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Chelkova v. Southland Corporation

June 11, 2002


Appeal from the Circuit Court of Cook County 99 L 002879 Honorable David R. Donnersberger, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE

Released for publication.

Plaintiff-appellant, Ekaterina Chelkova, was sexually assaulted by Donald Vance on April 1, 1995. The sexual assault occurred while Chelkova was employed at 7-Eleven Store No. 23852-A located at 1140 North Harlem Avenue, River Forest, Illinois. Chelkova, a 19 year-old Russian immigrant, worked alone at the 7-Eleven on the late-night shift. Vance had been a customer at the convenience store earlier that day. He later returned and sexually assaulted Chelkova in the store's bathroom. The 7-Eleven franchise was operated by Julie Hill and Phillip Hill, who were the franchisees, d/b/a P & J Hill, Inc. The franchisor is defendant-appellee, the Southland Corporation (Southland), d/b/a 7-Eleven. A franchise agreement was executed between 7-Eleven and the Hills on February 11, 1983.

On March 12, 1999, Chelkova filed a one-count complaint for negligence against Southland alleging that it had breached a duty to protect her from harm. On May 13, 1999, Southland moved for summary judgment on the ground that it did not undertake a duty to protect employees of its franchisees from the criminal acts perpetrated by third parties. The trial court granted Southland's motion for summary judgment on November 3, 1999. Chelkova filed a motion to reconsider the summary judgment order on December 3, 1999. The trial court denied Chelkova's motion to reconsider on May 22, 2000. Chelkova appeals from the orders entered November 3, 1999, and May 22, 2000.

Two issues are raised on appeal. First, whether the trial court erred in granting summary judgment in favor of Southland on the basis that it did not voluntarily undertake a duty to provide safety for the plaintiff. Second, whether the trial court erred in denying Chelkova's motion to reconsider. The standard of review for summary judgment is the following:

"A court should grant a motion for summary judgment when the pleadings, depositions, admissions and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. [Citation.] Thus, summary judgment is proper when a court may determine an issue as a question of law. [Citation.]

While the goal of expeditious disposition of a lawsuit by the use of summary judgment is encouraged, it is a drastic means to disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. [Citation.] Accordingly, a court ruling on a motion for summary judgment must strictly construe the evidence against the movant and liberally in favor of the nonmoving party. [Citation.]

Nonetheless, in order to survive a motion for summary judgment, the nonmoving party must come forward with evidence establishing a genuine issue of fact. [Citation.] Summary judgment in favor of a defendant is proper where a plaintiff has not established an essential element of a cause of action. [Citation.] One of the essential elements of an action for negligence which the plaintiff must set out is the existence of a duty owed by the defendant to the plaintiff. [Citation.]" Lavazzi v. McDonald's Corp., 239 Ill. App. 3d 403, 408, 606 N.E.2d 485 (1992).

In addition, "[w]hether a defendant has voluntarily undertaken a legal duty to a plaintiff seeking to bring a negligence action must be determined by a court as a question of law and is properly addressed by the court on a motion for summary judgment. [Citation.]" Lavazzi, 239 Ill. App. 3d at 409. We state the following background facts.

Paragraph 20 of the franchise agreement between 7 Eleven and the Hills stated the following:

"20. Independent Contractor. FRANCHISEE shall be an independent contractor and shall [control] the manner and means of the operation of the store and exercise complete control over and responsibility for all labor relations and the conduct of FRANCHISEE's agents and employees. FRANCHISEE and FRANCHISEE's agents and employees shall not be considered or held out to be agents or employees of 7-ELEVEN and shall not negotiate or enter any agreement or incur any liability in the name or on behalf of, or that purports to bind, 7 ELEVEN."

In a deposition attached to the motion for summary judgment, Julie Hill testified that she ran the store on a day-to-day basis and that she handled all employee-related issues. Hill further said that she chose to implement all of the security measures that were recommended by Southland.

Specifically, Hill testified that Southland's field consultants would address security matters and that Southland was sent copies of police reports in regard to four criminal incidents prior to Chelkova's assault. She also said that Southland prepared a robbery prevention manual, which was disseminated to her. The record reveals a "Robbery Prevention Kit" was prepared by Southland which included decals informing employees not to keep large amounts of cash in register drawers and informing the public that store registers have less that $30 after dark. It further explained how robbery situations should be handled by employees. This kit was provided to 7-Eleven franchisees including the Hills.

Hill also stated that she accepted an optional offer by Southland to implement a security system. The system was installed by a security company called National Guardian and paid for by Southland. Hill also testified that Southland provided training to franchisees concerning rape and robbery prevention and that she was responsible for passing the information on to her employees. Outside of training, Hill said that Southland would not tell her what its security policies were, but would make recommendations concerning security procedures that she could follow. Hill testified that none of her employees was trained by Southland concerning safety. She also stated that she was not a member of any security committees that were formed by Southland. Finally, she testified that Southland did not monitor her compliance with security measures in terms of whether employees had been apprised of what they should do in the event of a robbery or a breach of security.

At the hearing on November 3, 1999, the trial court stated:

"THE COURT: Where is the duty? I mean, in terms of Southland what they have done is basically give some individual guidelines to their franchisees. And they have a little bit of participation in a sense that they give some printings out, but they don't really control what is done or not control, as I see it."

At the end of the hearing, the trial court entered summary judgment in favor of Southland on the basis that Southland had not voluntarily assumed a duty to protect the employees of a franchise from criminal acts by third parties.

On December 3, 1999, Chelkova filed a motion to reconsider the summary judgment ruling where she requested that the trial court consider additional evidence. The record reveals that the additional evidence included: the deposition transcript of Lloyd Scott taken in connection with a case filed in the State of Colorado entitled Jiron-Waldron v. Southland, 93-CV6251, (Dist. Ct. Denver Co.); a State of Florida statute concerning convenience business security; and an offering circular prepared by Southland for prospective franchisees that concerned information required by the Federal Trade Commission. At the hearing on the motion to reconsider, the trial court determined that this additional evidence was irrelevant to the instant case. Thus, Chelkova's motion to reconsider was denied.

We turn to the question of whether the entry of summary judgment in favor of Southland was proper. Chelkova argues that Southland exercised control over the franchise because of the franchise agreement and by recommending security measures to Julie Hill. Because of the control exercised by Southland over the franchise, particularly with regard to security, Chelkova contends that Southland voluntarily undertook a duty to protect her from a third party criminal attack. She further asserts that the trial court erred in granting summary judgment for Southland because genuine issues of fact existed as to whether Southland's security measures demonstrated a voluntary undertaking to protect the employees of the franchise.

The same issue was raised in Castro v. Brown's Chicken and Pasta, Inc., 314 Ill. App. 3d 542, 547, 732 N.E.2d 37 (2000). In Castro, seven people were murdered by an unknown assailant in a Brown's Chicken & Pasta restaurant located in Palatine, Illinois. This particular franchise was operated by Mr. and Mrs. Ehlenfeldt, who had executed a franchise agreement with Brown's six months prior to the murders. The estates of two of the victims each filed suit against Brown's alleging that Brown's exercised control of the franchisee as ...

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