delivered the opinion of the court:
This second chapter of the Skewer Inn saga involves counts directed against the owners and operators of the Northwoods Mall in Peoria (Northwoods). The court refused to dismiss those counts charging negligence against Northwoods. However, it did dismiss counts charging Northwoods with breach of warranty and strict liability based on theories of joint venture and agency with Skewer Inn. The court certified this interlocutory appeal pursuant to Supreme Court Rule 304(a). We affirm.
It must be pointed out that the only questions before the court are entirely novel. The parties do not take issue with the general proposition that when a landlord turns over possession and control of the demised premises, he is not liable for injuries to invitees which arose from the operation of the tenant’s business (Richardson v. Bulk Petroleum Corp. (1973),
Using the Northwoods-Skewer lease as ammunition, plaintiffs construct alternative grandiose theories of vicarious liability. It is first argued that the allegations of the complaint were sufficient to raise the issue of whether there was a joint venture between Skewer and Northwoods. The incidents of joint venture alleged are as follows:
(1) Skewer Inn was situated at Northwoods;
(2) It was not apparent to the public that Skewer was not owned and operated by agents of Northwoods. Moreover, Skewer was obliged to mention Northwoods’ name and address in all advertisements;
(3) Northwoods retained a strong measure of control over the operation of Skewer; and
(4) There was an agreement to share the profits in a fixed percentage.
The principal argument in opposition raised by Northwoods is that the lease by its own terms provided that the relationship being created between Northwoods and Skewer was that of landlord and tenant and nothing more. We do not believe this to be a sufficient basis to defeat the complaint. As between themselves, whether a joint venture exists between two persons is a matter of intent and arises only when the parties so associate themselves. (Carroll v. Caldwell (1957),
Ordinarily, whether or not a joint venture exists is a question for the trier of fact. (Baker Farmers Co. v. ASF Corp. (1975),
It is readily apparent that plaintiff’s joint venture theory cannot withstand the most basic analysis. The theory, briefly stated, is that there is a symbiotic relationship between a mall business and the mall management. The operators of the mall seek to lease space to a variety of businesses to create a total shopping environment. In furtherance of this goal, the operators restrict the kind of advertising its tenants may publish, the hours of operation and even the scope of the wares offered for sale. It requires them to belong to a tenant’s association which is formed to promote the mall generally. It pays its rents out of a percentage of the business it generates. Thus, it is no doubt true that this is not an ordinary commercial lease. But it is certainly not a joint venture either.
Several elements of a joint venture cannot be gleaned from the allegations of the complaint and attached exhibits at issue. There must be a community of interest in the purpose of the joint venture, and the parties must have some right to direct and govern the conduct of each other in connection therewith. (Russell v. Klein (1975),
What is clearly missing is the element of sharing of profits and losses. The allegation of a percentage rental agreement does not raise the issue. In Richardson, plaintiff urged that the percentage rental agreement in a service station lease took those parties out of the ordinary landlord-tenant relationship. The court disagreed, holding that this is a common practice in commercial leases and that nothing was indicated thereby. We agree. Furthermore, the fact that the rental arrangement was a percentage of gross sales above a fixed minimum rent destroys the notion that there was to be a sharing of losses between the parties. Northwoods might not profit as much if Skewer suffered a net loss, but it certainly would not share in that loss in any meaningful sense. Therefore, we hold that the complaint was insufficient as a matter of law to allege a joint venture.
No such detailed analysis is necessary to determine whether the complaint sufficiently alleges an agency relationship. An agent is one who acts under authority from another to transact business for him or manage his affairs, and who is required to act for such other. (Dean v. Ketter (1946),
Plaintiffs have focused on one aspect of the law of principal and agent (right of control) and seek to fashion an agency relationship therefrom. Even conceding that Northwoods retained broad rights of control over Skewer, it does not follow that Skewer was the agent of Northwoods. A true agency requires that the agent’s function be the carrying out of the principal’s affairs. There is nothing to suggest that the instant relationship involved Skewer’s tending to the affairs of Northwoods. It just so happens that in the course of furthering its own business (in fact, as the principal thereof), Skewer benefits Northwoods as one element of the retail gestalt. That hardly renders Skewer the agent of Northwoods for purposes of imputing liability in tort.
Beyond the technical aspects of agency and joint venture, there is something inherently troublesome about applying the concept of vicarious liability to the facts as alleged in the instant complaint. It is ordinarily understood that liability is imposed vicariously because of some control or right of control that one person has over another. (Sewell v. Wofford (1985),
Affirmed.
SCOTT and WOMBACHER, JJ., concur.