Iseberg v. Gross

Supreme Court of Illinois · Torts

Tortsdutynegligencefailure to warnthird-party criminal actsspecial relationshipaffirmative dutyprincipal-agent

Facts

Plaintiffs alleged that Gross knew, and told Frank, that Slavin had repeatedly threatened to harm and kill Iseberg, had bought a gun, and had described a plan to shoot Iseberg and then kill himself. Gross contacted Slavin's brother about the threats, but neither Gross nor Frank warned Iseberg or contacted police. About 11 months after Slavin surrendered his interest in the Leikam Farm property, Slavin went to Iseberg's home and shot him, rendering him a paraplegic. In the negligence count, plaintiffs alleged defendants had superior knowledge of the threats and were in a unique position to prevent the harm by warning Iseberg or contacting police.

Issue

Whether defendants owed Iseberg a common-law duty to warn or protect him from Slavin's criminal conduct. More specifically, the court considered whether such a duty could arise either from an alleged principal-agent relationship under Restatement (Second) of Agency § 471 or from abandoning the traditional special-relationship limitation on affirmative duties.

Rule

Under Illinois common law, a private person has no duty to act affirmatively to protect another from the criminal attack of a third person absent a special relationship between the parties. An affirmative duty to warn or protect against third-party criminal conduct may be imposed only if such a special relationship exists, and a principal's duty to warn an agent under Restatement (Second) of Agency § 471 arises only when the unreasonable risk is involved in the employment, meaning it arises from the particular nature of the employment.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Peoria, Omar Velez learned from a former business associate that the associate intended to shoot Dana Mercer over an old investment dispute. Omar believed the threat was serious and even told Dana's brother, but Omar never warned Dana or called police. Six months later, the associate attacked Dana in her driveway.

If Dana sues Omar for negligence based solely on his failure to warn or protect her from the associate's criminal attack, what is the strongest argument for Omar?

Explanation. The majority reaffirmed that a private person generally has no duty to act affirmatively to protect another from criminal attack by a third person unless a recognized special relationship exists. Mere superior knowledge of threats, even serious and specific ones, does not itself create a duty. The court rejected replacing this rule with a free-floating foreseeability analysis in omission cases involving third-party crime.