Marshall v. Burger King Corp.

856 N.E.2d 1048

222 Ill.2d 422

305 Ill.Dec. 897

Detroy MARSHALL, Jr., as Personal Representative and Adm'r

No. 100372.

Supreme Court of Illinois

Rehearing Denied September 25, 2006

June 22, 2006

222 Ill.2d 423

COPYRIGHT MATERIAL OMITTED

Karen L. Kendall, Craig L. Unrath, Peoria, Douglas J. Pomatto and Scott G. Salemi, Rockford, all of Heyl, Royster, Voelker & Allen, for appellants.

222 Ill.2d 424

William T. Cacciatore and Eileen J. McCabe, Rockford, for appellee.

Michael Resis and Glen E. Amundsen, of O'Hagan, Smith & Amundsen, L.L.C., Chicago, for amicus curiae Illinois Association of Defense Trial Counsel.

Kirsten M. Dunne, of Goldberg, Weisman & Cairo, Ltd., Chicago, for amicus curiae Illinois Trial Lawyers Association.

Anthony Sanders, Chicago, Deborah J. La Fetra and Timothy Sandefur, Sacramento, California, for amicus curiae Pacific Legal Foundation.

Justice GARMAN delivered the judgment of the court, with opinion:

Plaintiff, Detroy Marshall, Jr., as personal representative and administrator of the estate of his son, Detroy Marshall III, filed a negligence action in the circuit court of Winnebago County against Burger King Corporation, Davekiz, Inc., Pamela Fritz, and various insurers. The decedent was killed when a car driven by Fritz crashed through the wall of the Burger King restaurant where the decedent was eating and fatally injured him. Plaintiff alleged that Burger King and Davekiz, Burger King's franchisee, did not exercise due care in designing, constructing, and maintaining the restaurant and that their failure to do so proximately caused the decedent's

222 Ill.2d 425

death. Burger King and Davekiz filed a joint motion to dismiss the allegations against them (735 ILCS 5/2-615 (West 2002)), which the circuit court granted. The appellate court reversed and remanded the cause for further proceedings. 355 Ill.App.3d 685, 291 Ill.Dec. 805, 824 N.E.2d 661. We affirm the judgment of the appellate court and hold that the allegations in plaintiff's complaint are sufficient to establish that Burger King and Davekiz owed a duty of care to the decedent.

BACKGROUND

According to plaintiff's complaint, on September 27, 2001, Pamela Fritz backed into a lamppost as she was attempting to drive out of the parking lot of a Burger King restaurant in Rockford, Illinois. When she drove forward from the lamppost, her accelerator stuck, and she lost control of her car. The car hit a sidewalk adjacent to the restaurant, became airborne, and penetrated the brick half-wall and windows surrounding the restaurant's entrance. The decedent, who was eating inside the restaurant at the time, was struck by Fritz's car and fatally injured.

On September 24, 2003, plaintiff filed the instant lawsuit in the Winnebago County circuit court as a personal representative of the decedent and as the administrator of the decedent's estate. Counts V and VI of plaintiff's six-count complaint, which sought damages for spoliation of evidence from various insurers and Fritz, were settled. Only the remaining counts are at issue in this appeal.

Counts I through IV of the complaint seek damages for negligence from Burger King and Davekiz on behalf of the decedent's children and next of kin under the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2000)) and the survival provision of the Probate Act of 1975 (755 ILCS 5/27-6 (West 2000)). All of these counts allege that Burger King franchised the restaurant at the

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Rockford location to Davekiz. Counts I and II allege that Burger King "owned, operated, controlled[,] and maintained" the restaurant "by and through its agents, servants, employees, [and] franchisees." They also allege that, by and through the same parties, Burger King "directed and controlled the [restaurant's] design, construction, layout, floor plan[,] and building material specifications." Counts III and IV contain nearly identical allegations against Davekiz, with the exception that they omit the reference to "franchisees." All of the counts allege that Burger King and Davekiz did not exercise due care in designing, constructing, and maintaining the restaurant and that their failure to do so proximately caused the decedent's injuries. Specifically, they state that defendants:

"a. Failed to place vertical concrete pillars or poles in the sidewalk by the entrance of said restaurant, which vertical pillars or poles would have prevented the vehicle * * * from becoming air born [sic] and coming to rest over the brick half wall, when the Defendant[s] knew or should have known that failing to put concrete pillars or poles in the sidewalk by the entrance to the restaurant would allow a vehicle to become air born [sic] when driven over the sidewalk, thereby causing the vehicle to come down on top of the brick half wall * * *.

b. Improperly designed the Burger King restaurant building, by designing the building to be bricked up only a few feet from the ground, when the Defendants[s] knew or should have known[ ] that permitting [the] building to be bricked up only a few feet from the ground may allow a vehicle from the parking lot to drive into the building, and crash through the glass on top of the brick * * *.

c. Improperly constructed the building and sidewalk of the Burger King restaurant involved in this occurrence, by failing to place vertical concrete pillars or

222 Ill.2d 427

poles near the entrance of said restaurant, contrary to the custom and practice of the industry, when the Defendant[s] knew or should have known that the custom and practice in the building industry was to place vertical concrete pillars or poles near the entrance to the building when the parkinglot is in such close proximity, and vehicles could drive up onto the sidewalk and into the building * * *.

d. Failed to adequately and securely construct the entrance and front of the Burger King restaurant involved in this occurrence, when the Defendant[s] knew or should have known that the location of this occurrence involved a high traffic count on two major streets, and that vehicles may drive onto the sidewalk and into the building * * *.

e. Improperly designed and constructed the sidewalk area of the Burger King restaurant involved in this occurrence, in violation of the BOCA Building Code, by designing and constructing a sidewalk which sidewalk when hit by a vehicle causes the vehicle to become air born [sic] and crash into the restaurant building * * *.

f. Failed to otherwise use due care in the design, construction, and maintenance of the building, parking lot and sidewalk involved in this occurrence."

On November 10, 2003, Burger King and Davekiz filed a motion to dismiss counts I through IV of the complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2002)). They argued that plaintiff failed to state a cause of action upon which relief could be granted because they had no duty to protect the decedent from the injury caused by Fritz's car. The circuit court granted defendants' motion. The court reasoned that the likelihood of the type of accident at issue was so minor that to guard against it in the manner suggested by plaintiff "would require fortifying every building within striking distance of any crazed or incredibly inept driver," forgoing "any hope of aesthetically pleasing or business-enticing buildings."

The appellate court reversed the judgment of the circuit court and remanded the cause for further proceedings, with one justice dissenting. 355 Ill.App.3d 685, 291 Ill.Dec. 805, 824 N.E.2d 661. The majority held that plaintiff's complaint states a cause of action against defendants. 355 Ill.App.3d at 689, 291 Ill.Dec. 805, 824 N.E.2d 661. It noted that the complaint alleges specific ways in which defendants failed to guard against the possibility of cars

222 Ill.2d 428

penetrating the restaurant and injuring patrons. 355 Ill.App.3d at 689, 291 Ill.Dec. 805, 824 N.E.2d 661. Relying on two factually analogous cases, Ray v. Cock Robin, Inc., 57 Ill.2d 19, 310 N.E.2d 9 (1974), and Marquardt v. Cernocky, 18 Ill.App.2d 135, 151 N.E.2d 109 (1958), the majority concluded that, based on the allegations in plaintiff's complaint, it could not say as a matter of law that the precautions suggested by the complaint are beyond the duty of reasonable care that a premises owner in defendants' situation owes to its customers. 355 Ill.App.3d at 689, 291 Ill.Dec. 805, 824 N.E.2d 661. The majority also responded to the circuit court's "policy reasons" for declining to find that defendants owed a duty of reasonable care to the decedent. 355 Ill.App.3d at 689, 291 Ill.Dec. 805, 824 N.E.2d 661. According to the majority, plaintiff created a question of fact as to whether defendants' failure to take precautions was a breach of their duty of reasonable care, regardless of the burdens associated with exercising that duty, by alleging that defendants' conduct was inconsistent with the custom and practice of the building industry and that it violated the BOCA building code. 355 Ill. App.3d at 689-90, 291 Ill.Dec. 805, 824 N.E.2d 661. The majority declined to follow Simmons v. Aldi-Brenner Co., 162 Ill.App.3d 238, 113 Ill.Dec. 594, 515 N.E.2d 403 (1987), and Stutz v. Kamm, 204 Ill. App.3d 898, 149 Ill.Dec. 935, 562 N.E.2d 399 (1990), both of which found no duty to exist in circumstances similar to those at issue in this case. 355 Ill.App.3d at 690-92, 291 Ill.Dec. 805, 824 N.E.2d 661.

The dissent opined that plaintiff failed to allege facts sufficient to establish a duty or proximate cause. 355 Ill.App.3d at 693, 291 Ill.Dec. 805, 824 N.E.2d 661 (McLaren, J., dissenting). As to the latter, the dissent reasoned that because defendants merely furnished a condition that caused injury as a result of the subsequent, independent act of a third party, the creation of that condition could not be a proximate cause of the injury. 355 Ill.App.3d at 694, 291 Ill.Dec. 805, 824 N.E.2d 661 (McLaren, J., dissenting). Instead, the subsequent, independent act of...