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Landmark Case Increases Liability for Illinois Business Owners

Pamela Fritz was trying to pull her car out of a Burger King parking lot on Sept. 27, 2001, when her accelerator stuck, catapulting her car off the curb and through the restaurant's wall. Her car landed on and killed Detroy Marshall III, who had been enjoying a cup of coffee inside.

This accident eventually landed Burger King in Illinois' High Court defending allegations it was responsible for Marshall's death.

On June 22, the Illinois Supreme Court found Burger King had a duty to protect diners in its establishment from the risk of errant drivers crashing through its walls and affirmed a lower court decision allowing the case to go before a jury.

The ruling, which many legal experts say flies in the face of prior case law, has the potential to expose Illinois business owners to new liabilities.

"Now we have to build bomb shelters to prevent errant drivers from blowing through walls," says Glen Amundsen, a partner in the Chicago office of SmithAmundsen. "It's an outrageous decision and it will expand the liability risks for business owners and construction companies."

How this bizarre accident could lead to a court date for a company has many legal experts scratching their heads and business owners gripping their worry beads--and with good reason.

A New Duty

The longstanding standard for determining whether a business owner has a duty to safeguard its premises against a given event is if the occurrence is "reasonably foreseeable." The Illinois Supreme Court's determination that a driver crashing through a brick wall is foreseeable strikes many observers as absurd. Many fear it will expose business owners to liability for events that they could not have predicted.

In her strongly worded dissent to the majority opinion in Marshall v. Burger King, former Chief Justice Mary Ann McMorrow clarified the concern. "Every business open to the public that abuts a road or parking lot now has an unqualified duty to protect business invitees from out-of-control drivers."

In determining that an out-of-control car smashing through Burger King's wall was indeed a reasonably foreseeable event, the justices in the majority relied on Ray v. Cock Robin Inc., a 1974 case in which a car ran off a road, killing a child outside of an ice cream stand. The judge ruled for the plaintiff on the grounds that there had been a prior similar event, and therefore Cock Robin owed a duty to its patrons to prevent its reoccurrence.

However, as McMorrow points out, there are factual dissimilarities between the cases. In Marshall, Fritz's car penetrated a brick wall and window surrounding Burger King's entrance. Unlike the defendant in Cock Robin, Burger King did have some barriers and had not experienced prior occurrences.

"In the past, this type of event was not reasonably foreseeable unless the defendant had prior experience with someone crashing into its building," says Richard Morgan, managing partner of Bowman and Brook. "This really changes things, and there is going to be a lot of evaluation by building owners and by architects of what the standards are going to be."

Experts fear this decision upends long-standing case law. In Simmons v. Aldi-Brenner Co., for example, an errant driver rammed through a grocery store's wall, injuring and killing patrons inside. The court held that the store had no duty to protect patrons from such an accident because, "the likelihood of this scenario is so minor that to guard against [it] ?? 1/2 would require fortifying every building within striking distance of any crazed or incredibly inept driver."

In a similar case, Stutz v. Kamm, a student driver crashed through a glass wall of a driver's license examination building. Once again, the court found the incident unforeseeable.

The Supreme Court ruling in Marshall raises some tough questions about the current design of Illinois buildings.

"There will be a lot of gnashing of teeth over whether buildings should be retrofitted," Morgan says. "Will they have to make their walls strong enough for just an out-of-control Toyota or do they have to sustain a crash from a Hummer?"

Building Barriers

In addition to increased liability for business owners, some legal experts fear that the ruling could affect other industries as well.

"The same theory could be used against construction companies or engineers or architects who design buildings," Amundsen says. "It's going to add to more lawsuits and add to the expense associated with lawsuits."

However, not everyone is so pessimistic. "It really does not and will not affect business in any way, shape or form," says William T. Cacciatore, who represents the plaintiff in Marshall. "Why any business would be hesitant to protect its patrons is beyond me."

Cacciatore points out that the type of protective pillars the court found Burger King should have erected to protect customers are commonplace around similar establishments, adding that spending a "few hundred dollars [to construct pillars] can alter this kind of accident."

While it is not entirely clear if businesses around Illinois will begin erecting $100 pillars or impenetrable fortresses, Marshall will cause more cases to survive past summary judgment.

"This case makes it more likely to reach a jury, where the stories of cars crashing through buildings may pull on the heartstrings of the jurors," says George Talarico, a partner at Thacher Proffitt & Wood's New York office.

While a chance remains for Burger King to succeed down the line in front of a jury, for now, in-house counsel should keep their ears and eyes open.

"Reassess the physical layout and the potential risk associated with errant drivers," Amundsen advises. "And be prepared to pay increased premiums for insurance coverage."

Staff Writer

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