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Martin v. 1727 Corp.

OPINION FILED DECEMBER 23, 1983.

RAYMOND R. MARTIN, SR., ET AL., PLAINTIFFS-APPELLANTS,

v.

1727 CORP. ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Joseph Gordon, JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiffs Raymond R. Martin, Sr. and Marianne Martin appeal from the granting of a summary judgment in favor of the defendants and they urge that the trial court erred when it held that there were no genuine issues of material fact regarding defendants' liability for the death of their deceased daughter Laura Martin.

Pertinent to the disposition of this appeal are the following facts.

Defendants John and Anne Portman entered into a licensing agreement with McDonald's Systems, Inc. (McDonald's), a wholly owned subsidiary of McDonald's corporation, for the operation of a McDonald's restaurant at 5441 West 159th Street, Oak Forest, Illinois.

The building at that address was a rectangular brick structure with three glass doors in the front, a side door leading to the rest rooms, and a rear metal service door off the kitchen area equipped with a fish-eye peephole through which a person could see the area outside the door. It was built in 1970 pursuant to McDonald's construction department specifications.

The license agreement provided that the restaurant was to be operated pursuant to a McDonald's restaurant operations manual entitled "Cash Register Procedures and Security" which stated, inter alia, that "there should be a security window in every back and side door of the restaurant." The manual prohibited use of the back door after dusk and required that all trash be removed only during operating hours and any trash which accumulated after dark could only be removed in the morning by personnel responsible for opening the restaurant.

The restaurant commenced operations in May 1971. In 1974, the Portmans assigned their license to the 1727 Corp., a Delaware corporation, of which John Portman was president and sole shareholder, and the corporation continued to operate the restaurant until October 31, 1979. It was undisputed that contrary to the provisions of the safety manual, defendants required their employees to remove the garbage from the premises every night and the usual practice was for an employee to open the rear door in order to remove the garbage and that Portman received complaints about the safety and the adequacy of the peephole, but when the original door was replaced, an identical door was installed.

However, it is also undisputed that the restaurant was never robbed during the period of time the Portmans operated the business from May 1971 until October 31, 1979.

Defendants entered into an agreement to sell and transfer all their interest in the restaurant to McDonald's Restaurants of Illinois, Inc. (McDonald's), a wholly owned subsidiary of McDonald's Corporation on October 30, 1979. A meeting was held on October 31, 1979, to effectuate the sale and transfer of possession and control of the premises to McDonald's on the following day. Present at this meeting in addition to Portman, Karl Ferret, the store manager, and other restaurant employees, were McDonald's representative Stephen Zdunek, the operations manager for 16 other McDonald's owned restaurants, and Jim Carlson, McDonald's security supervisor.

During this meeting, both McDonald's representatives discussed McDonald's policy against employees leaving the building after closing until they were off-duty, and personally reviewed store closing procedures with Ferret, the store manager. Zdunek also inspected the rear door of the restaurant, determined that it opened and locked properly but that it did not have a security window. New locks were installed on the doors of the restaurant and new keys were distributed to the store manager at this meeting. Sometime during the first 30 days after the transfer of the business to McDonald's, Carlson made a recommendation that a closable hatch-type security window be installed in the rear door.

Twenty-nine days after McDonald's took over sole possession and control of the premises from defendants, a man named Peter Guy Logan entered through the rear door when an employee went to remove garbage in the evening, and committed a robbery on the premises during which Laura Martin, a McDonald's employee and former employee of Portman-1727 Corp., was killed in the presence of the other McDonald's employees who were on duty that night, including plaintiffs Terese Dudek and Maureen Kincaid.

Plaintiffs brought a wrongful death action on February 8, 1980, which was later consolidated with the two personal injury actions filed by Dudek and Kincaid against defendants McDonald's Restaurants of Illinois; its parent corporation, McDonald's Corporation; MCOPCO Service Company, a wholly-owned subsidiary of McDonald's Corporation; Donald Miller, the restaurant architect; Coleman Fire Proof Door Company, which installed the rear door; Elmer and Sons Locksmith, Inc., which installed the rear-door burglar bar; Walter Daniels Construction Company, the general contractor on the restaurant; and Portman and 1727 Corp., the former licensees of the business.

On February 19, 1982, 1727 Corp. and Portman moved for summary judgment. Following a hearing, the trial court granted defendants' motion on the basis that, although in some instances a vendor of land may be liable to the vendee for injuries caused by undisclosed defects contained on the land, as a matter of law, the 29-day period which passed between the transfer of possession and the shooting was sufficient for the purchaser to discover and correct all such defects. Plaintiffs appeal from the entry of this order. The case continues below against the remaining defendants.

OPINION

The issue in this case is whether the trial court acted properly in granting defendants' ...


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