Iseberg v. Gross

879 N.E.2d 278 (Ill. 2007)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Slavin and D formed VAL to build a car wash. D contacted P, an attorney and real estate broker, who D had learned was in the process of purchasing land to develop it into a strip mall. To that end, P had joined with Frank to form LFD. VAL and LFD entered into a partnership agreement, with each contributing funds toward the purchase of land with title placed in a land trust, with VAL and LFD each having 50% beneficial ownership in the trust. VAL could purchase LFD's interest in the trust if the partnership was not terminated by April 15, 1997. VAL tendered an offer to purchase LFD's beneficial interest, and LFD refused to sell. LFD had assigned its 50% beneficial interest in the land trust to Frank and executed a promissory note in the amount of $352,000 in Frank's favor. VAL filed suit to enforce its rights under the partnership agreement. The suit was settled. Frank, VAL, D and Slavin wanted 'to eliminate all P's involvement with respect to the Property.' They terminated the VAL-LFD partnership and the creation of the Leikam Farm Joint Venture (Venture). P was not to be a party to the Venture. Things did not go well for the Venture. Slavin, had already invested all of his savings in the project, was unable to meet his share of the monthly interest obligation. As a result, in February 1999, Slavin was forced to surrender his interest in the property, losing his entire investment. Slavin became mentally unbalanced, and Slavin focused his anger on P, whom he blamed for his financial situation. Slavin spoke to D on several occasions about wanting to harm P. He outlined a plan for killing P and then committing suicide once the suicide exemption clause in his life insurance policy was no longer in effect, he would go to P's home, ring the doorbell, shoot P, and then kill himself so his family could collect his insurance. D contacted Slavin's brother to express his concerns about Slavin's threats. Things settled down for the next 11 months, but Slavin asked D if he knew P's new address. On January 24, 2000, Slavin rang the doorbell at P's residence and shot him four times. P was rendered a paraplegic. P sued Ds alleging that Ds owed a duty to P to warn. The trial court dismissed with prejudice the counts alleging negligence, negligent performance of a voluntary undertaking, and civil conspiracy. P brought an interlocutory appeal in the appellate court. The appellate court affirmed the dismissals. The general rule is that one does not have an affirmative duty to protect another against criminal attack by third persons. The court noted that Illinois recognizes four exceptions to the general no-duty rule, but that plaintiffs' 'superior knowledge theory' was not one of those exceptions. Finding that this theory did not provide a basis for imposing a duty on defendants, the majority affirmed the dismissal of the negligence claim. This appeal resulted.