Full Opinion & Expert Analysis: Marshall v. Burger King Corp. (222 Ill. 2d 422, 305 Ill. Dec. 897, 856 N.E.2d 1048 (2006))

Facts

On September 27, 2001, Pamela Fritz backed her car into a lamppost while attempting to exit the parking lot of a Burger King restaurant in Rockford, Illinois.¹ When she drove forward from the lamppost, her accelerator stuck and she lost control of the vehicle.² The car struck a sidewalk adjacent to the restaurant, became airborne, penetrated the brick half-wall and windows surrounding the restaurant's entrance, and struck Detroy Marshall III, who was eating inside the restaurant at the time, fatally injuring him.³

On September 24, 2003, Detroy Marshall, Jr., as personal representative and administrator of his son's estate, filed a six-count complaint in the circuit court of Winnebago County against Burger King Corporation, Davekiz, Inc., Pamela Fritz, and various insurers.⁴ Counts I through IV sought damages for negligence from Burger King and Davekiz under the Wrongful Death Act and the survival provision of the Probate Act of 1975 on behalf of the decedent's children and next of kin.⁵ The complaint alleged that Burger King franchised the Rockford restaurant to Davekiz, that both entities owned, operated, controlled, and maintained the premises, and that both directed and controlled the restaurant's design, construction, layout, floor plan, and building material specifications.⁶ It further alleged that defendants failed to exercise due care by omitting vertical concrete pillars or poles near the entrance, designing the building with brick only a few feet from the ground, constructing the sidewalk in violation of the BOCA Building Code, deviating from industry custom and practice, and otherwise failing to use due care in the design, construction, and maintenance of the building, parking lot, and sidewalk.⁷

Counts V and VI, which sought damages for spoliation of evidence from various insurers and Fritz, were settled before the appeal.⁸ On November 10, 2003, Burger King and Davekiz filed a joint motion to dismiss counts I through IV pursuant to section 2-615 of the Code of Civil Procedure, arguing that they owed no duty to protect the decedent from injury caused by Fritz's car.⁹ The circuit court granted the motion.¹⁰

The appellate court reversed the circuit court's judgment and remanded the cause for further proceedings.¹¹ Defendants filed a petition for leave to appeal, which the Supreme Court of Illinois allowed.¹²

Analysis

Issue #1

Issue

Whether the allegations in plaintiff's complaint are sufficient to establish that Burger King and Davekiz owed a duty of care to the decedent?¹³

Legal Rule

A possessor of land who holds it open to the public for business purposes owes invitees a duty of reasonable care to protect them from the negligent acts of third persons.¹⁴ This duty arises when the place or character of the business makes it reasonably foreseeable that such acts will occur.¹⁵ The duty is set forth in Restatement (Second) of Torts § 344.¹⁶

Rule Analysis

Yes. The complaint alleges that the decedent was a customer eating inside the defendants' restaurant when Fritz's car penetrated the building.¹⁷ Defendants knew or should have known of the risks from the high traffic location, lack of barriers, and design features.¹⁸ The special relationship of business invitor and invitee applies directly to this situation involving a negligent third-party act.¹⁹ The four duty factors do not justify an exemption from the duty.²⁰

Conclusion

The allegations in plaintiff's complaint are sufficient to establish that defendants owed a duty of care to the decedent.²¹

Related opinions on this issue

Justice Mcmorrow: Dissenting opinion

Joined by Justice Freeman

Justice McMorrow dissented on the ground that the majority departed from the framework in Hills v. Bridgeview Little League Ass'n.²² A special relationship alone does not establish an affirmative duty to protect.²³ The traditional duty factors must be considered first.²⁴

The majority's exemption analysis improperly reverses the established framework for affirmative duties to protect.²⁵ This constitutes error under principles of stare decisis.²⁶

Justice Garman: Dissenting opinion

Joined by Justice Freeman

Justice Garman dissented on the ground that automobile-related accidents are not foreseeable as a matter of law in this context.²⁷ The majority's categorical approach imposes an unprecedented duty that makes landowners insurers of invitees' safety.²⁸ The burden of constructing impregnable barriers is unreasonable.²⁹ The majority's resolution raises significant public policy concerns.³⁰

Issue #2

Issue

Whether defendants forfeited their proximate cause argument by failing to raise it in the circuit court?³¹

Legal Rule

Where the appellate court reverses the judgment of the circuit court, an appellee may raise any issues properly presented by the record to sustain the judgment.³² Issues not raised in the circuit court are forfeited on appeal.³³

Rule Analysis

Yes. Defendants' motion to dismiss in the circuit court argued only that no duty was owed.³⁴ The trial court's ruling addressed only the issue of duty.³⁵ Defendants first raised the proximate cause argument before this court.³⁶

Conclusion

Defendants forfeited their proximate cause argument.³⁷

Issue #3

Issue

Whether the circuit court properly granted defendants' section 2-615 motion to dismiss the negligence counts?³⁸

Legal Rule

A section 2-615 motion to dismiss challenges the legal sufficiency of the complaint.³⁹ The motion should be granted only if it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recovery.⁴⁰

Rule Analysis

No. The complaint alleges facts sufficient to establish a duty of care owed by defendants to the decedent under the business invitor-invitee relationship.⁴¹ Therefore the motion to dismiss should not have been granted.⁴²

Conclusion

The circuit court did not properly grant the motion to dismiss.⁴³