Someone with whom you used to do business has made threats against another of your former business associates, blaming that individual for ruining his life. Have you any duty to warn the latter person?

In a unanimous opinion (in which one justice took no part), the Illinois Supreme Court

The facts and lower-court holding

Mitchell Iseberg, Sheldon Gross, Henry Frank, and Edward Slavin were involved in a business development venture in Lake County. The venture didn't work out as they'd hoped, and, in early 1999, Slavin ended up losing all of his savings that he'd invested in the project. Slavin then, according to allegations in the subsequent legal proceeding, became mentally unbalanced and focused his anger on Iseberg.

According to police reports in the record to which the court referred, Gross told police that Slavin had spoken to him on several occasions in 1998 and 1999 about wanting to harm Iseberg. More specifically, the court said, Gross advised that Slavin had initially talked about punching Iseberg in the face with brass knuckles and progressed to saying he wanted to find a hit man or kill Iseberg himself and then commit suicide.

The police report said that Slavin had told Gross that he would go to Iseberg's home, ring the doorbell, shoot Iseberg, and then kill himself. The court opinion also reflects that Slavin had told Gross that he had purchased a gun and wondered whether the caliber was large enough to kill someone.

The opinion continues to recite that Gross contacted Frank, against whom Slavin had also made threats, and Slavin's brother to express his concern. Neither Gross nor Frank told Iseberg.

In early 2000, the court recounted, Slavin rang Iseberg's doorbell. When Iseberg answered the door, Slavin shot him four times, rendering him a paraplegic.

Iseberg filed a complaint against Gross and Frank, including, among other allegations, a count for negligence that was the subject of the supreme court's opinion. In that count, the court said, he alleged that he was "a former partner and joint adventurer" of Gross and Frank and that he was in certain respects their "current agent, attorney, and co-adventurer." He further alleged that Gross and Frank had "actual, independent and superior knowledge" that Slavin blamed Iseberg for Slavin's financial demise, of Slavin's threats, and of Slavin's purchase of a gun.

Based on this knowledge, Iseberg asserted, Gross and Frank "were in a unique position to prevent the harm done to Iseberg" by either communicating the threats to Iseberg or by contacting the police. Because of their knowledge, Iseberg claimed, Gross and Frank owed a duty to warn and protect him, which they breached by failing to tell him about the threats.

The trial court dismissed the negligence count, among others, and entered a finding pursuant SCR 304(a) that there was no just reason to delay appeal of its order. A majority of the appellate court panel affirmed the dismissal.

The supreme court granted Iseberg's petition for leave to appeal. The sole issue before the high court was whether a legal duty existed, as Iseberg alleged, so that Gross and Frank might be held liable for negligence under common law principles.

Reaffirming the rule

The court began its discussion by citing the universally accepted common law rule, as articulated in section 314 of the Restatement (Second) of Torts, that a private person has no duty to act affirmatively to protect another from criminal attack by a third person absent a "special relationship" between the parties.

Historically, the court observed, courts have recognized four such special relationships: common carrier-passenger, innkeeper-guest, business invitor-invitee, and voluntary custodian-protectee. When one of those special relationships exists, and an unreasonable risk of physical harm arises within the scope of that relationship, an obligation may be imposed on one party to exercise reasonable care to protect the other from the risk, as long as it's reasonably foreseeable.

Iseberg, the court noted, did not allege that one of those special relationships existed, nor did he argue before the high court that a duty on Gross's and Frank's parts arose from their "superior knowledge" of Slavin's threats. Rather, he first argued that he was Gross's and Frank's agent at the time of the shooting and that as a result, under section 471 of the Restatement (Second) of Agency, Gross and Frank owed a duty to warn him of Slavin's threats.

Second, Iseberg argued that no special relationship should even be necessary for a court to find the existence of an affirmative duty to protect against the tortious acts of a third party. Instead, he asked the court to find that whenever two parties have any kind of relationship beyond being mere strangers, a court should consider whether one might owe the other a duty to warn or protect by applying traditional negligence factors. Iseberg additionally argued that the general rule of no affirmative duty to warn or protect is inconsistent with modern conceptions of morality.

The court rejected all of Iseberg's arguments. Even if an agency relationship had existed between Iseberg and the defendants at the time of the shooting, the court said, the duty to warn arises only where the unreasonable risk of harm stems from the employment. In the case at hand, the complaint alleged that the reason for the attack was that Slavin blamed Iseberg for his financial losses, which were not alleged to be the result of anything that Iseberg had done as an agent for Gross or Frank. Therefore, said the court, Gross and Frank had no duty to warn under section 471 of the Restatement (Second) of Agency.

The court then turned to Iseberg's argument that the "special relationship" doctrine should be formally abandoned in favor of a policy determination, made on a case-by-case basis, using the factors that are commonly used to determine the existence of a duty in ordinary negligence situations: foreseeability, likelihood of injury, magnitude of the burden, and the consequences of imposing a burden.

The court first found that neither the appellate nor supreme courts in Illinois had eroded the "special relationship" doctrine in their prior decisions. The court additionally observed that the general principle of no affirmative duty to warn or protect remains in effect in every jurisdiction, belying Iseberg's claim that the rule is outmoded.

Finally, the court found no compelling reasons in the case before it to depart from stare decisis and abandon the "special relationship" doctrine for finding an exception to the rule of no affirmative duty. Explicitly reaffirming the "no affirmative duty" rule and the "special relationship" rule as the law of Illinois, the court concluded "an affirmative duty to warn or protect against the criminal conduct of a third party may be imposed on one for the benefit of another only if there exists a special relationship between them."

The court affirmed the judgment of the lower courts on that issue. At press time, Iseberg's attorney indicated an intention to file a petition for rehearing with the court.