*1 factor, expert’s consideration an essential opinion weight is of no disregarded. Wilhoite, must be (People v. 3d at We concluded marijuana the amount ingested prior to the crime in that case constituted essential factor the formation of opinion regarding cannabis intoxication. Without such knowl edge, diagnosis no such plausibly can be made.
We fail to see similar lack of foundation in present case. The expert, State’s Cavenaugh, Dr. utilized the same factors in evaluating sanity defendant’s as did the defense witnesses. All interviewed defendant. All reviewed the two notes written after the killings. All referred to hospitalization defendant’s psy records and chiatric examinations. All prior knew of defendant’s involvement family with counseling. That the witnesses reached different medical upon conclusions based the same foundational evidence does not mean defendant sustained his proof burden of or that the State failed carry way, burden. Put another say we cannot that Dr. Cave naugh’s opinion regarding sanity defendant’s raised serious doubts as validity to the little, his conclusion and was entitled to any, if weight. contradictory expert opinion presented judge the trial with a classic of fact. No basis exists in the record to disturb judge’s the trial determination.
Defendant’s convictions are affirmed.
Affirmed. COUSINS, P.J.,
. McNULTY, J., concur. O’BANNER, Plaintiff-Appellant, REGINALD v. McDONALD’S CORPORA- (Unknown TION, Defendants). Defendant-Appellee Owners, (6th Division) First District No. 1 — 93—1758 Opinion May Rehearing July filed denied 1995.— *2 RAKOWSKI,J., dissenting. (Donald Kurasch, Ltd., Chicago Donald A. A. Kurasch and Jessica B.
Tucker, counsel), appellant. *3 (John Kiely, Law Office Chicago Kiely of John C. of C. and Dennis M. Glynn, counsel), appellee. of JUSTICE ZWICK delivered the opinion of the court: This is an appeal from the trial grant summary court’s judg- (hereinafter defendant, ment in favor of Corporation McDonald’s Mc- franchisor). Corporation Plaintiff, O’Banner, or the Reginald single-count in a complaint that slipped he and fell in a Mc- Donald’s restaurant at Chicago located 29 East 87th in Street and that vicariously negligence liable for the operated through restaurant’s owners who the restaurant (the franchisees) agreement. franchise The owners of the restaurant have never been served and parties appeal. are not to this We are asked to determine whether franchisor can be liable for the negligence of its agency franchisees under either an agency theory liability notwithstanding agree- the existence of ments between the franchisor and expressly franchisee which disavows an relationship. franchi- injured in the alleged that he was complaint
Plaintiffs he 1, 1990, slipped he on what February after on see’s bathroom negligence complaint alleging filed his or water. He believed to be ice Corporation owned 9, that McDonald’s January He claimed on 1992. the franchisee’s leased, maintained, operated and controlled caused negligence, and, of the franchisee’s as a result premises granted McDonald’s judge The trial plaintiffs injuries. 18, 1993, previous judge after a
summary judgment motion on March again on summary judgment August on denied 16, 1992. November authority upon as to the
Initially, there is some confusion 1993, 18, trial court brings appeal. On March plaintiff this judgment of McDonald’s granting summary favor entered an order subsequent motion to reconsider plaintiffs and denied final litigation and were 1993. These motions ended April Supreme Court Rules 301 appealable pursuant orders (134 orders, however, trial In Ill. 2d Rules both record, court, Supreme in the made Court explained for reasons not 304(a) (134 304(a)). has findings While the Rule 2d R. appeal brought pursuant Supreme stated in his brief that this is 304(a), only appeal proper conclude that is under Court Rule we (134 303). Supreme Court Rules 301 and 303 Ill. 2d Rules appeal. proceed Plaintiff referenced these rules his notice We accordingly. granted summary improperly
Plaintiff claims that the trial court indicate judgment because there is sufficient evidence the record to relationship and its between McDonald’s Corpora- franchisees were McDonald’s franchisees was such least, claims, gen- very there is a agents. tion’s actual At the uine issue of fact as to whether the franchisees were agents. Corporation’s apparent Illinois, provisions of governed is (735 Procedure. ILCS
section 2—1005 of the Code of Civil 5/2 —1005 (West 1992).) remedy Summary judgment recognized to be drastic granted right to it is clear properly which is where the movant’s Insulating Co. v. Corinco (Vicorp and free from doubt. Restaurants the sum purpose any gen there are mary judgment procedure is to determine whether Mercado parties. (Vallejo uine issues of material facts between Summary judgment should App. *4 affidavits, granted only and pleading, depositions, be if the admissions any material fact any, genuine issue as to if show that there is no a matter of law. moving judgment as party and that the is entitled 592
(Dash
Service,
(1991),
Messenger
Inc. v.
Insurance Co.
221
Hartford
1257.)
1007,
App.
appellate
Ill.
3d
582 N.E. 2d
in the
court of
Review
grant
of
is de novo. Outboard
Marine
v.
(1992),
Liberty
90, 102,
Mutual
Insurance Co.
154 Ill. 2d
607 N.E.2d
The doctrine of respondeat superior
injured
an
allows
principal vicariously
hold a
agent.
liable for the
conduct
his
her
926.)
(Moy
(1994),
519,
County
523,
v.
Cook
agent
The issue whether
independent
one is an
or an
contractor
generally
fact,
relationship
unless the
is so clear as to
(Gasbarra
undisputed.
(1979),
be
v. St. James Hospital
App.
85 Ill.
3d
32, 43,
agency
an
Whether
actual
fact been
has in
created is
they
determined
the relations of the parties as
exist
agreements
acts,
under their
question being
with the
ultimately
(1986).1
one of intention. 3 Am.
Agency
Jur. 2d
§21
The record in this case establishes that
the franchisees who
operated
owned and
the restaurant
located at 29 East 87th Street in
Chicago were not
agents.
agency
actual
An
relationship is a consensual
legal
whereby:
one between two
entities
(1)
principal
right
has the
to control
agent,
the conduct of the
(2)
agent
and
power
has the
legal
to affect the
relations
(State
principal.
Security
Insurance Co. v. Frank B. Hall & Co.
App.
258
legal
3d
relationships
N.E.2d
The
be
agree
tween
defendants in this case are delineated
the written
ments
relationship
which exist between
Their
them.
is that of lessor/
lessee,
/franchisee,
principal/
franchisor
but not
licensor/licensee
While
otherwise,
has
affidavits
supporting documents contained in the
establish that Mc
record
not
operator
subject
the owner or
operator’s
lease,
restaurant.
agreement
the license
and the
agreement
franchise
place
for the restaurant
which were
at the
plaintiff’s
time of
clearly
undisputedly
accident
establish the
Salisbury
Chapman Realty
1In both
App.
124 Ill.
Pancakes,
and Slates v. International House
App.
may
the court stated
franchisor
exercise
degree
such a
agency
of control over a franchisee so as to create an
relation
ship,
relationship
stranger
"at least insofar as this
affects
to the franchise
agreement.”
(Salisbury,
1061; Slates,
3d at
3d at
confusion, however,
In order to avoid semantical
we believe a franchise
agreement’s
parties
effect on third
is best
considered under
agency theory,
opposed
agency analysis.
to an actual
See
Greil v.
also
International,
Travelodge
In
the
apparent agent is
nearly so clear. An
agents is not
apparent
not, reasonably appears to third
who,
or
whether authorized
person
(Mitchell
Buick & Old
to act as an
persons to be authorized
(1985),
Services,
Sales,
Dealer
Inc. v. National
smobile
1281.)
apparent agency is
The doctrine of
App.
(Northern
St.
estoppel.
Trust Co. v.
equitable
based on the doctrine
ap
An
App. 3d
Hospital
Francis
agent in a situation where
places
apparent
that
an
parent principal
as
estopped
to act is
"agent” may
presumed
be
to have
authority.
(Crawford Savings
against
denying
third
from
the
288, 292-93,
& Loan Association v. Dvorak
set out
agency are most often
apparent
The elements of
(1)
knowing acquies
being:
principal’s
the
consent to
Illinois
(2)
authority,
party’s
the third
knowl
agent’s
cence in the
exercise of
author
good-faith
agent possessed
that the
edge of the facts and
belief
(3)
agent’s
reliance on the
ity,
party’s
the third
detrimental
Thomas,
Weil,
authority.
&
P.C. v. Sara Lee
Freiburg
Co.,
383, 390,
1344; Northern Trust
3d at 278.
easily
the
applied
above are not
to
The three elements listed
They appear to
presented
as the one
this case.
tort situation such
(See
Sycamore Municipal
evolved from contract cases.
Gilbert
have
("It
true that
We see no reason apparent agency theory to limit the of vicari liability ous hospital setting. as set out in patients Gilbert to Just as naturally depend upon hospital their supervise chosen and take responsibility facility, for the conduct of those who work within the it logical many public conclude that members of the have come to believe that franchisors such as are ultimately responsible food, quality not for the but also for the premises condition of the in which it is served. McDonald’s every extensive and visible reach into aspect of its franchisees’ businesses makes such a belief natural. The license agreement included in the record illustrates this fact. Under *6 terms, Corporation McDonald’s has a undertaken substantial effort to assure that it public alone controls how the perceives its franchised restaurants. "system”
McDonald’s in described its license agreements being "comprehensive” scope as in offering pub- and the lic a atmosphere. Only designated beverages "uniform” may food and be served at franchised required restaurants. Franchisees are to use prescribed equipment, building layouts designs. and McDonald’s Corporation quality, dictates the level of service and cleanliness throughout system. employees the All restaurant required are designated by wear uniforms Corporation. McDonald’s McDonald’s Corporation management, also dictates advertising personnel and policies additionally "Hamburger and runs University,” training a facility required where its franchisees are managers. to train their Presumably employees responsible maintaining the for the bathroom plaintiff injured facilities where was wore "McDonald’s uniforms” required and were prescribed follow McDonald’s standards of "quality, and service cleanliness.” degree
We find the by control exercised the McDonald’s franchisees, including over its the control exercised over way the in which the promoted franchisees’ business is and adver- tised, potential creates the public for members of to be misled as entity to the responsible maintaining the restaurant facilities. The record indicates entity McDonald’s is the responsible permeate for the relentless stream of commercials which media, promoting safe, providing McDonald’s restaurants óf fact as to atmosphere. It is clean and wholesome person such as could lead a type of conduct this whether reputation for upon in reliance premises to enter the fact, agent was, dealing in with he a belief that quality upon and Corporation. raised as genuine question of fact to be a Because we find there slipped he the restaurant plaintiff perceived to whether being operated McDonald’s injured and himself as summary judg- granting of agents, the circuit court’s we reverse with proceedings consistent ment remand the case for further and opinion. Reversed and remanded.
McNAMARA, P.J., concurs. RAKOWSKI, dissenting:
JUSTICE judgment, majority reversing grant summary proper In sup nor pleaded that was never has manufactured a cause of action so, ignores controlling doing majority ported the record. case, Sycamore upon single Gilbert case law and instead relies which is Municipal Hospital legally factually inapposite. single alleging pertinent complaint
Plaintiff’s contains a count along other unknown own- part Corporation, that McDonald’s with ers, owned, maintained, leased, premises and controlled the operated, duty of the injured, and that it "was the where diligence keep defendants to exercise reasonable care premises reasonably maintain in a safe condition.” Nowhere said agency, apparent. complaint any allegation is there actual complaint Plaintiff neither amended the nor added the "unknown parties” to the action. *7 judgment and in Corporation summary
McDonald’s moved support an affidavit stated: filed which
"3) specified Corporation not own the business McDonald’s does above.
4) speci- operate the Corporation McDonald’s does not business fied above.
5) manage- participate in the Corporation McDonald’s does not specified ment of the business above.
6) or on Corporation not file a tax return for McDonald’s does specified behalf of the business above.
7) not, right it have the Corporation McDonald’s does nor does to, hire, discharge discipline employees specified of the business above.
to, [***] 10) control the day-by-day Corporation activities does not, necessary nor did it to the business have the right operations specified of the restaurant above. 11) alleged incident, At the time of the the restaurant business specified operated by above was owned and Enter- John/Sheri prises, pursuant agreement to the terms of a franchise dated August 1982.” copies lease, operator’s also filed the agreement, license agreement. and the franchise response summary Plaintiff’s to the judgment motion does not deny any of these facts. Plaintiff’s simply affidavit contains the fol- lowing conclusionary language: Upon belief,
"5. agree- information and the executed license ment referred to in language Defendant’s Motion contains Defendant, CORPORATION, establishes MCDONALD operation maintained control the of the franchise and the over daily procedures and business at 29 Chicago.” East 87th Street in This was the state of judge the record when the trial entered summary judgment. I repeat, complaint the any did not contain al- legations agency, any nor was evidence proffered by the plaintiff. parties whether, sole issue framed after documents, reviewing the a question of fact existed as to whether Mc- operated, managed, or subject controlled the premises. portion
A opinion, agree, with which I states McDonald’s "was not the owner or operator subject (273 restaurant.” Usually, 3d at this determination However, would end the case. majority goes here the on to discuss and, apparent agency relying Gilbert, doctrine of on concludes that a of fact existed and I was error. respectfully majority submit should never have addressed (1) (2) apparent agency pleaded; issue of because it was not any record is support apparent agency devoid evidence to the (3) (4) ory; factually legally Gilbert is both inapposite; ample contrary majority holding. exists which is to the theory
When fails to raise form in the trial (Miscevich court, appeal. he cannot raise it for the first v. time 400, 404-05, Commonwealth Edison Co. Chevrolet, Saladino Team the court held: "[Pjlaintiffs allege apparent authority pleadings, did not their *8 theory upon theory trial level. The they this at the nor did raise changed on cannot be in the lower court a case is tried Accordingly, issue is waived for this [Citations.] review. appeal.” purposes of Hilton judice is Johnson v. to the case sub
Strikingly similar 546 N.E.2d where 190 Ill. Hotel Hilton injured patron a in the Biloxi plaintiff alleged he was while subject owned, operated, and controlled Hotel and that Hilton in of favor premises. The trial court entered Hilton, ownership inter finding that Hilton had no direct or indirect control, supervise, any right police, inspect, premises, est in the to argument of appeal, response plaintiff’s On in to or maintain them. agency, the court held: apparent agency in his com point plead apparent that he failed to
"We out theory, neglected plaint, to seek leave to amend to add this any consequence, a Johnson has did not raise it below form. As liability may be waived claim that Hilton Hotel’s Johnson, predicated upon theory apparent agency.” of App. 3d at 201. purpose pleading
It is axiomatic that the is to frame the issues. (see Gilbert, Although may at the standard be relaxed (plaintiff allege apparent agency, allege agency, did not but did theory a ample support the record contained evidence to identify agency)), counterproductive it to allow a (i.e., owned, specific theory managed, that McDonald’s restaurant), sup operated, and controlled the marshall evidence thereof, port proceed summary judgment, appeal, and then on amend, distinct, seeking argue separate the without ever leave to (i.e., ory apparent agency).
Assuming properly plead apparent did arguendo theory support such a on the record agency, there is no Gilbert, majority solely argued of this case. The relies case never reason, argument. The appellate either its brief or at oral submit, apply I to the facts in this case. is that Gilbert does not Gilbert, judice, ample the case the record contained evi- unlike sub be hospital emergency physician dence that the held the room out to patient that emer- hospital never advised the decedent rather than gency physicians independent room were contractors Moreover, by the prepared form hospital employees. consent part: signed by pertinent stated in hospital and the decedent emergency undersigned treatment has been informed of the "The appears necessary patient whose name above considered for the performed physi- procedures will be and that the treatment added.) employees hospital.” (Emphasis (Gilbert, dans and 156 Ill. 2d at evidence, ques- Based on this the Gilbert concluded that a fact court preclude summary judgment. tion existed to inapposite, ample Not is Gilbert but there is Illinois author ity precise liability on the issue of a franchisor’s tort for the actions (See Coty of its franchisee. Slicing U.S. Machine Co. 1371; App. 3d Slates v. House International
Pancakes, 457; Thomson v. McDonald’s, 760; Salis *9 (1984), 1057, bury Realty 127; v. 124 Chapman App. 3d Illinois, (1986), App. Yassin v. Grocers Inc. 3d Certified 1052, 315; International, (1989), v. Travelodge Greil Inc. 1061, 1288; Illinois, App. 541 Raglin N.E.2d v. HMO Inc. (1992), 642, App. cases, Of these agency Greil relationship found existed between a franchisor and However, so, doing its franchisee. applied Greil court Califor law, required by agreement, nia the franchise rather than Illinois types law. "California courts found have both [ostensible (Greil, to exist in App. actual] the franchise context.” cite, find, at Plaintiff I any authority does not nor can Illinois support position. his jurisdictions
Other
application
have also addressed the
apparent authority
doctrine of
in a
context.
franchisee/franchisor
(Fla. 1995),
119;
See Mobil Oil
v.
Mysz-
648 So. 2d
Bransford
Hotel,
(1993),
315,
kowski v.
Super.
Penn Stroud
Inc.
430 Pa.
634 A.2d
622;
U.S.A.,
(1990),
25,
840;
Chevron
Inc. v. Lesch
319 Md.
570 A.2d
(Ala. 1986),
1034;
v.Wood
Shell Oil Co.
495 So. 2d
Watkins v. Mobil
(1986),
62,
284;
Oil Corp.
291 S.C.
352 S.E.2d
Smith v. Maytag Corp.
(Ga.
1995),
A94A1979,
App.
111397;
No.
1995 WL
McGuire v. Radis-
International,
740,
51;
App.
son Hotels
Inc.
209 Ga.
435 S.E.2d
(Ohio
Restaurants,
1986),
App.
Puente v. Frisch’s
Inc.
No. L—86—
(Fla.
14372;
Associates,
1986
Realty
WL
Dalia v. Electronic
Inc.
1994),
Inn,
App.
1075;
Dist.
Hayman
Ct.
629 So. 2d
v. Ramada
Inc.
(all
against
N.C.
applica-
86
For court. circuit (Donato CROCE, Croce, Deceased
In re ESTATE OF LEANORE TAUB Davis, Petitioner-Appellant, v. Merle as Ex’r and Trustee Under the Last Croce, Deceased, Respondents- al., Will and Testament of Leanore Taub et Appellees). (6th Division)
First District No. 1 — 94—2425 Opinion filed June