Appeal from Circuit Court of Sangamon County No. 11L89 Honorable Patrick W. Kelley, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
Carla Bender 4th District Appellate Court, IL
JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Steigmann concurred in the judgment and opinion. Justice Turner dissented, with opinion.
¶ 1 In April 2011, plaintiff, Robert W. Reynolds, sued defendants, Jimmy John's Enterprises, LLC, Jimmy John's Franchise, LLC, Jimmy John's, LLC (collectively Jimmy John's); and JThree, Inc. (JThree), alleging liability for personal injuries resulting from a motor vehicle accident. In October 2011, plaintiff filed a seven-count amended complaint alleging multiple direct liability claims against defendants. JThree and Jimmy John's filed motions to dismiss plaintiff's amended complaint pursuant to sections 2-615 and 2-619(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619(a) (West 2010)). In January 2012, the trial court dismissed all seven counts contained in plaintiff's amended complaint.
¶ 2 On appeal, plaintiff asserts his amended complaint adequately pled counts of direct liability for (1) negligent supervision against JThree and Jimmy John's and (2) negligent training against JThree and Jimmy John's. Because the trial court erred in granting defendants' motion to dismiss, we reverse in part the court's dismissal of plaintiff's amended complaint as it applies to counts I, II, III and IV; we affirm the dismissal in part insofar as it applies to counts V, VI, and VII.
¶ 4 In April 2011, plaintiff filed a single-count complaint against defendants, alleging they were liable for personal injuries plaintiff sustained from an April 2010 motor vehicle accident between himself and Jake Sawyer, a delivery driver for defendants. Jimmy John's is a franchiser of various "Jimmy John's" sandwich restaurants throughout the United States. JThree is a franchisee of Jimmy John's and independently owns a "Jimmy John's" restaurant located on Iles Avenue in Springfield, Illinois.
¶ 5 In May 2011, JThree filed a motion to dismiss pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)) because plaintiff "cannot hold [it] directly liable for creating a situation which allegedly fostered unsafe driving practices." In June 2011, Jimmy John's filed a motion to dismiss pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2010)), asserting plaintiff commingled theories of direct and vicarious liability in his April 2011 complaint. In August 2011, the trial court granted defendants' motions to dismiss and dismissed with prejudice all vicarious liability claims pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2010)) and allowed plaintiff to amend his complaint on theories of direct liability. In February 2011, plaintiff and Sawyer entered into a settlement agreement resolving liability between those two parties.
¶ 6 In October 2011, plaintiff filed a seven-count amended complaint alleging as follows: (1) negligent training against JThree (count I); (2) negligent training against Jimmy John's (count II); (3) negligent supervision against Jimmy John's (count III); (4) negligent supervision against JThree (count IV); (5) implied authority against JThree (count V); (6) joint venture against all defendants (count VI); and (7) "principal agent/apparent authority" against all defendants (count VII).
¶ 7 According to plaintiff, on April 13, 2010, at approximately 6:35 p.m., plaintiff was traveling westbound on Iles Avenue in Springfield on his Harley-Davidson motorcycle. At that time, Sawyer, a delivery driver for defendants, driving a 1990 Chrysler LeBaron, exited a commercial driveway onto Iles Avenue. Sawyer had driven across the parking lot in front of the Jimmy John's restaurant and into the U.S. Bank parking lot to exit at this driveway. Sawyer turned left out of the U.S. Bank driveway, failing to yield to traffic, and collided with plaintiff's motorcycle. Plaintiff suffered serious and permanent injury as a result of the collision, including a permanent partial disability.
¶ 8 In paragraph eight of his amended complaint, addressing general allegations against all defendants, plaintiff alleged:
"Defendants ([Jimmy John's]) are franchisors to Defendant JThree, Inc. *** and as such the above Defendants have a business relationship among said entities that controlled certain acts and conduct of the Defendants (and its employees, agents or representatives) at the time of the subject 'incident'."
¶ 9 In paragraph 19 of his amended complaint, plaintiff asserted defendants "hold themselves out as making 'freaky fast' deliveries to the public and specifically instruct and encourage their drivers to expedite such deliveries," and that defendants "assert said deliveries will be made within 15 minutes of receiving the sandwich order." (At oral argument, plaintiff used the term "mandate" to describe this 15-minute delivery claim. For purposes of simplification, we phrase this allegation as having a "policy" of delivering the sandwiches within 15 minutes of ordering.)
¶ 10 In paragraph 22 of his amended complaint, plaintiff alleged, when first hired, Sawyer was given a manual to review for 20 minutes. The manual included information on proper uniform requirements and knife safety, but no information "on how to make proper and safe deliveries of sandwiches."
¶ 11 In paragraph 38 of his amended complaint, under count IV (negligent supervision) against JThree, plaintiff alleged:
"That this Defendant knew or should have known that its drivers, and in particular Jake Sawyer, made a regular practice of exiting its parking lot by driving into the parking lot of its neighbor, U[.]S[.] Bank, and making a left turn from a driveway in order to avoid the delay associated with using the traffic light to exit its own parking lot."
In paragraph 40 of his amended complaint, plaintiff alleged JThree knew or should have known its delivery drivers made a regular practice of "making an illegal left turn in order to avoid the delay associated with using the traffic light to exit its own parking lot."
¶ 12 In October 2011, JThree filed a motion to dismiss all counts against JThree contained in plaintiff's amended complaint. The motion, in its entirety, states as follows:
"Pursuant to 735 ILCS 5/2-615 and/or 735 ILCS 5/2-619, Defendant JTHREE, INC., an Illinois Corporation, a/k/a and/or d/b/a Jimmy John's (JTHREE) moves to dismiss Counts I, IV, V, VI, and VII of Plaintiff's Amended Complaint."
The document continues as a memorandum of law for 16 pages. The memorandum in support of its motion asserted count I (negligent training) should be dismissed pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)) and count IV (negligent supervision) pursuant to both sections 2-615 and 2-619 of the Code. As part of the memorandum, JThree filed a copy of Sawyer's September 2011 discovery deposition transcript, including a map exhibit (the transcript consists of 133 pages of testimony and is printed 4 pages of testimony per printed page, totaling 34 pages in length), and case law. In total, JThree's filing was 67 pages in length.
¶ 13 In November 2011, Jimmy John's filed a motion to dismiss all claims against it pursuant to section 2-619(a)(9) of the Code. The motion, in its entirety, states as follows:
"NOW COME the defendants, JIMMY JOHN'S ENTERPRISES, LLC, JIMMY JOHN'S FRANCHISE, LLC, and JIMMY JOHN'S LLC, by and through their attorneys ***, and pursuant to § 2-619(a)(9) of the Illinois Code of Civil Procedure, move this Court for entry of an Order dismissing with prejudice plaintiff's Amended Complaint and, in support thereof, state as follows[.]"
The document continues as a memorandum of law for 14 pages to which Jimmy John's appended Sawyer's deposition testimony, a map exhibit, and an affidavit from Jeff Vaughan, chief financial officer of Jimmy John's ...