Day on Torts
Did Burger King have a duty to design its stand-alone restaurant in such a way to protect its in-house dining customers from being struck by a car that came through the building’s wall?
The Illinois Supreme Court addressed this problem in the case of Marshall v. Burger King Corporation, Docket No. 100372, ( Ill. S.Ct. June 22, 2006). The Court started its analysis this way:
"The touchstone of this court’s duty analysis is to ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. This court often discusses the policy considerations that inform this inquiry in terms of four factors: (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. " [Citations omitted.]
The Court examined those factors and concluded that "plaintiff’s complaint alleges facts sufficient to establish that defendants owed a duty of care to the decedent." The Court explained that "[t]he complaint alleges that while the decedent was a customer at a restaurant owned and operated by defendants, he was injured by the negligent act of a third person-namely, Fritz’s act of driving her car into the restaurant. Defendants’ business, a restaurant, is undoubtedly of such a nature that it places defendants in a special relationship with their customers, as it is an establishment open to the general public for business purposes. In addition, the duty of care that arises from the business invitor-invitee relationship encompasses the type of risk-i.e., the negligent act of a third person-that led to the decedent’s injuries." [Citation omitted.]
The Court rejected the defendant’s attempt to create an exception to the general rule and in doing so clearly stated something that is all too frequently missing from discussions of the law of duty in many opinions:
"[T]he extensive costs to businesses and to the public that defendants claim will arise by not creating an exemption from the applicable duty of care are speculative at best. Defendants argue that businesses will incur an immense financial burden if required to protect their invitees from out-of-control automobiles and that the protective measures businesses take will make buildings everywhere less aesthetically pleasing. These arguments are based on mistaken assumptions about the nature of a duty of care. Recognizing that the duty of reasonable care that businesses owe to their invitees applies to cases where invitees are injured by out-of-control automobiles is not the same as concluding the duty has been breached because a business failed to take a certain level of precaution. Nor is it the same as concluding that the breach was the proximate cause of an invitee’s injuries. In short, merely concluding that the duty applies does not constitute an automatic, broad-based declaration of negligence liability.
Further, to the extent defendants suggest we could create a rule of law narrower than the exemption discussed above to absolve them of liability, they are actually requesting that we determine, as a matter of law, that they did not breach their duty of care. It is inadvisable for courts to conflate the concepts of duty and breach in this manner. Courts could, after all, ‘state an infinite number of duties if they spoke in highly particular terms,’ and while particularized statements of duty may be comprehensible, ‘they use the term duty to state conclusions about the facts of particular cases, not as a general standard.’ 1 D. Dobbs, Torts §226, at 577 (2001); see also 54 Vand. L. Rev. at 712-17 (discussing problems associated with using the duty element of negligence to render decisions that no breach occurred as a matter of law). Thus, the 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."
Read the entire opinion (and the dissent) here.
I suggest that the method of resolution of this case is similar to that which Tennessee Supreme Court Justice Janice Holder would use. Unfortunately, she has historically offered her opinion of duty analysis in dissenting opinions.