                      Nos. 2--09--0026 & 2--09--0244 cons. Filed: 1-22-10
_________________________________________________________________________________

                                             IN THE

                               APPELLATE COURT OF ILLINOIS

                                SECOND DISTRICT
_________________________________________________________________________________

RENAE LAWSON,                           ) Appeal from the Circuit Court
                                        ) of Kendall County.
      Plaintiff-Appellant,              )
                                        )
v.                                      ) No. 08--L--17
                                        )
SCHMITT BOULDER HILL, INC., and         )
McDONALD'S CORPORATION,                 ) Honorable
                                        ) Timothy J. McCann,
      Defendants-Appellees.             ) Judge, Presiding.
_________________________________________________________________________________

       JUSTICE BURKE delivered the opinion of the court:

       Plaintiff, Renae Lawson, filed a two-count complaint in the circuit court of Kendall County

against defendants, Schmitt Boulder Hill, Inc. (Schmitt),1 and McDonald's Corporation

(McDonald's). Plaintiff alleged that on December 18, 2005, she was a part-time employee at a

restaurant owned by Schmitt and operated under a franchise agreement with McDonald's. She

further alleged that just before 6 a.m. on that date she parked her car in the side area of the

restaurant's parking lot. Before she was able to enter the restaurant she was robbed, abducted, and

assaulted. She alleged that the attack and her resultant injuries were proximately caused by

defendants' negligence. McDonald's moved to dismiss under section 2--619(a)(9) of the Code of

Civil Procedure (Code) (735 ILCS 5/2--619(a)(9) (West 2008)), arguing that it owed no duty to

plaintiff. Schmitt moved to dismiss under the same provision, arguing that the exclusive remedy

       1
           Schmitt is misnamed in the complaint as "Schmitt-Orchard LLC."
Nos. 2--09--0026 & 2--09--0244 cons.


provision of the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2008)) barred plaintiff

from suing Schmitt for negligence. The trial court entered separate orders, granting both motions

to dismiss. Defendants timely filed separate notices of appeal from the two orders and we

consolidated the appeals. We affirm the dismissal of plaintiff's claim against Schmitt, but we reverse

the dismissal of the claim against McDonald's.

        With respect to plaintiff's claim against McDonald's, her complaint includes the following

pertinent allegations:

                "04. At least since January 1, 2005 McDonalds [sic] has published standards for

        franchises [sic] such as Schmitt in the areas of lighting of the parking lots and procedures and

        disciplines [sic] for security of employees and patrons of Schmitt's restaurant[.]

                05. McDonalds [sic] monitors and enforces compliance with said standards by

        dispatching McDonald's security persons to Schmidt [sic] on a regular basis during the year

        to confirm compliance with McDonald's said standards[.]"

        In support of its motion to dismiss, McDonald's submitted an affidavit from one of its

employees who averred that McDonald's did not own or operate the restaurant and had no right to

control the restaurant's day-to-day operations or to hire, discharge, or discipline the restaurant's

employees. The employee further averred that McDonald's did not pay utilities for the restaurant,

did not "manufacture, process or prepare any product for sale" at the restaurant, did not supply any

product to the restaurant, and did not file a tax return for the restaurant.

        Plaintiff submitted a counteraffidavit averring that a representative of McDonald's visited the

restaurant and spoke with the restaurant's managers "about compliance with the various rules and

regulations which McDonald's requires its store franchises to follow and obey." According to



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plaintiff's affidavit, McDonald's issued a "Shift Manual" that described security requirements and

made reference to an "O & T Manual" that plaintiff expected to obtain in discovery.

       In response to a request to admit served by Schmitt, plaintiff admitted that on December 18,

2005, she was scheduled to start work at 6 a.m.

       In case No. 2--09--0026, plaintiff argues that the trial court erred in granting McDonald's a

dismissal under section 2--619(a)(9). Such a motion admits the legal sufficiency of the complaint,

but asserts some affirmative matter as a defense. Corcoran-Hakala v. Dowd, 362 Ill. App. 3d 523,

525 (2005). "The phrase 'affirmative matter' refers to something in the nature of a defense that

negates the cause of action completely or refutes crucial conclusions of law or conclusions of

material fact contained in or inferred from the complaint." In re Estate of Schlenker, 209 Ill. 2d 456,

461 (2004). More broadly, affirmative matters include "any defense other than a negation of the

essential allegations of the plaintiffs' cause of action." Travis v. American Manufacturers Mutual

Insurance Co., 335 Ill. App. 3d 1171, 1174 (2002). Thus, although the defendant may challenge the

plaintiff's legal conclusions, all well-pleaded facts and the inferences arising from those facts must

be taken as true for purposes of a motion under section 2--619(a)(9). In re Marriage of Diaz, 363

Ill. App. 3d 1091, 1094 (2006).

       Significantly, it is the defendant's burden to prove the affirmative matter defeating the

plaintiff's claim. Daniels v. Union Pacific R.R. Co., 388 Ill. App. 3d 850, 855 (2009). The

defendant bears the initial burden of presenting the affirmative matter (Reilly v. Wyeth, 377 Ill. App.

3d 20, 36 (2007)), and unless the grounds for the motion appear on the face of the pleading being

challenged, the motion must be supported by affidavit. 735 ILCS 5/2--619(a) (West 2008). If the

defendant meets its burden, "the burden then shifts to the plaintiff to establish that the defense is



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'unfounded or requires the resolution of an essential element of material fact before it is proven.' "

Reilly, 377 Ill. App. 3d at 36, quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.

2d 112, 116 (1993). Generally speaking, the trial court's decision is reviewed de novo. Solaia

Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006).2

        Here plaintiff's complaint against McDonald's sounds in negligence. A complaint seeking

recovery for negligence "must allege facts that establish the existence of a duty of care owed by the

defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach."

Marshall v. Burger King Corp., 222 Ill. 2d 422, 430 (2006). The affirmative matter asserted by

McDonald's to defeat plaintiff's claim is that McDonald's owed plaintiff no duty of care. The

existence of a duty is a question of law, not of fact (Marshall, 222 Ill. 2d at 430), so it may be

decided on a motion under section 2--619(a)(9) (see Lang v. Silva, 306 Ill. App. 3d 960, 970 (1999);

Wood v. Village of Grayslake, 229 Ill. App. 3d 343, 349 (1992)). To meet its initial burden,

McDonald's was obliged to show from the face of the complaint or by means of an affidavit that it

owed no duty of care to plaintiff. If McDonald's met that burden, plaintiff would then be required

to show that the "no duty" defense was unfounded or that proof of the defense would require

resolution of an " 'essential element of material fact.' " Reilly, 377 Ill. App. 3d at 36, quoting Hodge,

156 Ill. 2d at 116. However, for the reasons discussed below, we conclude that McDonald's failed

to meet its initial burden. Accordingly, the trial court erred in granting its motion to dismiss.



        2
            Where the plaintiff is not entitled to a jury trial, the trial court deciding a section 2--619

motion may, at its option, resolve factual disputes. If the court does so, its findings of fact will not

be disturbed unless they are against the manifest weight of the evidence. A.F.P. Enterprises, Inc. v.

Crescent Pork, Inc., 243 Ill. App. 3d 905, 912-13 (1993).

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       On several occasions, courts have considered whether franchisors may be held liable in

negligence for failing to exercise due care to protect their franchisees' workers from harm caused by

the criminal acts of others. In Martin v. McDonald's Corp., 213 Ill. App. 3d 487 (1991), McDonald's

appealed from a judgment entered following a trial. The plaintiffs were (1) two workers who were

assaulted when a restaurant owned by a McDonald's franchisee was robbed and (2) the parents of

another worker, who was murdered during the robbery. McDonald's asserted, as it does now, that

it had no duty to protect the workers, because they were employed not by McDonald's but by its

franchisee. McDonald's contended that it had no special relationship with the victims that would

give rise to a duty of care. The Martin court upheld the judgment, reasoning that McDonald's had

voluntarily assumed a duty to the victims. The court noted 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 robberies 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.   McDonald's employed a regional security manager who served as the

franchisee's security supervisor, and he "undertook not only the obligation to check for security

problems, but also to communicate to the store management what the security policies were and to

'follow-up' to be certain that the problems had been corrected and the 'recommended' security

procedures 'followed.' " Martin, 213 Ill. App. 3d at 491.

       Like Martin, Decker v. Domino's Pizza, Inc., 268 Ill. App. 3d 521 (1994), was an appeal by

the defendant from a judgment entered following a trial on the merits. In Decker, a worker at a store

owned by one of the defendant's franchisees was seriously injured during a robbery. The court

upheld the verdict under a voluntary-undertaking theory of liability because the defendant--the



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franchisor-- formed a committee to study security issues, adopted a cash management system

involving the use of time-delay safes in franchisees' stores, produced literature regarding robbery

prevention, employed a franchise consultant to ensure compliance with the franchisor's standards

(including robbery prevention) and to make sure that management trainees were properly trained in

safety and security, and maintained a security hotline.

       In contrast, in Castro v. Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d 542 (2000), the court

affirmed a summary judgment in favor of the defendant on negligence claims. Those claims were

filed by the administrators of the estates of two of the victims in a mass murder that occurred at a

restaurant in Palatine that was owned and operated by one of the defendant's franchisees. The Castro

court noted that deposition testimony by the defendant's employees established that security

measures were left to the discretion of individual franchisees; the defendant did not mandate that any

security procedures be followed, did not supply franchisees with any written materials concerning

security issues, and did not employ security personnel for its franchisees. Castro, 314 Ill. App. 3d

at 550. Moreover, the record established that routine quality inspections conducted by the defendant

were limited to matters of food safety and accident prevention; the inspections did not relate to crime

prevention. Castro, 314 Ill. App. 3d at 550. The Castro court carefully distinguished Martin and

Decker, noting that unlike the defendants in those cases, the defendant in Castro "did not implement

mandatory security measures to be followed by the franchisee, it did not follow up to make sure that

security recommendations were followed, it did not provide security for the Palatine restaurant or

engage in routine security checks, and it did not set up a security hotline or a committee to review

security measures." Castro, 314 Ill. App. 3d at 552.




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       Similarly, in Chelkova v. Southland Corp., 331 Ill. App. 3d 716 (2002), the court affirmed

summary judgment in favor of the defendant on the basis that it owed no duty to the plaintiff. The

plaintiff, an employee at a convenience store owned and operated by one of the defendant's

franchisees, was sexually assaulted while working alone at the store during a late-night shift. The

record established that the defendant offered the services of field consultants to address security

matters, prepared a robbery prevention kit, provided training to franchisees concerning rape and

robbery prevention, and paid for a security system provided by an outside vendor. However, the

record established that franchisees were not required to follow the defendant's recommendations and

that the security system paid for by the defendant was optional. The Chelkova court distinguished

Decker on the basis that the defendant in that case "took affirmative action to ensure compliance

with its security standards," whereas the defendant in Chelkova permitted the franchisee to run the

business as it saw fit. Chelkova, 331 Ill. App. 3d at 724. The Chelkova court found Martin to be

distinguishable for similar reasons, noting that "McDonald's clearly undertook to implement and

enforce security measures at the store in question." Chelkova, 331 Ill. App. 3d at 725.

       Plaintiff's complaint specifically alleges that McDonald's "franchises its name, trademark,

procedures and discipline on Schmitt," that McDonald's has "published standards for franchises ***

in the areas of lighting of the parking lots and procedures and disciplines [sic] for security of

employees and patrons of Schmitt's restaurants," and that McDonald's "monitors and enforces

compliance with said standards by dispatching McDonald's security persons to Schimdt [sic] on a

regular basis during the year to confirm compliance with McDonald's said standards." These

allegations, which must be taken as true for purposes of the motion to dismiss, establish that, unlike

the defendants in Castro and Chelkova, McDonald's mandated compliance with security procedures.



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Martin, Decker, Castro, and Chelkova illustrate that whether a franchisor maintains mandatory

security procedures is a crucial factor in determining whether the franchisor has voluntarily

undertaken a duty of care toward a franchisee's employees. Given the procedural posture of the case,

it is unnecessary to decide whether these allegations are sufficient in themselves to establish a duty.

McDonald's had the initial burden to affirmatively show that, notwithstanding the well-pleaded

allegations of plaintiff's complaint, it did not undertake a duty of care. McDonald's failed to meet

that burden. Its affidavit indicates that it lacks authority to control the day-to-day operations of

Schmitt's restaurant or to hire, discharge, or discipline Schmitt's employees, but none of the pertinent

cases suggest that such authority is a prerequisite to the recognition of a duty. Other averments in

the affidavit--e.g., that McDonald's supplies no products to Schmitt and does not file a tax return for

Schmitt's restaurant--are even less to the point. Notably absent from the affidavit are any averments

touching on the types of factors that were deemed significant in Martin and Decker. The affidavit

does not indicate whether McDonald's produced a security "bible," whether it maintained any

security committees, or whether any McDonald's employees served as security supervisors for its

franchisees' operations.

       Because McDonald's did not meet its initial burden of showing that it owed no duty to

plaintiff, the trial court erred in granting its motion to dismiss under section 2--619(a)(9).

       In case No. 2--09--0244, plaintiff contends that section 5(a) of the Workers' Compensation

Act (820 ILCS 305/5(a) (West 2008)) does not bar her from maintaining a civil action against her

employer, Schmitt. Section 5(a) provides, in pertinent part, that "[n]o common law or statutory right

to recover damages from the employer *** for injury or death sustained by any employee while

engaged in the line of his duty as such employee, other than the compensation herein provided, is



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available to any employee who is covered by the provisions of this Act." 820 ILCS 305/5(a) (West

2008). This provision "bars a common law action by an employee against an employer and his

agents where the accidental injury (1) arose out of and (2) in the course of employment." Handzel

v. Kane-Miller Corp., 244 Ill. App. 3d 244, 246 (1993). "[I]njuries sustained on an employer's

premises within a reasonable time before and after work are generally deemed to arise in the course

of the employment." Caterpillar Tractor Co. v. Industrial Comm'n, 129 Ill. 2d 52, 57 (1989).

Plaintiff's injuries occurred in the course of her employment because she was abducted in her

employer's parking lot shortly before beginning her shift. Accordingly, the dispositive question is

whether her injuries "arose out of" plaintiff's employment.

       Our supreme court has stated:

               "For an injury to 'arise out of' the employment its origin must be in some risk

       connected with, or incidental to, the employment so as to create a causal connection between

       the employment and the accidental injury. [Citations.] Typically, an injury arises out of

       one's employment if, at the time of the occurrence, the employee was performing acts he was

       instructed to perform by his employer, acts which he had a common law or statutory duty to

       perform, or acts which the employee might reasonably be expected to perform incident to his

       assigned duties. [Citation.]" Caterpillar Tractor Co., 129 Ill. 2d at 58.

       It has also been observed:

               "When *** an injury to an employee takes place in an area that is the usual route to

       the employer's premises, and the route is attendant with a special risk or hazard, the hazard

       becomes part of the employment. Special hazards or risks encountered as a result of using




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       a usual access route satisfy the 'arising out of' requirement of the Act." Litchfield Healthcare

       Center v. Industrial Comm'n, 349 Ill. App. 3d 486, 491 (2004).

The claimant in Litchfield tripped on an uneven sidewalk while walking to her workplace--a

residential health care facility--from the parking lot where it had been suggested that she park her

car. The lot was also used by visitors to the facility. The Litchfield court concluded that the

claimant's injuries arose out of her employment. Here, plaintiff alleges a lack of proper lighting and

security in her employer's parking lot. Surely, this was as much a "special hazard" as the uneven

sidewalk in Litchfield, and, pursuant to Litchfield, it became a hazard of her employment. As in

Litchfield, it makes no difference that customers of Schmitt's restaurant might use the same parking

lot and might face the same hazard. Plaintiff's employment exposed her to the hazard "to a degree

beyond that to which the general public would be subjected." Litchfield, 349 Ill. App. 3d at 491.

Because plaintiff's alleged injury arose out of and in the course of her employment, she may not

bring a common-law action against her employer.

       For the foregoing reasons, we affirm the order of the circuit court of Kendall County

dismissing plaintiff's claim against Schmitt. We reverse the order of the circuit court of Kendall

County dismissing plaintiff's claim against McDonald's, and we remand for further proceedings.

       No. 2--09--0026, Reversed and remanded.

       No. 2--09--0244, Affirmed.

       BOWMAN and SCHOSTOK, JJ., concur.




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