Find Legal Information

SECOND DIVISION
June 11, 2002

JUSTICE McBRIDE delivered the opinion of the court:

Plaintiff-appellant, Ekaterina Chelkova, was sexuallyassaulted by Donald Vance on April 1, 1995. The sexual assaultoccurred while Chelkova was employed at 7-Eleven Store No. 23852-Alocated at 1140 North Harlem Avenue, River Forest, Illinois. Chelkova, a 19 year-old Russian immigrant, worked alone at the 7-Eleven on the late-night shift. Vance had been a customer at theconvenience store earlier that day. He later returned and sexuallyassaulted Chelkova in the store's bathroom. The 7-Eleven franchisewas operated by Julie Hill and Phillip Hill, who were thefranchisees, d/b/a P & J Hill, Inc. The franchisor is defendant-appellee, the Southland Corporation (Southland), d/b/a 7-Eleven. A franchise agreement was executed between 7-Eleven and the Hillson February 11, 1983.

On March 12, 1999, Chelkova filed a one-count complaint fornegligence against Southland alleging that it had breached a dutyto protect her from harm. On May 13, 1999, Southland moved forsummary judgment on the ground that it did not undertake a duty toprotect employees of its franchisees from the criminal acts perpetrated by third parties. The trial court granted Southland'smotion for summary judgment on November 3, 1999. Chelkova filed amotion to reconsider the summary judgment order on December 3,1999. The trial court denied Chelkova's motion to reconsider onMay 22, 2000. Chelkova appeals from the orders entered November 3,1999, and May 22, 2000.

Two issues are raised on appeal. First, whether the trialcourt erred in granting summary judgment in favor of Southland onthe basis that it did not voluntarily undertake a duty to providesafety for the plaintiff. Second, whether the trial court erred indenying Chelkova's motion to reconsider. The standard of reviewfor summary judgment is the following:

"A court should grant a motion forsummary judgment when the pleadings,depositions, admissions and affidavits showthat there is no genuine issue of materialfact and the moving party is entitled tojudgment as a matter of law. [Citation.] Thus, summary judgment is proper when a courtmay determine an issue as a question of law. [Citation.]

While the goal of expeditious dispositionof a lawsuit by the use of summary judgment isencouraged, it is a drastic means to disposingof litigation and should only be allowed whenthe right of the moving party is clear andfree from doubt. [Citation.] Accordingly, acourt ruling on a motion for summary judgmentmust strictly construe the evidence againstthe movant and liberally in favor of thenonmoving party. [Citation.]

Nonetheless, in order to survive a motionfor summary judgment, the nonmoving party mustcome forward with evidence establishing agenuine issue of fact. [Citation.] Summaryjudgment in favor of a defendant is properwhere a plaintiff has not established anessential element of a cause of action.[Citation.] One of the essential elements ofan action for negligence which the plaintiffmust set out is the existence of a duty owedby the defendant to the plaintiff. [Citation.]" Lavazzi v. McDonald's Corp., 239Ill. App. 3d 403, 408, 606 N.E.2d 485 (1992).

In addition, "[w]hether a defendant has voluntarily undertaken alegal duty to a plaintiff seeking to bring a negligence action must be determined by a court as a question of law and is properlyaddressed by the court on a motion for summary judgment.[Citation.]" Lavazzi, 239 Ill. App. 3d at 409. We state thefollowing background facts.

Paragraph 20 of the franchise agreement between 7 Eleven andthe Hills stated the following:

"20. Independent Contractor. FRANCHISEEshall be an independent contractor and shall[control] the manner and means of theoperation of the store and exercise completecontrol over and responsibility for all laborrelations and the conduct of FRANCHISEE'sagents and employees. FRANCHISEE andFRANCHISEE's agents and employees shall not beconsidered or held out to be agents oremployees of 7-ELEVEN and shall not negotiateor enter any agreement or incur any liabilityin the name or on behalf of, or that purportsto bind, 7 ELEVEN."

In a deposition attached to the motion for summary judgment, JulieHill testified that she ran the store on a day-to-day basis andthat she handled all employee-related issues. Hill further saidthat she chose to implement all of the security measures that wererecommended by Southland.

Specifically, Hill testified that Southland's fieldconsultants would address security matters and that Southland wassent copies of police reports in regard to four criminal incidentsprior to Chelkova's assault. She also said that Southland prepareda robbery prevention manual, which was disseminated to her. Therecord reveals a "Robbery Prevention Kit" was prepared by Southlandwhich included decals informing employees not to keep large amountsof cash in register drawers and informing the public that storeregisters have less that $30 after dark. It further explained howrobbery situations should be handled by employees. This kit wasprovided to 7-Eleven franchisees including the Hills.

Hill also stated that she accepted an optional offer bySouthland to implement a security system. The system was installedby a security company called National Guardian and paid for bySouthland. Hill also testified that Southland provided training tofranchisees concerning rape and robbery prevention and that she wasresponsible for passing the information on to her employees. Outside of training, Hill said that Southland would not tell herwhat its security policies were, but would make recommendationsconcerning security procedures that she could follow. Hilltestified that none of her employees was trained by Southlandconcerning safety. She also stated that she was not a member ofany security committees that were formed by Southland. Finally,she testified that Southland did not monitor her compliance withsecurity measures in terms of whether employees had been apprisedof what they should do in the event of a robbery or a breach ofsecurity.

At the hearing on November 3, 1999, the trial court stated:

"THE COURT: Where is the duty? I mean,in terms of Southland what they have done isbasically give some individual guidelines totheir franchisees. And they have a little bitof participation in a sense that they givesome printings out, but they don't reallycontrol what is done or not control, as I seeit."

At the end of the hearing, the trial court entered summary judgmentin favor of Southland on the basis that Southland had notvoluntarily assumed a duty to protect the employees of a franchisefrom criminal acts by third parties.

On December 3, 1999, Chelkova filed a motion to reconsider thesummary judgment ruling where she requested that the trial courtconsider additional evidence. The record reveals that theadditional evidence included: the deposition transcript of LloydScott taken in connection with a case filed in the State ofColorado entitled Jiron-Waldron v. Southland, 93-CV6251, (Dist. Ct.Denver Co.); a State of Florida statute concerning conveniencebusiness security; and an offering circular prepared by Southland for prospective franchisees that concerned information required bythe Federal Trade Commission. At the hearing on the motion toreconsider, the trial court determined that this additionalevidence was irrelevant to the instant case. Thus, Chelkova'smotion to reconsider was denied.

We turn to the question of whether the entry of summaryjudgment in favor of Southland was proper. Chelkova argues that Southland exercised control over the franchise because of thefranchise agreement and by recommending security measures to JulieHill. Because of the control exercised by Southland over thefranchise, particularly with regard to security, Chelkova contendsthat Southland voluntarily undertook a duty to protect her from athird party criminal attack. She further asserts that the trialcourt erred in granting summary judgment for Southland becausegenuine issues of fact existed as to whether Southland's securitymeasures demonstrated a voluntary undertaking to protect theemployees of the franchise.

The same issue was raised in Castro v. Brown's Chicken andPasta, Inc., 314 Ill. App. 3d 542, 547, 732 N.E.2d 37 (2000). InCastro, seven people were murdered by an unknown assailant in aBrown's Chicken & Pasta restaurant located in Palatine, Illinois. This particular franchise was operated by Mr. and Mrs. Ehlenfeldt,who had executed a franchise agreement with Brown's six monthsprior to the murders. The estates of two of the victims each filedsuit against Brown's alleging that Brown's exercised control of thefranchisee as a result of the franchise agreement and recommendingsafety rules for the employees. These cases were consolidated bythe trial court.

In Castro, the appellate court observed:

"In order to recover on a theory ofnegligence, the plaintiff must show that thedefendant owed him a duty, that the defendantbreached that duty, that he suffered an injuryas a result of that breach and thatdefendant's breach of duty or negligence wasthe proximate cause of his injuries. [Citation.] The question of duty, the legalobligation imposed upon one for the benefit ofanother, is a question of law to be determinedby the court. [Citation.] If no legal dutyexists based upon a 'special relationship'between the plaintiff and the defendant,liability can also be imposed on the defendantfor negligent performance of a voluntaryundertaking. [Citation.]" Castro, 314 Ill.App. 3d at 547.

The issue in this case is whether Southland was negligent involuntarily undertaking to provide security for Chelkova. We notedabove that whether a defendant has voluntarily undertaken a legalduty to plaintiff seeking to bring a negligence action is aquestion of law that is properly addressed by the court on a motionfor summary judgment. [Citation.]" Lavazzi, 239 Ill. App. 3d at409; Castro, 314 Ill. App. 3d at 547.

In Castro, the appellate court relied on section 324A of theRestatement (Second) of Torts, which provides in relevant part:

" 'One who undertakes *** to renderservices to another which he should recognizeas necessary for the protection of [a] person *** is subject to liability to the thirdperson for physical harm resulting from hisfailure to exercise reasonable care to protecthis undertaking, if

(a) his failure to exercise reasonablecare increases the risk of such harm, or

(b) he has undertaken to perform a dutyowed by the other to the third person, or

(c) the harm is suffered because ofreliance of the other or the third person uponthe undertaking.' " Castro, 314 Ill. App. 3dat 547, quoting Restatement (Second) of Torts