{ "id": 147640, "name": "REGINALD O'BANNER, Appellee, v. McDONALD'S CORPORATION et al. (McDonald's Corporation, Appellant)", "name_abbreviation": "O'Banner v. McDonald's Corp.", "decision_date": "1996-05-31", "docket_number": "No. 79547", "first_page": "208", "last_page": "220", "citations": [ { "type": "official", "cite": "173 Ill. 2d 208" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "273 Ill. App. 3d 588", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258519 ], "weight": 3, "pin_cites": [ { "page": "596-97", "parenthetical": "Rakowski, J., dissenting" }, { "page": "598-99", "parenthetical": "Rakowski, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0588-01" ] }, { "cite": "76 Ill. 2d 427", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983269 ], "year": 1979, "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0427-01" ] }, { "cite": "146 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597010 ], "year": 1992, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0263-01" ] }, { "cite": "156 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777551 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "523-24" }, { "page": "523-24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0511-01" ] }, { "cite": "268 F.2d 114", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1972845 ], "year": 1959, "pin_cites": [ { "page": "118", "parenthetical": "apparent agency theory rejected in affirming directed verdict for Sinclair Oil because there was absolutely no evidence as to the reason why appellant patronized filling station where he was injured" } ], "opinion_index": 0, "case_paths": [ "/f2d/268/0114-01" ] }, { "cite": "146 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597010 ], "year": 1992, "pin_cites": [ { "page": "272" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/146/0263-01" ] }, { "cite": "156 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777551 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "523" }, { "page": "524" }, { "page": "526" }, { "page": "525" }, { "page": "527" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/156/0511-01" ] }, { "cite": "155 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810152 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "410" }, { "page": "410" }, { "page": "411" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/155/0402-01" ] }, { "cite": "156 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777545 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "169-70" }, { "page": "170" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/156/0166-01" ] }, { "cite": "129 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567184 ], "year": 1989, "pin_cites": [ { "page": "358" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/129/0351-01" ] }, { "cite": "627 N.E.2d 986", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "216 Ga. App. 237", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 844556 ], "weight": 2, "year": 1995, "opinion_index": 1, "case_paths": [ "/ga-app/216/0237-01" ] }, { "cite": "629 So. 2d 1026", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7578446 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/so2d/629/1026-01" ] }, { "cite": "437 F.2d 308", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2209773 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/f2d/437/0308-01" ] }, { "cite": "844 F.2d 156", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10542658 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "166" } ], "opinion_index": 1, "case_paths": [ "/f2d/844/0156-01" ] } ], "analysis": { "cardinality": 882, "char_count": 20367, "ocr_confidence": 0.771, "pagerank": { "raw": 2.634644256060543e-07, "percentile": 0.8225354065043946 }, "sha256": "0c8d88141f31d16087492296bac516af5204249c36aa31e4b550940d5b28dd4c", "simhash": "1:db78463b166637b8", "word_count": 3224 }, "last_updated": "2023-07-14T19:13:49.611372+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "REGINALD O\u2019BANNER, Appellee, v. McDONALD\u2019S CORPORATION et al. (McDonald\u2019s Corporation, Appellant)." ], "opinions": [ { "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nReginald O\u2019Banner brought an action in the circuit court of Cook County to recover damages for personal injuries he allegedly sustained when he slipped and fell in the bathroom of a McDonald\u2019s restaurant. In his complaint, O\u2019Banner named as defendants McDonald\u2019s Corporation (McDonald\u2019s) and certain \"unknown owners.\u201d See 735 ILCS 5/2-413 (West 1994). McDonald\u2019s promptly moved for summary judgment on the grounds that the restaurant was actually owned by one of its franchisees and that it neither owned, operated, maintained, nor controlled the facility.\nAfter initially denying McDonald\u2019s motion, the circuit court granted summary judgment in favor of the company and made an express written finding that there was no just reason to delay an appeal. 155 Ill. 2d R. 304(a). The appellate court subsequently reversed and remanded, with one justice dissenting. 273 Ill. App. 3d 588. We granted McDonald\u2019s petition for leave to appeal (155 Ill. 2d R. 315) and have allowed Amoco Oil Company, Burger King, the Illinois Association of Defense Trial Counsel and the Illinois Trial Lawyers Association to file briefs as friends of the court (155 Ill. 2d R. 345). For the reasons that follow, we now reverse and remand to the circuit court.\nBefore addressing the substantive issues before us, we note, as did the appellate court, that there has been some confusion as to the basis for appellate review. The appellate court realized that the circuit court had entered a written finding under Rule 304(a) (155 Ill. 2d R. 304(a)), which governs final judgments as to fewer than all parties or claims, but it did not understand the purpose for such a finding. It believed that appellate jurisdiction was proper only under Rule 301 (155 Ill. 2d R. 301), which pertains to final judgments that dispose of an entire proceeding.\nWhat the appellate court overlooked was that McDonald\u2019s was not the only defendant named in O\u2019Banner\u2019s complaint. As we have previously indicated, O\u2019Banner named \"unknown owners\u201d as well. The \"unknown owners\u201d were not involved in McDonald\u2019s motion for summary judgment, and the circuit court\u2019s order granting McDonald\u2019s motion did not affect the continued viability of O\u2019Banner\u2019s claims against these remaining defendants. Accordingly, the circuit court\u2019s order did not dispose of the entire proceeding and an appeal could not have been brought under Rule 301. Because summary judgment was granted to fewer than all of the defendants, the only basis for an immediate appeal was under Rule 304(a). McDonald\u2019s itself clearly appreciated this, for its summary judgment motions consistently included a request for entry of the requisite Rule 304(a) findings.\nAlthough O\u2019Banner\u2019s notice of appeal invoked Rule 301 rather than Rule 304(a), that mistake is of no consequence. Nothing in our rules requires a notice of appeal to even mention whether review is sought under Rule 301 or 304(a). What is important is that the notice specify \"the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court\u201d (155 Ill. 2d R. 303(b)(2)) so that the successful party is advised of the nature of the appeal (see Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 433-34 (1979)). There is no question that this requirement was satisfied here. Accordingly, O\u2019Banner\u2019s citation to the wrong rule was nothing more than harmless surplus-age. His notice of appeal was sufficient to invoke the appellate court\u2019s jurisdiction.\nThe substantive issue before the appellate court, and the question which concerns us today, is whether the circuit court erred in granting McDonald\u2019s motion for summary judgment. Under section 2 \u2014 1005(c) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1005(c) (West 1994)), a party is entitled to summary judgment\n\"if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.\u201d\nIn applying this statute, the court must construe the pleadings, depositions and affidavits strictly against the moving party and liberally in favor of the opponent. Although use of the summary judgment procedure can be an efficient means for disposing of certain lawsuits, it is a drastic measure that should be employed only when the right of the moving party is clear and free from doubt. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 271 (1992).\nThe circuit court here entered summary judgment in favor of McDonald\u2019s based on the company\u2019s argument that it was merely the franchisor of the restaurant where O\u2019Banner was injured and, as such, had no responsibility for the conditions that caused his accident. O\u2019Banner challenged this conclusion in the appellate court by theorizing that even though McDonald\u2019s was a franchisor, it could nevertheless be held liable for the franchisee\u2019s negligence under principles of respondeat superior because there was sufficient evidence in the record to establish that the franchisee served as McDonald\u2019s actual agent. In the alternative, O\u2019Banner contended that McDonald\u2019s could be vicariously liable for the acts and omissions of the franchisee based on the doctrine of apparent agency.\nThe appellate court rejected the actual agency theory based on the documentary evidence, but held that there remained genuine issues of material fact with respect to O\u2019Banner\u2019s alternative theory of apparent agency. Accordingly, it reversed and remanded for further proceedings. One justice dissented, arguing that reliance on apparent agency was improper because the theory was not properly raised in the circuit court and there was no factual basis for it in the record. 273 Ill. App. 3d at 596-97 (Rakowski, J., dissenting). The dissenting justice further protested that the majority\u2019s analysis was not supported by precedent from Illinois or elsewhere. 273 Ill. App. 3d at 598-99 (Rakowski, J., dissenting).\nIn the appeal before this court, the issue of actual agency has not been pursued. The sole question before us is whether the appellate court erred in reversing and remanding based on the theory of apparent agency. Although the dissenting appellate court justice believed that the question of apparent agency was not properly before the court for review, resolution of that issue is unnecessary. Even if O\u2019Banner had properly raised the theory of apparent agency in the circuit court, summary judgment against him was nevertheless proper.\nApparent agency, also known in Illinois as apparent authority, has long been recognized in this state and was recently discussed by our court in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993). The doctrine is based on principles of estoppel. The idea is that if a principal creates the appearance that someone is his agent, he should not then be permitted to deny the agency if an innocent third party reasonably' relies on the apparent agency and is harmed as a result. Gilbert, 156 Ill. 2d at 523-24.\nUnder the doctrine, a principal can be held vicariously liable in tort for injury caused by the negligent acts of his apparent agent if the injury would not have occurred but for the injured party\u2019s justifiable reliance on the apparent agency. Gilbert, 156 Ill. 2d at 523-24. The fundamental obstacle to O\u2019Banner\u2019s recovery in this case concerns this element of reliance. Even if one concedes that McDonald\u2019s advertising and other conduct could entice a person to enter a McDonald\u2019s restaurant in the belief it was dealing with an agent of the corporation itself, that is not sufficient. In order to recover on an apparent agency theory, O\u2019Banner would have to show that he actually did rely on the apparent agency in going to the restaurant where he was allegedly injured. See, e.g., Miller v. Sinclair Refining Co., 268 F.2d 114, 118 (5th Cir. 1959) (apparent agency theory rejected in affirming directed verdict for Sinclair Oil because there was absolutely no evidence as to the reason why appellant patronized filling station where he was injured).\nNo amount of liberal construction can alter the fact that the record before us is devoid of anything remotely suggesting that the necessary reliance was present here. The pleadings and affidavit submitted by O\u2019Banner in the circuit court state only that he slipped and fell in the restroom of a McDonald\u2019s restaurant. They give no indication as to why he went to the restaurant in the first place. The fact that this was a McDonald\u2019s may have been completely irrelevant to his decision. For all we know, O\u2019Banner went there simply because it provided the closest bathroom when he needed one or because some friend asked to meet him there.\nIf O\u2019Banner had any basis to support his position, he was obliged to present it to the circuit court. He did not do so, and the time for substantiating any claim of reliance has passed. The appellate court was therefore wrong to reverse the circuit court\u2019s entry of summary judgment in McDonald\u2019s favor based on the apparent agency dodtrine;\nFor the foregoing reasons, the judgment of the appellate court is reversed, the judgment of the circuit court is affirmed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.\nAppellate court judgment reversed; circuit court judgment affirmed; cause remanded.", "type": "majority", "author": "JUSTICE HARRISON" }, { "text": "CHIEF JUSTICE BILANDIC,\ndissenting:\nI respectfully dissent from the majority\u2019s conclusion that summary judgment against Reginald O\u2019Banner was proper. The majority opinion holds that the record is \"devoid\u201d of any facts suggesting that O\u2019Banner relied on an apparent agency in going to the McDonald\u2019s restaurant where he was allegedly injured. 173 Ill. 2d at 214. I disagree with the majority\u2019s assessment of the record.\nIn addressing the issue of whether summary judgment was properly entered against O\u2019Banner, we must keep in mind that summary judgment is a drastic remedy. In re Estate of Hoover, 155 Ill. 2d 402, 410 (1993). A court should only grant summary judgment when the resolution of a case hinges on a question of law and the moving party\u2019s right to judgment is clear and free from doubt. Hoover, 155 Ill. 2d at 410; Colvin v. Hobart Brothers, 156 Ill. 2d 166, 169-70 (1993). If the court finds that the record contains any genuine issue of material fact, it should deny the motion for summary judgment. Because of the severity of the summary judgment remedy, the court has a duty to construe the record strictly against the movant and liberally in favor of the non-moving party. Hoover, 155 Ill. 2d at 411; Colvin, 156 Ill. 2d at 170. When construing the record, the court may draw inferences from the undisputed facts. Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 272 (1992); Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989).\nApplying these principles to the case at bar, summary judgment should not have been granted in McDonald\u2019s Corporation\u2019s favor. When the record is viewed liberally in favor of O\u2019Banner and strictly against McDonald\u2019s Corporation, there remains a genuine issue of material fact concerning the existence of an apparent agency relationship between McDonald\u2019s Corporation and its franchisee, who operated the restaurant where O\u2019Banner was allegedly injured.\nThe apparent agency doctrine recognizes that a \"principal will be bound not only by that authority which he actually gives to another, but also by the authority which he appears to give.\u201d Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 523 (1993). In other words, if the principal creates the appearance that someone is his agent, the principal will not then be permitted to deny the agency where an innocent third party has relied on it and has been harmed as a result. Gilbert, 156 Ill. 2d at 524.\nThis court recently applied the apparent agency doctrine in a tort case in the context of a hospital setting in Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993). There, a patient suffered a heart attack after being treated and released by a physician at a hospital emergency room. The patient sued the hospital for negligence, and the trial court granted the hospital summary judgment on the theory that the hospital could not be held vicariously liable because the emergency room physician was an independent contractor, not an actual agent of the hospital. This court reversed the grant of summary judgment in the hospital\u2019s favor, finding that a genuine issue of material fact remained as to whether the physician was an apparent agent of the hospital. Gilbert, 156 Ill. 2d at 526.\nSimilarly, the apparent agency doctrine can and should be applied in a franchisor-franchisee setting. See Shaffer v. Maier, 68 Ohio 3d 416, 627 N.E.2d 986 (1994); Watson v. Howard Johnson Franchise Systems, Inc., 216 Ga. App. 237, 453 S.E.2d 758 (1995); Parker v. Domino\u2019s Pizza, Inc., 629 So. 2d 1026 (Fla. App. 1993); Gizzi v. Texaco, Inc., 437 F.2d 308 (3d Cir. 1971); Crinkley v. Holiday Inns, Inc., 844 F.2d 156 (4th Cir. 1988). For a franchisor to be vicariously liable for the acts of its franchisee under the apparent agency doctrine, a plaintiff must show that: (1) the franchisor has represented or permitted it to be represented that the party dealing directly with the plaintiff is its agent; and (2) the plaintiff, acting in justifiable reliance on such representations of the franchisor, has dealt with the agent to the detriment of the plaintiff. Crinkley, 844 F.2d at 166; see Gilbert, 156 Ill. 2d at 525. The first element is satisfied where the franchisor holds itself out as the provider of certain goods and services without informing the patron that the goods and services are provided by another, whom it considers to be a nonagent, such as a franchisee. The element of justifiable reliance is satisfied if the plaintiff relies on the franchisor to provide the goods and services, rather than on the franchisee.\nIn the present case, the record contains facts from which it may reasonably be inferred that McDonald\u2019s Corporation holds itself out as being the entity responsible for the operation of McDonald\u2019s restaurants. McDonald\u2019s Corporation\u2019s wide, national advertising and its reach into virtually every aspect of its franchisee\u2019s business make a patron\u2019s assumption that McDonald\u2019s Corporation runs McDonald\u2019s restaurants natural. These facts can be gleaned from the license agreement, which is contained in the record. The license agreement states: \"McDonald\u2019s Corporation *** has developed and operates a restaurant system ('McDonald\u2019s System\u2019). *** The McDonald\u2019s System is operated and is advertised widely within the United States of America.\u201d The license agreement further reveals that McDonald\u2019s Corporation strives, through its contractual agreements, to ensure that it alone controls how the public perceives its restaurants. McDonald\u2019s Corporation\u2019s \"system\u201d is described as being \"comprehensive,\u201d the foundation of which is the franchisee\u2019s adherence to McDonald\u2019s Corporation\u2019s \"standards and policies\u201d \"providing for the uniform operation of all McDonald\u2019s restaurants within the McDonald\u2019s system.\u201d This includes requiring the franchisee to serve only designated food and beverage products; to use only prescribed equipment and building layout and designs; to have all employees wear McDonald\u2019s Corporation\u2019s uniforms; to train management personnel at McDonald\u2019s Corporation\u2019s \"Hamburger University\u201d; and to adhere strictly to McDonald\u2019s Corporation\u2019s prescribed standards of \"Quality, Service and Cleanliness\u201d in the franchisee\u2019s restaurant operation. The McDonald\u2019s Corporation\u2019s national advertising also promotes its \"system\u201d without distinguishing her tween company-owned and franchised properties. Pursuant to this national advertising; the public is pre-. sented with an identical menu, brand names and promotional offers in all McDonald\u2019s Corporation\u2019s restaurants. Given these facts, a jury could reasonably conclude that McDonald\u2019s Corporation acted in such a way as to create the appearance that it owned \u00e1nd operated the McDonald\u2019s restaurant at which the plaintiff was allegedly injured.\nThe second element is whether' O\u2019Banner justifiably acted in reliance on McDonald\u2019s Corporatipn\u2019s representations in going to the McDonald\u2019s restaurant where he was allegedly injured. The majority opinion, finds that the record provides no indication as to why O\u2019Banner went to the McDonald\u2019s restaurant in the first place. 173 Ill. 2d at 214. I' disagree with this finding. O\u2019Banner\u2019s reasons are readily inferable from the rec-. ord. In his response to McDonald\u2019s Corporation\u2019s motion for summary judgment, O\u2019Banner stated that he was a . business invitee of a McDonald\u2019s restaurant. And in his attached affidavit, he averred: \"Upon information and: belief, the executed license agreement *** contains language which establishes that *\u25a0*\u2022* McDonald\u2019s Corporation maintained control in. the operation of the franchise and over the daily procedures and business\u201d of the McDonald\u2019s restaurant. As I noted above in my discussion of the holding-out element; the license agree- , ment shows a great deal of control by McDonald\u2019s Corporation over the franchisee\u2019s operation of. the restaurant at issue. It further details how McDonald\u2019s Corporation nationally advertises its \u2019^comprehensive\u201d and \"uniform\u201d restaurant \"system\u201d to the public as,. inter alia, a \"clean, wholesome atmosphere.\u201d From these facts, a jury may infer that the public perception is that a McDonald\u2019s restaurant is what it proclaims to be and not \"ABC,\u201d the franchisee\u2019s restaurant. Thus, when O\u2019Banner\u2019s reply and affidavit are considered along with the license agreement, there remains a genuine issue of material fact as to whether O\u2019Banner justifiably acted in reliance on the franchisee\u2019s apparent authority in entering the McDonald\u2019s restaurant.\nAfter considering the record liberally in favor of O\u2019Banner, I find that it presents a genuine issue of material fact as to whether McDonald\u2019s Corporation could be vicariously liable for the acts of its franchisee based on the doctrine of apparent agency. O\u2019Banner is thus entitled to his day in court to resolve this factual controversy.\nAs a final matter, McDonald\u2019s Corporation contends that O\u2019Banner waived the issue of apparent agency because he did not plead it. This waiver argument fails. In his complaint, O\u2019Banner alleged that McDonald\u2019s Corporation \"was doing business in Illinois and owning or leasing, operating, maintaining and/or controlling\u201d the McDonald\u2019s restaurant at issue. These allegations are sufficient to plead an agency relationship. See Gilbert, 156 Ill. 2d at 527. I further find that McDonald\u2019s Corporation\u2019s position is disingenuous in this regard. In its motion for reconsideration, McDonald\u2019s Corporation itself acknowledged that O\u2019Banner was seeking to hold it liable based on an apparent agency theory. Consequently, McDonald\u2019s Corporation is not entitled to an affirmance of the summary judgment entered in its favor on this ground.\nFor the reasons stated, there exists a genuine issue of material fact regarding the existence of an apparent agency r\u00e9lationship between McDonald\u2019s Corporation and the franchisee involved in this case. Summary judgment should not have been granted because McDonald\u2019s Corporation\u2019s right to judgment is not clear and free from doubt. The cause should be remanded to the trial court for further proceedings.\nJUSTICE FREEMAN joins in this dissent.", "type": "dissent", "author": "CHIEF JUSTICE BILANDIC," } ], "attorneys": [ "Roderick A. Palmore, of Sonnenschein, Nath & Rosenthal, of Chicago, for appellant.", "Todd Harold Fox, of Kurasch & Stone, Ltd., of Chicago, for appellee.", "Judge & James, Ltd., of Park Ridge (Jay S. Judge, Gregory R. James, Jr., S.A. Genson and Gary A. Lynn, of counsel), for amicus curiae Illinois Association of Defense Trial Counsel.", "Carmen Saginario, Jr., of Capehart & Scatchard, P.A., of Trenton, New Jersey, for amicus curiae Burger King Corp.", "Roland K. Filippi, of Chicago, for amicus curiae Amoco Oil Co.", "Power, Rogers & Smith, P.C., of Chicago (Devon C. Bruce, of counsel), for amicus curiae Illinois Trial Lawyers Association." ], "corrections": "", "head_matter": "(No. 79547.\nREGINALD O\u2019BANNER, Appellee, v. McDONALD\u2019S CORPORATION et al. (McDonald\u2019s Corporation, Appellant).\nOpinion filed May 31, 1996.\n\u2014 Rehearing denied September 30, 1996.\nBILANDIC, C.J., joined by FREEMAN, J., dissenting.\nRoderick A. Palmore, of Sonnenschein, Nath & Rosenthal, of Chicago, for appellant.\nTodd Harold Fox, of Kurasch & Stone, Ltd., of Chicago, for appellee.\nJudge & James, Ltd., of Park Ridge (Jay S. Judge, Gregory R. James, Jr., S.A. Genson and Gary A. Lynn, of counsel), for amicus curiae Illinois Association of Defense Trial Counsel.\nCarmen Saginario, Jr., of Capehart & Scatchard, P.A., of Trenton, New Jersey, for amicus curiae Burger King Corp.\nRoland K. Filippi, of Chicago, for amicus curiae Amoco Oil Co.\nPower, Rogers & Smith, P.C., of Chicago (Devon C. Bruce, of counsel), for amicus curiae Illinois Trial Lawyers Association." }, "file_name": "0208-01", "first_page_order": 220, "last_page_order": 232 }