Article

Of Flying Cars, Restaurants, And Discovery

The Illinois Supreme Court’s recent decision in Marshall v. Burger King Corporation holds that businesses owe customers a duty of care to prevent injuries from car accidents caused by third parties if the business is located in a high-traffic area. Marshall v. Burger King Corp., No. 100372, 2006 Ill. LEXIS 1087 (Ill. June 22, 2006). With this decision, the Illinois Supreme Court has expanded the potential liability for business owners for the tortious acts of third parties, and lawyers on both sides of a case like Marshall can anticipate the case continuing through at least discovery and summary judgment briefing.

The facts in Marshall involve a freak accident with tragic consequences. A customer attempting to drive out of a restaurant parking lot reversed into a lamppost, the impact of which caused the car’s accelerator to stick. The car hurtled into a curb by the restaurant’s entrance and launched through the air, colliding into the Burger King and striking and killing a customer.

The decedent’s estate brought a negligence action against both the franchisee and the Burger King Corporation, claiming that both defendants did not exercise due care in designing, constructing, and maintaining the restaurant to be sufficiently flying-car retardant and flying-car proof (for example, the plaintiff in Marshall alleged that the design of the restaurant’s sidewalk causes vehicles that strike it to become airborne, and that the lack of concrete pillars around the building make it that much easier for a car to maintain flight and enter the building). Marshall, 2006 Ill. LEXIS 1087 at *3-*6. Defendants’ filed a 2-615 motion to dismiss that was granted by the trial court, which stated, in part, that plaintiff’s case “would require fortifying every building within striking distance of any crazed or incredibly inept driver.” Id. at *6. The appellate court reversed the trial court dismissal, and the Illinois Supreme Court limited its review of the case to a single issue: does the owner/operator of a business owe a duty of care to a customer to protect her from an out-of-control car penetrating the business and injuring her? Id. at *1-*17. The Illinois Supreme Court in Marshall answered “yes”, holding that the real “action” in cases of this nature is not in the finding of a duty, but is instead in the fact-intensive determination of whether that duty was breached and whether such a breach was the proximate cause of a plaintiff’s injury. Id. at *34.

The majority in Marshall explained that duty-of-care analysis involves an examination of a four-factor test — 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 — citing to its previous decision in Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 745 N.E.2d 1166 (Ill. 2000) for support. Id. at *23-*24. Without engaging in an explicit analysis of those four factors (an omission severely criticized in Justice McMorrow’s dissent), the Court in Marshall held that a restaurant is “undoubtedly of such a nature” that it places the defendants in a special relationship with their customers, as it is “an establishment open to the public for business purposes” — a relationship out of which arises a duty which includes protecting invitees from out-of-control cars. Id. at *29. As to the issue of foreseeability, the majority held that plaintiff’s allegation that the Burger King was located in an area with a “high traffic count” was sufficient to support the “foreseeability” of the danger of a fatal airborne automotive incursion into the restaurant. Id. at *29-*34. The majority went on to state:

[T]he 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. Id.   at *35.

Justice McMorrow in her dissent, which was joined by Justice Freeman, found the majority to be reversing the proper analysis for the finding of a duty and ignoring its own precedent, stating:

While the majority states that it is relying on the rationale of Hills for its duty analysis, the majority opinion departs significantly from that decision. …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 tortuous misconduct of a third person. 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, “exemption” analysis. This is a substantial departure from Hills. [emphasis in original, citations omitted]

At a minimum, whatever its future effects, the Illinois Supreme Court’s decision in Marshall has virtually guaranteed that defendants who find themselves on the receiving end of a similar complaint will be involved in the litigation at least through summary judgment. Ladies and gentlemen, start your discovery…