Marshall v. Burger King Corp.

JUSTICE McMORROW,

dissenting:

Plaintiff, Detroy Marshall, Jr., as administrator of the estate of the decedent, Detroy Marshall III, filed a complaint in the circuit court of Winnebago County alleging that the defendants, Burger King Corporation, and Davekiz, Inc., negligently caused the death of the decedent. According to the complaint, the decedent was sitting in the dining room of the defendants’ restaurant when a third person, Pamela Fritz, “attempted to exit said restaurant in her vehicle, backed into a lamp pole in the parking lot of the restaurant, and drove forward from the lamp pole, hit the sidewalk adjacent to said Burger King Restaurant, causing her vehicle to become air born [sic] and crash into the north wall and windows of the restaurant building, trapping the Plaintiffs Decendent, DETROY MARSHALL, III, under the vehicle and over a half wall of the north wall of the restaurant.”

The complaint alleged that defendants failed to “use due care in the design, construction, and maintenance of the building, parking lot and sidewalk involved in this occurrence” and, specifically, that defendants “[flailed to place vertical concrete pillars or poles in the sidewalk by the entrance of said restaurant” when defendants knew or should have known that these precautions “would have prevented the vehicle driven by Pamela H. Fritz” from causing the decedent’s injuries. The complaint alleged that “as a direct and proximate result” of defendants’ negligent acts or omissions, Pamela Fritz’s vehicle crashed into the restaurant and fatally injured the decedent.

Defendants filed a motion to dismiss plaintiff’s complaint pursuant to section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 615 (West 2002)). The circuit court granted the motion. The court stated:

“I have attempted to undertake a duty analysis. This was largely done by comparing the likelihood of this type of occurrence against the burden of protecting against it.
As the court stated in [Simmons v. Aldi-Brenner Co., 162 Ill. App. 3d 238, 244 (1987)], ‘anything is foreseeable...’ but the likelihood of this scenario is so minor that to guard against it in the manner suggested would require fortifying every building within striking distance of any crazed or incredibly inept driver, and the result would be to require foregoing [sic] any hope of aesthetically pleasing or business-enticing buildings. Obviously these two factors are less important than the safety of invitees, but the Court is required to do a balancing test and in doing so, I find that the duty stated by the plaintiffs is too high in this instance.”

The appellate court, with one justice dissenting, reversed. 355 Ill. App. 3d 685. While recognizing the “relevant [sic] rarity” of incidents such as the one at issue here, the appellate court nevertheless held that under Ray v. Cock Robin, Inc., 57 Ill. 2d 19 (1974), and Marquardt v. Cernocky, 18 Ill. App. 2d 135 (1958), plaintiffs complaint alleged a duty owed by defendants to the decedent. 355 Ill. App. 3d at 689. Rejecting the circuit court’s duty analysis, the appellate court emphasized that plaintiff’s complaint contained allegations that defendants had violated the Building Officials and Code Administrators’ building code and had departed from custom and practice in the building industry. 355 Ill. App. 3d at 689. The appellate court concluded that these allegations created a fact question as to whether defendants’ failure to take precautions against out-of-control vehicles was a breach of the duty owed to the decedent. 355 Ill. App. 3d at 690, 692.

The majority affirms the judgment of the appellate court. Unlike the appellate court, however, the majority does not hold that plaintiffs complaint alleges a duty under Ray or Marquardt. According to the majority, these decisions are inapposite. See 222 Ill. 2d at 434-35. Moreover, the majority does not discuss plaintiffs allegations that defendants violated building code standards and expressly declines to address the possibility that plaintiffs complaint alleges a duty under theories of negligent design or construction (see 222 Ill. 2d at 432-33, 449-50).

Instead, relying on Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210 (2000), the majority holds that the circuit court erred in dismissing plaintiff’s complaint because defendants owed an affirmative duty to the decedent to protect him from the negligent driving of Pamela Fritz. The majority reasons that the duty to protect arose in this case because defendants and the decedent stood in the special relationship of business invitor and invitee. As the majority explains, “the duty of care that arises from the business invitor-invitee relationship encompasses the type of risk — i.e., the negligent act of a third person — that led to the decedent’s injuries.” 222 Ill. 2d at 440; see also 222 Ill. 2d at 437 (“the special relationship between a business invitor and invitee does indeed give rise to a duty of reasonable care that is applicable to this case”). Thus, the majority holds that plaintiff’s complaint adequately alleges a duty to protect owed by defendants to the decedent. 222 Ill. 2d at 439-40.

After holding that the special relationship in this case imposed an affirmative duty on defendants to protect the decedent from a third person’s negligence, the majority then states that this conclusion “does not end our inquiry into the duty issue.” 222 Ill. 2d at 441. The majority goes on to consider whether defendants have shown that they are entitled to an “exemption” from the duty of protection owed to the decedent. Addressing this question, the majority examines “the four factors this court traditionally considers in its duty analysis,” i.e, the foreseeability of the accident, the likelihood of injury occurring as a result of the accident, the magnitude of the burden to guard against it, and the consequences of imposing that burden. 222 Ill. 2d at 441-43. The majority concludes that defendants have failed to rebut the existence of the duty to protect owed to the decedent and that “the factors relied on by defendants do not support the creation of an exemption from that duty.” 222 Ill. 2d at 437.

While the majority states that it is relying on the rationale of Hills for its duty analysis,1 the majority opinion departs significantly from that decision. In Hills we stated:

“The common law recognizes an exception to the rule that a landholder owes no duty to protect entrants from criminal attacks where the landholder and the entrant stand in a special relationship with each other that warrants imposing such a duty. [Citations.] The existence of a special relationship does not, by itself, impose a duty upon the possessor of land to protect lawful entrants from the criminal attacks of third parties. Before a duty to protect will be imposed it must also be shown that the criminal attack was reasonably foreseeable. [Citation.] In addition, whether a duty to protect exists will depend upon a ‘consideration of the likelihood of injury, the magnitude of the burden to guard against it, and the consequences of placing that burden upon the defendant.’ [Citation.]” Hills, 195 Ill. 2d at 243.

Hills holds that a special relationship, by itself, is not enough to establish an affirmative duty to protect. Other considerations must be taken into account as well. The majority here, however, holds the opposite. According to the majority, a special relationship, standing alone, is sufficient to establish the affirmative duty to protect a business invitee from the tortious misconduct of a third person. See 222 Ill. 2d at 440-41. Hills also expressly holds, in conformance with long-standing case law, that a court must examine the traditional duty factors before it may impose an affirmative duty to protect on a defendant. In this case, the majority considers the factors, but only after concluding that an affirmative duty exists and only as part of a new, “exemption” analysis.2 This is a substantial departure from Hills.

The doctrine of “stare decisis is not an inexorable command.” Vitro v. Mihelcic, 209 Ill. 2d 76, 82 (2004). It does require, however, that the court offer appropriate justification for the reversal of previous decisions. Vitro, 209 Ill. 2d at 82. The majority in this case fails to explain why it is overruling the framework set out in Hills for analyzing affirmative duties to protect. In my view, this is error.

The overruling of Hills and the creation of a new framework for analyzing the affirmative duty to protect are not the only troubling aspects of the majority opinion. Of equal concern is the majority’s “exemption” analysis and its application of the four traditional duty factors.

The majority first holds that foreseeability exists in this case as a matter of law.3 The majority states: “it is reasonably foreseeable, given the pervasiveness of automobiles, roadways, and parking lots, that business invitees will, from time to time, be placed at risk by automobile-related accidents.” 222 Ill. 2d at 442. The majority cites two cases to support this conclusion, one from California, Bigbee v. Pacific Telephone & Telegraph Co., 34 Cal. 3d 49, 57-58, 665 P.2d 947, 952, 192 Cal. Rptr. 857, 862 (1983), and one from this court, Blue v. St. Clair Country Club, 7 Ill. 2d 359 (1955). The majority’s reliance on these cases is misplaced because both are clearly distinguishable from the case at bar.

In Blue, a patron at a country club was injured when an outdoor table umbrella was caught by a gust of wind, knocking the table against the patron. On appeal, the question was whether the evidence, which included testimony that the table umbrellas were frequently blown over by the wind, supported a finding of foreseeability. Blue, 7 Ill. 2d at 362-65. Blue says nothing about the foreseeability of automobile accidents and nothing about the foreseeability of third-party misconduct.

Bigbee is similarly unhelpful. In Bigbee, the plaintiff was injured when the telephone booth in which he was standing, located approximately 15 feet from a six-lane roadway, was struck by an automobile driven by a drunken driver. The plaintiff filed a complaint against the telephone company, alleging that the company had negligently placed the telephone booth too close to a major thoroughfare where “ ‘traffic ... travelling easterly, generally and habitually speeded in excess of the posted speed limit,’ thereby creating an unreasonable risk of harm to anyone who used the telephone booth.” Bigbee, 34 Cal. 3d at 53, 665 E2d at 948, 192 Cal. Rptr. at 858. Summary judgment was granted in favor of the telephone company.

On appeal, the sole issue was whether foreseeability remained a question of fact for the jury under the evidence presented. Bigbee, 34 Cal. 3d at 52, 665 E2d at 948, 192 Cal. Rptr. at 858. Addressing this question, the court noted that there was evidence which showed that a telephone booth at the same location had previously been struck. Bigbee, 34 Cal. 3d at 54-55, 58, 665 E2d at 949, 952, 192 Cal. Rptr. at 859, 862. In addition, the court noted that “[s]wift traffic on a major thoroughfare late at night” was to be expected, as were intoxicated drivers. Bigbee, 34 Cal. 3d at 58, 665 E2d at 952,192 Cal. Rptr. at 862. Further, the court concluded that “it is not uncommon for speeding and/or intoxicated drivers to lose control of their cars and crash into poles, buildings or whatever else may be standing alongside the road they travel — no matter how straight and level that road may be.” Bigbee, 34 Cal. 3d at 58, 665 E2d at 952, 192 Cal. Rptr. at 862. Based on these considerations, the court held that foreseeability remained a question of fact for the jury and that summary judgment had been improperly granted.

In this case, unlike Bigbee, there are no allegations of prior incidents of negligent driving similar to the one which caused the decedent’s injuries. Moreover, the accident in this case involved a building, not a telephone booth, and it happened next to a parking lot, not next to a heavily traveled thoroughfare where cars regularly travel in excess of the speed limit. Further, the court in Bigbee held only that foreseeability remained a question for the jury under the particular facts presented, not, as the majority holds here, that automobile-related accidents are foreseeable as a matter of law.

Bigbee and Blue do not address the foreseeability of parking lot accidents such as the one at issue here. Numerous other cases, however, do. The majority of these cases, while recognizing that the duty to protect is part of the general duty of care owed to business invitees, also recognize that landowners are not the insurers of their invitees’ safety. These cases hold that landowners are liable for injuries caused by third-party misconduct only when that misconduct is reasonably foreseeable and, further, that automobile-related accidents such as the one that occurred in this case are not foreseeable as a matter of law. A representative case adopting this position is Albert v. Hsu, 602 So. 2d 895 (Ala. 1992).

In Albert, a driver backed her car across the parking lot from a parking space, over a six-inch curb, across a sidewalk, and through the wall of a Chinese restaurant. A 10-year-old girl seated inside the restaurant was struck and killed. The girl’s mother sued the owners of the restaurant, alleging that the restaurant building was negligently designed and that the restaurant owners should have erected barricades around the building. There was no evidence of any similar prior incidents and the premises were constructed in accordance with the relevant building code requirements. Summary judgment was granted in favor of the owners.

On appeal, the Supreme Court of Alabama affirmed. In so holding, the court noted the majority view regarding the legal foreseeability of out-of-control automobiles penetrating buildings and striking business invitees:

“ ‘We are not unmindful of the obvious fact that at times operators lose control over the forward progress and direction of their vehicles either through negligence or as a result of defective mechanisms, which sometimes results in damage or injury to others. In a sense all such occurrences are foreseeable. They are not, however, incidents to ordinary operation of vehicles, and do not happen in the ordinary and normal course of events. When they happen, the consequences resulting therefrom are matters of chance and speculation. If as a matter of law such occurrences are held to be foreseeable and therefore to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter. Such occurrences fall within the category of the unusual or extraordinary, and are therefore unforeseeable in contemplation of the law.’ ” Albert, 602 So. 2d at 898, quoting Schatz v. 7-Eleven, Inc., 128 So. 2d 901, 904 (Fla. App. 1961).

Adhering to this view, the court concluded that “[iJnsofar as foreseeability is an element of duty, any foreseeability inferred from the facts of this case is too remote to give rise to a duty owed and breached.” Albert, 602 So. 2d at 897. Accordingly, the court concluded that the restaurant owners owed no duty to the decedent and affirmed the lower court.

Like the court in Albert, a majority of courts throughout the country have concluded that landowners are not liable for injuries caused to business invitees by out-of-control drivers under facts similar to this case, because such incidents are unforeseeable as a matter of law. See, e.g., Simmons v. Aldi-Brenner Co., 162 Ill. App. 3d 238, 244 (1987); Stutz v. Kamm, 204 Ill. App. 3d 898, 906 (1990); Sotomayor v. TAMA I, LLC, 274 Ga. App. 323, 327, 617 S.E.2d 606, 610 (2005); Heard v. Intervest Corp., 856 So. 2d 359, 362 (Miss. App. 2003); Jefferson v. Qwik Korner Market, Inc., 28 Cal. App. 4th 990, 996-97, 34 Cal. Rptr. 2d 171, 174-75 (1994); Fawley v. Martin’s Supermarkets, Inc., 618 N.E.2d 10, 13 (Ind. App. 1993); Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So. 2d 708, 709 (Miss. 1987); Grandy v. Bavaro, 134 A.D.2d 957, 958, 521 N.Y.S.2d 956, 957 (1987); Hendricks v. Todora, 722 S.W.2d 458, 460-62 (Tex. App. 1986); Krispy Kreme Doughnut Co. v. Cornett, 312 So. 2d 771, 772-73 (Fla. App. 1975); Nicholson v. MGM Corp., 555 P.2d 39, 41 (Alaska 1976); Eckerd-Walton, Inc. v. Adams, 126 Ga. App. 210, 213, 190 S.E.2d 490, 492 (1972); Mack v. McGrath, 276 Minn. 419, 427, 150 N.W.2d 681, 686 (1967); Schatz v. 7-Eleven, Inc., 128 So. 2d 901, 904 (Fla. App. 1961); Watkins v. Davis, 308 S.W.2d 906, 909 (Tex. Civ. App. 1957).

In contrast to the foregoing, a minority of cases have affirmed lower court findings of foreseeability, or have held that foreseeability is a question of fact for the jury, in cases involving business invitees and automobile-related accidents. However, the facts of these cases differ significantly from those present here. For example, it has been held that foreseeability is a question of fact for the jury where there were prior similar incidents involving automobiles and, thus, the landowner had notice of the potential for automobile-related accidents. See, e.g., Ray v. Cock Robin, Inc., 57 Ill. 2d 19, 23 (1974);4 Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md.. App. 659, 666-67, 407 A.2d 339, 343 (1979). In addition, it has been held that foreseeability is a question of fact for the jury where the landowner’s own conduct contributed to the risk of harm to the plaintiff, either because the landowner failed to provide any protection from encroaching vehicles whatsoever (see, e.g., Dalmo, 43 Md. App. at 663, 407 A.2d at 341 (absence of any barrier was “critical fact”)), or because the landowner required patrons to stand at a service window next to a parking lot or driveway (see, e.g., Barker v. Wah Low, 19 Cal. App. 3d 710, 711, 721, 97 Cal. Rptr. 85, 85, 92 (1971)). See generally Qwik Korner Market, 28 Cal. App. 4th at 995, 34 Cal. Rptr. 2d at 174 (listing cases in these categories). None of these situations are present here.

Citing to several of the decisions noted above which held that the automobile accidents were unforeseeable, defendants contend that the accident at issue in this case was unforeseeable as a matter of law. The majority, however, disagrees and rejects the cases cited by defendants. According to the majority, the cases upon which defendants rely on are unpersuasive, primarily because most of them address the issue of foreseeability within the context of deciding the correctness of a summary judgment or jury verdict, rather than, as in this case, the dismissal of a complaint. See 222 Ill. 2d at 450. In addition, the majority states that “to the extent these decisions create no-duty exemptions, they provide no reasons for doing so beyond those we have already rejected above.” 222 Ill. 2d at 450. This is an inadequate basis for setting defendants’ cases aside.

The two decisions relied upon by the majority in its foreseeability analysis, Bigbee and Blue, concerned, respectively, the propriety of a summary judgment (Big-bee, 34 Cal. 3d at 52, 665 E2d at 948, 192 Cal. Rptr. at 858), and the correctness of a jury verdict (Blue, 7 111. 2d at 361, 366). Thus, at the same time the majority rejects cases cited by defendants because those decisions address the correctness of summary judgments or jury verdicts, the majority cites to, and relies upon, cases which do the same thing. This treatment of the cases is inconsistent. If Bigbee and Blue may be relied upon by the court despite their procedural postures, then the cases cited by defendants should not be rejected because of theirs. Further, the majority’s summary dismissal of the entire line of authority relied upon by defendants is unpersuasive, particularly since the cases relied upon by the majority, Bigbee and Blue, are distinguishable on their facts.

The majority opinion is at odds with the clear weight of authority with respect to legal foreseeability. Moreover, because of the nature of the duty being imposed in this case, the majority’s resolution of the foreseeability issue raises significant public policy concerns.

As noted, by the majority, negligent design and construction are not part of its duty analysis. That is, in its duty analysis, the majority does not conclude that defendants’ premises were inherently dangerous or that defendants’ own conduct created a risk of harm to the decedent through negligently designing or constructing the restaurant. Rather, it was the driver, Pamela Fritz, whose conduct created a risk of harm to the decedent. The alleged duty owed by defendants in this case was to protect the decedent against the risk of harm created by Fritz’s driving. Thus, as framed by the majority, this is not a case concerning ordinary duty and negligence. It is, instead, a “pure” affirmative-duty case, so called because when such a duty is imposed, the defendant is compelled to take affirmative action — in this case, to protect the decedent from a third person’s misconduct.

By its nature, the affirmative duty to protect implicates important policy concerns because it requires a defendant to take unusual action, i.e., to police the conduct of other people. See Restatement (Third) of Torts: Liability for Physical Harm § 37, Comment e, at 714 (Proposed Final Draft No. 1, April 6, 2005) (there is a “distinction between placing limits on conduct and requiring affirmative conduct. This distinction in turn relies on the liberal tradition of individual freedom and autonomy. Liberalism is wary of laws that regulate conduct that does not infringe on the freedom of others”). For this reason, courts have traditionally moved cautiously in this area:

“Judicial reliance on foreseeability under specific facts occurs more frequently and aggressively in cases involving an affirmative duty than in other cases. This suggests that courts more carefully supervise these cases than cases in which the actor’s conduct creates a risk of harm. This tendency is even more pronounced in cases in which the alleged duty involves protecting the plaintiff from third parties, especially the criminal acts of third parties. Sometimes, courts develop specific rules or balancing tests about the quantity, quality, and similarity of prior episodes required to satisfy foreseeability.” Restatement (Third) of Torts: Liability for Physical Harm § 37, Comment f, at 715 (Proposed Final Draft No. 1, April 6, 2005).

See also, e.g., Posecai v. Wal-Mart Stores, Inc., 752 So. 2d 762, 766-68 (La. 1999) (discussing the various tests courts have applied in deciding the foreseeability of third-party crime); Dalmo, 43 Md. App. at 670, 407 A.2d at 345 (“where the injury arises from the negligent or deliberate act of a third party committed on the storekeeper’s property but does not involve any defect in the property itself. *** [Ejxcept in rather extreme circumstances, the principles of reasonableness, ordinary care, proximate cause, and foreseeability have often combined to prevent a recovery”).

Like other courts, this court has also taken a narrow view of legal foreseeability when asked to impose a duty upon a landowner to guard against the negligence of others. This is particularly true in cases involving negligent driving. For example, in Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535 (1991), a car drove off a road and struck a utility pole, located some 15 feet from the roadway. A transformer attached to the pole collapsed onto the car, severely injuring the driver. Gouge, 144 Ill. 2d at 539. The driver filed a complaint against the power company which owned the pole, alleging that the pole had been negligently located and that the pole should have been installed so that it would fall away from the roadway if struck by a motorist. As in this case, the circuit court dismissed the complaint for failure to state a cause of action. The appellate court, however, reversed the circuit court and reinstated the complaint.

On appeal, this court held that the power company owed no duty to the driver. In so holding, this court noted the long-standing rule that there is no “ ‘general duty to anticipate and guard against the negligence of others’ ” because the imposition of such a duty “ ‘would place an intolerable burden on society.’ ” Gouge, 144 Ill. 2d at 547, quoting Dunn v. Baltimore & Ohio R.R. Co., 127 Ill. 2d 350, 366 (1989). This court further noted that, while it is common knowledge that vehicles on occasion leave roadways and strike objects adjacent to roadways, “ ‘there must be reasonable anticipation of such deviation from the roadway as a normal incident of travel’ ” before a duty to guard against such negligence will be imposed. Gouge, 144 Ill. 2d at 545, quoting Boylan v. Martindale, 103 Ill. App. 3d 335, 346 (1982). We observed that plaintiffs had “alleged no facts in their complaint, nor are any facts apparent, which would indicate that it was reasonably foreseeable” that the driver would deviate from the roadway and strike the utility pole. Gouge, 144 Ill. 2d at 545. Accordingly, because “it is not reasonably foreseeable that a motorist will leave the traveled portion of a roadway and strike a particular utility pole” (Gouge, 144 Ill. 2d at 546), this court concluded that the power company owed no duty to the driver and reversed the appellate court.

Another representative case is Ziemba v. Mierzwa, 142 Ill. 2d 42 (1991). In Ziemba, a cyclist on a roadway was injured when a dump-truck driver negligently exited the driveway of a landowner. The driveway was obscured by foliage and was not visible from the road. The cyclist filed a complaint against the landowner, alleging that the landowner had failed to use “ ‘reasonable care in the conduct of activities on his property, so as not to cause damage or injury to persons on the adjacent roadway.’ ” Ziemba, 142 Ill. 2d at 46. The landowner filed a section 2 — 615 motion to dismiss, which was granted by the circuit court. The appellate court reversed.

On appeal, this court reversed the appellate court. Initially, this court noted that, to determine if the landowner’s property was unreasonably dangerous to the cyclist, it was necessary to consider whether it was reasonably foreseeable that the condition of the property would result in the type of accident that occurred. As in this case, the court observed that the condition of the landowner’s property was not, by itself, dangerous to the cyclist. Rather, it only posed a danger to the cyclist “by operation of the driver’s intervening negligent act” of exiting the driveway without warning and without yielding the right-of-way. Ziemba, 142 Ill. 2d at 50. This court also noted that a property owner generally cannot control and has no right to control the drivers of vehicles and, further, that a property owner has a right to expect drivers to look before they back out of driveways. Ziemba, 142 Ill. 2d at 52, quoting Zimmermann v. Netemeyer, 122 Ill. App. 3d 1042, 1054 (1984), quoting Safeway Stores, Inc. v. Musfelt, 349 P.2d 756, 758 (Okla. 1960). This court concluded that, “[bjecause the condition on defendant’s land posed no danger to plaintiff absent the independent, negligent act of the driver,” the accident “was not a reasonably foreseeable result of the condition on defendant’s land.” Ziemba, 142 Ill. 2d at 52.

As in Gouge, this court in Ziemba stressed that there is no duty to “ ‘guard against the negligence of others’ ” because such a duty “ ‘would place an intolerable burden on society.’ ” Ziemba, 142 Ill. 2d at 52-53, quoting Dunn, 127 Ill. 2d at 366. In addition, this court stated:

“The underlying rationale for holding a landowner liable for injuries occurring as a result of conditions on his land is that the landowner is in the best position to prevent the injury. However, in this case, we find that the truck driver was in the best position to prevent the injury. Thus the usual justification for imposing landowner liability is not present in this case.” Ziemba, 142 Ill. 2d at 53.

Given these considerations, the court in Ziemba concluded that the landowner owed no duty to the cyclist and reversed the appellate court.

The majority in this case does not acknowledge the traditional, narrow view of legal foreseeability that this court has employed when asked to impose a duty upon a landowner to guard against the misconduct of others. Indeed, while most courts have exercised caution in this area of the law, allowing foreseeability of third-party misconduct to remain a question of fact for the jury only under specific tests or circumstances, the majority in this case goes in the opposite direction. The majority does not adopt a case-by-case approach and hold only that, in this particular case, plaintiff has alleged sufficient facts regarding foreseeability to survive dismissal. Cf. Bigbee, 34 Cal. 3d at 52, 665 P.2d at 948, 192 Cal. Rptr. at 858 (stating that the sole question presented was whether, under the evidence presented, “foreseeability remains a question of fact for the jury”). Instead, the majority adopts a categorical approach and holds that it is foreseeable, as a matter of law and without limitation, that automobile-related accidents will place business invitees at risk of harm. 222 Ill. 2d at 442. Of course, if it is categorically foreseeable that negligently driven automobiles will place business invitees at risk of harm, then it is categorically unreasonable for landowners to fail to take action to protect invitees from that risk. In this way, the majority is holding all landowners with property abutting roads or parking lots to be the insurers of their business invitees’ safety. This broad holding is unwarranted and, in my view, erroneous.

The second traditional duty factor that the majority considers is the likelihood of injury resulting from accidents such as the one that occurred in this case. The majority concludes that it “is quite high, as even a cursory glance at a selection of the cases the parties have cited to us demonstrates.” 222 Ill. 2d at 442. Although I agree that, in general, there is a likelihood of injury when an automobile is negligently driven onto premises open to the public, I note that the sample of cases cited by the majority is self-selecting. That is, these cases would not be in the court system in the first place if the accident had not resulted in injury. It is possible, of course, that there may be instances when an automobile driven onto business premises may not cause injury. The likelihood of injury will depend on the type of business and vehicle involved, the time of day the accident occurs, and other factors. That said, I certainly agree that, in general, there is a likelihood of injury when an automobile is negligently driven onto premises open to the public.

With respect to the third traditional duty factor, defendants contend that the imposition of a duty to protect in this case would impose an unreasonable burden on themselves and other similarly situated businesses. Citing to Simmons v. Aldi-Brenner Co., 162 Ill. App. 3d 238 (1987), defendants argue that “protecting every storefront business and every store adjoining a parking lot with the necessary barriers to stop any vehicle from being driven into the building would be a gargantuan task.” Further, according to defendants, “one could never be certain whether the protection would be sufficient to stop every vehicle,” including trucks and SUVs, from crashing through the building. Thus, defendants maintain that the burden imposed in this case is unreasonable.

Defendants’ position is supported by a number of cases. One court has observed:

“Imposing a duty on a convenience store to protect a customer from every imaginable incident is an unreasonable burden: a motorcycle can pass between metal posts and a large truck can break through a cement wall. Only an impregnable barrier would suffice, in essence holding the store owner as the insurer of its customers’ safety. The law does not impose such a burden.” Qwik Korner Market, 28 Cal. App. 4th at 996, 34 Cal. Rptr. 2d at 175.

Similarly, another court has stated:

“ ‘To erect an impregnable barrier around all of the buildings would both obstruct normal pedestrian traffic and impose on the owners a burden completely out of proportion to the anticipated risk. We agree that liability cannot be predicated on the fact that out of the many thousands of vehicles which use parking areas in a normal way, one or two may occasionally jump the curb and expose pedestrians as well as tenants to the remote possibility of injury.’ ” Albert, 602 So. 2d at 897-98, quoting Mack v. McGrath, 276 Minn. 419, 427-28, 150 N.W.2d 681, 686 (1967).

See also Simmons, 162 Ill. App. 3d at 244 (imposing a duty “would place a burden on every store, near a street or parking lot, of constructing barriers adequate to prevent any car from being driven into the building”); Stutz, 204 Ill. App. 3d at 906; Heard, 856 So. 2d at 362 (if the court were to recognize a duty to protect it “would mean that property owners throughout the state of Mississippi would need to build barriers between their premises and streets and parking lots. This Court simply cannot make that the public policy of this State”); Fawley, 618 N.E.2d at 14 (“to require that business owners erect impregnable barriers separating the parking lots from their sidewalks would very likely increase the inconvenience and hazard to pedestrians and impose upon the owners a burden completely out of proportion to the anticipated risk”); Grandy, 134 A.D.2d at 958, 521 N.Y.S.2d at 957.

Despite this authority, the majority rejects defendants’ burden argument. The majority concludes that defendants’ concerns are “speculative at best” and are “based on mistaken assumptions about the nature of a duty of care.” 222 Ill. 2d at 443. According to the majority, defendants’ burden argument is of no moment because the court in this case is only holding that defendants owed a duty of care to the decedent and not making a “broad-based declaration of negligence liability.” 222 Ill. 2d at 443. In other words, in the view of the majority, burden concerns arise only when there is a finding of liability, not when a duty is recognized.

The majority’s burden analysis is at odds with case law. This court has frequently discussed the burdens placed upon a defendant in cases addressing solely whether a duty exists. See, e.g., City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 393 (2004) (deciding the propriety of a judgment dismissing a complaint under section 2 — 615 and concluding that “the magnitude of the burden that plaintiffs seek to impose on the manufacturer and distributor defendants by altering their business practices is immense”); Gouge, 144 Ill. 2d at 547-48 (discussing costs and burdens of imposing a duty). Further, it is inconsistent for the majority to address foreseeability and the likelihood of injury in deciding whether to recognize a duty in this case and, at the same time, not address the burdens that result from imposing that duty.

Later in its opinion the majority provides another answer to defendants’ burden argument. Rejecting defendants’ contentions regarding duty, the majority states that this case is not about “whether defendants had a duty to install protective poles, or a duty to prevent a car from entering the restaurant, or some such other fact-specific formulation” but, instead, is only about recognizing “a duty of reasonable care” to protect business invitees. 222 Ill. 2d at 443. This reasoning is unpersuasive.

The duty imposed by the majority necessarily encompasses the duty to provide protective barriers. Neither party to this appeal has suggested any means of protecting business invitees from out-of-control automobiles other than protective poles or some other type of barrier. Indeed, plaintiff’s primary allegation of negligence in this case is that defendants failed to install such barriers. As plaintiff alleged in his complaint:

“a. [Defendants] [flailed to place vertical concrete pillars or poles in the sidewalk by the entrance of said restaurant, which vertical pillars or poles would have prevented the vehicle *** from becoming air born [sic] and coming to rest over the brick half wall, when the Defendant [s] knew or should have known that failing to put concrete pillars or poles in the sidewalk by the entrance to the restaurant would allow a vehicle to become air born [szc] when driven over the sidewalk, thereby causing the vehicle to come down on top of the brick half wall ***.”

The majority holds that all landowners owe a duty of reasonable care to their business invitees which includes the affirmative duty to protect the invitees from the risk of negligently driven automobiles. See, e.g., 222 Ill. 2d at 442 (declining to find an exemption from the “duty to protect invitees against out-of-control drivers”). This affirmative duty to protect necessarily applies in this case— where an automobile penetrated a building. The only way that a landowner can protect an invitee from an automobile penetrating its building is either by relocating the business away from all roads and parking lots or, more plausibly, by constructing an impenetrable barrier around the building. This is precisely the burden that other courts have recognized to be at issue in cases such as this and, as noted, have found to be unreasonable.

Finally, the majority does not address the substantial consequences of its decision to impose a duty here. Every business open to the public that abuts a road or parking lot now has an unqualified duty to protect business invitees from out-of-control drivers. This is an unprecedented expansion of premises liability. See, e.g., Beretta U.S.A. Corp., 213 Ill. 2d at 393 (declining to impose a duty upon commercial enterprises to guard against the criminal misuse of their products by others in part because such a duty would be an “unprecedented expansion of the law of public nuisance”). Further, barriers which make it impossible for vehicles to enter a building also make it more difficult for invitees to get out of a building during a fire or other emergency. Heard, 856 So. 2d at 362. Thus, while the justification given for imposing a duty to protect in cases such as this is to improve the safety of business invitees, the recognition of such a duty may, on balance, have the opposite effect.

The majority is correct to observe that courts should be cautious when holding that no duty exists. See 222 Ill. 2d at 441-42. But the affirmative duty to protect is itself an exception to the general rule that one owes no duty to police the conduct of other people. Further, consider the nature of the majority’s holding in this case. According to the majority, a duty to protect a business invitee from the negligent driving of a third person exists where: the landowner’s property is not inherently dangerous or defective and the landowner’s own conduct has not created any risk of harm to the invitee through negligent design or construction; the landowner has complied with all applicable building codes and safety regulations; the landowner has experienced no previous incidents of any sort involving automobile-related accidents, whether similar or not; the parking lot is unremarkable, a sidewalk is present, and the invitee is inside a building behind a half-brick wall; and the only means of protecting the invitee from the negligent driving is to construct an impregnable barrier around the building that, even if possible to construct, may have a negative effect on the safety of business invitees in other circumstances. If there is an affirmative duty to protect a business invitee from out-of-control vehicles on these facts, then such a duty exists for every business which owns a building that abuts a road or parking lot.

The majority’s holding is exceptionally broad and has the potential to alter substantially the function and appearance of every city in the state. With its far-reaching implications, I do not believe that the adoption of the duty of protect, as described by the majority, is an appropriate undertaking for this court. I would hold, in accordance with the weight of authority, that no affirmative duty to protect exists on these facts. Accordingly, I dissent.

JUSTICE FREEMAN joins in this dissent.

Athough the issue in Hills involved a landholder’s liability for the criminal conduct of a third person, the majority concludes that the rationale of Hills applies “with equal force where, as here, the negligent act of a third person is at issue.” 222 Ill. 2d at 439.

Contrary to the majority’s assertions, defendants at no time ask this court “to create an exemption from the duty of care that stems from the special relationship between a business invitor and invitee.” 222 Ill. 2d at 441. Rather, in accord with existing case law, defendants argue that “the four factors this court traditionally considers in its duty analysis” (222 Ill. 2d at 441) must be addressed before an affirmative duty may be imposed.

Contemporary tort scholarship, including the proposed Restatement (Third) of Torts, takes the position that foreseeability should not play any part in the ordinary duty, or affirmative duty analysis. See Restatement (Third) of Torts: Liability for Physical Harm § 7, Comment j, at 97-98, § 37, Comment f, at 715 (Proposed Final Draft No. 1, April 6, 2005); see also W. Cardi, Purging Foreseeability: The New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739 (2005). The majority does not adopt this position, which would be a departure from our case law, and I express no opinion on its merits.

4The majority distinguishes Ray on the basis that the case addressed foreseeability as a matter of proximate cause, rather than duty. See 222 Ill. 2d at 434-35. However, whether couched in terms of duty or proximate cause, the determinative issue for courts to decide with respect to foreseeability in cases such as this is whether it may be said that foreseeability does not exist as a matter of law. See, e.g., Bigbee, 34 Cal. 3d at 55-56, 665 P.2d at 950, 192 Cal. Rptr. at 860 (defendants’ contentions that they owed no duty and that there was no proximate cause presented “the same issue in different guises,” i.e., whether the risk was unforeseeable as a matter of law). Nevertheless, as noted in the text, Ray is distinguishable on its facts.