Scott v. Wendy's Props.

1

Vonzell Scott, Sr., Plaintiff, v. Wendy's Properties, LLC, Defendant.

No. 20 CV 6829

United States District Court, N.D. Illinois, Eastern Division

April 24, 2024

MEMORANDUM OPINION AND ORDER

Manish S. Shah, United States District Judge

Plaintiff Vonzell Scott, Sr., was shot while sitting in a car at a Wendy's drive-through. He brings this suit alleging that a criminal attack was reasonably foreseeable to defendant Wendy's and that its failure to adequately secure the property was negligent. Wendy's moves for summary judgment. For the reasons discussed below, the motion is granted.

I. Legal Standards

A motion for summary judgment must be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). I view all the facts and draw reasonable inferences in favor of the non-moving party to determine whether summary judgment is appropriate. See Uebelacker v. Rock Energy Coop., 54 F.4th 1008, 1010 (7th Cir. 2022).

II. Facts

At around 3:00 a.m. on December 31, 2018, Scott and another passenger pulled up in a car to the Wendy's drive-through on West Garfield Boulevard.^[1] [127-1] ¶¶ 14 15.^[2] Another car attempted to cut in front of him in the drive-through lane, and he honked his horn in response. [127-1] ¶ 17. That kerfuffle ended, Scott ordered his food, and he waited in the drive-through lane without any problems. [127-1] ¶¶ 19 21. At 3:12 a.m., an SUV stopped in an alleyway adjacent to the parking lot for about thirty seconds before driving across the north side of the parking lot and out of view of the security cameras.^[3] [127-1] ¶¶ 26-28; [128] ¶ 60. A few minutes later at 3:15 a.m., two unknown men approached the car from behind (arriving from the vicinity of the SUV), each took one side of the car, shot multiple times into the windows, then immediately fled on foot. [127-1] ¶¶ 22-23, 26, 29. The shooting was over in less than a minute. [127-1] ¶ 30.

At the time of the shooting, Wendy's did not have a security guard on the premises. [128] ¶¶ 53, 55. About 5% of Wendy's restaurants nationwide employ security guards, and less than 2% employ armed security guards. [128] ¶ 56. In the Chicago metropolitan area, approximately 10% of Wendy's locations employ armed security guards. [128] ¶ 57. At the West Garfield location, Wendy's armed security service was scheduled from 9:00 a.m. to 10:30 p.m. [128] ¶ 53. The dining room closed at 10:00 p.m. while the drive-through remained open. [128] ¶ 51. There was no overnight security shift scheduled after 10:30 p.m. [128] ¶ 55.

III. Analysis

To prove negligence under Illinois law, Scott must establish that the defendant owed him a duty, breached that duty, and his injury was a proximate result of that breach. See Johnson v. Armstrong, 2022 IL 127942, ¶ 51. Whether a duty exists is a question of law. Rowe v. State Bank of Lombard, 125 Ill.2d 203, 215 (1988). Breach and proximate cause are questions of fact for the jury. Marshall v. Burger King Corp., 222 Ill.2d 422, 430 (2006). But “where reasonable minds could not differ as to inferences to be drawn from undisputed facts,” the issues become a matter of law and summary judgment is appropriate. Parsons v. Carbondale Twp., 217 Ill.App.3d 637, 646 (5th Dist. 1991).

A. Duty

A landowner generally does not owe a duty to protect other people on their property from the criminal acts of third parties unless a special relationship exists between the landowner and the injured person. Rowe, 125 Ill.2d at 215-16. Illinois courts recognize four special relationships as creating an affirmative duty to protect another person against the unreasonable risk of physical harm: (1) common carrier and passenger, (2) innkeeper and guest, (3) custodian and ward, and (4) business inviter and invitee. Marshall, 222 Ill.2d at 438-39 (citing Restatement (Second) of Torts § 314A (1965)). Scott alleges that he was a business invitee of Wendy's. [127] at 5.

The “touchstone of [the] duty analysis is to ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.” Marshall, 222 Ill.2d at 436. The existence of a special relationship is not sufficient to impose a duty on the landowner; the criminal attack by a third party must also be reasonably foreseeable. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1148 (7th Cir. 2010). A criminal attack is reasonably foreseeable “when the circumstances are such as to put a reasonably prudent person on notice of the probability of an attack or when a serious physical altercation has already begun.” Id. “Whether a duty exists is also an inquiry shaped by public policy.” Bogenberger v. Pi Kappa Alpha Corp., Inc., 2018 IL 120951, ¶ 22. Four factors inform this inquiry: 1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant. Id.

Wendy's argues that it owed no duty to protect Scott from the shooting because it was not a reasonably foreseeable criminal attack. [120] at 10-16. Wendy's characterizes the shooting as a “targeted military style” attack and analogizes the facts to those in Witcher v. 1104 Madison St. Restaurant, 2019 IL App (1st) 181641, ¶ 27, in which the court found that a restaurant had no duty to protect a customer from an unforeseeable “intentional and targeted stabbing” by another patron. The appellate court found no duty as a matter of law because the criminal act at issue “must have resulted from the same risk as was present in the prior incidents of criminal activity,” but the restaurant was not put on notice by any similar crimes committed on its premises. Id. ¶¶ 15-19. Scott concedes that there is no record of a prior shooting reported at this Wendy's location. [127-1] ¶ 31. Between June 2016 and December 2018, the Chicago Office of Emergency Management recorded twenty-nine calls for service at the West Garfield Wendy's location, but none of the reported incidents involved shootings.^[4] [127-1] ¶ 31; [128] ¶ 69. Wendy's says the lack of a prior, similar event shows that the shooting was not reasonably foreseeable. [120] at 10-11.

The Illinois Supreme Court rejected a narrow articulation of the relevant risk and emphasized that reasonable foreseeability considers the “general character of the event or harm” rather than the “precise nature or manner of occurrence.” Marshall, 222 Ill.2d at 442. The court found that the defendant's restaurant owed a duty of reasonable care to protect against a negligent driver crashing her car into the restaurant and killing a patron. Id. at 446. It was reasonably foreseeable “given the pervasiveness of automobiles, roadways, and parking lots, that business invitees will, from time to time, be placed at risk by automobile-related accidents.” Id. at 442. The court cautioned against conflating duty with breach and proximate cause.

Recognizing that a duty of reasonable care applies “is not the same as concluding the duty has been breached because a business failed to take a certain level of precaution... [M]erely concluding that the duty applies does not constitute an automatic, broad-based declaration of negligence liability.” Id. at 443.

It is reasonably foreseeable that customers at Wendy's will occasionally be at risk of criminal assaults by third parties. Wendy's characterization of the harm as a “military styled intentional shooting” or “attempted assassination,” is the type of “fact-specific formulation” rejected in Marshall. See [129] at 5; Marshall, 222 Ill.2d at 443. Targeted killings or attempted assassinations are not reasonably foreseeable dangers to the typical quick-service restaurant. But that formulation is too specific. The general nature of harm that Scott faced was an intentional third-party assault- this is not outside the zone of reasonable foreseeability. Wendy's arguments that it does not owe a duty to provide 24-hour security, [120] at 14, goes to the question of breach rather than duty. See Marshall, 222 Ill.2d at 443-44 (rejecting framing of the issue as “whether defendants had a duty to install protective poles, or a duty to prevent a car from entering the restaurant” but rather “whether in light of the particular circumstances of this case, defendants breached that duty”). Wendy's owed a duty of reasonable care to Scott to protect him against reasonably foreseeably criminal attacks by third parties, but that does not constitute an “automatic, broadbased declaration of negligence liability.” Id. at 443.

B. Breach and Proximate Cause

To prove negligence, Scott must also show that Wendy's breached that duty and that the breach was the proximate cause of his injuries. See id. at 430. Scott says that Wendy's breached its duty by failing to provide overnight armed security guards patrolling the drive-through lane near the pick-up window. [127] at 10. Wendy's emphasizes that Scott cannot establish proximate cause because the shooting was an intervening act. [120] at 18; [129] at 12-15.

Proximate cause requires two elements: cause in fact and legal cause. Lee v. Chicago Transit Auth., 152 Ill.2d 432, 455 (1992). Together, cause in fact and legal cause provide the boundary of “how far a defendant's legal responsibility should be extended for conduct that, in fact caused the harm.” Id. In cases involving intervening causes, Illinois courts draw a distinction...