Marshall v. Burger King ( 2006 )

Docket No. 100372.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
DETROY MARSHALL, JR., as Personal Representative and
Adm=r of the Estate of Detroy Marshall III, Deceased, Appellee,
v. BURGER KING CORPORATION et al., Appellants.
Opinion filed June 22, 2006.
JUSTICE GARMAN delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Fitzgerald, Kilbride, and
Karmeier concurred in the judgment and opinion.
Justice McMorrow dissented, with opinion, joined by Justice
Freeman.
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 death.
Burger King and Davekiz filed a joint motion to dismiss the
allegations against them (735 ILCS 5/2B615 (West 2002)),
which the circuit court granted. The appellate court reversed
and remanded the cause for further proceedings. 355 Ill. App.
3d 685. 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 5/27B6 (West
2000)). All of these counts allege that Burger King franchised
the restaurant at the Rockford location to Davekiz. Counts I
and II allege that Burger King Aowned, operated, controlled[,]
and maintained@ the restaurant Aby and through its agents,
servants, employees, [and] franchisees.@ They also allege that,
by and through the same parties, Burger King Adirected and
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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 Afranchisees.@ 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:
Aa. 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
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 parking lot 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
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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 2B615 of the Code of Civil Procedure (735 ILCS
5/2B615 (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 Awould require fortifying every building
within striking distance of any crazed or incredibly inept driver,@
forgoing Aany 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. The majority held
that plaintiff=s complaint states a cause of action against
defendants. 355 Ill. App. 3d at 689. It noted that the complaint
alleges specific ways in which defendants failed to guard
against the possibility of cars penetrating the restaurant and
injuring patrons. 355 Ill. App. 3d at 689. Relying on two
factually analogous cases, Ray v. Cock Robin, Inc., 57 Ill. 2d
19 (1974), and Marquardt v. Cernocky, 18 Ill. App. 2d 135
(1958), the majority concluded that, based on the allegations in
plaintiff=s complaint, it could not say as a matter of law that the
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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. The majority
also responded to the circuit court=s Apolicy reasons@ for
declining to find that defendants owed a duty of reasonable
care to the decedent. 355 Ill. App. 3d at 689. 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. The majority declined to follow Simmons v.
Aldi-Brenner Co., 162 Ill. App. 3d 238 (1987), and Stutz v.
Kamm, 204 Ill. App. 3d 898 (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.
The dissent opined that plaintiff failed to allege facts
sufficient to establish a duty or proximate cause. 355 Ill. App.
3d at 693 (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 (McLaren, J., dissenting). Instead, the subsequent,
independent act of Fritz=s driving broke the causal link between
the original wrong and the injury and became the sole
proximate cause. 355 Ill. App. 3d at 694 (McLaren, J.,
dissenting). As to the issue of duty, the dissent criticized the
majority for declining to follow Simmons and Stutz and for
accepting plaintiff=s Ablind assertion@ that defendants violated
the BOCA building code absent specific citations to relevant
code sections adopted by the City of Rockford. 355 Ill. App. 3d
at 694-95 (McLaren, J., dissenting).
Defendants filed a petition for leave to appeal, which we
allowed. 177 Ill. 2d R. 315. We granted leave to the Illinois
Association of Defense Trial Counsel, the Pacific Legal
Foundation, and the Illinois Trial Lawyers Association to file
amicus curiae briefs. 155 Ill. 2d R. 345.
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ANALYSIS
A section 2B615 motion to dismiss (735 ILCS 5/2B615
(West 2002)) challenges the legal sufficiency of a complaint
based on defects apparent on its face. City of Chicago v.
Beretta U.S.A. Corp., 213 Ill. 2d 351, 364 (2004). Therefore,
we review de novo an order granting or denying a section
2B615 motion. Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003). In
reviewing the sufficiency of a complaint, we accept as true all
well-pleaded facts and all reasonable inferences that may be
drawn from those facts. Ferguson v. City of Chicago, 213 Ill. 2d
94, 96-97 (2004). We also construe the allegations in the
complaint in the light most favorable to the plaintiff. King v. First
Capital Financial Services Corp., 215 Ill. 2d 1, 11-12 (2005).
Thus, a cause of action should not be dismissed pursuant to
section 2B615 unless it is clearly apparent that no set of facts
can be proved that would entitle the plaintiff to recovery. Canel
v. Topinka, 212 Ill. 2d 311, 318 (2004). We have repeatedly
stated, however, that Illinois is a fact-pleading jurisdiction. See,
e.g., Weiss v. Waterhouse Securities, Inc., 208 Ill. 2d 439, 451
(2004). While the plaintiff is not required to set forth evidence in
the complaint (Chandler v. Illinois Central R.R. Co., 207 Ill. 2d
331, 348 (2003)), the plaintiff must allege facts sufficient to
bring a claim within a legally recognized cause of action
(Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997)), not simply
conclusions (Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 408
(1996)).
To state a cause of action for negligence, a complaint must
allege facts that establish the existence of a duty of care owed
by the defendant to the plaintiff, a breach of that duty, and an
injury proximately caused by that breach. Bajwa v. Metropolitan
Life Insurance Co., 208 Ill. 2d 414, 421 (2004). Whether a duty
exists in a particular case is a question of law for the court to
decide. Chandler, 207 Ill. 2d at 340. On the contrary, whether a
defendant breached the duty and whether the breach was the
proximate cause of the plaintiff=s injuries are factual matters for
the jury to decide, provided there is a genuine issue of material
fact regarding those issues. Espinoza v. Elgin, Joliet & Eastern
Ry. Co., 165 Ill. 2d 107, 114 (1995).
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Defendants argue that plaintiff failed to state a cause of
action for negligence against them. Their general contentions
are that they owed no duty of care to the decedent and that, as
a matter of law, their conduct did not proximately cause the
decedent=s injuries. Plaintiff disputes these contentions.
As a preliminary matter, we find that defendants= have
forfeited their argument regarding proximate cause for
purposes of this appeal. Defendants argue for the first time
before this court that, as a matter of law, the allegations in
plaintiff=s complaint are insufficient to demonstrate that their
conduct proximately caused the decedent=s injuries. According
to defendants, their conduct merely furnished a condition that
contributed to harm caused by the subsequent, independent
act of a third party. It is well settled that where the appellate
court reverses the judgment of the circuit court, and the
appellee in that court brings the case before this court as an
appellant, that party may raise any issues properly presented
by the record to sustain the judgment of the circuit court. In re
R.L.S., 218 Ill. 2d 428, 437 (2006), quoting Dineen v. City of
Chicago, 125 Ill. 2d 248, 264 (1988), quoting Mueller v. Elm
Park Hotel, 391 Ill. 391, 399 (1945). Defendants prevailed in
the circuit court, were the appellees before the appellate court,
and appealed the judgment of the appellate court to this court.
However, defendants moved to dismiss plaintiff=s complaint in
the circuit court solely on the basis that they owed no duty of
care to the decedent. They did not argue proximate cause in
their motion to dismiss, and the trial court=s ruling was limited to
the issue of whether plaintiff adequately pleaded the existence
of a duty. Therefore, the issue of proximate cause is not
properly presented by the record in this case. We thus turn to
the issue of duty.
According to defendants, they owed no duty to the
decedent to protect him against the possibility of an out-of-
control car penetrating the restaurant and injuring him. They
characterize the incident at issue as Ahighly extraordinary@ and
Atragically bizarre@ and, therefore, not reasonably foreseeable.
They also emphasize that the likelihood of similar incidents
occurring in the future is very slight and that the burden
imposed on them and the business community at large will be
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considerable if we determine they owed a duty to the decedent.
Defendants criticize the appellate court for determining that a
duty existed in this case without specifically considering the
foreseeability of the decedent=s injury, the likelihood of the
injury, the magnitude of the burden of guarding against it, and
the consequences of placing the burden on them. Further, they
argue that the allegations in plaintiff=s complaint regarding their
purported violations of the BOCA building code and deviations
from the custom and practice of the building industry do not
support the finding that they owed a duty to the decedent.
Plaintiff disputes defendants= contention that they owed no
duty of care to the decedent. He argues that because the
decedent was defendants= business invitee, defendants owed
the decedent a duty to ensure that the premises of their
restaurant were reasonably safe for the decedent=s use.
Moreover, according to plaintiff, it was readily foreseeable that
a customer sitting in the dining area of defendants= restaurant
could be injured in the manner in which the decedent was
injured. Plaintiff emphasizes that no protective poles were built
around the restaurant, the restaurant was Abricked up@ only a
few feet from the ground, the restaurant was located in an area
with heavy traffic, and the restaurant=s parking lot was located
directly adjacent to its entrance and dining area. In addition,
plaintiff characterizes the precautions that he alleges
defendants could have taken to prevent the decedent=s death
as Aminimal undertakings at best.@
Before addressing the substance of the parties= arguments
on the issue of duty, we must clarify the scope of our inquiry
into the sufficiency of plaintiff=s complaint. As mentioned, the
complaint alleges that Burger King Aowned, operated,
controlled[,] and maintained@ the restaurant at the Rockford
location Aby and through its agents, servants, employees, [and]
franchisees.@ It also alleges that, by and through the same
parties, Burger King Adirected and controlled the [restaurant=s]
design, construction, layout, floor plan[,] and building material
specifications.@ The complaint repeats virtually identical
allegations with respect to Davekiz, Burger King=s franchisee,
and contains specific allegations of negligence against both
defendants that refer to the design, construction, and
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maintenance of the restaurant.
Plaintiff=s complaint can reasonably be construed as setting
forth theories of liability against each defendant in its capacity
as the owner, operator, designer, and builder of the restaurant.
However, in briefing and orally arguing this case, the parties
focused solely on defendants= potential liability as owners and
operators of the restaurant. A cause of action for negligent
design is distinguishable from a cause of action for negligent
construction. Compare, e.g., Hunt v. Blasius, 74 Ill. 2d 203, 209
(1978) (contractor may be liable in negligence if it follows
specifications that are Aso obviously dangerous that no
competent contractor would follow them@), with Ferentchak v.
Village of Frankfort, 105 Ill. 2d 474, 479-80 (1985)
(distinguishing cause of action against contractor in Hunt from
cause of action against civil engineer on ground that engineer
Awas not following the design of [the developer], but instead
was creating one@). Furthermore, neither a cause of action for
negligent design nor a cause of action for negligent
construction is dependent upon an injured party=s status as a
business invitee, as may be the case with a cause of action for
negligence against the owner or operator of a business. See,
e.g., Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 216
(1988) (Aspecial relationship@ between business invitor and
business invitee may give rise to duty to protect against the
criminal acts of others). Because the parties have presented no
arguments regarding the negligent-design and negligent-
construction theories set forth in the complaint, we confine our
discussion to whether defendants owed a duty to the decedent
in their capacities as owners and operators of the restaurant. In
addition, we express no opinion at this time on what effect, if
any, Burger King=s status as Davekiz=s franchisor may have on
Burger King=s liability in this case. See O=Banner v. McDonald=s
Corp., 173 Ill. 2d 208, 211-14 (1996) (addressing at summary
judgment phase of proceedings whether franchisor was
vicariously liable under theory of apparent agency for injuries
plaintiff incurred after slipping and falling in franchised
restaurant=s restroom).
Turning to the arguments of the parties, we initially observe
that plaintiff has cited Ray v. Cock Robin, Inc., 57 Ill. 2d 19
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(1974), in support of his contention that defendants owed the
decedent a duty of care. In Ray, the plaintiffs were seated at a
picnic table in front of an ice cream stand owned and operated
by Cock Robin, Inc., when they were struck by an out-of-
control car. Ray, 57 Ill. 2d at 21. They filed a negligence action
against Cock Robin, the driver of the car, and the mechanic
who serviced the car before the accident. Ray, 57 Ill. 2d at 20.
The jury rendered a verdict in favor of Cock Robin, and the
appellate court reversed and remanded the cause for a new
trial. Ray, 57 Ill. 2d at 20-21. This court affirmed the judgment
of the appellate court. Ray, 57 Ill. 2d at 24.
The issue in Ray was whether the trial court erred in
excluding testimony from a police officer at trial that would
have indicated that he witnessed a car run into a bicycle rack in
front of Cock Robin=s picnic tables sometime during the month
preceding the accident at issue. Ray, 57 Ill. 2d at 21-22. The
testimony would further have revealed that the officer informed
one of Cock Robin=s employees that the picnic tables were
located in a dangerous area and that the employee told the
officer Cock Robin had been informed of the danger. Ray, 57
Ill. 2d at 22. Cock Robin argued that its failure to take
measures to protect its patrons against the possibility of a
vehicle leaving the roadway and striking them was not a
proximate cause of the accident, but merely a condition that
made the plaintiffs= injuries possible through the subsequent,
independent act of a third party. Ray, 57 Ill. 2d at 22.
In discussing whether the exclusion of the police officer=s
testimony was prejudicial to the plaintiffs, this court focused on
the effect the evidence would have had on the jury=s
assessment of the foreseeability of the accident and,
accordingly, on its decision regarding the proximate cause of
the accident. See Ray, 57 Ill. 2d at 22-23. This court concluded
that because the testimony tended to establish that the
defendant was aware of the possible danger that the location
of its picnic tables and bicycle rack posed to its patrons (Ray,
57 Ill. 2d at 22-23), the testimony created a Afactual question
*** about which reasonable persons might differ as to whether
the condition of [the defendant=s] property was a proximate
cause of the injuries.@ Ray, 57 Ill. 2d at 23. Thus, the cause
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was remanded for a new trial. Ray, 57 Ill. 2d at 23.
It is readily apparent that Ray dealt with the issue of
proximate cause, not the issue of duty. Notably, in Ray, Cock
Robin did not dispute its Aduty to protect patrons from
unreasonable risks of harm.@ Ray, 57 Ill. 2d at 22. Therefore,
Cock Robin=s duty to the plaintiffs was not at issue, and this
court expressed no opinion on it. See also Marquardt, 18 Ill.
App. 2d at 142-46 (based on evidence presented at trial, jury
could reasonably have found that landowners= failure to
supervise parking or provide parking barriers proximately
caused injuries of plaintiff struck by car that rolled down hill
located on landowners= premises). Accordingly, in this case, we
must look elsewhere to determine whether defendants owed a
duty of care to the decedent.
This court has recognized that Athe concept of duty in
negligence cases is very involved, complex and indeed
nebulous.@ Mieher v. Brown, 54 Ill. 2d 539, 545 (1973). Legal
scholars have long debated the nature of duty and its proper
role in negligence law (see, e.g., W. Powers, Judge and Jury in
the Texas Supreme Court, 75 Tex. L. Rev. 1699, 1701-04
(1997)), and the debate has become a subject of renewed
interest in recent years (see, e.g., J. Goldberg, Introduction to
the Restatement (Third) of Torts: General Principles and the
John W. Wade Conference, 54 Vand. L. Rev. 639, 639-40
(2001); H. Perlman, The Restatement Process, 10 Kan. J.L. &
Pub. Pol=y 2, 2-7 (2000)). Much confusion over duty stems from
courts= tendency to attribute a variety of different meanings to
the term. See, e.g., 1 D. Dobbs, Torts '226, at 577 (2001)
(A[L]awyers and judges use the term duty in a variety of
different ways, not always with the same meaning. Sometimes
they use duty to refer to a general standard or obligation. At
other times they use duty as a conclusion about whether the
defendant=s particular act or omission should be actionable,
irrespective of any general standard@); J. Goldberg & B.
Zipursky, The Restatement (Third) and the Place of Duty in
Negligence Law, 54 Vand. L. Rev. 657, 698-723 (2001)
(distinguishing between four different Asenses@ in which duty is
used in negligence law, including duty as obligation, duty as
nexus between breach and duty, duty as breach as a matter of
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law, and duty as exemption from the operation of negligence
law). Relatedly, confusion over duty arises because, as one
well-known treatise aptly states, Athe existence of a duty is not
a discoverable fact of nature.@ 1 D. Dobbs, Torts '229, at 582
(2001). On the contrary, determining whether a duty should be
imposed involves considerations of public policy. 1 D. Dobbs,
Torts '229, at 582 (2001); Jones v. Chicago HMO Ltd. of
Illinois, 191 Ill. 2d 278, 303 (2000) (Athe existence of a duty
turns in large part on public policy considerations@).
The touchstone of this court=s 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.
Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186 (2002);
Mieher, 54 Ill. 2d at 541. This court often discusses the policy
considerations that inform this inquiry in terms of four factors:
(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. Beretta U.S.A., 213 Ill. 2d at 391;
Ward v. K mart Corp., 136 Ill. 2d 132, 140-41 (1990); Lance v.
Senior, 36 Ill. 2d 516, 518 (1967).
In the case before us, the appellate court resolved the duty
issue without reference to these factors, focusing instead on
the relationship between defendants, as owners and operators
of the restaurant, and the decedent, as defendants= business
invitee, in finding that defendants owed a duty of care to the
decedent. See 355 Ill. App. 3d at 688-90. Conversely,
defendants rely extensively on the factors expressed above in
arguing that they owed no duty to the decedent. Plaintiff
emphasizes the relationship between defendants and the
decedent in arguing that defendants owed the decedent a duty
of care, but also asserts that the factors discussed by
defendants support the imposition of a duty. As we shall
explain, the special relationship between a business invitor and
invitee does indeed give rise to a duty of reasonable care that
is applicable to this case, and the factors relied on by
defendants do not support the creation of an exemption from
that duty.
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Under certain circumstances, a possessor of land may be
held liable for physical harm caused to an individual present on
the land by a condition on the land (Restatement (Second) of
Torts ''343, 343A (1965)) or by the acts of third persons
(Restatement (Second) of Torts '344 (1965)). While sections
343, 343A, and 344 of the Restatement address the broader
subject of liability, this court has looked to them in the past in
determining whether a possessor of land owed a duty to an
individual present on the land. See, e.g., Genaust v. Illinois
Power Co., 62 Ill. 2d 456, 468-69 (1976) (referring to section
343); Ward, 136 Ill. 2d at 145-46, 149-51 (referring to sections
343 and 343A); Deibert v. Bauer Brothers Construction Co.,
141 Ill. 2d 430, 434-35 (1990) (same); American National Bank
& Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d
14, 26-27 (1992) (same); LaFever v. Kemlite Co., 185 Ill. 2d
380, 389-90 (1998) (same); Hills v. Bridgeview Little League
Ass=n, 195 Ill. 2d 210, 244 (2000) (referring to section 344). In
the case before us, plaintiff does not explicitly mention the
Restatement, and defendants refer only to section 344 in
arguing that they owed no duty to protect the decedent against
the unforeseeable act of a third person. Section 344 provides
in relevant part:
AA possessor of land who holds it open to the public
for entry for his business purposes is subject to liability
to members of the public while they are upon the land
for such a purpose, for physical harm caused by the
accidental, negligent, or intentionally harmful acts of
third persons *** and by the failure of the possessor to
exercise reasonable care to
(a) discover that such acts are being done or are
likely to be done, or
(b) give a warning adequate to enable the visitors to
avoid the harm, or otherwise to protect them against it.@
Restatement (Second) of Torts '344 (1965).
As this court has observed in the past (see Hills, 195 Ill. 2d at
243-44), section 344 represents a specific statement of the
general rule articulated in section 314A of the Restatement,
and long recognized by this court, that certain special
relationships may give rise to an affirmative duty to aid or
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protect another against unreasonable risk of physical harm.
See Restatement (Second) of Torts '314A (1965); Fancil v.
Q.S.E. Foods, Inc., 60 Ill. 2d 552, 559-60 (1975). Section 314A
and this court recognize four such relationships: common
carrier and passenger, innkeeper and guest, custodian and
ward, and possessor of land who holds it open to the public
and member of the public who enters in response to the
possessor=s invitation. Restatement (Second) of Torts '314A
(1965); Fancil, 60 Ill. 2d at 560; Hills, 195 Ill. 2d at 243-44. The
latter relationship, which is at issue in this case, may also be
referred to as the relationship between business invitor and
invitee. See, e.g., Rowe, 125 Ill. 2d at 216; Hills, 195 Ill. 2d at
248-49.
This court=s decision in Hills v. Bridgeview Little League
Ass=n expresses the rationale for recognizing the duty of
reasonable care to which the special relationship between a
business invitor and invitee gives rise. In Hills, this court
considered whether two Little League organizations owed a
duty of care to a coach who was attacked by the manager and
assistant coach for an opposing team while he was coaching in
a Little League tournament. Hills, 195 Ill. 2d at 212-13. This
court ultimately held that no business invitor-invitee relationship
existed between the Little League organization that hosted the
tournament and the plaintiff coach. Hills, 195 Ill. 2d at 251.
Accordingly, the Little League organization owed no duty of
care to the coach. Hills, 195 Ill. 2d at 252.
In the course of its analysis, the court in Hills observed that
when a possessor of land opens his premises to the public for
business purposes, he must recognize the risk that has been
created, noting:
A >[P]laces to which the general public are invited might
indeed anticipate, either from common experience or
known fact, that places of general public resort are also
places where what men can do, they might. One who
invites all may reasonably expect that all might not
behave, and bears responsibility for injury that follows
the absence of reasonable precaution against that
common expectation.= @ Hills, 195 Ill. 2d at 245-46,
quoting Feld v. Merriam, 506 Pa. 383, 391, 485 A.2d
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742, 745 (1984).
While Hills involved a party=s liability for the criminal act of a
third person, we find the rationale expressed above to apply
with equal force where, as here, the negligent act of a third
person is at issue. Cf. Restatement (Second) of Torts '314A,
Comment d, at 119 (1965) (duty to protect against
unreasonable risk of physical harm set forth in section 314A
extends to risks arising from third-party acts Awhether [the acts]
be innocent, negligent, intentional, or even criminal@);
Restatement (Second) of Torts '344 (1965) (business invitor=s
liability to invitee encompasses Aphysical harm caused by the
accidental, negligent, or intentionally harmful acts of third
persons@ and invitor=s failure to exercise reasonable care to
discover the harmful acts, give warning allowing them to be
avoided, or otherwise protect against them). Indeed, as the
Restatement suggests, an actor typically has greater reason to
anticipate negligence than to anticipate criminal misconduct, as
it is generally reasonable for one to assume that a person will
not violate the criminal law. See Restatement (Second) of Torts
'302B, Comment d, at 89 (1965).
Based on the allegations in plaintiff=s complaint, the duty of
care that a business invitor owes to invitees to protect them
against the unreasonable risk of physical harm is clearly
applicable to this case. The complaint alleges that while the
decedent was a customer at a restaurant owned and operated
by defendants, he was injured by the negligent act of a third
personBnamely, Fritz=s act of driving her car into the restaurant.
Defendants= business, a restaurant, is undoubtedly of such a
nature that it places defendants in a special relationship with
their customers, as it is an establishment open to the general
public for business purposes. See Hills, 195 Ill. 2d at 246
(generally, nature of business landholder conducts on
premises is relevant to determining whether business stands in
special relationship with customers), 247-51 (appropriate test
for determining existence of business invitor-invitee special
relationship is whether premises are open to general public for
business purposes). In addition, the duty of care that arises
from the business invitor-invitee relationship encompasses the
type of riskBi.e., the negligent act of a third personBthat led to
-15-
the decedent=s injuries. See Restatement (Second) of Torts
'314A, Comment d, at 119 (1965); Restatement (Second) of
Torts '344 (1965). Thus, we conclude that plaintiff=s complaint
alleges facts sufficient to establish that defendants owed a duty
of care to the decedent.
This conclusion, however, does not end our inquiry into the
duty issue. In referring to the four factors this court traditionally
considers in its duty analysis, defendants have essentially
asked us to create an exemption from the duty of care that
stems from the special relationship between a business invitor
and invitee. We decline to do so.
As noted above, the existence of a duty turns in large part
on considerations of public policy. Jones, 191 Ill. 2d at 303.
Indeed, this court has stated, in agreement with one well
known treatise, that A > Aduty@ is not sacrosanct in itself, but is
only an expression of the sum total of those considerations of
policy which lead the law to say that the plaintiff is entitled to
protection.= @ Kirk v. Michael Reese Hospital & Medical Center,
117 Ill. 2d 507, 527 (1987), quoting W. Keeton, Prosser &
Keeton on Torts '53, at 358 (5th ed. 1984). Thus, in
determining whether a plaintiff and a defendant stand in such a
relationship to one another that the law imposes an obligation
of reasonable conduct on the defendant for the benefit of the
plaintiff (Happel, 199 Ill. 2d at 186), we are confronted with a
decision of policy.
In the case of a business invitee harmed by the negligent
act of a third person, the policy justifying the business invitor=s
duty of reasonable care is related to the affirmative action the
invitor takes in opening his business to the public and to the
potential for harm that a business open to the general public
poses. See Hills, 195 Ill. 2d at 245-46. Thus, the policy
subjecting defendants to liability in this case is clear. On the
contrary, the no-duty rule defendants would have this court
adopt lacks a sound basis in policy. As one treatise states,
ARules declaring that no duty exists can easily be made too
broad or too narrow. Because they are rules of law, not
decisions about particular cases, they cover all cases in the
category to which they are addressed. They are expressions of
>global= policy rather than evaluations of specific facts of the
-16-
case. Consequently, no-duty rules should be invoked only
when all cases they cover fall substantially within the policy that
frees the defendant of liability.@ 1 D. Dobbs, Torts '227, at 579
(2001). Here, none of the considerations defendants rely on
compel us to hold that, as a matter of law, landholders who
open their land to the public for business purposes have no
duty to protect invitees against out-of-control drivers. We see
no merit in such an exemption.
Initially, we note that it is 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. As one court has observed,
Awhat is required to be foreseeable is the general character of
the event or harm *** not its precise nature or manner of
occurrence.@ Bigbee v. Pacific Telephone & Telegraph Co., 34
Cal. 3d 49, 57-58, 665 P.2d 947, 952, 192 Cal. Rptr. 857, 862
(1983); see also Blue v. St. Clair Country Club, 7 Ill. 2d 359,
364 (1955) (A[I]n order for liability to attach, it is not necessary
that the exact method by which the injury occurred could have
been expected. It is sufficient if some resulting injury could
have been reasonably foreseen@). Relatedly, the likelihood that
injury will occur to invitees in such instances is quite high, as
even a cursory glance at a selection of the cases the parties
have cited to us demonstrates. See, e.g., Ray, 57 Ill. 2d at 21;
Stutz, 204 Ill. App. 3d at 901; Simmons, 162 Ill. App. 3d at 240;
Marquardt, 18 Ill. App. 2d at 137. Finally, the extensive costs to
businesses and to the public that defendants claim will arise by
not creating an exemption from the applicable duty of care are
speculative at best. Defendants argue that businesses will
incur an immense financial burden if required to protect their
invitees from out-of-control automobiles and that the protective
measures businesses take will make buildings everywhere less
aesthetically pleasing. These arguments are based on
mistaken assumptions about the nature of a duty of care.
Recognizing that the duty of reasonable care that businesses
owe to their invitees applies to cases where invitees are injured
by out-of-control automobiles is not the same as concluding the
duty has been breached because a business failed to take a
certain level of precaution. Nor is it the same as concluding
-17-
that the breach was the proximate cause of an invitee=s
injuries. In short, merely concluding that the duty applies does
not constitute an automatic, broad-based declaration of
negligence liability.
Further, to the extent defendants suggest we could create a
rule of law narrower than the exemption discussed above to
absolve them of liability, they are actually requesting that we
determine, as a matter of law, that they did not breach their
duty of care. It is inadvisable for courts to conflate the concepts
of duty and breach in this manner. Courts could, after all, Astate
an infinite number of duties if they spoke in highly particular
terms,@ and while particularized statements of duty may be
comprehensible, Athey use the term duty to state conclusions
about the facts of particular cases, not as a general standard.@
1 D. Dobbs, Torts '226, at 577 (2001); see also 54 Vand. L.
Rev. at 712-17 (discussing problems associated with using the
duty element of negligence to render decisions that no breach
occurred as a matter of law). Thus, the issue in this case is not
whether defendants had a duty to install protective poles, or a
duty to prevent a car from entering the restaurant, or some
such other fact-specific formulation. Because of the special
relationship between defendants and the decedent, they owed
the decedent a duty of reasonable care. The issue is whether,
in light of the particular circumstances of this case, defendants
breached that duty. That question cannot be answered at this
stage of the proceedings. See Espinoza, 165 Ill. 2d at 114
(issue of breach is for jury to decide provided there is genuine
issue of material fact regarding that issue).
Finally, we address defendants= argument that comment f of
section 344 of the Restatement supports a finding that they
owed no duty to the decedent. Comment f provides:
ASince the possessor [of land] is not an insurer of the
visitor=s safety, he is ordinarily under no duty to exercise
any care until he knows or has reason to know that the
acts of third person are occurring, or are about to occur.
He may, however, know or have reason to know, from
past experience, that there is a likelihood of conduct on
the part of third persons in general which is likely to
endanger the safety of the visitor, even though he has
-18-
no reason to expect it on the part of any particular
individual. If the place or character of his business, or
his past experience, is such that he should reasonably
anticipate careless or criminal conduct on the part of
third persons, either generally or at some particular
time, he may be under a duty to take precautions
against it, and to provide a reasonably sufficient number
of servants to afford a reasonable protection.@
Restatement (Second) of Torts '344, Comment f, at
225-26 (1965).
Defendants do not specify which of the principles set forth in
comment f they believe are applicable to this case. However,
based on their citation to Cobb v. Martin IGA & Frozen Food
Center, Inc., 337 Ill. App. 3d 306 (2003), they appear to
suggest that comment f stands for the proposition that before a
duty of care may be imposed on a possessor of land to protect
an individual from the negligent conduct of a third person, the
possessor of land must have notice of a prior, similar incident
of negligent third-party conduct. In Cobb, a child negligently ran
into the plaintiff with a grocery cart while the plaintiff was
shopping in a store owned and operated by the defendant.
Cobb, 337 Ill. App. 3d at 308. A majority of the appellate court
affirmed the circuit court=s grant of summary judgment in favor
of the defendant. Cobb, 337 Ill. App. 3d at 314. In doing so, the
court relied in part on its interpretation of various Restatement
comments, including comment f of section 344, as standing for
the propositions that Aa defendant must have some notice of a
prior incident or prior conduct before the law imposes a duty to
protect a plaintiff from the conduct of a third party@ and A[t]he
prior incident must be sufficiently similar to put a defendant on
notice that there is a reasonable probability that the acts of the
third party are likely to cause physical harm to others.@ Cobb,
337 Ill. App. 3d at 313.
Because defendants= argument regarding the imposition of
a notice requirement is not fully developed, we limit our
discussion to the terms of comment f, which most decidedly do
not contemplate a notice requirement as stringent as that
suggested by defendants. We find Cobb=s interpretation of the
comment unpersuasive, as it is unsupported by citations to
-19-
authority or references to specific language from the
Restatement. See Cobb, 337 Ill. App. 3d at 313. Applying the
comment to this case, we observe that plaintiff=s complaint
clearly falls within its purview, as it alleges that, based on the
place and character of defendants= business, defendants had
reason to know that the negligent conduct of third persons was
likely to endanger defendants= customers. See Restatement
(Second) of Torts '344, Comment f (1965). Specifically, the
complaint alleges that the restaurant is located in an area with
a Ahigh traffic count@; that various aspects of its design,
including its Abrick half wall,@ and its sidewalk, render it
susceptible to penetration by out-of-control automobiles; that
defendants took no precautions, such as installing Avertical
concrete pillars or poles,@ to prevent automobiles from entering
the restaurant; and that defendants had knowledge of all of the
foregoing. Thus, even assuming for the sake of argument that
a business invitor=s lack of knowledge of prior, similar incidents
of negligent conduct should limit his duty of care (see generally
2 D. Dobbs, Torts '324, at 877-79 (2001)) (discussing various
approaches courts have taken to determining the relevance of
prior, similar incidents of criminal conduct to property owners=
negligence liability)), we reject defendant=s contention that
comment f supports a finding that defendants owed no duty of
care to the decedent.
Having determined, based on the allegations in plaintiff=s
complaint, that defendants owed a duty of reasonable care to
the decedent, we briefly examine the effect of our decision on
Simmons v. Aldi-Brenner Co. and Stutz v. Kamm. Defendants
cited these factually analogous appellate court decisions to this
court as authority for their position regarding the duty issue.
Simmons is in part distinguishable from the instant case,
because it involved the review of a jury verdict, not of a ruling
on a motion to dismiss. Simmons, 162 Ill. App. 3d at 240. The
plaintiffs in Simmons were injured when a driver blacked out
behind the wheel of her car and the car crashed into a grocery
store where the plaintiffs were shopping. Simmons, 162 Ill.
App. 3d at 240-41. The plaintiffs filed suit against the car=s
driver, the owners of the premises, and the lessee of the
premises, Aldi-Brenner Company. Simmons, 162 Ill. App. 3d at
-20-
240. A jury rendered verdicts in favor of the driver and the
owners but against Aldi-Brenner. Simmons, 162 Ill. App. 3d at
240.
The appellate court reversed the judgment against Aldi-
Brenner and affirmed the judgment in favor of the premises
owners. Simmons, 162 Ill. App. 3d at 244. The court stated that
the owner or occupier of land owes a business invitee Athe duty
of exercising ordinary and reasonable care to see that the
premises are reasonably safe for use@ but qualified this
acknowledgment by stating that Aa storekeeper is not the
insurer of his customers= safety.@ Simmons, 162 Ill. App. 3d at
242. It then went on to decide Awhether a duty existed as a
matter of law@ (Simmons, 162 Ill. App. 3d at 242) and
concluded Athat a duty did not legally exist requiring [the
defendants] to protect against the injury caused by the ***
automobile@ (Simmons, 162 Ill. App. 3d at 244). The court
relied primarily on the observation that it would have been
Amere speculation@ to say that any of the safety features
discussed by the plaintiffs= expert at trial (see Simmons, 162 Ill.
App. 3d at 242-43), including the installation of a protective wall
(Simmons, 162 Ill. App. 3d at 244), would have prevented the
car from entering the store. Simmons, 162 Ill. App. 3d at 244. It
also reasoned that finding the existence of a duty Awould place
a burden on every store, near a street or parking lot, of
constructing barriers adequate to prevent any car from being
driven into the building.@ Simmons, 162 Ill. App. 3d at 244. In
addition, the court opined that the accident was not
foreseeable as a matter of law. Simmons, 162 Ill. App. 3d at
244.
Simmons applied inaccurate terminology in concluding Aa
duty did not legally exist@ that the defendants owed to the
plaintiffs. See Simmons, 162 Ill. App. 3d at 244. Based on our
analysis of the duty issue in this case, it is clear that the
defendants in Simmons owed the plaintiffs a duty of reasonable
care. This, however, does not render Simmons irreconcilable
with our decision here. The appellate court=s decision in
Simmons was premised on an evaluation of the evidence the
parties presented at trial. See Simmons, 162 Ill. App. 3d at
242-44. To the extent Simmons stands for the proposition that,
-21-
as a matter of law, the evidence failed to establish that the
defendants breached their duty of care or proximately caused
the plaintiffs= injuries, it is not inconsistent with our decision in
this case, which involves the dismissal of a complaint.
Turning to Stutz, we note that it relied heavily on Simmons
in holding that the defendants owed no duty to the plaintiffs.
See Stutz, 204 Ill. App. 3d at 905-06. Stutz, however, differs
from Simmons, in two significant respects. First, Stutz involved
two separate duty issues: the duty of a landowner to its
business invitees and the duty of an independent contractor to
those affected by alleged defects in the contractor=s
construction. See Stutz, 204 Ill. App. 3d at 901-04. Second,
Stutz was decided at the pleadings stage of the plaintiffs=
negligence actions. Stutz, 204 Ill. App. 3d at 903.
In Stutz, a car in the parking lot of a driver=s licensing facility
crashed into the facility=s waiting area, killing one woman and
seriously injuring another. Stutz, 204 Ill. App. 3d at 900-01.
Two separate negligence actions were filed against various
parties, including the contractor that constructed the facility=s
parking lot and the facility=s owners. Stutz, 204 Ill. App. 3d at
901. The plaintiffs alleged that the contractor breached its duty
to perform work on the parking lot in a workmanlike manner
and, alternatively, that the specifications the contractor
followed were so obviously dangerous that no contractor would
have followed them. Stutz, 204 Ill. App. 3d at 901. According to
the plaintiffs= complaints, the contractor negligently failed to
build Abumpers or other stops@ around the facility and
negligently constructed numerous other aspects of the parking
lot. Stutz, 204 Ill. App. 3d at 902. In addition, the plaintiffs
alleged that the owners of the facility breached the duty of care
they owed to the plaintiffs by failing to maintain their building
and parking lot in a reasonably safe condition. Stutz, 204 Ill.
App. 3d at 902. Both the contractor and the owners filed
motions to dismiss, which the circuit court granted. Stutz, 204
Ill. App. 3d at 903.
The appellate court affirmed the judgment of the circuit
court. Stutz, 204 Ill. App. 3d at 903. The court stated that a
premises owner owes Aa duty to invitees of reasonable care
under the circumstances regarding the state of the premises or
-22-
acts done or omitted on them.@ Stutz, 204 Ill. App. 3d at 904. It
also recognized that an independent contractor has a duty to
perform its work Ain accordance with the plans and
specifications in a good workmanlike manner@ and to refrain
from following plans and specifications that Aare so obviously
dangerous that no competent contractor would follow them.@
Stutz, 204 Ill. App. 3d at 904. However, the court went on to
conclude that Aconsidering all the factors present in plaintiffs=
complaints *** a duty did not legally exist requiring defendants
to prevent the type of harm which occurred.@ Stutz, 204 Ill. App.
3d at 906. In affirming the circuit court=s dismissal of the
plaintiffs= complaints, the appellate court applied the same
rationale to the plaintiffs= claims against the defendant
contractor and the defendant owners. Stutz, 204 Ill. App. 3d at
906. Relying on Simmons, the court reasoned that Ait would be
mere speculation to say the accident would have been
prevented if defendants had performed the omissions or not
performed the negligent acts which plaintiffs allege in their
complaints.@ Stutz, 204 Ill. App. 3d at 906. The court further
stated that placing a duty upon the defendants to guard against
the type of harm at issue would be an Aunreasonable burden.@
Stutz, 204 Ill. App. 3d at 906. Additionally, the court determined
that the accident was not foreseeable as a matter of law. Stutz,
204 Ill. App. 3d at 906.
We express no opinion on Stutz=s dismissal of the plaintiffs=
negligence claims against the defendant contractor. Those
claims relied on a theory of negligent construction, and our
decision regarding defendants= duty of care to the decedent
does not address such a theory. However, insofar as Stutz
held that the owner defendants owed no duty of care to the
plaintiffs, we find that it was incorrectly decided. Unlike
Simmons, Stutz involved a ruling on a motion to dismiss. To
the extent Stutz is inconsistent with our decision in this case, it
is hereby overruled.
Finally, we note that defendants= reliance on authority from
other jurisdictions involving situations where out-of-control
vehicles crashed into business establishments is unpersuasive.
See Howe v. Stubbs, 570 A.2d 1203 (Me. 1990); Carpenter v.
Stop-N-Go Markets of Georgia, Inc., 512 So. 2d 708 (Miss.
-23-
1987); Mack v. McGrath, 276 Minn. 419, 150 N.W. 681 (1967);
Carter v. Gambulous, 748 P.2d 1008 (Okla. App. 1987); Glick
v. Prince Italian Foods of Saugus, Inc. 25 Mass. App. 901, 514
N.E.2d 100 (1987); Hendricks v. Todora, 722 S.W.2d 458 (Tex.
Ct. App. 1986); Schatz v. 7-Eleven, Inc., 128 So. 2d 901 (Fla.
App. 1961); Watkins v. Davis, 308 S.W.2d 906 (Tex. Civ. App.
1957). Significantly, of these eight decisions, five address the
propriety of summary judgments (see Howe, 570 A.2d at 1203;
Carpenter, 512 So. 2d at 709; Glick, 25 Mass. App. at 901, 514
N.E.2d at 101; Schatz, 128 So. 2d at 902; Hendricks, 722
S.W.2d at 459), and two address the propriety of jury verdicts
(see Mack, 276 Minn. at 420-21, 150 N.W. at 684-85; Watkins,
308 S.W.2d at 907). Moreover, to the extent these decisions
create no-duty exemptions, they provide no reasons for doing
so beyond those we have already rejected above.
CONCLUSION
For the reasons expressed above, we hold that the
allegations in plaintiff=s complaint are sufficient to establish that
defendants owed a duty of care to the decedent. Accordingly,
we affirm the judgment of the appellate court, which reversed
the circuit court=s dismissal of plaintiff=s complaint and
remanded the cause for further proceedings.
Appellate court judgment affirmed.
JUSTICE McMORROW, dissenting:
Plaintiff, Detroy Marshall, Jr., as administrator of the estate
of the decedent, Detroy Marshall III, filed a complaint in the
circuit court of Winnebago County alleging that the defendants,
Burger King Corporation, and Davekiz, Inc., negligently caused
the death of the decedent. According to the complaint, the
decedent was sitting in the dining room of the defendants=
restaurant when a third person, Pamela Fritz, Aattempted to exit
said restaurant in her vehicle, backed into a lamp pole in the
parking lot of the restaurant, and drove forward from the lamp
pole, hit the sidewalk adjacent to said Burger King Restaurant,
-24-
causing her vehicle to become air born [sic] and crash into the
north wall and windows of the restaurant building, trapping the
Plaintiff=s Decendent, DETROY MARSHALL, III, under the
vehicle and over a half wall of the north wall of the restaurant.@
The complaint alleged that defendants failed to Ause due
care in the design, construction, and maintenance of the
building, parking lot and sidewalk involved in this occurrence@
and, specifically, that defendants A[f]ailed to place vertical
concrete pillars or poles in the sidewalk by the entrance of said
restaurant@ when defendants knew or should have known that
these precautions Awould have prevented the vehicle driven by
Pamela H. Fritz@ from causing the decedent=s injuries. The
complaint alleged that Aas a direct and proximate result@ of
defendants= negligent acts or omissions, Pamela Fritz=s vehicle
crashed into the restaurant and fatally injured the decedent.
Defendants filed a motion to dismiss plaintiff=s complaint
pursuant to section 2B615 of the Code of Civil Procedure (735
ILCS 5/2B615 (West 2002)). The circuit court granted the
motion. The court stated:
AI have attempted to undertake a duty analysis. This
was largely done by comparing the likelihood of this
type of occurrence against the burden of protecting
against it.
As the court stated in [Simmons v. Aldi-Brenner Co.,
162 Ill. App. 3d 238, 244 (1987)], >anything is
foreseeable...= but the likelihood of this scenario is so
minor that to guard against it in the manner suggested
would require fortifying every building within striking
distance of any crazed or incredibly inept driver, and the
result would be to require foregoing [sic] any hope of
aesthetically pleasing or business-enticing buildings.
Obviously these two factors are less important than the
safety of invitees, but the Court is required to do a
balancing test and in doing so, I find that the duty stated
by the plaintiffs is too high in this instance.@
The appellate court, with one justice dissenting, reversed.
355 Ill. App. 3d 685. While recognizing the Arelevant [sic] rarity@
of incidents such as the one at issue here, the appellate court
-25-
nevertheless held that under Ray v. Cock Robin, Inc., 57 Ill. 2d
19 (1974), and Marquardt v. Cernocky, 18 Ill. App. 2d 135
(1958), plaintiff=s complaint alleged a duty owed by defendants
to the decedent. 355 Ill. App. 3d at 689. Rejecting the circuit
court=s duty analysis, the appellate court emphasized that
plaintiff=s complaint contained allegations that defendants had
violated the Building Officials and Code Administrators= building
code and had departed from custom and practice in the
building industry. 355 Ill. App. 3d at 689. The appellate court
concluded that these allegations created a fact question as to
whether defendants= failure to take precautions against out-of-
control vehicles was a breach of the duty owed to the
decedent. 355 Ill. App. 3d at 690, 692.
The majority affirms the judgment of the appellate court.
Unlike the appellate court, however, the majority does not hold
that plaintiff=s complaint alleges a duty under Ray or Marquardt.
According to the majority, these decisions are inapposite. See
slip op. at 9-10. Moreover, the majority does not discuss
plaintiff=s allegations that defendants violated building code
standards and expressly declines to address the possibility that
plaintiff=s complaint alleges a duty under theories of negligent
design or construction (see slip op. at 8-9, 22).
Instead, relying on Hills v. Bridgeview Little League Ass=n,
195 Ill. 2d 210 (2000), the majority holds that the circuit court
erred in dismissing plaintiff=s complaint because defendants
owed an affirmative duty to the decedent to protect him from
the negligent driving of Pamela Fritz. The majority reasons that
the duty to protect arose in this case because defendants and
the decedent stood in the special relationship of business
invitor and invitee. As the majority explains, Athe duty of care
that arises from the business invitor-invitee relationship
encompasses the type of riskBi.e., the negligent act of a third
personBthat led to the decedent=s injuries.@ Slip op. at 15; see
also slip op. at 12 (Athe special relationship between a business
invitor and invitee does indeed give rise to a duty of reasonable
care that is applicable to this case@). Thus, the majority holds
that plaintiff=s complaint adequately alleges a duty to protect
owed by defendants to the decedent. Slip op. at 14-15.
After holding that the special relationship in this case
-26-
imposed an affirmative duty on defendants to protect the
decedent from a third person=s negligence, the majority then
states that this conclusion Adoes not end our inquiry into the
duty issue.@ Slip op. at 15. The majority goes on to consider
whether defendants have shown that they are entitled to an
Aexemption@ from the duty of protection owed to the decedent.
Addressing this question, the majority examines Athe four
factors this court traditionally considers in its duty analysis,@ i.e,
the foreseeability of the accident, the likelihood of injury
occurring as a result of the accident, the magnitude of the
burden to guard against it, and the consequences of imposing
that burden. Slip op. at 16-17. The majority concludes that
defendants have failed to rebut the existence of the duty to
protect owed to the decedent and that Athe factors relied on by
defendants do not support the creation of an exemption from
that duty.@ Slip op. at 12.
While the majority states that it is relying on the rationale of
Hills for its duty analysis, 1 the majority opinion departs
significantly from that decision. In Hills we stated:
AThe common law recognizes an exception to the
rule that a landholder owes no duty to protect entrants
from criminal attacks where the landholder and the
entrant stand in a special relationship with each other
that warrants imposing such a duty. [Citations.] The
existence of a special relationship does not, by itself,
impose a duty upon the possessor of land to protect
lawful entrants from the criminal attacks of third parties.
Before a duty to protect will be imposed it must also be
shown that the criminal attack was reasonably
foreseeable. [Citation.] In addition, whether a duty to
1
Although the issue in Hills involved a landholder=s liability for the
criminal conduct of a third person, the majority concludes that the rationale
of Hills applies Awith equal force where, as here, the negligent act of a third
person is at issue.@ Slip op. at 14.
-27-
protect exists will depend upon a >consideration of the
likelihood of injury, the magnitude of the burden to
guard against it, and the consequences of placing that
burden upon the defendant.= [Citation.]@ Hills, 195 Ill. 2d
at 243.
Hills holds that a special relationship, by itself, is not
enough to establish an affirmative duty to protect. Other
considerations must be taken into account as well. The
majority here, however, holds the opposite. According to the
majority, a special relationship, standing alone, is sufficient to
establish the affirmative duty to protect a business invitee from
the tortious misconduct of a third person. See slip op. at 14-15.
Hills also expressly holds, in conformance with long-standing
case law, that a court must examine the traditional duty factors
before it may impose an affirmative duty to protect on a
defendant. In this case, the majority considers the factors, but
only after concluding that an affirmative duty exists and only as
part of a new, Aexemption@ analysis. 2 This is a substantial
departure from Hills.
The doctrine of Astare decisis is not an inexorable
command.@ Vitro v. Mihelcic, 209 Ill. 2d 76, 82 (2004). It does
require, however, that the court offer appropriate justification
for the reversal of previous decisions. Vitro, 209 Ill. 2d at 82.
The majority in this case fails to explain why it is overruling the
framework set out in Hills for analyzing affirmative duties to
protect. In my view, this is error.
2
Contrary to the majority=s assertions, defendants at no time ask this
court Ato create an exemption from the duty of care that stems from the
special relationship between a business invitor and invitee.@ Slip op. at 15.
Rather, in accord with existing case law, defendants argue that Athe four
factors this court traditionally considers in its duty analysis@ (slip op. at 15)
must be addressed before an affirmative duty may be imposed.
-28-
The overruling of Hills and the creation of a new framework
for analyzing the affirmative duty to protect are not the only
troubling aspects of the majority opinion. Of equal concern is
the majority=s Aexemption@ analysis and its application of the
four traditional duty factors.
The majority first holds that foreseeability exists in this case
as a matter of law. 3 The majority states: Ait is 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.@
Slip op. at 16. The majority cites two cases to support this
conclusion, one from California, Bigbee v. Pacific Telephone &
Telegraph Co., 34 Cal. 3d 49, 57-58, 665 P.2d 947, 952, 192
Cal. Rptr. 857, 862 (1983), and one from this court, Blue v. St.
Clair Country Club, 7 Ill. 2d 359 (1955). The majority=s reliance
on these cases is misplaced because both are clearly
distinguishable from the case at bar.
In Blue, a patron at a country club was injured when an
outdoor table umbrella was caught by a gust of wind, knocking
the table against the patron. On appeal, the question was
whether the evidence, which included testimony that the table
3
Contemporary tort scholarship, including the proposed Restatement
(Third) of Torts, takes the position that foreseeability should not play any
part in the ordinary duty, or affirmative duty analysis. See Restatement
(Third) of Torts: Liability for Physical Harm '7, Comment j, at 97-98, '37,
Comment f, at 715 (Proposed Final Draft No.1, April 6, 2005); see also W.
Cardi, Purging Foreseeability: The New Vision of Duty and Judicial Power
in the Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739 (2005).
The majority does not adopt this position, which would be a
departure from our case law, and I express no opinion on its merits.
-29-
umbrellas were frequently blown over by the wind, supported a
finding of foreseeability. Blue, 7 Ill. 2d at 362-65. Blue says
nothing about the foreseeability of automobile accidents and
nothing about the foreseeability of third-party misconduct.
Bigbee is similarly unhelpful. In Bigbee, the plaintiff was
injured when the telephone booth in which he was standing,
located approximately 15 feet from a six-lane roadway, was
struck by an automobile driven by a drunken driver. The
plaintiff filed a complaint against the telephone company,
alleging that the company had negligently placed the telephone
booth too close to a major thoroughfare where A >traffic ...
travelling [sic] easterly, generally and habitually speeded in
excess of the posted speed limit,= thereby creating an
unreasonable risk of harm to anyone who used the telephone
booth.@ Bigbee, 34 Cal. 3d at 53, 665 P.2d at 948, 192 Cal.
Rptr. at 858. Summary judgment was granted in favor of the
telephone company.
On appeal, the sole issue was whether foreseeability
remained a question of fact for the jury under the evidence
presented Bigbee, 34 Cal. 3d at 52, 665 P.2d at 948, 192 Cal.
Rptr. at 858. Addressing this question, the court noted that
there was evidence which showed that a telephone booth at
the same location had previously been struck. Bigbee, 34 Cal.
3d at 54-55, 58, 665 P.2d at 949, 952, 192 Cal. Rptr. at 859,
862. In addition, the court noted that A[s]wift traffic on a major
thoroughfare late at night@ was to be expected, as were
intoxicated drivers. Bigbee, 34 Cal. 3d at 58, 665 P.2d at 952,
192 Cal. Rptr. at 862. Further, the court concluded that Ait is
not uncommon for speeding and/or intoxicated drivers to lose
control of their cars and crash into poles, buildings or whatever
else may be standing alongside the road they travelBno matter
how straight and level that road may be.@ Bigbee, 34 Cal. 3d at
58, 665 P.2d at 952, 192 Cal. Rptr. at 862. Based on these
considerations, the court held that foreseeability remained a
question of fact for the jury and that summary judgment had
been improperly granted.
In this case, unlike Bigbee, there are no allegations of prior
incidents of negligent driving similar to the one which caused
the decedent=s injuries. Moreover, the accident in this case
-30-
involved a building, not a telephone booth, and it happened
next to a parking lot, not next to a heavily traveled thoroughfare
where cars regularly travel in excess of the speed limit.
Further, the court in Bigbee held only that foreseeability
remained a question for the jury under the particular facts
presented, not, as the majority holds here, that automobile-
related accidents are foreseeable as a matter of law.
Bigbee and Blue do not address the foreseeability of
parking lot accidents such as the one at issue here. Numerous
other cases, however, do. The majority of these cases, while
recognizing that the duty to protect is part of the general duty of
care owed to business invitees, also recognize that landowners
are not the insurers of their invitees= safety. These cases hold
that landowners are liable for injuries caused by third-party
misconduct only when that misconduct is reasonably
foreseeable and, further, that automobile-related accidents
such as the one that occurred in this case are not foreseeable
as a matter of law. A representative case adopting this position
is Albert v. Hsu, 602 So. 2d 895 (Ala. 1992).
In Albert, a driver backed her car across the parking lot
from a parking space, over a six-inch curb, across a sidewalk,
and through the wall of a Chinese restaurant. A 10-year-old girl
seated inside the restaurant was struck and killed. The girl=s
mother sued the owners of the restaurant, alleging that the
restaurant building was negligently designed and that the
restaurant owners should have erected barricades around the
building. There was no evidence of any similar prior incidents
and the premises were constructed in accordance with the
relevant building code requirements. Summary judgment was
granted in favor of the owners.
On appeal, the Supreme Court of Alabama affirmed. In so
holding, the court noted the majority view regarding the legal
foreseeability of out-of-control automobiles penetrating
buildings and striking business invitees:
A >We are not unmindful of the obvious fact that at
times operators lose control over the forward progress
and direction of their vehicles either through negligence
or as a result of defective mechanisms, which
sometimes results in damage or injury to others. In a
-31-
sense all such occurrences are foreseeable. They are
not, however, incidents to ordinary operation of
vehicles, and do not happen in the ordinary and normal
course of events. When they happen, the
consequences resulting therefrom are matters of
chance and speculation. If as a matter of law such
occurrences are held to be foreseeable and therefore to
be guarded against, there would be no limitation on the
duty owed by the owners of establishments into which
people are invited to enter. Such occurrences fall within
the category of the unusual or extraordinary, and are
therefore unforeseeable in contemplation of the law.= @
Albert, 602 So. 2d at 898, quoting Schatz v. 7-Eleven,
Inc., 128 So. 2d 901, 904 (Fla. App. 1961).
Adhering to this view, the court concluded that A[i]nsofar as
foreseeability is an element of duty, any foreseeability inferred
from the facts of this case is too remote to give rise to a duty
owed and breached.@ Albert, 602 So. 2d at 897. Accordingly,
the court concluded that the restaurant owners owed no duty to
the decedent and affirmed the lower court.
Like the court in Albert, a majority of courts throughout the
country have concluded that landowners are not liable for
injuries caused to business invitees by out-of-control drivers
under facts similar to this case, because such incidents are
unforeseeable as a matter of law. See, e.g., Simmons v. Aldi-
Brenner Co., 162 Ill. App. 3d 238, 244 (1987); Stutz v. Kamm,
204 Ill. App. 3d 898, 906 (1990); Sotomayor v. TAMA I, LLC,
274 Ga. App. 323, 327, 617 S.E.2d 606, 610 (2005); Heard v.
Intervest Corp., 856 So. 2d 359, 362 (Miss. App. 2003)
Jefferson v. Qwik Korner Market, Inc., 28 Cal. App. 4th 990,
996-97, 34 Cal. Rptr. 2d 171, 174-75 (1994); Fawley v. Martin=s
Supermarkets, Inc., 618 N.E.2d 10, 13 (Ind. App. 1993);
Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So. 2d
708, 709 (Miss. 1987); Grandy v. Bavaro, 134 A.D.2d 957, 958,
521 N.Y.S.2d 956, 957 (1987); Hendricks v. Todora, 722
S.W.2d 458, 460-62 (1986); Krispy Kreme Doughnut Co. v.
Cornett, 312 So. 2d 771, 772-73 (1975); Nicholson v. MGM
Corp., 555 P.2d 39, 41 (Alaska 1976); Eckerd-Walton, Inc. v.
Adams, 126 Ga. App. 210, 213, 190 S.E.2d 490, 492 (1972);
-32-
Mack v. McGrath, 276 Minn. 419, 427, 150 N.W.2d 681, 686
(1967); Schatz v. 7-Eleven, Inc., 128 So. 2d 901, 904 (Fla.
App. 1961); Watkins v. Davis, 308 S.W.2d 906, 909 (Tex. Civ.
App. 1957).
In contrast to the foregoing, a minority of cases have
affirmed lower court findings of foreseeability, or have held that
foreseeability is a question of fact for the jury, in cases
involving business invitees and automobile-related accidents.
However, the facts of these cases differ significantly from those
present here. For example, it has been held that foreseeability
is a question of fact for the jury where there were prior similar
incidents involving automobiles and, thus, the landowner had
notice of the potential for automobile-related accidents. See,
e.g., Ray v. Cock Robin, Inc., 57 Ill. 2d 19, 23 (1974); 4 Dalmo
Sales of Wheaton, Inc. v. Steinberg, 43 Md. App. 659, 666-67,
407 A.2d 339, 343 (1979). In addition, it has been held that
foreseeability is a question of fact for the jury where the
landowner=s own conduct contributed to the risk of harm to the
plaintiff, either because the landowner failed to provide any
protection from encroaching vehicles whatsoever (see, e.g.,
Dalmo, 43 Md. App. at 663, 407 A.2d at 341 (absence of any
barrier was Acritical fact@)), or because the landowner required
patrons to stand at a service window next to a parking lot or
driveway (see, e.g., Barker v. Wah Low, 19 Cal. App. 3d 710,
711, 721, 97 Cal. Rptr. 85, 85, 92 (1971)). See generally Qwik
Korner Market, 28 Cal. App. 4th at 995, 34 Cal. Rptr. 2d at 174
(listing cases in these categories). None of these situations are
present here.
4
The majority distinguishes Ray on the basis that the case addressed
foreseeability as a matter of proximate cause, rather than duty. See slip op.
at 9-10. However, whether couched in terms of duty or proximate cause, the
determinative issue for courts to decide with respect to foreseeability in
cases such as this is whether it may be said that foreseeability does not exist
as a matter of law. See, e.g., Bigbee, 34 Cal. 3d at 55-56, 665 P.2d at
950, 192 Cal. Rptr. at 860 (defendants= contentions that they owed no
duty and that there was no proximate cause presented Athe same issue in
different guises,@ i.e., whether the risk was unforeseeable as a matter of
law). Nevertheless, as noted in the text, Ray is distinguishable on its facts.
-33-
Citing to several of the decisions noted above which held
that the automobile accidents were unforeseeable, defendants
contend that the accident at issue in this case was
unforeseeable as a matter of law. The majority, however,
disagrees and rejects the cases cited by defendants. According
to the majority, the cases upon which defendants rely on are
unpersuasive, primarily because most of them address the
issue of foreseeability within the context of deciding the
correctness of a summary judgment or jury verdict, rather than,
as in this case, the dismissal of a complaint. See slip op. at 22.
In addition, the majority states that Ato the extent these
decisions create no-duty exemptions, they provide no reasons
for doing so beyond those we have already rejected above.@
Slip op. at 22-23. This is an inadequate basis for setting
defendants= cases aside.
The two decisions relied upon by the majority in its
foreseeability analysis, Bigbee and Blue, concerned,
respectively, the propriety of a summary judgment (Bigbee, 34
Cal. 3d at 52, 665 P.2d at 948, 192 Cal. Rptr. at 858), and the
correctness of a jury verdict (Blue, 7 Ill. 2d at 361, 366). Thus,
at the same time the majority rejects cases cited by defendants
because those decisions address the correctness of summary
judgments or jury verdicts, the majority cites to, and relies
upon, cases which do the same thing. This treatment of the
cases is inconsistent. If Bigbee and Blue may be relied upon by
the court despite their procedural postures, then the cases
cited by defendants should not be rejected because of theirs.
Further, the majority=s summary dismissal of the entire line of
authority relied upon by defendants is unpersuasive,
particularly since the cases relied upon by the majority, Bigbee
and Blue, are distinguishable on their facts.
The majority opinion is at odds with the clear weight of
authority with respect to legal foreseeability. Moreover,
because of the nature of the duty being imposed in this case,
the majority=s resolution of the foreseeability issue raises
significant public policy concerns.
As noted by the majority, negligent design and construction
are not part of its duty analysis. That is, in its duty analysis, the
majority does not conclude that defendants= premises were
-34-
inherently dangerous or that defendants= own conduct created
a risk of harm to the decedent through negligently designing or
constructing the restaurant. Rather, it was the driver, Pamela
Fritz, whose conduct created a risk of harm to the decedent.
The alleged duty owed by defendants in this case was to
protect the decedent against the risk of harm created by Fritz=s
driving. Thus, as framed by the majority, this is not a case
concerning ordinary duty and negligence. It is, instead, a Apure@
affirmative-duty case, so called because when such a duty is
imposed, the defendant is compelled to take affirmative
actionBin this case, to protect the decedent from a third-
person=s misconduct.
By its nature, the affirmative duty to protect implicates
important policy concerns because it requires a defendant to
take unusual action, i.e., to police the conduct of other people.
See Restatement (Third) of Torts: Liability for Physical Harm
'37, Comment e, at 714 (Proposed Final Draft No.1, April 6,
2005) (There is a Adistinction between placing limits on conduct
and requiring affirmative conduct. This distinction in turn relies
on the liberal tradition of individual freedom and autonomy.
Liberalism is wary of laws that regulate conduct that does not
infringe on the freedom of others@). For this reason, courts
have traditionally moved cautiously in this area:
AJudicial reliance on foreseeability under specific facts
occurs more frequently and aggressively in cases
involving an affirmative duty than in other cases. This
suggests that courts more carefully supervise these
cases than cases in which the actor=s conduct creates a
risk of harm. This tendency is even more pronounced in
cases in which the alleged duty involves protecting the
plaintiff from third parties, especially the criminal acts of
third parties. Sometimes, courts develop specific rules
or balancing tests about the quantity, quality, and
similarity of prior episodes required to satisfy
foreseeability.@ Restatement (Third) of Torts: Liability for
Physical Harm '37, Comment f, at 715 (Proposed Final
Draft No.1, April 6, 2005).
See also, e.g., Posecai v. Wal-Mart Stores, Inc., 752 So. 2d
762, 766-68 (La. 1999) (discussing the various tests courts
-35-
have applied in deciding the foreseeability of third-party crime);
Dalmo, 43 Md. App. at 670, 407 A.2d at 345 (Awhere the injury
arises from the negligent or deliberate act of a third party
committed on the storekeeper=s property but does not involve
any defect in the property itself. *** [E]xcept in rather extreme
circumstances, the principles of reasonableness, ordinary care,
proximate cause, and foreseeability have often combined to
prevent a recovery@).
Like other courts, this court has also taken a narrow view of
legal foreseeability when asked to impose a duty upon a
landowner to guard against the negligence of others. This is
particularly true in cases involving negligent driving. For
example, in Gouge v. Central Illinois Public Service Co., 144 Ill.
2d 535 (1991), a car drove off a road and struck a utility pole,
located some 15 feet from the roadway. A transformer attached
to the pole collapsed onto the car, severely injuring the driver.
Gouge, 144 Ill. 2d at 539. The driver filed a complaint against
the power company which owned the pole, alleging that the
pole had been negligently located and that the pole should
have been installed so that it would fall away from the roadway
if struck by a motorist. As in this case, the circuit court
dismissed the complaint for failure to state a cause of action.
The appellate court, however, reversed the circuit court and
reinstated the complaint.
On appeal, this court held that the power company owed no
duty to the driver. In so holding, this court noted the long-
standing rule that there is no A >general duty to anticipate and
guard against the negligence of others= @ because the
imposition of such a duty A >would place an intolerable burden
on society.= @ Gouge, 144 Ill. 2d at 547, quoting Dunn v.
Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 366 (1989). This
court further noted that, while it is common knowledge that
vehicles on occasion leave roadways and strike objects
adjacent to roadways, A >there must be reasonable anticipation
of such deviation from the roadway as a normal incident of
travel= @ before a duty to guard against such negligence will be
imposed. Gouge, 144 Ill. 2d at 545, quoting Boylan v.
Martindale, 103 Ill. App. 3d 335, 346 (1982). We observed that
plaintiffs had Aalleged no facts in their complaint, nor are any
-36-
facts apparent, which would indicate that it was reasonably
foreseeable@ that the driver would deviate from the roadway
and strike the utility pole. Gouge, 144 Ill. 2d at 545.
Accordingly, because Ait is not reasonably foreseeable that a
motorist will leave the traveled portion of a roadway and strike
a particular utility pole@ (Gouge, 144 Ill. 2d at 546), this court
concluded that the power company owed no duty to the driver
and reversed the appellate court.
Another representative case is Ziemba v. Mierzwa, 142 Ill.
2d 42 (1991). In Ziemba, a cyclist on a roadway was injured
when a dump-truck driver negligently exited the driveway of a
landowner. The driveway was obscured by foliage and was not
visible from the road. The cyclist filed a complaint against the
landowner, alleging that the landowner had failed to use A
>reasonable care in the conduct of activities on his property, so
as not to cause damage or injury to persons on the adjacent
roadway.= @ Ziemba, 142 Ill. 2d at 46. The landowner filed a
section 2B615 motion to dismiss, which was granted by the
circuit court. The appellate court reversed.
On appeal, this court reversed the appellate court. Initially,
this court noted that, to determine if the landowner=s property
was unreasonably dangerous to the cyclist, it was necessary to
consider whether it was reasonably foreseeable that the
condition of the property would result in the type of accident
that occurred. As in this case, the court observed that the
condition of the landowner=s property was not, by itself,
dangerous to the cyclist. Rather, it only posed a danger to the
cyclist Aby operation of the driver=s intervening negligent act@ of
exiting the driveway without warning and without yielding the
right of way. Ziemba, 142 Ill. 2d at 50. This court also noted
that a property owner generally cannot control and has no right
to control the drivers of vehicles and, further, that a property
owner has a right to expect drivers to look before they back out
of driveways. Ziemba, 142 Ill. 2d at 52, quoting Zimmermann v.
Netemeyer, 122 Ill. App. 3d 1042, 1054 (1984), quoting
Safeway Stores, Inc. v. Musfelt, 349 P.2d 756, 758 (Okla.
1960). This court concluded that, A[b]ecause the condition on
defendant=s land posed no danger to plaintiff absent the
independent, negligent act of the driver,@ the accident Awas not
-37-
a reasonably foreseeable result of the condition on defendant=s
land.@ Ziemba, 142 Ill. 2d at 52.
As in Gouge, this court in Ziemba stressed that there is no
duty to A >guard against the negligence of others= @ because
such a duty A >would place an intolerable burden on society.= @
Ziemba, 142 Ill. 2d at 52-53, quoting Dunn, 127 Ill. 2d at 366. In
addition, this court stated:
AThe underlying rationale for holding a landowner liable
for injuries occurring as a result of conditions on his land
is that the landowner is in the best position to prevent
the injury. However, in this case, we find that the truck
driver was in the best position to prevent the injury.
Thus the usual justification for imposing landowner
liability is not present in this case.@ Ziemba, 142 Ill. 2d at
53.
Given these considerations, the court in Ziemba concluded that
the landowner owed no duty to the cyclist and reversed the
appellate court.
The majority in this case does not acknowledge the
traditional, narrow view of legal foreseeability that this court
has employed when asked to impose a duty upon a landowner
to guard against the misconduct of others. Indeed, while most
courts have exercised caution in this area of the law, allowing
foreseeability of third-party misconduct to remain a question of
fact for the jury only under specific tests or circumstances, the
majority in this case goes in the opposite direction. The
majority does not adopt a case-by-case approach and hold
only that, in this particular case, plaintiff has alleged sufficient
facts regarding foreseeability to survive dismissal. Cf. Bigbee,
34 Cal. 3d at 52, 665 P.2d at 948, 192 Cal. Rptr. at 858 (stating
that the sole question presented was whether, under the
evidence presented, Aforeseeability remains a question of fact
for the jury@). Instead, the majority adopts a categorical
approach and holds that it is foreseeable, as a matter of law
and without limitation, that automobile-related accidents will
place business invitees at risk of harm. Slip op. at 16. Of
course, if it is categorically foreseeable that negligently driven
automobiles will place business invitees at risk of harm, then it
is categorically unreasonable for landowners to fail to take
-38-
action to protect invitees from that risk. In this way, the majority
is holding all landowners with property abutting roads or
parking lots to be the insurers of their business invitees= safety.
This broad holding is unwarranted and, in my view, erroneous.
The second traditional duty factor that the majority
considers is the likelihood of injury resulting from accidents
such as the one that occurred in this case. The majority
concludes that it Ais quite high, as even a cursory glance at a
selection of the cases the parties have cited to us
demonstrates.@ Slip op. at 16. Although I agree that, in general,
there is a likelihood of injury when an automobile is negligently
driven onto premises open to the public, I note that the sample
of cases cited by the majority is self-selecting. That is, these
cases would not be in the court system in the first place if the
accident had not resulted in injury. It is possible, of course, that
there may be instances when an automobile driven onto
business premises may not cause injury. The likelihood of
injury will depend on the type of business and vehicle involved,
the time of day the accident occurs, and other factors. That
said, I certainly agree that, in general, there is a likelihood of
injury when an automobile is negligently driven onto premises
open to the public.
With respect to the third traditional duty factor, defendants
contend that the imposition of a duty to protect in this case
would impose an unreasonable burden on themselves and
other similarly situated businesses. Citing to Simmons v. Aldi-
Brenner Co., 162 Ill. App. 3d 238 (1987), defendants argue that
Aprotecting every storefront business and every store adjoining
a parking lot with the necessary barriers to stop any vehicle
from being driven into the building would be a gargantuan
task.@ Further, according to defendants, Aone could never be
certain whether the protection would be sufficient to stop every
vehicle,@ including trucks and SUVs, from crashing through the
building. Thus, defendants maintain that the burden imposed in
this case is unreasonable.
Defendants= position is supported by a number of cases.
One court has observed:
AImposing a duty on a convenience store to protect a
customer from every imaginable incident is an
-39-
unreasonable burden: a motorcycle can pass between
metal posts and a large truck can break through a
cement wall. Only an impregnable barrier would suffice,
in essence holding the store owner as the insurer of its
customers= safety. The law does not impose such a
burden.@ Qwik Korner Market, 28 Cal. App. 4th at 996,
34 Cal. Rptr. 2d at 175.
Similarly, another court has stated:
A >To erect an impregnable barrier around all of the
buildings would both obstruct normal pedestrian traffic
and impose on the owners a burden completely out of
proportion to the anticipated risk. We agree that liability
cannot be predicated on the fact that out of the many
thousands of vehicles which use parking areas in a
normal way, one or two may occasionally jump the curb
and expose pedestrians as well as tenants to the
remote possibility of injury.= @ Albert, 602 So. 2d at 897-
98, quoting Mack v. McGrath, 276 Minn. 419, 427-28,
150 N.W.2d 681, 686 (1967).
See also Simmons, 162 Ill. App. 3d at 244 (imposing a duty
Awould place a burden on every store, near a street or parking
lot, of constructing barriers adequate to prevent any car from
being driven into the building@); Stutz, 204 Ill. App. 3d at 906;
Heard, 856 So. 2d at 362 (if the court were to recognize a duty
to protect it Awould mean that property owners throughout the
state of Mississippi would need to build barriers between their
premises and streets and parking lots. This Court simply
cannot make that the public policy of this State@); Fawley, 618
N.E.2d at 14 (Ato require that business owners erect
impregnable barriers separating the parking lots from their
sidewalks would very likely increase the inconvenience and
hazard to pedestrians and impose upon the owners a burden
completely out of proportion to the anticipated risk@); Grandy,
134 A.D.2d at 958, 521 N.Y.S.2d at 957.
Despite this authority, the majority rejects defendants=
burden argument. The majority concludes that defendants=
concerns are Aspeculative at best@ and are Abased on mistaken
assumptions about the nature of a duty of care.@ Slip op. at 16.
According to the majority, defendants= burden argument is of
-40-
no moment because the court in this case is only holding that
defendants owed a duty of care to the decedent and not
making a Abroad-based declaration of negligence liability.@ Slip
op. at 16-17. In other words, in the view of the majority, burden
concerns arise only when there is a finding of liability, not when
a duty is recognized.
The majority=s burden analysis is at odds with case law.
This court has frequently discussed the burdens placed upon a
defendant in cases addressing solely whether a duty exists.
See, e.g., City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d
351, 393 (2004) (deciding the propriety of a judgment
dismissing a complaint under section 2B615 and concluding
that Athe magnitude of the burden that plaintiffs seek to impose
on the manufacturer and distributor defendants by altering their
business practices is immense@); Gouge, 144 Ill. 2d at 547-48
(discussing costs and burdens of imposing a duty). Further, it is
inconsistent for the majority to address foreseeability and the
likelihood of injury in deciding whether to recognize a duty in
this case and, at the same time, not address the burdens that
result from imposing that duty.
Later in its opinion the majority provides another answer to
defendants= burden argument. Rejecting defendants=
contentions regarding duty, the majority states that this case is
not about Awhether defendants had a duty to install protective
poles, or a duty to prevent a car from entering the restaurant,
or some such other fact-specific formulation@ but, instead, is
only about recognizing Aa duty of reasonable care@ to protect
business invitees. Slip op. at 17. This reasoning is
unpersuasive.
The duty imposed by the majority necessarily encompasses
the duty to provide protective barriers. Neither party to this
appeal has suggested any means of protecting business
invitees from out-of-control automobiles other than protective
poles or some other type of barrier. Indeed, plaintiff=s primary
allegation of negligence in this case is that defendants failed to
install such barriers. As plaintiff alleged in his complaint:
Aa. [Defendants] [f]ailed to place vertical concrete
pillars or poles in the sidewalk by the entrance of said
restaurant, which vertical pillars or poles would have
-41-
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 ***.@
The majority holds that all landowners owe a duty of
reasonable care to their business invitees which includes the
affirmative duty to protect the invitees from the risk of
negligently driven automobiles. See, e.g., slip op. at 16
(declining to find an exemption from the Aduty to protect
invitees against out-of-control drivers@). This affirmative duty to
protect necessarily applies in this caseBwhere an automobile
penetrated a building. The only way that a landowner can
protect an invitee from an automobile penetrating its building is
either by relocating the business away from all roads and
parking lots or, more plausibly, by constructing an impenetrable
barrier around the building. This is precisely the burden that
other courts have recognized to be at issue in cases such as
this and, as noted, have found to be unreasonable.
Finally, the majority does not address the substantial
consequences of its decision to impose a duty here. Every
business open to the public that abuts a road or parking lot
now has an unqualified duty to protect business invitees from
out-of-control drivers. This is an unprecedented expansion of
premises liability. See, e.g., Beretta U.S.A. Corp., 213 Ill. 2d at
393 (declining to impose a duty upon commercial enterprises
to guard against the criminal misuse of their products by others
in part because such a duty would be an Aunprecedented
expansion of the law of public nuisance@). Further, barriers
which make it impossible for vehicles to enter a building also
make it more difficult for invitees to get out of a building during
a fire or other emergency. Heard, 856 So. 2d at 362. Thus,
while the justification given for imposing a duty to protect in
cases such as this is to improve the safety of business invitees,
the recognition of such a duty may, on balance, have the
opposite effect.
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The majority is correct to observe that courts should be
cautious when holding that no duty exists. See slip op. at 16.
But the affirmative duty to protect is itself an exception to the
general rule that one owes no duty to police the conduct of
other people. Further, consider the nature of the majority=s
holding in this case. According to the majority, a duty to protect
a business invitee from the negligent driving of a third person
exists where: the landowner=s property is not inherently
dangerous or defective and the landowner=s own conduct has
not created any risk of harm to the invitee through negligent
design or construction; the landowner has complied with all
applicable building codes and safety regulations; the landowner
has experienced no previous incidents of any sort involving
automobile-related accidents, whether similar or not; the
parking lot is unremarkable, a sidewalk is present, and the
invitee is inside a building behind a half-brick wall; and the only
means of protecting the invitee from the negligent driving is to
construct an impregnable barrier around the building that, even
if possible to construct, may have a negative effect on the
safety of business invitees in other circumstances. If there is an
affirmative duty to protect a business invitee from out-of-control
vehicles on these facts, then such a duty exists for every
business which owns a building that abuts a road or parking
lot.
The majority=s holding is exceptionally broad and has the
potential to alter substantially the function and appearance of
every city in the state. With its far-reaching implications, I do
not believe that the adoption of the duty of protect, as
described by the majority, is an appropriate undertaking for this
court. I would hold, in accordance with the weight of authority,
that no affirmative duty to protect exists on these facts.
Accordingly, I dissent.
JUSTICE FREEMAN joins in this dissent.
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