Plaintiffs-appellants Lawrence and Algerie Mitchell appeal from the judgment of the district court in dismissing their cause against Archibald & Kendall, Inc. (A & K) for failure to state a claim for which relief can be granted. The major legal question presented in this diversity case is whether the owner or occupier of land has a duty of reasonably guarding an invitee against criminal attacks that take place beyond the boundaries of his premises and on a public thoroughfare.1

The complaint sets forth the following facts. Lawrence Mitchell, accompanied by his wife and two grandchildren, drove a truckload of A & K's products from New Jersey to Chicago and tendered the cargo for delivery to A & K's employees at its warehouse on Fulton Street at 9:30 a. m. on November 12, 1973. At the time when the Mitchells arrived, A & K's employees were already loading a truck in the receiving area. Because A & K's receiving dock area allowed only one truck to be unloaded at a time, A & K's employees directed and ordered Lawrence Mitchell to remain in his truck and to park it on the area of Fulton Street immediately opposite A & K's warehouse and adjacent to its driveway until they could unload it.

The complaint alleged that it was A & K's practice, custom and habit over a period of several years openly and visibly to use the area directly in front of and immediately surrounding the receiving area of its warehouse as an extension of the receiving dock area and a parking area for trucks waiting to unload deliveries to and for A & K at its place of business. After Mitchell parked his tractor-trailer on Fulton Street as ordered by A & K's employees and while sitting in the cab with his family, two unknown males approached him and demanded his money. When Mitchell refused this unlawful demand, one of the men produced as 12-gauge shotgun and, from a distance of approximately three feet, fired it directly into Mitchell's face. The shotgun blast caused permanent injuries to Mitchell.

A & K's employees had experience on repeated occasions prior to November 12, 1973, of various criminal acts on and about A & K's premises. The complaint alleges that A & K knew or should have known of the high risk of drivers being subjected to a criminal attack and assault while waiting in the cab of a truck parked in the area. A & K allegedly knew that some three weeks earlier an armed robbery was perpetrated against another truck driver "while parked on defendant's premises waiting to make a delivery at said private warehouse dock." The Mitchells had no knowledge or means of becoming aware of the inherent risk, dangers and probabilities of a criminal assault associated with attempting to make deliveries at A & K's warehouse or in parking on the area of Fulton Street as directed by A & K's employees.

The complaint set forth five duties which A & K assertedly breached. According to the complaint, it was A & K's duty to exercise ordinary care to maintain its premises and the adjacent areas in a reasonably safe condition so as to avoid leading Mitchell into a dangerous and perilous risk of injury by the criminal conduct of third persons of which A & K was aware. A & K further owed Mitchell the duty to exercise reasonable care to provide a reasonably safe means of ingress and egress, both within the confines of the premises owned and controlled by A & K and beyond the precise boundaries of such premises. A & K owed the Mitchells the duty to exercise reasonable care to protect them from criminal acts of third persons while on A & K's premises and beyond the precise boundaries of such premises and to provide a reasonably sufficient number of servants or employees to afford reasonable protection to invitees. A & K owed Mitchell the duty to give adequate and timely notice and warning of latent or concealed perils which were known to A & K but not to the Mitchells. Finally, according to the complaint, it was A & K's duty towards the Mitchells to keep its premises and the immediate adjacent area reasonably well policed and to exercise reasonable care to see that its invitees were protected from injury from criminal acts of third persons and to take reasonable steps to prevent injury to invitees.

I. Claimed Error in District Court's Use of Rule 12(b)(6)

An initial issue in the present appeal is whether dismissal under Rule 12(b) (6), Fed.R.Civ.P., was procedurally proper. The plaintiffs-appellants contend that the district court found that plaintiff Mitchell's injuries occurred neither on an ingress nor an egress to A & K's premises and that the criminal act occurred on a public street instead of on A & K's premises. They assert that the issues decided by the district court's opinion involved one of a material fact, i. e., did the attack on Mitchell take place on A & K's premises? The plaintiffs-appellants assert that their complaint alleges extensive and sufficient facts to support the allegation that the area of Fulton Street is a part of A & K's premises, noting that under Illinois law the word "premises" does not have one precise and fixed meaning in law and that its definition is dependent on the underlying factual circumstances and the context in which the term arises.2 They insist that through the habit and practices of A & K, the public way in question has become an integral adjunct of A & K's business at its Fulton Street address and that a jury might determine that the accident occurred on A & K's premises. The plaintiffs-appellants thus read the district court's memorandum opinion as suggesting that an affirmative answer to the question whether the attack occurred on A & K's "premises" would require denial of the motion to dismiss. They argue that the district court erred in granting A & K's motion because factual disputes cannot be resolved by a motion under Rule 12(b)(6).

Where the pleadings raise a contested issue of material fact, a Rule 12(b)(6) motion must be denied. Carroll v. Morrison Hotel Corp., 149 F.2d 404, 408 (7th Cir. 1945). In reviewing the grant of a motion to dismiss a complaint for failure to state a claim, it is elementary that all material facts well pleaded in the complaint must be taken as true. City of Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir. 1976). However, the court is required to accept only well-pleaded facts as true in deciding whether the motion to dismiss was properly granted and is not required to accept legal conclusions that may be alleged or that may be drawn from the pleaded facts. Id., citing Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971).

We think that the district court properly relied upon Rule 12(b)(6) in disposing of the present case. The plaintiffs-appellants' complaint itself distinguished carefully between A & K's "premises" and the adjacent area on Fulton Street which A & K assertedly used as a warehouse parking area. Their present argument that a jury could find that the street area was a part of A & K's "premises" sets forth a new theory of liability. The allegations actually incorporated into the drafted complaint were not sculpted in such a fashion as to articulate that theory. The district court judge in dismissing the cause was in effect ruling that the complaint as drafted was legally insufficient.

The specious character of the plaintiffs-appellants' argument of procedural irregularity is highlighted by their filing of a notice of appeal. In this litigation originally the court's order merely dismissed the complaint and no final judgment was entered.3 As noted in the margin this case is presently before us for the second time. When the order dismissing the complaint was entered in the district court under Rule 15(a), Fed.R.Civ.P., as construed by this court, the plaintiffs would have had an absolute right to file an amended complaint embodying the claimed theory that a public street was part of the defendant's premises. See Fuhrer v. Fuhrer, 292 F.2d 140, 142 (7th Cir. 1961). By appealing, the plaintiffs-appellants elected to stand on their original complaint and thereby relinquished the legal theory they now assert. It is clear that the district court completely determined that the plaintiffs-appellants had no right of action for a criminal attack in a public street. See Asher v. Ruppa, 173 F.2d 10, 11-12 (7th Cir. 1949). That was the issue framed by the pleadings, and the court's summary of the allegations of the complaint was not a determination of fact but merely a narrative recital of the pleaded facts bearing upon the issue of A & K's duty.

Finally, and in any event, it appears to us that despite the flexibility which has been accorded by the cases to the term "premises," the proper view is that surrounding streets and sidewalks are beyond the meaning of the term. Acton v. Wymore School District, 172 Neb. 609, 111 N.W.2d 368, 371 (1961); Amos v. City of Fond du Lac, 46 Wis. 695, 1 N.W. 346, 349 (1879). The underlying rationale appears to lie in the fact that there is no right of control over the public thoroughfare. Joyce v. United States, 329 F.Supp. 1242, 1245 (W.D.Pa.1971); Flodin v. Henry & Wright Mfg. Co., 131 Conn. 244, 38 A.2d 801, 803 (1944).

II. Duty to Protect Against Criminal Acts of Third Persons on a Public Street

Under Illinois law, a complaint must allege the breach of a duty owed by the defendant to the plaintiff in order to state a cause of action for negligence. Boyd v. Racine Currency Exchange, Inc., 56 Ill.2d 95, 97, 306 N.E.2d 39, 40 (1973). The existence of a duty is a question of law to be determined by the court. Barnes v. Washington, 56 Ill.2d 22, 26, 305 N.E.2d 535, 538 (1973). Our answer to the question posed by the complaint must be based on Illinois state law. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Inasmuch as both parties agree that there are no Illinois cases "on all fours" with the present case, we must decide the case as we believe the Illinois courts would. Loucks v. Star City Glass Company, 551 F.2d 745 (7th Cir. 1977); accord, Walker v. Kruse, 484 F.2d 802, 805 (7th Cir. 1973). And we must give some deference to a district judge's interpretation of the law of the state where he sits unless his legal determination is clearly wrong or unreasonable. Cf. Cameron v. Law, 538 F.2d 763, 765 (7th Cir. 1976).

Our task in the instant case is precise and clear. A & K concedes that under Neering v. Illinois Central R. R. Co., 383 Ill. 366, 50 N.E.2d 497 (1943), an owner or occupier of land in Illinois owes a duty to invitees on his premises reasonably to guard against criminal acts of third parties when knowledge of previous incidents or circumstances charges him with knowledge of this danger. Similarly, the Mitchells rely upon Neering and its progeny as supporting the proposition that the Illinois cases clearly establish that where the defendant-invitor has knowledge of previous criminal acts, the defendant becomes charged with the responsibility to protect its invitees from other illegal acts. Accordingly, we must begin with this leading Illinois case regarding a landowner's duty to protect against the criminal acts of third parties and trace the subsequent Illinois reading of its underlying rationale. If A & K had no duty under the circumstances disclosed in the complaint, the district court's order must be affirmed. If A & K was under a duty to the Mitchells, the court's order must be reversed.

One preliminary comment is in order before turning to an analysis of the sufficiency of the complaint under Illinois law. The parties have both asserted that there is no Illinois decision reflecting the exact circumstances of the present case. Nonetheless, there quite clearly are a number of very recent Illinois cases which have considered the issue of a landowner's duty to protect tenants or invitees against the criminal acts of third persons. Although all of these cases made some reference to the holding or rationale of Neering, the parties have cited none of them in either their original briefs or by way of additional authority under our Rule 11. Even allowing for some time lag for publication, it appears that at least one Illinois Supreme Court decision and several recent decisions from the intermediate appellate courts were available for purposes of citation. Litigants who take their controversy over a personal injury claim from the state court system into the federal courts should take special care to bring all relevant state case law to the attention of this court.

In Neering, supra, the appellant was assaulted and raped at a railroad passenger station located in the heart of a railroad and switching center infested with undesirable characters. Because many "bums and vagrants" were coming into Chicago during the depression years of 1937 and 1938, the area was known as "Hobo Jungle." See 383 Ill. at 371-72, 50 N.E.2d 497. The appellant and her sister had repeatedly notified the railroad company's agent of the presence of tramps and hoboes. Yet the company failed to have a single inspection made or a station attendant present at or about the time the appellant daily boarded her 4:59 a. m. train. In reversing an order requiring the entry of a judgment n. o. v. in favor of the railroad company, the Neering court determined that a railroad company which knew that there were sufficient numbers of hoboes and vagrants congregating around its passenger station to constitute a source of potential danger likely to result in assaults upon passengers was under an obligation to exercise reasonable care and caution for its prevention. 383 Ill. at 380, 50 N.E.2d 497.

Significantly, the Neering court did not purport to ground its ruling on the special relationship of carrier and passenger. The court's opinion noted that the defendant owed Agnes Neering the duty of ordinary care, stating that

(t)he rule requiring the highest degree of care on the part of railroad companies for the protection of passengers applies only to the operation of trains and immediate incidents of transportation, and as to station buildings and other appurtenances the carrier is required to exercise only ordinary care to keep them in a reasonably safe condition for use.

383 Ill. at 374, 50 N.E.2d at 501. The court thought the decisive question in the case was whether the defendant, who had notice that vagrants were loitering about its station and sleeping in its waiting room, had created a condition which became a menace to the public peace and to patrons using its station. Id. at 376, 50 N.E.2d 497.

In Boyd, supra, the court affirmed the judgment of the circuit court dismissing the plaintiff's complaint for failure to state a cause of action. The plaintiff contended that a business proprietor had a duty to his invitees to honor criminal demands when failure to do so would subject the invitees to an unreasonable risk. The plaintiff also claimed that the duty arose from the relationship between a landowner and a business invitee. In responding to these contentions, the Boyd majority observed that in Illinois the general rule was that a person has no duty to anticipate the criminal acts of third parties. It read Neering as establishing an exception to the general rule, observing that that decision, together with many other of the cases, involved the question of whether facts existed which should have alerted the defendant to a risk of harm to his invitees by criminals. The Boyd majority further noted that the Restatement (Second) of Torts did not consider the specific issue it was facing. 306 N.E.2d at 41. The dissent in the case pointed out that the majority opinion failed to take into account the principles of law clearly enunciated in Restatement (Second) of Torts, §§ 302B and 449 (1965). Id. at 42 (Goldenhersh, J., dissenting).

In Fancil v. Q. S. E. Foods, Inc., 60 Ill.2d 552, 328 N.E.2d 538 (1975), the Illinois Supreme Court considered once again the imposition of a duty upon a landowner to take steps to protect invitees from foreseeable criminal acts committed by third parties. In arguing his position, the Fancil plaintiff relied on the rationale of Neering, supra; Johnston v. Harris, 387 Mich. 569, 198 N.W.2d 409 (1972); and §§ 302B, 448 and 499 of Restatement (Second) of Torts (1965).4 In determining that the amended complaint was properly dismissed, the court acknowledged that risk of intentional or criminal conduct under appropriate circumstances might be a risk against which an actor has the duty to protect another, citing Restatement (Second) of Torts § 302B, Comment e,5 and § 315.6

The analytic approach of the Fancil decision is to examine the pleaded facts in light of the liability rules set out in the appropriate sections of the Restatement (Second) of Torts. Quite clearly, the Fancil court interprets its earlier Neering opinion through the lens of the American Law Institute approach to tort liability. Thus, while the language of the Neering opinion expressly stated that its decision rested upon the ordinary standard of care, the Fancil court reads that earlier case as holding that a possessor of land owed a duty to the injured person against the risk of harm from the intentional and criminal acts of third persons "because of the special relation of carrier and passenger which existed between the defendant and the injury party." 328 N.E.2d at 542 (emphasis supplied). Moreover, the Fancil court leaves no doubt regarding what special relations it has in mind. Thus the opinion in Fancil expressly states that Restatement (Second) of Torts § 314A sets forth the special relations which give rise to a duty to aid or protect another against an unreasonable risk of physical harm.7 328 N.E.2d at 542. The opinion emphasizes that the duty generally arises where the actor is under a special responsibility toward the one who suffers harm or where a special relation exists. Id.

The decisions of the intermediate appellate courts before and after Fancil are consistent with the position that the imposition of a duty to guard against criminal attacks by third persons depends upon both notice of the danger and the existence of a special relationship.

In O'Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 255 N.E.2d 205 (1970), the issue was whether the amended complaint stated a cause of action for injuries resulting from a criminal assault by a third person which occurred in a parking area of a shopping center. The amended complaint charged the duty to exercise reasonable care to protect customers from unlawful attacks and to warn of dangers. The complaint also charged that the failure to provide security personnel to police the premises, coupled with the fact that the city did not police the parking area, constituted a breach of duty. The appellate court determined that, as a matter of law, the complaint did not allege facts sufficient to create a duty on the part of the defendants to the plaintiff. 119 Ill.App.2d at 106, 255 N.E.2d 205.

In large measure, the O'Brien court anticipated the reading of Neering later adopted by the Illinois Supreme Court. It explained that the defendant there was charged with knowledge that the area was infested with tramps and hoboes, that the railroad had notice that these persons were loitering about and even slept in the waiting room, and that the company had in fact been so notified by the plaintiff. The court concluded that the common law duty of reasonable care owed to persons lawfully on premises could not be extended to a duty to guard against the criminal acts of a third person, absent knowledge of previous incidents or special circumstances which would charge the owners with knowledge of the dangers and the duty to anticipate it. Id. at 108, 255 N.E.2d 205.8

In Trice v. Chicago Housing Authority, 14 Ill.App.3d 97, 302 N.E.2d 207 (1973), the court faced the issue whether a landlord has a duty to protect tenants from intentional or criminally reckless acts of other tenants or third persons. The court found it unnecessary to probe the issue of notice but decided the case on the basis of the lack of a "special relationship." In determining that the order granting the defendant's motion to strike the amended complaint must be affirmed, the court first recognized that the Restatement (Second) of Torts § 315 states that there is no duty to control the conduct of a third person to such a degree as to prevent him from causing physical harm to another unless a special relationship exists between the actor and the other. 302 N.E.2d at 208. It further explained that §§ 314A and 3209 of the Restatement enumerated certain special relationships, such as carrier-passenger, business invitor-invitee, and innkeeper-guest. Id. Because the plaintiff could cite no case in which a "special relationship" has encompassed a landlord-tenant relationship, the court refused to expand tort liability by creating a new duty for landlords to prevent injuries caused by criminally reckless acts of third persons. See id. at 209.

In Smith v. Chicago Housing Authority, 36 Ill.App.3d 967, 344 N.E.2d 536 (1976), the court faced the plaintiff's fundamental contention that the defendant, as a landlord, had a duty to protect its tenants against criminal acts of third parties which occur on the premises. Citing Fancil and § 314A of the Restatement (Second) of Torts, both supra, the court observed that there are special legal relations which give rise to a duty to protect another against unreasonable risk of physical harm. The court affirmed a dismissal of the second amended complaint. In giving its answer to the dispositive question of the existence of a legal duty owed to plaintiff by defendant, the Smith court indicated its view of the policy arguments suggesting the imposition of a duty to protect against criminal acts upon a landlord:

Requiring an owner to repair and maintain the property imposes a reasonable and essential social duty. There is no requirement reasonable or otherwise which any court could impose upon property owners which could conceivably prevent occurrences such as described in plaintiff's complaint. This type of crime springs from complex social and other causes far beyond rectification by any court. To impose liability in the case before us would unjustly place upon defendant as a property owner a legal duty which is impossible of performance.

344 N.E.2d at 540.

C. Liability Under the Restatement (Second) of Torts

In this appeal, A § K's basic contention is that under Illinois law it owed no duty to the plaintiffs-appellants under the facts stated in the complaint. The Mitchells contend that A & K had certain duties because the Illinois courts have recognized the views stated in the Restatement (Second) of Torts. For purposes of this appeal, it is conceded that Lawrence Mitchell was an invitee. See also Restatement (Second) of Torts § 322. Thus, his relationship with A & K was that defined in § 314A(3). See note 7 supra. Thus, the Illinois courts would presumably determine that Restatement (Second) of Torts § 344 controls.10

That formulation of the liability rule clearly precludes any possibility of A & K's legal responsibility. A possessor of land is subject to liability to business invitees "while they are upon the land." In the present case, the Mitchells were parked upon a public thoroughfare. It is true that A & K would not have endured much inconvenience by warning the Mitchells that there was the possibility of an armed robbery in that area of Fulton Street. Our task, however, is not to measure the moral blame or worth of A & K. The Illinois cases have retreated from the broad view of tort liability espoused in Neering by accepting the liability rules formulated by the American Law Institute. Because the clear wording of the appropriate section denies the business proprietor's liability, we fulfill our adjudicative function by adhering to its formulation.

Alternatively, the Illinois courts, we believe, would rule that Comment c to § 314A controls.11 We do not regard the defendant-appellee's concession that Lawrence Mitchell was an invitee on the date and time of his injury as an irrevocable waiver of its defense that Mitchell ceased to be an invitee at the moment when he left the receiving dock area and returned to the street. Under the direct wording of Comment c, it is clear that A & K had no duty to the Mitchells. The district court's dismissal of the complaint because of the want of any existing duty comports with that analysis.

For the reasons hereinbefore set forth, the judgment dismissing the cause must be and is

AFFIRMED.

FAIRCHILD, Chief Judge, dissenting.

The crucial question involved in this case is whether, under Illinois law, and accepting the averments of the complaint as true, defendant owed plaintiff any duty which was breached. I have no quarrel with the general proposition adopted by the majority that no duty is owed to protect against criminal acts of third persons on a public street. However, I do not believe this proposition fits the facts of this case. Plaintiff alleged that defendant ordered him to remain in his truck and park it on a street when defendant knew or should have known that plaintiff would be in danger of criminal attack. Plaintiff followed defendant's instructions and was subsequently shot in the face. In my view, this affirmative conduct of defendant greatly increased the risk of harm to plaintiff, thus creating a duty on defendant to warn plaintiff of the danger or to direct plaintiff to a place of safety until the delivery could be made.

The principle that affirmative conduct by an actor can create a duty to exercise reasonable care is recognized in the Restatement (Second) of Torts, § 302B, Comment e, which provides in relevant part:

There are, however, situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal, misconduct of others. In general, these situations arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct; or where the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account. (Emphasis added.)

I conclude that Illinois courts would follow the position of the Restatement and find a duty owed by defendant to plaintiff under the facts of this case.