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.
-2- No. 1-12-3303
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.
-3- No. 1-12-3303
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
-4- No. 1-12-3303
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
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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.
-2- No. 1-12-3303
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.
-3- No. 1-12-3303
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
-4- No. 1-12-3303
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
-5- No. 1-12-3303
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.
-6-