                                     2014 IL App (1st) 123303
                                                                               SECOND DIVISION
                                                                                  August 19, 2014



No. 1-12-3303

MARTIN EDWARD LEWIS,                                          )       Appeal from the
                                                              )       Circuit Court of
                       Plaintiff-Appellant,                   )       Cook County.
                                                              )
v.                                                            )       No. 11 CH 37090
                                                              )
HEARTLAND FOOD CORPORATION, BURGER                            )
KING CORPORATION, and BURGER KING                             )
No. 1250,                                                     )       Honorable
                                                              )       James E. Snyder,
                       Defendants-Appellees.                  )       Judge Presiding.

       JUSTICE LIU delivered the judgment of the court, with opinion.
       Presiding Justice Harris concurred in the judgment and opinion.
       Justice Pierce concurred in the judgment, without opinion.

                                              OPINION

¶1     Plaintiff Martin Edward Lewis appeals pro se from orders of the circuit court dismissing

his case pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615

(West 2012)). On appeal, plaintiff asks this court, inter alia, "to review this instant case, reverse

the lower court and remand for further proceedings in the lower court." For the reasons that

follow, we affirm.

¶2     In 2011, plaintiff filed a complaint against Heartland Food Corporation (Heartland),

Burger King Corporation (BKC), and Burger King No. 1250, alleging that his iPhone was stolen

by "four fellow customers" while he was at a Burger King restaurant in Chicago. Plaintiff

asserted that by not providing "manned security" in the restaurant, defendants had negligently, as

well as willfully and wantonly, breached their duties "to exercise ordinary care and caution and
No. 1-12-3303


provide proper security in all of hours operation and the burden of management not to allow the

criminal element to enter the premises so as to avoid causing injury and loss [of] personal

property to Plaintiff" and "to provide notices of security and surveillance camera positions and

monitors." Plaintiff sought $1,000 in compensatory damages and $1 million in punitive

damages.

¶3     BKC filed a motion to strike plaintiff's prayer for punitive damages, which was granted

by the trial court. The trial court also entered an order dismissing "Burger King #1250" as a

defendant. BKC and Heartland each filed a motion to dismiss pursuant to section 2-615 of the

Code. After the motions were fully briefed and separate hearings were held, the trial court

granted both motions to dismiss.

¶4     Plaintiff appeals from the trial court's orders dismissing his case against BKC and

Heartland. For the most part, his brief on appeal simply repeats the allegations in his complaint.

He also complains that the trial court only allowed him a "one-minute" hearing and asks this

court "to review this instant case, reverse the lower court and remand for further proceedings in

the lower court." Plaintiff cites and discusses numerous cases that address negligence principles,

but does not explain how he believes the trial court erred in dismissing his complaint.

¶5     Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013) provides that an appellant's

brief must contain contentions and the reasons therefor, with citation to the authorities upon

which the appellant relies. As a reviewing court, we are entitled to have the issues clearly

defined, pertinent authority cited, and a cohesive legal argument presented. Walters v.

Rodriguez, 2011 IL App (1st) 103488, ¶ 5. "The appellate court is not a depository in which the

appellant may dump the burden of argument and research." Thrall Car Manufacturing Co. v.



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Lindquist, 145 Ill. App. 3d 712, 719 (1986). Arguments that are not supported by citations to

authority fail to meet the requirements of Supreme Court Rule 341(h)(7) and are procedurally

defaulted. Vilardo v. Barrington Community School District 220, 406 Ill. App. 3d 713, 720

(2010). Pro se litigants are not excused from following rules that dictate the form and content of

appellate briefs. In re Marriage of Barile, 385 Ill. App. 3d 752, 757 (2008).

¶6     In this case, plaintiff has failed to provide a cohesive legal argument or a reasoned basis

for his contentions. Accordingly, his contentions are forfeited. Forfeiture aside, and to the

extent that plaintiff has made a legal argument, his appeal fails on the merits.

¶7     A motion to dismiss pursuant to section 2-615 challenges the legal sufficiency of a

complaint based on defects apparent on its face. Marshall v. Burger King Corp., 222 Ill. 2d 422,

429 (2006). When reviewing a complaint's sufficiency, we accept as true all well-pleaded facts

and all reasonable inferences that may be drawn from those facts, and construe the allegations in

the complaint in the light most favorable to the plaintiff. Id. Our review is de novo and we may

affirm the circuit court's judgment on any basis appearing in the record. Gatreaux v. DKW

Enterprises, LLC, 2011 IL App (1st) 103482, ¶ 10.

¶8     For a plaintiff to state a cause of action for negligence, his complaint must allege facts

that establish the existence of a duty of care owed to him by the defendant, a breach of that duty,

and an injury proximately caused by that breach. Marshall, 222 Ill. 2d at 430. In the instant

case, defendants assert that they had no duty to protect plaintiff from the theft of his iPhone.

Whether a duty exists in a particular case is a question of law for the court to decide. Id.

¶9     In general, a landowner such as Heartland has no duty to protect others from criminal

activities by third persons unless a "special relationship" exists between the parties. Rowe v.



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State Bank of Lombard, 125 Ill. 2d 203, 215-16 (1988) (citing Restatement (Second) of Torts §

314 (1965)). The applicable special relationship in the instant case is that of business invitor and

invitee. Id. at 216. However, it appears that in Illinois, even when this special relationship

exists, the landowner may only be held liable for physical harm caused by acts of third persons.

See, e.g., Marshall, 222 Ill. 2d at 437 (citing Restatement (Second) of Torts § 344 (1965)).

Section 344 of the Restatement (Second) of Torts provides in relevant part as follows:

                       "A possessor of land who holds it open to the public for

                entry for his business purposes is subject to liability to members of

                the public while they are upon the land for such a purpose, for

                physical harm caused by the accidental, negligent, or intentionally

                harmful acts of third persons *** and by the failure of the

                possessor to exercise reasonable care to

                       (a) discover that such acts are being done or are likely to be

                done, or

                       (b) give a warning adequate to enable the visitors to avoid

                the harm, or otherwise to protect them against it." Restatement

                (Second) of Torts § 344 (1965).

¶ 10   Our research has revealed no Illinois cases discussing whether a business invitor has a

duty to protect its business invitees from criminal activity that does not involve physical harm.

In their brief, defendants have identified a case from Missouri, Mulligan v. Crescent Plumbing

Supply Co., 845 S.W.2d 589 (Mo. Ct. App. 1993), which we find instructive. In Mulligan, the

plaintiff's truck was stolen from the defendant's property. Id. at 590. The plaintiff sued, alleging



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that the defendant knew of thefts of similar vehicles on the premises and nearby businesses

during the prior three months, and that the defendant's knowledge of those thefts created "special

facts and circumstances" which imposed upon the defendant duties to protect its invitees from

loss and damage due to criminal conduct of unknown third parties, to provide adequate security

to protects its invitees' property, and to warn invitees of the risk of theft. Id. The defendant filed

a motion to dismiss the suit for failure to state a cause of action, which was granted by the trial

court. Id.

¶ 11   On review, the Missouri Court of Appeals noted that in general, a business landowner or

occupier has no duty to protect its invitees from the criminal acts of unknown third parties absent

"special facts and circumstances," such as when the landowner knows or has reason to know that

there is a likelihood of conduct by third persons which is likely to endanger the safety of visitors.

Id. at 590-91. The court emphasized that section 344 of the Restatement (Second) of Torts

recognizes a duty on the part of a business landowner or occupier to protect visitors who are on

the premises only from physical harm caused by third parties. Id. at 591. The court then held

that as a matter of public policy, the parameters of the "special facts and circumstances"

exception did not reach a duty as to damage to or loss of property, and declined to extend the

exception to cases of property loss or damage. Id. at 592.

¶ 12   Like the court in Mulligan, our supreme court has relied upon section 344 of the

Restatement (Second) of Torts in cases involving claims that business invitors were liable for

physical harm to invitees caused by third parties. See, e.g., Marshall, 222 Ill. 2d at 438; Hills v.

Bridgeview Little League Ass'n, 195 Ill. 2d 210, 243-44 (2000). Accordingly, as in Mulligan, we




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follow the language of section 344 and decline to extend the duty described therein to cases that

do not involve physical harm.

¶ 13   Heartland owed plaintiff no duty to protect him from the theft of his iPhone by third

persons. Accordingly, plaintiff's complaint failed to state a claim of negligence, and the case

against Heartland was properly dismissed by the trial court.

¶ 14   With regard to BKC, the franchisor, we also find that no duty existed. No legal duty

based on a "special relationship," such as business invitor/business invitee, exists between a

franchisor and a business invitee. Castro v. Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d 542,

547 (2000). In the absence of such a special relationship, liability may still be imposed for

negligent performance of a voluntary undertaking, such as a voluntary undertaking to provide

security. Id. Whether a defendant has voluntarily undertaken a legal duty to a plaintiff seeking

to bring a negligence action is a question of law. Id. Here, plaintiff alleged in his complaint that

defendants did not provide manned security in the restaurant where his iPhone was stolen. In

light of this allegation, which must be taken as true when reviewing the sufficiency of a

complaint, we cannot find that BKC voluntarily undertook such a legal duty. Accordingly,

defendant failed to state a cause of action for negligence against BKC and the trial court properly

dismissed the case against it.

¶ 15   For the reasons explained above, we affirm the judgment of the circuit court of Cook

County.

¶ 16   Affirmed.




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