LAW CASE UPDATE
By: Dennis E. Merkley
FRANCHISER MAY OWE DUTY FOR INJURY ON FRANCHISEE'S PREMISES.
In Lawson v. Schmitt Bolder Hill, Inc. and McDonald's Corp., a McDonald's employee was injured when she was attacked in the parking lot of a franchisee’s restaurant while on her way to work. Plaintiff brought suit against the franchisee and McDonald's, as the franchisor, alleging that McDonald's had published standards for franchisees in regard to lighting of parking lots and procedures and disciplines for the security of employees and patrons. Plaintiff further alleged that McDonald's monitored and enforced compliance of the franchisees with the standards. McDonald moved to dismiss the plaintiff's complaint, arguing that it owed no duty to the plaintiff. The trial court granted McDonald’s motion. Plaintiff appealed. The Appellate Court reversed.
Whether a frachisor maintains mandatory security procedures is a crucial factor in determining whether the frachisor has voluntarily undertaken a duty of care toward a franchisee's employees. In that regard the court stated that:
Although the law did not impose a duty on McDonald's to protect the employees of its franchisees from harm, McDonald's had recognized the threat of armed robbery and the importance of security in restaurants. McDonald's had formed a department or unit to deal with security problems and prepared a "Bible" for restaurant security operations.
As such, the Court determined that McDonald's actions with regard to safety at franchisees' locations imposed a duty of care upon it for a franchisee's employees. CONTACT SPORTS EXCEPTION DOES NOT APPLY TO AN ATHLETIC TRAINER.
In Weisberg v. Chicago Steel, plaintiff was an athletic trainer whose duties included refilling water bottles during a hockey team's practice. During a practice, the players had set up water bottles along the bench and shot hockey pucks at them. Plaintiff entered the bench area to refill the water bottles and was struck in the face by an errant shot. Plaintiff filed suit against the hockey team and the hockey player shooting the puck, alleging negligence and wilful and wanton conduct. Defendants argued that plaintiff’s negligence counts were subject to dismissal based on the contract sports exception. The trial court granted the motion and plaintiff appealed.
The contact sports exception is an exception to ordinary negligence claims and provides that voluntary participants in a contact sport may be held liable for injuries to co-participants caused by wilful and wanton or intentional conduct, but not for injuries caused by ordinary negligence.
Whether the contact sports exception applies to a non-participant defendant is a policy determination that rests on the circumstances of the sport and its inherent risk, the relationship of the parties to the sport and to each other, and whether imposing broader liability on the defendant would harm the sport or cause it to be changed or abandoned.
In this case, the plaintiff was not a hockey player and had not otherwise voluntarily undertaken participating in the sport of hockey during the practice in which he was injured. Instead, plaintiff was a trainer whose job duties included refilling water bottles during the hockey team's practice. The court concluded that the plaintiff, a trainer who was not otherwise engaged in conduct inherent in the sport of hockey, did not bear a significant relationship to either the sport of hockey or the participants to the extent that the contact sports exception should be invoked as a matter of policy. As such, the Appellate Court reversed the trial court's grant of dismissal with regard to the plaintiff's negligence claims.
LOCAL GOVERNMENT ENTITY COMMON CARRIER DOES NOT OWE A DUTY OF CARE TO SOMEONE WHO FALLS CROSSING A PUBLIC STREET.
In Pence v. Northeast Illinois Regional Commuter Railroad Corp., plaintiff sued Metra for recovery of injuries caused as a result of tripping on the railroad tracks at a grade-level crossing near a Metra station. The evidence showed that while walking to the Metra station, the plaintiff tripped on a bolt protruding from a railroad tie and broke his right wrist and left shoulder. The trial court granted Metra's motion for summary judgment, finding that it did not owe the plaintiff a duty because he was not a passenger and the alleged defect was de minimis. Plaintiff appealed.
The Appellate Court held that a contractual relationship exists between passenger and carrier when the passenger presents himself at the proper place to be transported with the intention of becoming a passenger and is either expressly or impliedly accepted by the carrier for transportation. When the Plaintiff fell, he was in the middle of a public roadway. Although the bolt was part of Metra's track system at the grade-level crossing, it cannot be determined that plaintiff was in the proper place for transportation at the time of his fall. While plaintiff may have intended to be a passenger on a Metra train, he had not yet become a passenger at the time of his accident. Accordingly, Metra did not owe plaintiff the highest duty of care.
The Court next had to determine whether Metra owed the plaintiff a duty as an owner and occupier of land. Metra is a local government entity, and as such is immune from liability pursuant to the Tort Immunity Act. Metra argued that Section 3-102(a) provided immunity because (1) the plaintiff was not an intended and permitted user of the property; and (2) the injury arose from the condition on the property. Even though Metra may have permitted the plaintiff to cross its tracks diagonally outside of a crosswalk, plaintiff was determined not to be an intended user of the street in order for Metra to be liable for his injury. "Pedestrians who cross streets outside of crosswalks are not intended users of the street." The Illinois Supreme Court has declined to impose a duty of reasonable care on municipalities to pedestrians who cross a street outside of crosswalks. Therefore, Metra owed no duty to plaintiff, and summary judgment in favor of Metra was proper.