## Facts

- Lawrence Mitchell, a truck driver, delivered the defendant’s products to the defendant’s Chicago warehouse with his wife and grandchildren.
- The warehouse receiving dock could unload only one truck at a time.
- The defendant’s employees directed Mitchell to remain in his truck and park on Fulton Street, a public street immediately opposite the warehouse and adjacent to its driveway, until unloading was possible.
- The complaint alleged the defendant customarily used the area in front of the receiving area, including the adjacent street area, as an extension of the receiving dock and as a staging area for trucks.
- While Mitchell waited in his truck on the street, two unknown assailants demanded money; when he refused, one shot him in the face at close range, causing permanent injuries.
- The complaint alleged the defendant’s employees had experienced repeated criminal acts on and about the premises and that the defendant knew or should have known of a high risk of attacks on drivers; it also alleged an armed robbery of another driver roughly three weeks earlier while waiting to deliver.
- Plaintiffs alleged the defendant owed duties to maintain reasonably safe premises and adjacent areas, provide safe ingress and egress, warn of criminal activity, and protect invitees from third-party criminal acts.

## Issues

1. Whether the complaint stated a negligence claim sufficient to survive dismissal under Federal Rule of Civil Procedure 12(b)(6), including whether plaintiffs could rely on an “extension of the premises” theory not properly pursued in the district court.
2. Whether, under Illinois law, a landowner owes a duty to protect an invitee from third-party criminal attacks occurring off the landowner’s premises on an adjacent public street.

## Decision

- The Seventh Circuit affirmed the district court’s Rule 12(b)(6) dismissal for failure to state a claim.
- The court held that, under Illinois law, the owner or occupier of land had no duty to guard an invitee against criminal attacks occurring beyond the property boundaries on a public thoroughfare.
- The court declined to consider a new appellate theory that the street functioned as part of the premises where plaintiffs had an opportunity to amend below but chose to appeal.
- Allegations of foreseeability and prior crime did not create a duty extending to a public street outside the defendant’s ownership or control.

## Legal Principles

- On a Rule 12(b)(6) motion, courts accept well-pleaded factual allegations as true but generally do not entertain new legal theories raised for the first time on appeal.
- Under Illinois premises-liability principles, a landowner’s duty to protect invitees from third-party criminal acts is generally limited to the landowner’s premises or areas within the landowner’s control.
- Foreseeability of criminal activity, standing alone, does not extend a landowner’s duty to protect invitees to adjacent public streets outside the landowner’s control.
- Regular business use of a public right-of-way does not, without legal control, convert that area into the landowner’s premises for purposes of imposing a protective duty.

## Conclusion

The court held that the plaintiffs’ negligence claim failed because the shooting occurred on an adjacent public street outside the defendant’s premises and control, and Illinois law did not impose a duty on the landowner to protect invitees from third-party criminal attacks in that location; the dismissal under Rule 12(b)(6) was affirmed.


Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429 (7th Cir. 1978)