The opinion of the court was delivered by: Justice South
The Honorable Michael J. Hogan, Judge Presiding. Appeal from the Circuit Court of Cook County.
On January 8, 1993, at approximately 9 p.m., one or more persons entered the Brown's Chicken & Pasta, Inc. (Brown's) restaurant in Palatine, Illinois, and murdered seven people. The franchisees, Mr. and Mrs. Ehlenfeldt, had just entered into a franchise agreement with Brown's approximately six months prior on May 29, 1992. The victims of the crime, the Ehlenfeldts, Michael Castro, Rico Solis, Guadalupe Maldonado, Thomas Mennes and Marcus Nellsen, were discovered at approximately 3 a.m. by a Palatine police officer. No one has been charged with these murders, and the investigation is ongoing. A task force, which consists of law enforcement officers from various state and federal jurisdictions, the Cook County State's Attorney's office, seven full-time investigators, and two part-time Federal Bureau of Investigation staff members, was formed for the purpose of solving this crime.
On January 6, 1995, Emmanuel Castro, as administrator for the estate of his deceased son, Michael Castro, filed suit against Brown's alleging that Brown's exercised control over the franchisee by virtue of the franchise agreement and by recommending safety rules for the employees. Brown's filed a motion to dismiss the complaint alleging that the plaintiff had failed to allege a "voluntary undertaking." On June 29, 1995, Judge Hogan dismissed the wilful and wanton counts of the plaintiff's complaint (counts III and IV) and gave plaintiff leave to amend to include a cause of action for a "voluntary undertaking to provide safety."
On January 8, 1996, Evelyn Urgena was appointed administrator for the estate of Rico Solis and a second lawsuit was filed against Brown's. This complaint was essentially the same as the Castro complaint, and the two cases were consolidated on March 21, 1996.
During the course of discovery, Brown's subpoenaed the Village of Palatine's (the Village) records on the crime, and the Village moved to quash, arguing that the subpoena was vague, overly broad and subject to an investigatory privilege. On October 4, 1995, the court ruled in favor of the Village. Brown's subsequently filed a second subpoena, narrowing the requests, and the Village again moved to quash. On January 9, 1996, the judge ordered the Village to produce certain items and provided for a protective order on anything which the Village did produce.
The Cook County State's Attorney's office petitioned to intervene and moved to quash the subpoena served by Brown's on the Cook County medical examiner. The court allowed intervention but denied the motion.
During discovery, Brown's produced numerous documents, including a franchise agreement which is relied upon by both parties. Brown's specifically points to the "Independent Contractors/Indemnification" clause within the agreement, which provides, "nor shall Brown's be obligated for any damages to any person *** directly or indirectly arising out of the operation of the store or franchisee's business conducted hereunder, whether caused by franchisee's negligence or willful action or failure to act." Plaintiffs also point to various provisions within the agreement in support of their position. Section 10, entitled "Specifications, Standards, Procedures and Rules," states in pertinent part that "franchisee agrees to comply fully with all mandatory specifications, standards, operating procedures, and rules from time to time prescribed by Brown's *** including, without limitation, specifications, standards, operating procedures and rules pertaining to: (1) safety." Section 20 of the agreement, entitled "Termination of Franchise," states: "Brown may terminate this agreement *** if franchisee, the store or the principal owner or owners of the equity or operating control of franchisee: *** operates the store in a manner that presents a health or safety hazard to its customers, employees or the public."
Brown's also presented Mary Childers, the director of franchise services for Brown's, for deposition. Ms. Childers conducted routine quality inspections for the franchise stores to monitor compliance with Brown's guidelines and to answer questions which employees might have. She visited the Palatine store at least once a month and would conduct her inspections based upon a preprinted quality inspection checklist. Out of the six inspections conducted after the Ehlenfeldts took over ownership of the Palatine store, Ms. Childers noted on one of the inspection sheets that the back door of the store was not locked, and that this was bad for security and health. She testified that the reason she made that notation was because there was always a concern about employee theft. She also stated that there were state health regulations against open doors and windows in restaurants. Ms. Childers testified at her deposition that she did not inspect the stores for security but for safety. She was only concerned with safety as it related to food items and slip and fall hazards, and her inspections did not include anything related to crime prevention.
John Gregornik, the owner of the Palatine franchise prior to the Ehlenfeldts, was also deposed. Mr. Gregornik owned up to six franchise stores at one time. He testified that there is a distinct difference between company-owned stores and franchises; that the franchisees developed their own policies and procedures; that memos from the corporation were often disregarded altogether; and that he was free to run his restaurants the way he saw fit and to implement any security measures he deemed necessary.
On December 17, 1996, Brown's filed a motion for summary judgment. Attached to the motion was an affidavit by Michelle Hudak, the director of training and human resources for Brown's. In that affidavit, Ms. Hudak stated that Brown's did not mandate any security measures for the franchisees, did not provide the franchisees with any written materials dealing with the issue of security, did not employ any security personnel for the franchisees, and any security measures were left entirely up to the franchisee's discretion. Plaintiffs responded and attached a memo from Ms. Hudak dated November 25, 1992, which was sent to all Brown's company-owned stores, as well as to the owners of franchise stores. The memo stated in part:
"Each year, we see an increase in robberies at this time of year. Losing the money is one thing, but more importantly, our reputation for having only small quantities of money in the store must be maintained so potential robbers will regard us as poor targets. Therefore, please examine your deposit and security procedures and make certain there is no more than a minimal amount of money in the store at one time.
Attached is a list of security procedures that will make your store less attractive to a robber. Implement immediately.
Let's work together to make Brown's Chicken & Pasta a safe and pleasant place to work." (Emphasis in original.)
On August 6, 1997, Judge Hogan denied Brown's motion for summary judgment. Brown's filed a motion to reconsider the motion for summary judgment, which was denied as to the issue of "voluntary undertaking" and granted as to the issue of proximate cause. On February 5, 1999, Judge Hogan granted Brown's renewed motion for summary judgment on the issue of proximate cause, but denied the motion with regards to the voluntary undertaking issue. He also denied plaintiffs' motion to compel discovery from investigating bodies or agencies, quashed their motion for subpoenas, denied the State's Attorney's motion to stay and later amended the order to include Rule 304(a) (134 Ill. 2d R. 304(a)) language. Plaintiffs' notice of appeal was filed on March 5, 1999. In addition to Brown's response to plaintiffs' appeal, Ehlenfeldt Enterprises, Inc., the Cook County State's Attorney's office, and the Village of Palatine and its task force have also filed responses to plaintiffs' brief.
The issues raised on appeal are (1) whether Brown's voluntarily undertook to provide security at the Palatine restaurant; (2) whether the circuit court erred in denying plaintiffs' discovery requests on the issue of proximate cause and then entering summary judgment against the plaintiffs on the basis that plaintiffs had not and could not prove that element; and (3) whether the State's Attorney and the Village of Palatine made a sufficient showing to invoke an investigative privilege.
In order to recover on a theory of negligence, the plaintiff must show that the defendant owed him a duty, that the defendant breached that duty, that he suffered injury as a result of that breach and that defendant's breach of duty or negligence was the proximate cause of his injuries. Martin v. McDonald's Corp., 213 Ill. App. 3d 487, 490, 572 N.E.2d 1073, 1076 (1991). The question of duty, the legal obligation imposed upon one for the benefit of another, is a question of law to be determined by the court. Martin, 213 Ill. App. 3d at 490, 572 N.E.2d at 1076. If no legal duty exists based upon a "special relationship" between the plaintiff and the ...