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05/31/96 REGINALD O'BANNER v. MCDONALD'S

May 31, 1996

REGINALD O'BANNER, APPELLEE,
v.
MCDONALD'S CORPORATION ET AL. (MCDONALD'S CORPORATION, APPELLANT).



The Honorable Justice Harrison delivered the opinion of the court: Chief Justice Bilandic, dissenting: Justice Freeman joins in this dissent.

The opinion of the court was delivered by: Harrison

The Honorable Justice HARRISON delivered the opinion of the court:

Reginald O'Banner brought an action in the circuit court of Cook County to recover damages for personal injuries he allegedly sustained when he slipped and fell in the bathroom of a McDonald's restaurant. In his complaint, O'Banner named as defendants McDonald's Corporation (McDonald's) and certain "unknown owners." See 735 ILCS 5/2-413 (West 1994). McDonald's promptly moved for summary judgment on the grounds that the restaurant was actually owned by one of its franchisees and that it neither owned, operated, maintained, nor controlled the facility.

After initially denying McDonald's motion, the circuit court granted summary judgment in favor of the company and made an express written finding that there was no just reason to delay an appeal. 155 Ill. 2d R. 304(a). The appellate court subsequently reversed and remanded, with one justice dissenting. 273 Ill. App. 3d 588, 210 Ill. Dec. 805, 653 N.E.2d 1267. We granted McDonald's petition for leave to appeal (155 Ill. 2d R. 315) and have allowed Amoco Oil Company, Burger King, the Illinois Association of Defense Trial Counsel and the Illinois Trial Lawyers Association to file briefs as friends of the court (155 Ill. 2d R. 345). For the reasons that follow, we now reverse and remand to the circuit court.

Before addressing the substantive issues before us, we note, as did the appellate court, that there has been some confusion as to the basis for appellate review. The appellate court realized that the circuit court had entered a written finding under Rule 304(a) (155 Ill. 2d R. 304(a)), which governs final judgments as to fewer than all parties or claims, but it did not understand the purpose for such a finding. It believed that appellate jurisdiction was proper only under Rule 301 (155 Ill. 2d R. 301), which pertains to final judgments that dispose of an entire proceeding.

What the appellate court overlooked was that McDonald's was not the only defendant named in O'Banner's complaint. As we have previously indicated, O'Banner named "unknown owners" as well. The "unknown owners" were not involved in McDonald's motion for summary judgment, and the circuit court's order granting McDonald's motion did not affect the continued viability of O'Banner's claims against these remaining defendants. Accordingly, the circuit court's order did not dispose of the entire proceeding and an appeal could not have been brought under Rule 301. Because summary judgment was granted to fewer than all of the defendants, the only basis for an immediate appeal was under Rule 304(a). McDonald's itself clearly appreciated this, for its summary judgment motions consistently included a request for entry of the requisite Rule 304(a) findings.

Although O'Banner's notice of appeal invoked Rule 301 rather than Rule 304(a), that mistake is of no consequence. Nothing in our rules requires a notice of appeal to even mention whether review is sought under Rule 301 or 304(a). What is important is that the notice specify "the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court" (155 Ill. 2d R. 303(b)(2)) so that the successful party is advised of the nature of the appeal (see Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 433-34, 31 Ill. Dec. 178, 394 N.E.2d 380 (1979)). There is no question that this requirement was satisfied here. Accordingly, O'Banner's citation to the wrong rule was nothing more than harmless surplusage. His notice of appeal was sufficient to invoke the appellate court's jurisdiction.

The substantive issue before the appellate court, and the question which concerns us today, is whether the circuit court erred in granting McDonald's motion for summary judgment. Under section 2-1005(c) of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 1994)), a party is entitled to summary judgment

"if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

In applying this statute, the court must construe the pleadings, depositions and affidavits strictly against the moving party and liberally in favor of the opponent. Although use of the summary judgment procedure can be an efficient means for disposing of certain lawsuits, it is a drastic measure that should be employed only when the right of the moving party is clear and free from doubt. Loyola Academy v. S&S Roof Maintenance Inc., 146 Ill. 2d 263, 271, 166 Ill. Dec. 882, 586 N.E.2d 1211 (1992).

The circuit court here entered summary judgment in favor of McDonald's based on the company's argument that it was merely the franchisor of the restaurant where O'Banner was injured and, as such, had no responsibility for the conditions that caused his accident. O'Banner challenged this conclusion in the appellate court by theorizing that even though McDonald's was a franchisor, it could nevertheless be held liable for the franchisee's negligence under principles of respondeat superior because there was sufficient evidence in the record to establish that the franchisee served as McDonald's actual agent. In the alternative, O'Banner contended that McDonald's could be vicariously liable for the acts and omissions of the franchisee based on the doctrine of apparent agency.

The appellate court rejected the actual agency theory based on the documentary evidence, but held that there remained genuine issues of material fact with respect to O'Banner's alternative theory of apparent agency. Accordingly, it reversed and remanded for further proceedings. One justice dissented, arguing that reliance on apparent agency was improper because the theory was not properly raised in the circuit court and there was no factual basis for it in the record. 273 Ill. App. 3d at 596-97 (Rakowski, J., dissenting). The dissenting justice further protested that the majority's analysis was not supported by precedent from Illinois or elsewhere. 273 Ill. App. 3d at 598-99 (Rakowski, J., dissenting).

In the appeal before this court, the issue of actual agency has not been pursued. The sole question before us is whether the appellate court erred in reversing and remanding based on the theory of apparent agency. Although the dissenting appellate court justice believed that the question of apparent agency was not properly before the court for review, resolution of that issue is unnecessary. Even if O'Banner had properly raised the theory of apparent agency in the circuit court, summary judgment against him was nevertheless proper.

Apparent agency, also known in Illinois as apparent authority, has long been recognized in this state and was recently discussed by our court in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 190 Ill. Dec. 758, 622 N.E.2d 788 (1993). The doctrine is based on principles of estoppel. The idea is that if a principal creates the appearance that someone is his agent, he should not then be permitted to deny the agency if an innocent ...


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