Marshall v. Burger King Corp: Do Premises Owner and Occupiers Have to Satisfy a Broader Duty of Care?

Attorneys: Madormo, Anthony J.

On June 22, 2006, in the landmark case of Marshall v. Burger King Corp., 2006 Ill. LEXIS 1087, the Illinois Supreme Court created an absolute duty for business owners to protect invitees from third-party negligent conduct, such as an out-of-control driver.

In Marshall, the plaintiff's decedent was killed while eating at a Burger King. Plaintiff's complaint alleged that the defendant driver, while attempting to exit the Burger King parking lot, caused her accelerator to stick and, as a result, lost control of her vehicle. Her car then hit a sidewalk adjacent to the restaurant, became air-borne, and crashed through the front of the Burger King, striking the decedent and fatally injuring him. The front of the Burger King was half brick and half windows.

The complaint alleged that Burger King and its franchisee failed to exercise due care in designing, constructing, and maintaining the restaurant, which proximately caused the decedent's death. Specific allegations included that the defendants:

Failed to place vertical concrete pillars or poles in the sidewalk by the entrance;
Improperly designed the building by designing it with brick only a few feet from the ground;
Failed to follow industry custom and practice by not placing concrete pillars or poles near the building entrance;
Failed to adequately and securely construct the entrance knowing that the restaurant was located in a high-traffic area;
Constructed the sidewalk in violation of the BOCA Building Code; and
Failed to otherwise use due care in the design, construction, and maintenance of the building, parking lot, and sidewalk.
Both defendants moved to dismiss the complaint arguing the complaint was not legally sufficient and failed to state a cause of action. Defendants argued that they had no duty to protect the decedent from the (third party) defendant driver's conduct.

The trial court granted the defendants' motion, finding that the likelihood of the alleged accident was so minor that to guard against it would require "fortifying every building within striking distance of any crazed or incredibly inept driver" and thus preventing "any hope of aesthetically pleasing or business-enticing buildings." The appellate court reversed the trial court, finding that it could not say as a matter of law that the plaintiff's allegations were beyond the duty of reasonable care owed by owners or occupiers to those in their premises.

The Illinois Supreme Court upheld the appellate court's decision. It refused to consider defendants' arguments that plaintiff's allegations failed to demonstrate that their conduct was a proximate cause of the decedent's injuries, because that issue was not raised in the trial court and thus waived on appeal. Turning to whether the defendants owed the plaintiff a duty of care, the court noted preliminarily that neither party presented arguments regarding negligent-design and negligent-construction, as alleged in the complaint. Therefore, the court confined its decision to whether the defendants owed a duty of care as owners/occupiers of the property.

The court stressed that whether a duty exists is based largely on public policy concerns. The court reasoned that as a restaurant that opens it doors to the public, Burger King had a "special relationship" with its customers. Therefore, Burger King had a duty to protect its customers from the tortious acts of third parties. The court relied upon cases involving third party criminal attacks where an invitee was injured on the property of an owner or occupier and reasoned that the rationale also applied where the negligent conduct of a third person injured an invitee.

The court adopted the broad language of Section 314A of the Restatement (Second) of Torts finding the defendants owed the plaintiff's decedent a duty to protect against unreasonable risk of physical harm, which extends to risks arising from third party acts "whether they are innocent, negligent, intentional or even criminal." The court discussed the traditional duty test, articulating that it is reasonably foreseeable that business invitees, from time to time, will be placed at risk by motor vehicle accidents. The court reasoned that the likelihood of an injury resulting from an auto accident is high. Finally, the court determined that the alleged immense costs (or burden) related to placing a duty on the business is pure speculation, because finding a duty exists does not equate to a breach of that duty and a finding of proximate cause.

The court's holding was not unanimous. There was a dissent opinion joined by two justices, which sharply criticized the majority, because the majority's finding that landowners/occupiers owed an affirmative duty to protect the decedent from the negligent driving of the defendant created a "new framework for analyzing the affirmative duty to protect." The dissent also argued that the majority did not follow the established case law, because it first determined that an affirmative duty existed due to the special relationship between invitee and landowner/occupier, before the court analyzed whether the four traditional duty factors created a duty.

The four duty factors are: foreseeability of the accident, the likelihood of an injury occurring as a result of the accident, the magnitude of the burden to guard against the accident, and the consequences of imposing that burden. The dissent sharply criticized the majority for not adopting a case-by-case approach and holding that the facts in this case sufficiently pled a duty of care to survive a motion to dismiss. Instead, the dissent reasoned that the majority adopted a categorical approach and held that it is foreseeable as a matter of law, and without limitation, that automobile-related accidents place business invitees at risk of harm. The dissent argued that the majority's holding now makes landowners with property abutting roads or parking lots the insurers of their business invitee's safety from the conduct of negligent drivers.

The reasoning and holding of the Marshall opinion appears to be significantly broad and has the potential for far reaching implications. For instance, plaintiff attorneys will argue that the court has essentially held that business owners and occupiers are strictly liable on the issue of whether a duty is owed to a plaintiff invitee injured by a third party on its premises. Thus, the only way to dismiss a complaint in such a situation, then, is to establish that no duty was breached or that the defendant's actions were not the proximate cause of plaintiff's injuries. Motions regarding proximate cause are difficult to win. Indeed, one trial court has already relied upon the Marshall decision to hold that the plaintiff's complaint states a cause of action by alleging that the negligent operation of a motorized shopping cart driven by a third party customer, which hit the plaintiff, creates a duty upon the store owner to protect a plaintiff customer from the negligent operation of that motorized shopping cart.

At the very least, the Marshall holding will be utilized to argue that broad factual scenarios, however remote they may appear, are foreseeable and thus may create a duty provided the likelihood of injury exists. This, despite that the magnitude or burden to guard against the duty is significant and the consequences of imposing the burden create significant burdens on property owners and businesses. As a practical matter, premises owners will now need to consider whether the interior of their premises is adequately protected from the foreseeability of a vehicle being driven out of control and entering their premises.

Further, the broad language of the decision creates additional uncertainty. Plaintiff attorneys will argue that the relationship applies beyond the public commercial setting or the owner, occupier, invitee relationship. The accidental negligent acts of third parties can create a duty in numerous settings.

After Marshall, much remains uncertain. However, premises owners and occupiers can expect that plaintiff attorneys are more likely to file lawsuits in cases where the issue of whether a duty of care is exists is question-able. As of now, courts have substantial room for interpretation based on the Marshall decision.

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