilion, at all times

during the night to call for SafeRide transportation. To obtain a security personnel escort to and

from her vehicle, defendants specifically instructed plaintiff to approach security personnel at

any security desk, which included the security desk in the Goldblatt Pavilion.



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¶8     On February 16, 2009, plaintiff drove to work and parked her vehicle on Midway

Plaisance, which was several blocks from defendants' hospital, because no closer and safer

parking spots were available. At approximately 9 p.m., plaintiff wanted assistance in reaching

her vehicle. As she had been instructed to do, plaintiff went to the security desk in the lobby of

Goldblatt Pavilion, but there were no security personnel at the desk as defendants had promised.

Nor were there security personnel in the lobby, the nearby hallways, or anywhere in the vicinity.

Plaintiff went to use the restroom, hoping that when she returned there would be security

personnel at the desk. She returned and waited for 10 more minutes, but no security personnel

arrived. Concluding that no security personnel were available to assist her, she left the building

alone. As plaintiff was walking through an inadequately-lit public park on the way to reach her

vehicle, she was beaten and raped by an unknown individual.

¶9                             II. PROCEDURAL BACKGROUND

¶ 10                                       A. Complaint

¶ 11   The fifth amended complaint seeks relief in four counts. In count I, plaintiff seeks

damages for defendants' alleged negligence. Plaintiff alleges that defendants voluntarily assumed

a duty to provide personnel and services to get her safely to and from her vehicle when she

worked the night shift but failed to perform that voluntary undertaking. In count III, plaintiff

alleges that defendants' promises to plaintiff resulted in a contract that defendants breached when

it failed to provide these safety services on the night in question. Counts II and IV are loss-of-

consortium counts brought by plaintiff's husband, John Doe, based on the same theories of

negligence and breach of contract, respectively. 1

¶ 12                  B. Defendants' Section 2-619(a)(9)Motion to Dismiss
       1
         Although both Jane Doe and her husband, John Doe, are plaintiffs in this action, for the
sake of clarity we shall use the term “plaintiff” solely to refer to Jane Doe. Likewise, for the sake
of brevity, we will refer to the fifth amended complaint as simply the “complaint.”
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¶ 13   Defendants filed a motion to dismiss the complaint under section 2-619 of the Code of

Civil Procedure (735 ILCS 5/2-619 (West 2012)). Defendants first argued that they did not

breach their duty to plaintiff—arising either under a voluntary undertaking or contract—because

plaintiff did not request SafeRide transportation or otherwise engage defendants' security

services on the night in question, despite having the opportunity to do so. Defendants asserted

that plaintiff's allegations that defendants had a legal and contractual duty to man the security

desk at the Goldblatt Pavilion security desk 24 hours a day were fatally flawed because "there is

no legal duty to do so and no promise was made to her in such a regard." As a second basis for

dismissal, Defendants argued that they had no duty to protect plaintiff from the criminal acts of

an unknown third-party that occurred off their property.

¶ 14   In support of their first argument, defendants attached the affidavit of Rodney Morris, the

director of public safety and security at the University of Chicago Medical Center. Mr. Morris

was then deposed by plaintiff. Plaintiff included a copy of Mr. Morris's deposition in her

response to the motion to dismiss.

¶ 15                              C. Rodney Morris's Testimony

¶ 16   Morris testified that there are 24 interconnected buildings that make up the University of

Chicago's medical complex. The hospital has security personnel working 24 hours a day, 7 days

a week, including on February 16, 2009. The building where plaintiff visited the security desk on

the night in question—Goldblatt Pavilion—is one of five buildings located at "the back end of

the hospital." During the time period at issue (2009) and the time shift at issue (3 p.m. to 11

p.m.), there was only one roving security officer on duty in those five buildings. That officer

could respond to any calls for service but otherwise was spread around those five buildings

without a specific assignment at a specific time.



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¶ 17   Morris testified that Goldblatt Pavilion has one security desk. Since 1990 and continuing

through the time of plaintiff's attack in 2009, the security desk at the Goldblatt Pavilion was

manned only from 7:30 a.m. to 3:20 p.m. on Monday through Friday, not around the clock as

plaintiff alleged, in her complaint, she had been promised. Goldblatt Pavilion has a house phone

in the corridor directly behind the security desk. Moreover, without having to go outside, a

person in Goldblatt Pavilion could walk to either the adult emergency room entrance or the

Bernard Mitchell entrance, both of which had security desks manned at all hours. (The distance

to those other security desks, or the time it would take to reach them, is not found in the record.)

¶ 18   Morris described defendants' SafeRide and escort services. He stated that SafeRide

transportation services were available after 9 p.m. He described SafeRide as a strictly on-call

service: "That means you would call in. We ask you where you are, where you are going." To

use the SafeRide service, an employee would pick up a phone, call the medical communications

center, and request use of the service. Because there was only one SafeRide bus, the employee

might have to wait for service if the bus was already transporting someone else.

¶ 19   As for the escort service, Morris stated that it was provided in conjunction with the

University of Chicago police. An employee who wanted to use the service could pick up a phone

and call the public safety dispatch center to request an escort. A police officer would arrive and

follow the person to his or her destination.

¶ 20   Morris stated that the above information about defendants' SafeRide and escort services

was disseminated to employees at the new employee orientation. Each employee was given a

"common sense pamphlet," which explained how to call for SafeRide and escort services. In

addition, extra "common sense pamphlets" were left at various entry points to the medical center.

The information was also available online. Furthermore, the house phone in the Goldblatt



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Pavilion lobby had a placard above it that listed the phone number for the public safety dispatch

center.

¶ 21      Morris admitted that he did not have any personal knowledge as to whether plaintiff

received this information. He also did not know whether plaintiff was promised that the

Goldblatt Pavilion security desk would be manned at all hours of the night, as she alleged in her

complaint, nor did he know what plaintiff might have been promised about parking availability

or about lighting conditions on the way to her parked car.

¶ 22      Morris additionally stated that outside the entrance to the Goldblatt Pavilion, there was an

emergency call box that had been put in place by the University police department. The box was

labeled with the words "emergency phone" in big block letters and contained a red button. Once

a person pushed the button, the speaker on the box would turn on and connect the person with

the University police department. Morris stated that a person could use that call box to request

SafeRide or escort services, although it was not the preferred method of doing so.

¶ 23                             D. Plaintiff's Response and Affidavit

¶ 24      In response to defendants' section 2-619 motion to dismiss, plaintiff argued that Morris's

affidavit was improper support for a section 2-619 motion because it merely offered to contradict

the factual allegations in the complaint. She argued that neither defendants' motion to dismiss nor

Morris's affidavit asserted any "affirmative matter" that defeated her claims as required in a

section 2-619 motion. Plaintiff additionally argued that Morris's affidavit and deposition actually

supported her claim because Morris confirmed that the Goldblatt Pavilion security desk was not

manned on the night in question, and he admitted that he had no personal knowledge of what

plaintiff had been promised in regards to safety services.




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No. 1-13-3735


¶ 25    Plaintiff also attached her own affidavit. In that affidavit, plaintiff first swore that all of

the allegations in her fifth amended complaint were true and accurate. Second, she reaffirmed

that she was promised by multiple staff members in defendants' employ that all security desks,

including the Goldblatt Pavilion security desk, would be manned with security personnel at all

times during the night shift. Third, she swore that multiple staff members instructed her that in

order to obtain SafeRide transportation or a security escort during the night shift, she should

approach the security personnel manning a security desk and request the service that she desired.

¶ 26    Fourth and finally, plaintiff addressed an issue that was not mentioned in her complaint—

the availability of phones, either her own cell phone or the university phones, to call for

transportation or escort services. On this point, plaintiff testified as follows:

                "No one ever instructed me to use my cell phone or any University of

                Chicago Medical Center house phone to utilize the SafeRide program or

                security escort service. In fact, I was specifically instructed by Defendants'

                staff members not to call in order to request the use of either service."

¶ 27                                    E. Trial Court's Ruling

¶ 28    On July 31, 2013, the trial court heard arguments on defendants' section 2-619 motion to

dismiss. Very early on in the hearing, the trial judge made it clear that he was treating this

motion "as a motion for summary judgment *** because 2-619 is analogous to a motion for

summary judgment."

¶ 29    Later, when discussing defendants' alleged promises to plaintiff that formed the

allegations of a voluntary undertaking or contract, the court demanded proof in an evidentiary

record, refusing to consider the allegations of the complaint:




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                 "MR. LANE [plaintiff's counsel]: What I'm saving, your Honor, is that

       [defendants] said to [plaintiff], if you work here, [plaintiff], we're going to provide you

       with parking that's in close proximity.

                 THE COURT: Where is that in the record?

                 MR. LANE: It's in the complaint.

                 THE COURT: Well, where is that in the record? Where is that in the evidentiary

       record?

                 ***

                 MR. LANE: No, but the point is this—and we are the pleading stage, and our

       facts need to be taken as true—

                 THE COURT: No. No. We're not at the pleading stage here, sir. This is a motion

       for—this is a 2-619 motion ***."

¶ 30   Near the end of the argument, the trial court again noted that plaintiff had failed to

establish an evidentiary record for the promises alleged in the complaint:

                 THE COURT: [I]t's clear to me—it's clear to me, Mr. Lane, that at this stage of

       the proceedings you are unable to show me a promise, anything which remotely

       approaches the scope that you're claiming in the complaint. It's not there. So what you

       need—

                 MR. LANE: Wait. In the complaint?

                 THE COURT: It's not there in the evidentiary record. ***

                 ***




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                MR. LANE: The position that we have is that in this particular case[,] the

       University of Chicago promised that they would get her to and from her vehicle. This

       parking spot where she was was a couple of blocks—

                THE COURT: Sir, that—that statement is simply not supported by the evidentiary

       record in this case."

¶ 31   The court ultimately ruled in favor of defendants on all counts, finding that plaintiff's

claim of negligence based on a voluntary undertaking and her claim of breach of contract failed

as a matter of law because plaintiff did not use a phone to request a ride or an escort and thus

never triggered defendants' duty to provide security services. The court further found that

defendants owed plaintiff no legal duty to protect her from an attack by a third party that

occurred outside defendant's property boundaries.

¶ 32   Plaintiff moved for reconsideration. The court denied the motion, and this appeal

followed.

¶ 33                                      II. ANALYSIS

¶ 34   Plaintiff argues that the trial court erred in treating the section 2-619 motion as one for

summary judgment and in demanding an inappropriate level of proof at the pleading stage.

Plaintiff claims that, under the appropriate analysis for a section 2-619 motion, her allegations

were sufficient to state causes of action for both breach of contract and negligence based on a

voluntary undertaking, and that nothing put forward by defendants defeated those claims. She

further challenges the trial court's ruling that defendants owed plaintiff no duty under the

common law to prevent a criminal attack by a third party that occurred beyond defendants'

property.




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¶ 35    We review de novo the trial court's dismissal of a complaint under section 2-619. Cooney

v. Rossiter, 2012 IL 113227, ¶ 17. A motion to dismiss under section 2-619 admits the legal

sufficiency of the complaint but asserts a defense that defeats it. Patrick Engineering, Inc. v. City

of Naperville, 2012 IL 113148, ¶ 31. When considering a section 2-619 motion, a court must

accept as true all well-pleaded facts in the complaint, as well as any inferences that may

reasonably be drawn in plaintiff's favor. Sandholm v. Kuecker, 2012 IL 111443, ¶ 55; Morr-Fitz,

Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). Dismissal of a complaint under section 2-619 is

appropriate only if the plaintiff can prove no set of facts that would support a cause of action. In

re Estate of Boyar, 2013 IL 113655, ¶ 27.

¶ 36                     A. "Affirmative Matter" Under Section 2-619(a)(9)

¶ 37    Defendants' motion was specifically based on subsection (a)(9), which permits dismissal

where "the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or

defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2012); see also Van Meter v. Darien Park

District, 207 Ill. 2d 359, 367 (2003); Patrick Engineering, 2012 IL 113148, ¶ 31. The

"affirmative matter" must be apparent on the face of the complaint or supported by affidavits or

certain other evidentiary materials. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383

(1997). The defendant has the initial burden of establishing that the affirmative matter defeats the

plaintiff's claim. Id. Once the defendant satisfies the burden of putting forward this "affirmative

matter," the burden shifts to the plaintiff to demonstrate that the proffered defense is unfounded

or requires the resolution of a material fact. Id. If the plaintiff fails to carry the shifted burden of

going forward, the complaint will be dismissed. Id.




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¶ 38 In Smith v. Waukegan Park District, 231 Ill. 2d 111, 120-21 (2008), our supreme court

described the "affirmative matter" a defendant must present under section 2-619(a)(9), to satisfy

its initial burden, as:

       "[A] type of defense that either negates an alleged cause of action completely or

       refutes crucial conclusions of law or conclusion of material fact unsupported by

       allegations of specific fact contained or inferred from the complaint *** [not]

       merely evidence upon which defendant expects to contest an ultimate fact stated

       in the complaint. [Citation.]" (Internal quotation marks omitted.)

¶ 39 Because the allegations of the complaint are taken as true, the "affirmative matter"

presented by the movant must do more than refute a well-pleaded fact in the complaint. Bucci v.

Rustin, 227 Ill. App. 3d 779, 782 (1992); Longust v. Peabody Coal Co., 151 Ill. App. 3d 754,

757 (1986) (section 2-619 dismissal was improper where defendant merely attempted to negate

the factual allegation upon which its liability rested). For example, in Smith, 231 Ill. 2d 111, the

plaintiff sued for retaliatory discharge, claiming he was fired because he filed a worker's

compensation claim against the defendant, a municipal park district. The defendant moved to

dismiss under section 2-619(a)(9), claiming statutory tort immunity for a discretionary act. The

defendant attached an affidavit that stated that the plaintiff was fired after refusing to take a

drug test, in violation of park district policy, and that it was within the defendant's discretion to

fire him for violating that policy. The plaintiff did not respond with a counter-affidavit. The

supreme court held that the trial court erred in dismissing the complaint. The court recognized

that tort immunity could, under the proper circumstances, constitute "affirmative matter"

defeating plaintiff's claim, but it held that a fact question remained in that case because the

defendant's affidavit simply disputed the complaint's allegation that plaintiff was fired out of



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retaliation for filing a worker's compensation claim. Because that affidavit did nothing more

than contradict a well-pleaded allegation, it was an improper use of section 2-619, and thus the

burden never shifted to the plaintiff to counter the defendant's evidence. Id. at 121-22.

¶ 40 This court has described the difference between proper section 2-619 motions and

improper ones as the difference between "yes but" motions and "not true" motions. Howle v.

Aqua Illinois, Inc., 2012 IL App (4th) 120207, ¶ 34; Reynolds v. Jimmy John’s Enterprises,

LLC, 2013 IL App (4th) 120139, ¶ 35; Winters v. Wangler, 386 Ill. App. 3d 788, 792 (2008). A

proper section 2-619 motion is a "yes but" motion that admits both that that complaint's

allegations are true and that the complaint states a cause of action, but argues that some other

defense exists that defeats the claim nevertheless. Howle, 2012 IL App (4th) 120207, ¶ 34;

Reynolds, 2013 IL App (4th) 120139, ¶ 35; Winters, 386 Ill. App. 3d at 792. That defense may

be one of the enumerated bases contained within section 2-619—such as the running of a

limitations period or the existence of a prior pending action—or it may fall within the catch-all

of "other affirmative matter," such as immunity from suit or plaintiff's lack of standing, under

subsection (a)(9). See Smith, 231 Ill. 2d at 121; Reynolds, 2013 IL App (4th) 120139, ¶ 33; 735

ILCS 5/2-619(a)(West 2012).

¶ 41 On the other hand, a motion that attempts to merely refute a well-pleaded allegation in

the complaint is a "not true" motion that is inappropriate for section 2-619. Howle, 2012 IL App

(4th) 120207, ¶ 34; Reynolds, 2013 IL App (4th) 120139, ¶ 35; Winters, 386 Ill. App. 3d at 792.

A "not true" motion at the pleading stage, in essence, serves as nothing more than an answer

that denies a factual allegation and is not a basis for dismissal. Howle, 2012 IL App (4th)

120207, ¶ 36. Such a fact-based motion is appropriate for a summary judgment motion or for

resolution at trial. Id. ¶ 37; Reynolds, 2013 IL App (4th) 120139, ¶ 34 ("[w]here a defendant



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seeks to address the complaint's factual allegations, a summary judgment motion *** is the

proper vehicle"); Barber-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065,

1077 (1992) ("section 2-619 motions should not be used to attack the factual basis of the claim

itself; if such an attack is to be made, it should be by a summary judgment motion").

¶ 42 The trial court, in treating the instant section 2-619 motion as a motion for summary

judgment, noted the analogy between the two motions. We agree that a motion for involuntary

dismissal under section 2-619 and a motion for summary judgment share similarities and may,

in certain circumstances, be functionally equivalent. Epstein, 178 Ill. 2d at 383; Kedzie & 103rd

Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). With each motion, if the

movant puts forth sufficient evidence to entitle it to judgment as a matter of law, the burden

shifts to the nonmovant to counter that evidence, and if the nonmovant is unable to do so,

judgment as a matter of law in favor of the movant is warranted. In each motion, the existence

of a question of material fact will preclude judgment as a matter of law. Likewise, the standard

of review on appeal for each is de novo. Epstein, 178 Ill. 2d at 383; Kedzie & 103rd Currency

Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993).

¶ 43 But there are critical differences between a section 2-619 motion and a motion for

summary judgment. Most importantly, a party may not rely solely on her complaint to oppose a

properly-supported motion for summary judgment. Forsberg v. Edward Hospital & Health

Services, 389 Ill. App. 3d 434, 441 (2009). In contrast, as we have noted above, a section 2-619

motion admits the allegations of the complaint, as well as admitting that the complaint states a

viable cause of action. Patrick Engineering, 2012 IL 113148, ¶ 31; Sandholm, 2012 IL 111443,

¶ 55. If defendant's evidence in support of a section 2-619(a)(9) motion does nothing more than

refute the well-pleaded allegations of the complaint, the complaint trumps that evidence, and



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dismissal is improper. Smith, 231 Ill. 2d at 121. "Section 2-619(a)(9) is not a proper vehicle to

contest factual allegations; nor does it authorize a fact-based 'mini-trial' on whether plaintiff can

support his allegations." Reynolds, 2013 IL App (4th) 120139, ¶ 42.

¶ 44 With these principles in mind, we turn to the issues before us.

¶ 45          B. Dismissal of Voluntary Undertaking and Contract Claims Based on
              Plaintiff's Failure to Request Security Services Offered by Defendants

¶ 46 The trial court's first basis for dismissal was that defendants did not breach any alleged

duty to provide security services—whether it arose under contract or via a voluntarily assumed

duty—because plaintiff did not request those services through any of the phones available to

her. As we understand the trial court's ruling, the court applied this reasoning to both claims

raised by plaintiff, the contract claim and the negligence/voluntary undertaking claim. The

parties have not suggested otherwise.

¶ 47 We agree that it is logical to consider these two claims in tandem for the purposes of this

first issue, because for both claims, the relevant question is the scope of defendants' promise to

plaintiff. Plaintiff's negligence claim, premised on a duty voluntarily assumed by defendants, is

defined by and limited to the scope of that voluntary undertaking—that is, it is limited to the

scope of the promise made by defendants and relied upon by plaintiff. Bell v. Hutsell, 2011 IL

110724, ¶ 12. Likewise, plaintiff's contract claim, premised on an oral contract, is defined by

what terms, precisely, defendants offered and plaintiff accepted. Johannesen v. Eddins, 2011 IL

App (2d) 110108, ¶ 22. Plaintiff is alleging the same promise under either theory of liability.

Thus, it made sense for the trial court to consider these issues together, and we will do the same.

See Bourgonje v. Machev, 362 Ill. App. 3d 984, 1000-01 (2005) (noting the convergence of

contract and negligence claims when the case involves voluntary promises made by defendant

to reliant plaintiff).


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¶ 48 First, we agree with plaintiff that the trial court erred in treating this case as a motion for

summary judgment. The court repeatedly demanded an evidentiary foundation for plaintiff's

claim that defendants promised all of the things plaintiff alleged in the complaint—proper

lighting, close parking, and most importantly, the promises surrounding the provision of escort

and transportation services. When plaintiff's counsel reminded the court that the allegations of

the complaint should be taken as true, the judge disagreed, stating, "We're not at the pleading

stage," and demanded proof from a nonexistent record. The judge told plaintiff's counsel that

"that at this stage of the proceedings you are unable to show me a promise, anything which

remotely approaches the scope that you're claiming in the complaint."

¶ 49 Plaintiff, at the pleading stage and faced with a section 2-619 motion, was clearly not

required to show a promise beyond what she alleged in her complaint. At most, she was

required to counter the evidence put forth in the Morris affidavit and deposition testimony—

assuming it was proper "affirmative matter" under section 2-619 in the first place.

¶ 50 In their submission before this court, defendants make little effort to defend the trial

court's consideration of the motion as one of summary judgment. They argue, instead, that even

if the trial court employed an incorrect standard, its ultimate conclusion was correct—the case

was properly dismissed under section 2-619(a)(9)—and this court may affirm on any basis

contained in the record. Defendant is correct that we may affirm the trial court's ruling, even if

we disagree with its reasoning, as long as a sufficient basis appears in the record. In re

Marriage of Murphy, 359 Ill. App. 3d 289, 300 (2005). Thus, though we disagree with the

manner in which the trial court disposed of this case, we will review the arguments to determine

if the trial court ultimately reached the correct result in dismissing the complaint.




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¶ 51 In considering whether this case was properly dismissed, we must decide whether the

evidence put forth by defendants constituted "affirmative matter" under section 2-619(a)(9) that

would defeat plaintiff's negligence and contract claims and, if it did, whether plaintiff properly

countered that evidence through her affidavit. Defendants' evidence consisted of two points: (1)

the Goldblatt Pavilion security desk was not manned at night during any part of plaintiff's

employment in 2008 and 2009 and, in fact, has not been manned at night since 1990; and (2)

plaintiff did not request either an escort or SafeRide transportation, despite the fact that she

could have done so via a security phone near the Goldblatt security desk or through an

emergency phone just outside Goldblatt or for that matter with her own cell phone.

¶ 52 We hold that this evidence did not constitute "affirmative matter" within section 2-

619(a)(9). Defendants argue that the fact that the security desk in Goldblatt has not been

manned at night since 1990 proves that nobody in defendants' employ would have promised

plaintiff, in 2008, that it would be manned all night—or, in defendants' words during the

proceedings below, it proved that "no promise was made to her in such a regard." But that does

not change the fact that plaintiff alleges that defendants did make such a promise orally, an

allegation that we must accept as true at the pleading stage. Patrick Engineering, 2012 IL

113148, ¶ 31. Defendants' evidence, at best, did nothing more than contradict a well-pleaded

allegation of the complaint and did not constitute "affirmative matter" under section 2-

619(a)(9).

¶ 53 Likewise, defendants' reference to the availability of university phones, or plaintiff's own

personal cell phone, to request security services did not constitute "affirmative matter" because

that evidence merely refuted plaintiff's well-pleaded allegations of the promise made to her by

defendant and the terms of that promise. As noted previously, the complaint alleged that



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defendants "specifically instructed" plaintiff to obtain an escort or transportation to her vehicle

by requesting it from security personnel at any security desk, and they promised that the

Goldblatt security desk (indeed, all security desks) would be manned around the clock. The

complaint says nothing about telephonic requests, one way or the other.

¶ 54 Simply put, plaintiff's well-pleaded facts alleged that plaintiff was explicitly directed to

make an in-person request from security personnel at a security desk, while defendants claim

that she was also permitted to do so by phone. A section 2-619 motion is not the proper vehicle

to argue defendants' version of the alleged "promise" against plaintiff's well-pleaded version.

See Reynolds, 2013 IL App (4th) 120139, ¶ 34 ("an affirmative matter is not the defendant's

version of the facts as such a basis merely tends to negate the essential allegations of the

plaintiff's cause of action"). Thus, a question of material fact existed as to the scope of the

voluntary undertaking assumed by defendants. See Shea v. Preservation Chicago, Inc., 206 Ill.

App. 3d 657, 663 (1990) (noting that scope of voluntary undertaking depends on facts of

particular case). Likewise, a question of material fact remained as to the terms of the oral

contract between plaintiff and defendants. See Johannesen v. Eddins, 2011 IL App (2d) 110108,

¶ 22 (reversing dismissal under section 2-619; "The existence of an oral contract, its terms, and

the intent of the parties are questions of fact. *** The existence of an alleged oral contract

requires the presentation of testimony, not mere argument by attorneys.").

¶ 55 Because this evidence did not constitute "affirmative matter" under section 2-619(a)(9),

the burden never shifted to plaintiff to counter this evidence. See Smith, 231 Ill. 2d at 121. We

also find, however, that even if the burden had shifted, plaintiff sufficiently countered

defendants' evidence with her own affidavit stating that, not only was she never told to use a

phone to request security services, but she was specifically told by defendants' staff members



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not to use a phone. Defendants did not attack the sufficiency of plaintiff's affidavit before the

trial court, nor did they challenge it in their brief before this court. In oral argument, defendant's

counsel claimed that the affidavit failed to comply with Illinois Supreme Court Rule 191 (eff.

Jan. 4, 2013). With neither the trial court nor plaintiff having had the opportunity to consider

this argument, we will not address it, either. McCann v. Presswood, 308 Ill. App. 3d 1068, 1073

(1999); Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) ("[p]oints not argued [in appellant's or

appellee's brief] are waived and shall not be raised in the reply brief, in oral argument, or on

petition for rehearing"). Thus, even had the burden of production shifted to plaintiff on this

section 2-619 motion, plaintiff's affidavit created a question of material fact about the terms and

scope of defendants' promise to plaintiff. In either event, the trial court erred in dismissing the

contract and negligence counts based on this evidence.

¶ 56 Because a genuine issue of material fact exists regarding the scope and terms of

defendants' promise in this case, we find the case law cited by defendants to be inapposite. In

Lewis v. Razzberries, Inc., 222 Ill. App. 3d 843 (1991), the plaintiff's decedent left the

defendant's tavern and was shot to death in an unmarked parking lot off the defendant's

premises. There was no dispute as the scope of defendant's voluntary undertaking—the

defendant tavern admitted that it had a policy of escorting female patrons, upon request, to their

parked cars. Nor was there any disagreement over the fact that neither plaintiff's decedent nor

her friend ever requested an escort before leaving on the night in question. Deposition testimony

had settled both of those issues. The court thus affirmed summary judgment because "[plaintiff's

decedent] left the premises without requesting an escort after the bartender's offer to provide

one." Id. at 851. Here, in contrast, there is a question of material fact as what, precisely, plaintiff

was instructed to do in order to secure defendants' escort or transportation services. We cannot



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say, as a matter of law, that plaintiff failed to request an escort or transportation from

defendants, because she alleges in her complaint that she did—or at least that she did precisely

what defendants instructed her to do to make such a request—but she was prevented from

obtaining it.

¶ 57 Likewise, we are not persuaded by defendants' reliance on Jackson v. Shell Oil Co., 272

Ill. App. 3d 542 (1995), where a gas station attendant who typically worked within a locked

booth was shot by an unknown assailant when he left that booth to use the outside bathroom.

The plaintiff argued that the defendant was negligent in failing to provide a bathroom within the

locked booth, so that he would never have to leave it during his work shift. The voluntary

undertaking in that case, however, was merely providing a locked attendant's booth and nothing

more—the defendants had not promised an escort to the bathroom, nor had they guaranteed the

plaintiff's safety in travelling outside the locked booth. Applying the clear-cut principle that the

voluntary undertaking of a duty is limited to the scope of that undertaking, the court noted that

the defendant could be liable for any negligence that occurred within the scope of that

undertaking—for example, if the lock on the booth had malfunctioned—but held that the

defendant was not required to volunteer additional services beyond that undertaking. Id. at 550.

Because, in the instant case, a question of material fact exists concerning the scope of the

alleged voluntary undertaking assumed by defendants, Jackson does not assist defendants.

¶ 58 By no means should our decision be misconstrued as criticizing defendants' evidence on

this issue. Defendants' claim that plaintiff could have used her own phone or a nearby university

phone to request security services may be a powerful argument in their favor. We emphasize

that we find this case at the pleading stage. Plaintiff's deposition has not been taken. Virtually

no discovery has taken place. At this stage, we must accept as true plaintiff's well-pleaded



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allegations that she was explicitly told that she must make an in-person, and only an in-person

request for such services.

¶ 59         C. Defendants' Duty to Prevent Off-Premises Attacks by Third Parties

¶ 60 The trial court's second basis for dismissal of the negligence counts was that "there is no

duty owed to the [p]laintiff for an attack which occurred outside the boundaries of the premises

owned by the defendants." That reasoning, however, is not applicable here, where defendants'

alleged duty is premised on a voluntary undertaking, which is limited not by property

boundaries but by the scope of the voluntary undertaking assumed by defendants. Bell, 2011 IL

110724, ¶ 12. Indeed, in this case, plaintiff alleges that defendants' assumed duty did extend

beyond the boundaries of defendants' property to include the responsibility for safe passage

through the area where plaintiff was attacked.

¶ 61 For the same reason, defendants' citation to Leonardi v. Bradley University, 253 Ill. App.

3d 685 (1993), does not advance its position. That case, involving the rape of a student while at

a fraternity party in or around the defendant's campus, did not involve a theory of negligence

premised on a voluntary undertaking, as in this case.

¶ 62 We hold that the trial court's second basis for dismissal was error as well.

¶ 63                                  III. CONCLUSION

¶ 64 For the foregoing reasons, we reverse the trial court's dismissal of each count of the fifth

amended complaint and remand for further proceedings.

¶ 65 Reversed and remanded.




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