Admiralty Court Applies Illinois Construction Law - Summer 2006

Marshall v. Burger King Corp:

Do Premises Owner and Occupiers Have to Satisfy a Broader Duty of Care?
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.Admiralty Court Applies Illinois Construction Law

Summer 2006
In a recent admiralty case, the U.S. District Court for the Northern District of Illinois, sitting as an admiralty court, applied Illinois common law in granting a motion for summary judgment on the issue of a contractor’s liability for work it subcontracted to another company. The matter of Garvey Marine involved an accident on the Calumet-Sag Channel in which a barge struck a man-basket attached to a hydraulic underbridge boom. 424 F.Supp.2d 1109 (N. Dist. Ill., 2006).

The City of Blue Island, owner of the Division Street Bridge, entered into a preliminary engineering services agreement with Robinson Engineering to perform bridge rehabilitation. Robinson agreed to “perform or be responsible for the performance, in accordance with state approved design standards and policies, of engineering services” for rehabilitation of the bridge. Although the agreement allowed Robinson to subcontract its services, the Agreement specifically stated that “the consent to sublet, assign or otherwise transfer any portion of the services to be furnished by [Robinson] shall not be construed to relieve [Robinson] of any responsibility for the fulfillment of this agreement.”

Robinson retained Collins Engineers to conduct an inspection of the bridge, which was required before the actual rehabilitation could be performed. Collins’ project proposal to Robinson contained similar contractual language stating that Collins would conduct the inspection in full compliance with the various bridge inspection standards.

A short time before beginning the inspection, Collins informed Robinson and Robinson in-turn informed Blue Island of the schedule for the bridge inspection, specifically indicating which days of the inspection would involve “overhead” activities and which days would involve “underdeck” activities. Robinson requested that Blue Island “notify the proper emergency services with this information.” Blue Island only notified the police and fire departments of the inspection schedule, but did not notify the Coast Guard.

On April 10, 2003, a tugboat was pushing ahead several barges down the Calumet-Sag Channel. Claimants, bridge inspectors employed by Collins, were in a basket attached to the arm of a hyrdraulic underbridge boom and were suspended under the bridge conducting their inspection. The Captain of the tugboat did not see the boom and basket until too late. The front of the barge struck the arm of the boom attached to the basket which was occupied by the inspectors. The inspectors were thrown into the Channel, and one of them drowned.

Robinson moved for summary judgment, claiming it owed no duty of care to the inspectors because it never undertook to provide the inspectors with a safe working environment. Robinson further contended that it had no duty to the inspectors because it did not retain control over the means, method or manner in which Collins performed its inspection. The respondents, on the other hand, argued that Robinson had a non-delegable duty to remain responsible for all work performed under its agreement with Blue Island, including the inspection performed by its subcontractors, because Robinson had primary and direct responsibility for the bridge rehabilitation project. The respondents claim that this included an obligation to supervise Collins during the inspection. Alternatively, the respondents argue that Robinson assumed a duty to provide the inspectors with a safe working environment when it voluntarily undertook to control traffic around the bridge by informing Blue Island of the inspection schedule and instructing it to notify emergency services.

The court noted that it could not find any federal admiralty case law on the issues presented and, therefore, the court applied Illinois common law. The court held that a contractor is not liable for injuries or damage caused by the negligence of its subcontractors, unless it can be shown that the contractor retained or exercised control over the subcontractor. The court went on to cite with approval Comment C to Section 414 of the Restatement Second of Torts which explains that:

“It is not enough that he has merely a general right to order the work stopped or resumed, to inspect the progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of right of supervision that the contractor is not entirely free to do the work in his own way.”

In this case, the court found that Robinson had no control over the means, manner or method of Collins’ inspection because Robinson was not involved in nor did it oversee any aspect of the inspection. The court also found that Robinson’s Agreement with Blue Island did not explicitly impose a duty on Robinson to supervise the work of its subcontractors. Furthermore, it was reasonable for Robinson to rely on its contract with Collins because Robinson had no reason to believe Collins’ methods were dangerous or unlawful.

The court further held that Robinson’s agreement to comply with all applicable laws in performing the rehabilitation project was discharged by Robinson’s inclusion of a similar provision in its contract with Collins. The court went on to say that to hold otherwise would require Robinson to possess the legal and technical expertise necessary to ensure Collins’ inspection was in accordance with such laws, thus defeating the purpose of hiring Collins to perform the inspection.

Finally, the court held that Robinson did not assume responsibility for the safety of the inspectors or assume responsibility to insure that the Coast Guard was notified simply by informing Blue Island of the inspection schedule. Robinson merely assumed a responsibility to transmit information, which Robinson did in a non-negligent manner.

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