THIRD DIVISION

										March 283028, 2001

No. 1-99-3602

ELEAZAR LANDEROS and LUZ MARIA		)  

LANDEROS,							)   Appeal from the 

								)   Circuit Court of

	Plaintiffs-Appellants,			)   Cook County.

								)

		v.						)  

								)   

EQUITY PROPERTY AND DEVELOPMENT, 		)

and BEARLAND VISTAS, INC., both 		)

d/b/a FORD CITY SHOPPING CENTER,		)   Honorable	

								)   Diane J. Larsen,

	Defendants-Appellees.			)   Judge Presiding.

	JUSTICEuJustice WOLFSON delivered the opinion of the court:

     This case demonstrates the price that can be paid for an

offhand approach to the rules that govern civil proceedings.

BACKGROUND

     Eleazar Landeros (Eleazar) and Luz Maria Landeros (Luz

Maria) brought this negligence action against Equity Property and

Development (Equity) and Bearland Vistas, Inc. (Bearland), after

Eleazar was shot by a third party in the parking lot of Ford City

Shopping Center (Ford City).  Ford City is maintained and

operated by Equity and Bearland.  Plaintiffs allege the shooting

was caused by defendants' negligent failure to provide adequate

security in the parking lot of Ford City.

     Defendants filed a motion for summary judgment.  After

plaintiffs filed their response to the motion, defendants filed a

motion to strike the exhibits attached to plaintiffs' response.  The trial court granted defendants' motion to strike, as well as

their motion for summary judgment.  Plaintiffs filed a motion to

reconsider, which the trial court denied.  

     Plaintiffs appeal both the trial court's ruling on the

motion for summary judgment and its ruling on the motion to

reconsider, contending: (1) the trial court erred in finding

defendants did not owe a duty to protect plaintiffs from criminal

attack; and (2) a genuine issue of fact exists as to whether

defendants negligently failed to provide adequate security.

     We affirm.

FACTS

     Eleazar and Luz Maria were shopping at Ford City with two of

their children, Ileana and Octavio, on February 27, 1994.  As

they exited the shopping center and walked toward a CTA bus stop,

Eleazar was shot in the arm and chest by a third party.  Luz

Maria was allegedly injured when Eleazar pushed her to the ground

in an attempt to protect her from the shots fired.  Equity

employed security personnel to provide security services at the

mall.

PROCEDURAL FACTS

     Plaintiffs filed this suit in December 1994.  In January

1999, defendants filed a motion for summary judgment.  In their

motion, defendants argued plaintiffs could not establish defendants had a duty to secure the parking lot from intervening

criminal attacks by third parties.  Defendants attached a

transcript of Eleazar's deposition testimony, and referred to his

statement that the shooting occurred in the mall parking lot.

     Defendants also argued plaintiffs could not establish the

incident was the result of inadequate security.  They attached

David Levenberg's affidavit, in which he said:

	     "1.  I am the Corporate Director of Security for

General Growth Management, Inc. and I am responsible

for Public Safety and Loss Prevention programs for over

120 regional shopping centers.  I have worked in the

field of security of shopping facilities and retail for

over 20 years.

	     2.  I am familiar with the standard of care for

security at shopping centers in the Chicago area.

	     3.  It is my opinion based on a reasonable degree

of certainty, that all times [sic] relevant and in

particular that on February 27, 1994, the security at

Ford City Shopping Center complied with the standard of

care applicable in the Chicago area and on a national

level and conformed to the acceptable standard of care

of security pertaining to shopping centers in the

Chicago area in 1994."  

     Plaintiffs responded to the summary judgment motion, arguing

defendants had a duty to protect them from criminal attack by

third parties because similar incidents had occurred on the mall

premises in the past, making the incident reasonably foreseeable. 

Plaintiffs attached a Chicago Police Department "Listing of Case

Reports" as support for these assertions.  This list showed all

of the reported offenses that occurred at the mall's address from

December 1993 through March 1994.  Plaintiffs also attached the

affidavit of Patrick Halpin, which said: 

	     "1.  I am currently and have been a Chicago Police

Officer since March 1976.  I am presently the afternoon

and evening supervisor for the Treasure Island Shopping

Mall located on Clybourn Avenue, and have been employed

there since 1994 as a security guard.  Similarly I am a

security guard at Finkl Steel Mill located on Cortland

Ave., and have been employed as a security guard there

since 1989.

	     2.  I am familiar with the standard of care and

security procedures for shopping centers in the Chicago

area.

	     3.  It is my opinion that based on a reasonable

degree of certainty, that at all times relevant and in

particular that on February 27, 1994, the security at Ford City Shopping Center did not comply with the

standard of care applicable in the Chicago area, and

did not conform to the acceptable standard of care

pertaining to shopping centers in the Chicago area in

1994."

     Defendants replied to plaintiffs' response, and filed a

motion to strike both the "Listing of Case Reports" and Halpin's

affidavit.  Defendants argued plaintiffs failed to authenticate

the case reports, and as such they were inadmissible.  They

argued Halpin's affidavit was conclusory and did not comply with

Supreme Court Rule 191.  145 Ill. 2d R. 191.  Defendants also

argued plaintiffs failed to identify Halpin as an expert witness

pursuant to Supreme Court Rule 213 (177 Ill. 2d R. 213), and did

not establish Halpin's expertise in security issues.

     The trial court granted defendants' motion to strike and

their motion for summary judgment on May 12, 1999.  

     Plaintiffs filed a motion for reconsideration, attaching

several new documents and affidavits as exhibits.  The new

exhibits included the deposition testimony of Donald Story, taken

on April 21, 1998.  Story's deposition exhibits were included

with his deposition.  These exhibits consisted of Ford City's

security log, several Ford City security incident reports,

Chicago Police Department reports, and a document entitled "Responsibilities of Security."    

     Plaintiffs attached several police reports to the motion to

reconsider.  These were some of the same reports used as exhibits

during Story's deposition.  Plaintiffs again attached the Chicago

Police Department "Listing of Cases" stricken from their response

to defendants' motion for summary judgment.  Plaintiffs

authenticated the list with an affidavit from Sergeant O'Reilly,

the record keeper for the Chicago Police Department.

     Plaintiffs attached several affidavits to their motion to

reconsider.  Joseph Flynn, who was identified by defendants in

1997 as one of the security guards on duty at the time of the

shooting, provided an affidavit.  In it, he said he was

personally aware of a number of violent crimes that occurred in

the Ford City parking lot prior to the shooting in this case.  He

authenticated the "security log," kept by Ford City security

personnel, listing offenses committed on the mall premises.

     Plaintiffs attached a new affidavit from Patrick Halpin. 

This affidavit complied with Supreme Court Rule 191.  145 Ill. 2d

R. 191.

     Plaintiffs attached the affidavit of Marie Biggane, a

Chicago police officer, who said she was personally aware of a

number of violent crimes that occurred in the mall parking lot

and was aware of gang members frequenting the mall.

     Plaintiff attached the deposition testimony of Eleazar

Landeros, Luz Maria Landeros, and Ileana Landeros.  All of these

depositions were taken in 1996.

    Plaintiffs included an affidavit from their attorney that

explained the delay in bringing the "new" evidence to the court's

attention:

	     "1.  I am the attorney of record for Eleazar

Landeros and Luz Maria Landeros.  I was granted leave

to file my appearance as their attorney on March 30,

1999. ***

	     2.  The response to Defendant's [sic] Motion for

Summary Judgment was due on and was filed on April 16,

1999.

	     3.  I received from my clients what was purported

to be the entire file in this matter on March 29, 1999.

	     4.  On May 17, 1999, I learned for the first time

that the file that I had did not contain Defendants

Answers to Supplemental Interrogatories, which listed a

former employee named Joseph Flynn.

	     5.  On June 3, 1999, I received for the first time

a copy of police report number Y-002873.  Upon receipt

of the police report I learned for the first time that

Chicago Police Officer Marie Biggane had reported the aggravated battery with bats and chains that reportedly

occurred on January 2, 1994 in the parking lot of the

defendants' shopping center.  At that time, I contacted

the Officer and she indicated that she was aware of

previous similar incidents that had occurred in the

parking lot of the defendants' shopping center."

     The trial court denied plaintiffs' motion to reconsider on

September 27, 1999.  

DECISION

Motion to Strike

     Plaintiffs contend the exhibits attached to their response to defendants' summary judgment motion were improperly stricken,

and should have been considered by the trial court before ruling

on the first summary judgment motion in May 1999.

     The granting of a motion to strike exhibits is within the sound discretion of the trial court.  Cincinnati Cos. v. W. American Ins. Co., 287 Ill. App. 3d 505, 514, 679 N.E.2d 91 (1997).  

     The first exhibit attached to plaintiffs' response to the

summary judgment motion was a Chicago Police Department "Listing

of Case Reports" pertaining to Ford City.  Plaintiffs did not

include an affidavit from someone who could attest to the list's

authenticity.

     Plaintiffs' failure to authenticate the list made it

inadmissible.  "Basic rules of evidence require that a party must

lay the foundations for the introduction of a document into

evidence."  Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242, 247, 571 N.E.2d 1107 (1991).  In order to authenticate a document, evidence must be presented to

demonstrate that document is what its proponent claims.  Gardner, 213 Ill. App. 3d at 247-48.  Plaintiffs failed to properly

authenticate the case reports; as such, they were not admissible

evidence.  Gardner, 213 Ill. App. 3d at 248.

     The second exhibit attached to plaintiffs' response was the

affidavit of Patrick Halpin, plaintiffs' security expert.  In his

affidavit, Halpin concluded, "[T]he security at Ford City

Shopping Center did not comply with the standard of care

applicable in the Chicago area."  He did not list any facts or

evidence on which he relied in reaching this conclusion. 

     Supreme Court Rule 191 requires:

	"Affidavits in support of and in opposition to a motion

for summary judgment *** shall be made on the personal

knowledge of the affiants; shall set forth with

particularity the facts upon which the claim,

counterclaim, or defense is based; shall have attached

thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of

conclusions but of facts admissible in evidence; and

shall affirmatively show that the affiant, if sworn as

a witness, can testify competently thereto."  145 Ill.

2d R. 191(a).	

     Because Halpin's affidavit was conclusory and did not

include the facts upon which he based his opinions, the affidavit

did not comply with Rule 191.  145 Ill. 2d R. 191; Northrop v. Lopatka, 242 Ill. App. 3d 1, 8, 610 N.E.2d 806 (1993).  While an expert may give opinion testimony at trial without disclosing the

facts underlying that opinion, under Supreme Court Rule 191 those

facts must be laid out in an affidavit used to oppose a summary

judgment motion.  Northrop, 242 Ill. App. 3d at 8 (plaintiff cannot create an issue of fact by the conclusory affidavit of its

expert).  

    A review of the exhibits indicates they were properly stricken.  However, the record on appeal does not include a

transcript of the hearing on the motion to strike or a

bystander's report in compliance with Supreme Court Rule 323. 

166 Ill. 2d R. 323.  An appellant has the burden of presenting a

sufficiently complete record of the proceedings to support a

claim of error.  In the absence of such a record on appeal, it

will be presumed that the order entered by the trial court was in conformity with the law.  Foutch v. O'Bryant, 99 Ill. 2d 389, 391, 459 N.E.2d 958 (1984).  Without an adequate report of the

proceedings showing the basis for the trial court's ruling on the

motion to strike, we must presume its decision was appropriate. 

Foutch, 99 Ill. 2d at 391; see also In re Estate of Jacobs, 189 Ill. App. 3d 625, 629, 545 N.E.2d 502 (1989)(Any doubt raised by

an incomplete record will be resolved against the appellant).

Summary Judgment Motion

     Plaintiffs contend the trial court erred in granting

defendants' motion for summary judgment, claiming the trial court

failed to consider evidence which supported their allegations of

negligence.

     Review of the trial court's ruling on a motion for summary

judgment is de novo.  Lajato v. AT&T, Inc., 283 Ill. App. 3d 126, 135, 669 N.E.2d 645 (1996).  Summary judgment is proper when the

pleadings, depositions, and affidavits on file, construed in the

light most favorable to the nonmoving party, establish there is

no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.  Lajato, 283 Ill. App. 3d at 135.  The purpose of the summary judgment procedure is not

to decide the facts but to ascertain whether a factual dispute

exists.  Barber-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1070-71, 603 N.E.2d 1215 (1992).

     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., Nos. 87895 & 87910, slip op. at 14 (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, slip op. at 14.  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, 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, slip op. at 27.  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.  

     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, 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.

     Plaintiffs' contentions on appeal suggest the trial court

ignored evidence which showed numerous violent criminal attacks 

occurred at Ford City prior to this one, as well as evidence

showing defendants voluntarily undertook to provide security at

the mall.  Plaintiffs also claim the trial court failed to

consider evidence showing defendants' security was performed in a

negligent manner, and that this negligence proximately caused

plaintiffs' damages.  According to plaintiffs, this evidence

established a material issue of fact sufficient to withstand a

summary judgment motion.

     In fact, the trial court struck the only two exhibits

attached to plaintiffs' response to the summary judgment motion. 

After striking the exhibits, the trial court was left with the

uncontradicted affidavit of defendants' security expert, attached

to the summary judgment motion.  In this affidavit, defendants'

expert said the security at Ford City complied with the standard

of care.  

     Though plaintiffs now contend this affidavit does not comply

with Supreme Court Rule 191, they failed to raise that issue in

the trial court.  They cannot raise it for the first time on appeal.  See King v. Linemaster Switch Corp., 238 Ill. App. 3d 729, 731, 606 N.E.2d 584 (1992)(party must obtain ruling on a

motion to strike from trial court in order to preserve issue for

appeal).   

     Based on the evidence before the trial court when it ruled

on the summary judgment motion, we find the trial court's

decision was appropriate.  Plaintiffs failed to establish

defendants had a legal duty to prevent criminal attack by a third

party.  "In the absence of any showing upon which the court could

infer the existence of a legal duty on the part of the defendant,

no recovery would be possible as a matter of law, and summary

judgment in favor of the defendant *** [is] proper."  Hagy v. McHenry County Conservation District, 190 Ill. App. 3d 833, 843, 546 N.E.2d 77 (1989).

Motion to Reconsider

     Plaintiffs also contend the trial court erred in refusing to

grant its motion to reconsider the summary judgment ruling.

     The decision to grant or deny a motion for reconsideration

lies within the discretion of the circuit court, and will not be

reversed absent an abuse of that discretion.  American National Trust Co. v. Kentucky Fried Chicken of Southern California, Inc., 308 Ill. App. 3d 106, 120, 719 N.E.2d 201 (1999).  The intended

purpose of a motion to reconsider is to bring to the court's attention newly discovered evidence, changes in the law, or

errors in the court's previous application of existing law. 

Gardner, 213 Ill. App. 3d at 248.  

     "Newly discovered" evidence is evidence that was not

available prior to the hearing on the motion for summary

judgment.  Gardner, 213 Ill. App. 3d at 248.  "Trial courts should not allow a litigant to stand mute, lose a motion, and

then frantically gather evidentiary material to show that the

court erred in its ruling."  Gardner, 213 Ill. App. 3d at 248. 

     Here, plaintiffs attached the affidavits of Joseph Flynn, a

security guard at Ford City, and Officer Mary Biggane, a Chicago

police officer, claiming they constituted "newly discovered

evidence."  However, in their June 1997 answers to plaintiffs'

supplemental interrogatories, defendants identified Flynn as one

of the security officers assigned to Ford City on the day of the

shooting.  The "security log" authenticated by Flynn in his

affidavit was used as an exhibit during Donald Story's deposition

in April 1998.  Because plaintiffs had the security log and could

have obtained an affidavit from Flynn prior to the summary

judgment hearing, this evidence cannot be said to have been

"newly discovered."  

     Nor does the affidavit from Officer Biggane qualify as

"newly discovered" evidence.  The number of the case report (Y- 002873) listing Mary Biggane as the responding officer in the

January 2, 1994, incident was included on the "Listing of Case

Reports" attached to plaintiffs' response to defendants' summary

judgment motion.  This information was readily discoverable prior

to the hearing on defendants' motion for summary judgment.  As

such, it is not considered "newly discovered."

     Plaintiffs rely on a document entitled "Responsibilities of

Security," which they claim shows defendants voluntarily

undertook to provide security in the mall's parking lot.  This

document was used as an exhibit during Donald Story's deposition,

and was attached to the motion to reconsider as part of his

deposition transcript.  Story testified he had never seen the

document before the deposition, and couldn't testify to its

contents.  Plaintiff did not attach it to the motion to

reconsider as a separate exhibit, and it was not authenticated by

anyone affiliated with Ford City security.  The document is not

"newly discovered" since it was available to plaintiffs at the

time of the summary judgment hearing, and is inadmissible since

it has not been authenticated.  

     None of the remaining exhibits attached to plaintiffs'

motion to reconsider can be considered "newly discovered" and

plaintiffs offer no explanation as to why these exhibits were not

attached to their response to the initial summary judgment motion.  The deposition testimony of Eleazar, Luz Maria, and

Ileana Landeros was taken in 1996, three years before the summary

judgment motion was filed.  Don Story's deposition was taken

April 21, 1998, a year before the hearing on the summary judgment

motion.  Patrick Halpin's revised affidavit is not "newly

discovered" evidence, nor is Sergeant O'Reilly's affidavit

authenticating the "Listing of Case Reports."  

     Simply put, plaintiffs failed to attach any evidence to

their motion to reconsider which was not available at the time of

the hearing on defendants' summary judgment motion. Such evidence

"should not be allowed in the absence of a reasonable explanation

of why it was not available at the time of the original hearing.

*** In the absence of any such valid explanation, there [is] no

reason to change the ruling."  Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d 183, 195, 545 N.E.2d 689 (1989).  The only explanation offered by plaintiffs' attorney was that he did not

have a complete copy of his clients' file.  We do not consider

that a "valid" explanation.

     We note the long history of this case, if only because it

may have played a role in the trial court's exercise of its

discretion to deny the motion for reconsideration.  After

plaintiffs filed the original complaint in December 1994, the

case was twice dismissed for want of prosecution.  The attorney who represented plaintiffs when the motion for reconsideration

was filed was their fifth attorney of record.  By the time

plaintiffs' motion for reconsideration was filed, this case had

been pending for close to five years.  

     After reviewing the exhibits attached to plaintiffs' motion

for reconsideration, the trial court does not appear to have

abused its discretion in denying the motion.  However, plaintiffs

again failed to include either a transcript of the hearing on the

motion to reconsider or a bystander's report in the record on

appeal.  We have no way of knowing whether the trial court's

decision was based on a finding that the evidence was not "newly

discovered," or a finding that the evidence did not create a

material issue of fact.  Without an adequate report of

proceedings showing the basis for its decision, we presume the

trial court's denial of the motion to reconsider was appropriate. 

Foutch, 99 Ill. 2d at 391. 

CONCLUSION

     Our examination of the information supplied with the Motion

to Reconsider persuades us this could have been a far different

case had there been a timely submission.  We understand the

result we reach today penalizes litigants for the conduct of the

lawyers they chose on five different occasions.  But there is

something to be said for an orderly procedure that produces predictable results.  The rules that apply to summary judgment

proceedings were designed to reduce the time and expense that can

be produced by adversary proceedings.  In addition, they save the

community from congested court calendars and costly trials.  See

Allen v. Meyer, 14 Ill. 2d 284, 292, 152 N.E.2d 576 (1958).  Litigants have the right to rely on the rules.  Judges have the

duty to enforce them.  In that way, in the long run, the

administration of justice is better served.

     We affirm the trial court's rulings on both the summary

judgment motion and the motion to reconsider.

     Affirmed.

	CERDAerda, and BURKEurke, JJ., concur.