Castro v. Brown's Chicken & Pasta, Inc.
Case Date: 06/15/2000
Court: 1st District Appellate
Docket No: 1-99-0888
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FOURTH DIVISION June 15, 2000No. 1-99-0888
JUSTICE SOUTH delivered the opinion of the court: On January 8, 1993, at approximately 9 p.m., one or more persons entered the Brown'sChicken & Pasta, Inc. (Brown's) restaurant in Palatine, Illinois, and murdered seven people. The franchisees, Mr. and Mrs. Ehlenfeldt, had just entered into a franchise agreement withBrown's approximately six months prior on May 29, 1992. The victims of the crime, theEhlenfeldts, Michael Castro, Rico Solis, Guadalupe Maldonado, Thomas Mennes and MarcusNellsen, were discovered at approximately 3 a.m. by a Palatine police officer. No one hasbeen charged with these murders, and the investigation is ongoing. A task force, whichconsists of law enforcement officers from various state and federal jurisdictions, the CookCounty State's Attorney's office, seven full-time investigators, and two part-time FederalBureau of Investigation staff members, was formed for the purpose of solving this crime. On January 6, 1995, Emmanuel Castro, as administrator for the estate of his deceasedson, Michael Castro, filed suit against Brown's alleging that Brown's exercised control overthe franchisee by virtue of the franchise agreement and by recommending safety rules for theemployees. Brown's filed a motion to dismiss the complaint alleging that the plaintiff hadfailed to allege a "voluntary undertaking." On June 29, 1995, Judge Hogan dismissed thewilful and wanton counts of the plaintiff's complaint (counts III and IV) and gave plaintiffleave to amend to include a cause of action for a "voluntary undertaking to provide safety." On January 8, 1996, Evelyn Urgena was appointed administrator for the estate of RicoSolis and a second lawsuit was filed against Brown's. This complaint was essentially the sameas the Castro complaint, and the two cases were consolidated on March 21, 1996. During the course of discovery, Brown's subpoenaed the Village of Palatine's (theVillage) records on the crime, and the Village moved to quash, arguing that the subpoena wasvague, overly broad and subject to an investigatory privilege. On October 4, 1995, the courtruled in favor of the Village. Brown's subsequently filed a second subpoena, narrowing therequests, and the Village again moved to quash. On January 9, 1996, the judge ordered theVillage to produce certain items and provided for a protective order on anything which theVillage did produce. The Cook County State's Attorney's office petitioned to intervene and moved to quashthe subpoena served by Brown's on the Cook County medical examiner. The court allowedintervention but denied the motion. During discovery, Brown's produced numerous documents, including a franchiseagreement which is relied upon by both parties. Brown's specifically points to the"Independent Contractors/Indemnification" clause within the agreement, which provides, "norshall Brown's be obligated for any damages to any person *** directly or indirectly arising outof the operation of the store or franchisee's business conducted hereunder, whether caused byfranchisee's negligence or willful action or failure to act." Plaintiffs also point to variousprovisions within the agreement in support of their position. Section 10, entitled"Specifications, Standards, Procedures and Rules," states in pertinent part that "franchiseeagrees to comply fully with all mandatory specifications, standards, operating procedures, andrules from time to time prescribed by Brown's *** including, without limitation,specifications, standards, operating procedures and rules pertaining to: (1) safety." Section 20of the agreement, entitled "Termination of Franchise," states: "Brown may terminate thisagreement *** if franchisee, the store or the principal owner or owners of the equity oroperating control of franchisee: *** operates the store in a manner that presents a health orsafety hazard to its customers, employees or the public." Brown's also presented Mary Childers, the director of franchise services for Brown's,for deposition. Ms. Childers conducted routine quality inspections for the franchise stores tomonitor compliance with Brown's guidelines and to answer questions which employees mighthave. She visited the Palatine store at least once a month and would conduct her inspectionsbased upon a preprinted quality inspection checklist. Out of the six inspections conductedafter the Ehlenfeldts took over ownership of the Palatine store, Ms. Childers noted on one ofthe inspection sheets that the back door of the store was not locked, and that this was bad forsecurity and health. She testified that the reason she made that notation was because therewas always a concern about employee theft. She also stated that there were state healthregulations against open doors and windows in restaurants. Ms. Childers testified at herdeposition that she did not inspect the stores for security but for safety. She was onlyconcerned with safety as it related to food items and slip and fall hazards, and her inspectionsdid not include anything related to crime prevention. John Gregornik, the owner of the Palatine franchise prior to the Ehlenfeldts, was alsodeposed. Mr. Gregornik owned up to six franchise stores at one time. He testified that thereis a distinct difference between company-owned stores and franchises; that the franchiseesdeveloped their own policies and procedures; that memos from the corporation were oftendisregarded altogether; and that he was free to run his restaurants the way he saw fit and toimplement any security measures he deemed necessary. On December 17, 1996, Brown's filed a motion for summary judgment. Attached tothe motion was an affidavit by Michelle Hudak, the director of training and human resourcesfor Brown's. In that affidavit, Ms. Hudak stated that Brown's did not mandate any securitymeasures for the franchisees, did not provide the franchisees with any written materialsdealing with the issue of security, did not employ any security personnel for the franchisees,and any security measures were left entirely up to the franchisee's discretion. Plaintiffsresponded and attached a memo from Ms. Hudak dated November 25, 1992, which was sentto all Brown's company-owned stores, as well as to the owners of franchise stores. The memostated in part: "Each year, we see an increase in robberies at this time of year. Losing the money is one thing, but more importantly, our reputation forhaving only small quantities of money in the store must be maintainedso potential robbers will regard us as poor targets. Therefore, pleaseexamine your deposit and security procedures and make certain there isno more than a minimal amount of money in the store at one time. Attached is a list of security procedures that will make your store lessattractive to a robber. Implement immediately. Let's work together to make Brown's Chicken & Pasta a safe andpleasant place to work." (Emphasis in original.) On August 6, 1997, Judge Hogan denied Brown's motion for summary judgment. Brown's filed a motion to reconsider the motion for summary judgment, which was denied asto the issue of "voluntary undertaking" and granted as to the issue of proximate cause. OnFebruary 5, 1999, Judge Hogan granted Brown's renewed motion for summary judgment onthe issue of proximate cause, but denied the motion with regards to the voluntary undertakingissue. He also denied plaintiffs' motion to compel discovery from investigating bodies oragencies, quashed their motion for subpoenas, denied the State's Attorney's motion to stay andlater amended the order to include Rule 304(a) (134 Ill. 2d R. 304(a)) language. Plaintiffs'notice of appeal was filed on March 5, 1999. In addition to Brown's response to plaintiffs'appeal, Ehlenfeldt Enterprises, Inc., the Cook County State's Attorney's office, and the Villageof Palatine and its task force have also filed responses to plaintiffs' brief. The issues raised on appeal are (1) whether Brown's voluntarily undertook to providesecurity at the Palatine restaurant; (2) whether the circuit court erred in denying plaintiffs'discovery requests on the issue of proximate cause and then entering summary judgmentagainst the plaintiffs on the basis that plaintiffs had not and could not prove that element; and(3) whether the State's Attorney and the Village of Palatine made a sufficient showing toinvoke an investigative privilege. In order to recover on a theory of negligence, the plaintiff must show that the defendantowed him a duty, that the defendant breached that duty, that he suffered injury as a result ofthat breach and that defendant's breach of duty or negligence was the proximate cause of hisinjuries. Martin v. McDonald's Corp., 213 Ill. App. 3d 487, 490, 572 N.E.2d 1073, 1076(1991). The question of duty, the legal obligation imposed upon one for the benefit ofanother, is a question of law to be determined by the court. Martin, 213 Ill. App. 3d at 490,572 N.E.2d at 1076. If no legal duty exists based upon a "special relationship" between theplaintiff and the defendant, liability can also be imposed on the defendant for negligentperformance of a voluntarily undertaking.(1) Martin, 213 Ill. App. 3d at 490, 572 N.E.2d at1076. Clearly, there is no legal duty on the part of Brown's because no special relationshipexists between it and plaintiff. Therefore, the issue becomes whether Brown's was negligentin voluntarily undertaking to provide security for the plaintiffs. Whether a defendant hasvoluntarily undertaken a legal duty to a plaintiff seeking to bring a negligence action is aquestion of law that is properly addressed by the court on a motion for summary judgment. Lavazzi v. McDonald's Corp., 239 Ill. App. 3d 403, 409, 606 N.E.2d 845, 851 (1992). Section 324A of the Restatement of Torts provides in pertinent part: "One who undertakes *** to render services to another which heshould recognize as necessary for the protection of the a person *** issubject to liability to the third person for physical harm resulting fromhis failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk ofsuch harm, or (b) he has undertaken to perform a duty owed by the otherto the third person, or
(c) the harm is suffered because of reliance of the other or thethird person upon the undertaking." Restatement (Second) ofTorts |
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