{ "id": 140172, "name": "EMMANUEL CASTRO, Adm'r of the Estate of Michael Castro, Deceased, et al., Plaintiffs-Appellants and Cross-Appellees, v. BROWN'S CHICKEN AND PASTA, INC., Defendant-Appellee and Third-Party Plaintiff (The Cook County State's Attorney's Office, Intervenor and Cross-Appellant; Ehlenfeldt Enterprises, Inc., Third-Party Defendant)", "name_abbreviation": "Castro v. Brown's Chicken & Pasta, Inc.", "decision_date": "2000-06-15", "docket_number": "No. 1\u201499\u20140888", "first_page": "542", "last_page": "556", "citations": [ { "type": "official", "cite": "314 Ill. App. 3d 542" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "59 F.R.D. 339", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 6464124 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "344" }, { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/frd/59/0339-01" ] }, { "cite": "5 U.S.C. \u00a7\u00a7 552", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(b)(7)(A)" } ], "opinion_index": 0 }, { "cite": "128 F.3d 1122", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 977972 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "1125" } ], "opinion_index": 0, "case_paths": [ "/f3d/128/1122-01" ] }, { "cite": "607 N.E.2d 1255", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "1266" }, { "page": "1266" }, { "page": "1263" } ], "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 314", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5136792 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "331" }, { "page": "331-32" }, { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0314-01" ] }, { "cite": "704 N.E.2d 750", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "755" }, { "page": "755" } ], "opinion_index": 0 }, { "cite": "301 Ill. App. 3d 839", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257143 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "844" }, { "page": "844" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0839-01" ] }, { "cite": "574 N.E.2d 200", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "203" } ], "opinion_index": 0 }, { "cite": "214 Ill. App. 3d 868", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5297011 ], "year": 1991, "pin_cites": [ { "page": "875-76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0868-01" ] }, { "cite": "554 N.E.2d 629", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "636" }, { "page": "636" }, { "page": "637" }, { "page": "631" }, { "page": "636" }, { "page": "637" } ], "opinion_index": 0 }, { "cite": "196 Ill. App. 3d 1066", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2488082 ], "weight": 6, "year": 1990, "pin_cites": [ { "page": "1076" }, { "page": "1076" }, { "page": "1075-76" }, { "page": "1068" }, { "page": "1075" }, { "page": "1075-76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/1066-01" ] }, { "cite": "292 Ill. App. 3d 88", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725035 ], "year": 1997, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0088-01" ] }, { "cite": "502 N.E.2d 315", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "defendant cannot be held liable under a principal-agent theory since plaintiffs father and her uncle both testified that they exercised day-to-day control over their store and they alone had the power to hire and fire employees" } ], "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 1052", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3503334 ], "year": 1986, "pin_cites": [ { "parenthetical": "defendant cannot be held liable under a principal-agent theory since plaintiffs father and her uncle both testified that they exercised day-to-day control over their store and they alone had the power to hire and fire employees" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/1052-01" ] }, { "cite": "373 N.E.2d 1371", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "1373" }, { "page": "1373" }, { "page": "1375" }, { "page": "1375" } ], "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 237", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5627805 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "239" }, { "page": "239" }, { "page": "241-42" }, { "page": "241-42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0237-01" ] }, { "cite": "644 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 521", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381892 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "526" }, { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0521-01" ] }, { "cite": "199 N.E.2d 783", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1964, "pin_cites": [ { "page": "783" }, { "page": "779-83" }, { "page": "779-83" } ], "opinion_index": 0 }, { "cite": "31 Ill. 2d 69", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2832377 ], "weight": 4, "year": 1964, "pin_cites": [ { "page": "83" }, { "page": "71" }, { "page": "79-83" }, { "page": "79-83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0069-01" ] }, { "cite": "685 N.E.2d 985", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "986" } ], "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 490", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725114 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0490-01" ] }, { "cite": "605 N.E.2d 557", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "563" }, { "page": "560" }, { "page": "561" }, { "page": "560" } ], "opinion_index": 0 }, { "cite": "153 Ill. 2d 26", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738245 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "32" }, { "page": "29" }, { "page": "30-31" }, { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0026-01" ] }, { "cite": "606 N.E.2d 845", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 403", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5147222 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0403-01" ] }, { "cite": "572 N.E.2d 1073", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1991, "pin_cites": [ { "page": "1076" }, { "page": "1076" }, { "page": "1076" }, { "page": "1076" }, { "page": "1078" }, { "page": "1078" }, { "page": "1078" }, { "page": "1078" } ], "opinion_index": 0 }, { "cite": "213 Ill. App. 3d 487", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2604284 ], "weight": 8, "year": 1991, "pin_cites": [ { "page": "490" }, { "page": "490" }, { "page": "490" }, { "page": "489" }, { "page": "492" }, { "page": "491" }, { "page": "493" }, { "page": "491-92" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/213/0487-01" ] } ], "analysis": { "cardinality": 1338, "char_count": 35803, "ocr_confidence": 0.755, "pagerank": { "raw": 2.2801521497645845e-07, "percentile": 0.785066040529776 }, "sha256": "5a23fab9b9f8425d491caa4014c8cce8e64a94c82920982d4a38087d2141b1ef", "simhash": "1:0376759f0f4f0de6", "word_count": 5701 }, "last_updated": "2023-07-14T20:48:47.280070+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EMMANUEL CASTRO, Adm\u2019r of the Estate of Michael Castro, Deceased, et al., Plaintiffs-Appellants and Cross-Appellees, v. BROWN\u2019S CHICKEN AND PASTA, INC., Defendant-Appellee and Third-Party Plaintiff (The Cook County State\u2019s Attorney\u2019s Office, Intervenor and Cross-Appellant; Ehlenfeldt Enterprises, Inc., Third-Party Defendant)." ], "opinions": [ { "text": "JUSTICE SOUTH\ndelivered the opinion of the court:\nOn January 8, 1993, at approximately 9 p.m., one or more persons entered the Brown\u2019s Chicken & Pasta, Inc. (Brown\u2019s), restaurant in Palatine, Illinois, and murdered seven people. The franchisees, Mr. and Mrs. Ehlenfeldt, had just entered into a franchise agreement with Brown\u2019s approximately six months prior on May 29, 1992. The victims of the crime, the Ehlenfeldts, Michael Castro, Rico Solis, Guadalupe Maldonado, Thomas Mennes and Marcus Nellsen, were discovered at approximately 3 a.m. by a Palatine police officer. No one has been charged with these murders, and the investigation is ongoing. A task force, which consists of law enforcement officers from various state and federal jurisdictions, the Cook County State\u2019s Attorney\u2019s office, seven full-time investigators, and two part-time Federal Bureau of Investigation staff members, was formed for the purpose of solving this crime.\nOn January 6, 1995, Emmanuel Castro, as administrator for the estate of his deceased son, Michael Castro, filed suit against Brown\u2019s alleging that Brown\u2019s exercised control over the franchisee by virtue of the franchise agreement and by recommending safety rules for the employees. Brown\u2019s filed a motion to dismiss the complaint alleging that the plaintiff had failed to allege a \u201cvoluntary undertaking.\u201d On June 29, 1995, Judge Hogan dismissed the wilful and wanton counts of the plaintiffs complaint (counts III and IV) and gave plaintiff leave to amend to include a cause of action for a \u201cvoluntary undertaking to provide safety.\u201d\nOn January 8, 1996, Evelyn Urgena was appointed administrator for the estate of Rico Solis and a second lawsuit was filed against Brown\u2019s. This complaint was essentially the same as the Castro complaint, and the two cases were consolidated on March 21, 1996.\nDuring the course of discovery, Brown\u2019s subpoenaed the Village of Palatine\u2019s (the Village) records on the crime, and the Village moved to quash, arguing that the subpoena was vague, overly broad and subject to an investigatory privilege. On October 4, 1995, the. court ruled in favor of the Village. Brown\u2019s subsequently filed a second subpoena, narrowing the requests, and the Village again moved to quash. On January 9, 1996, the judge ordered the Village to produce certain items and provided for a protective order on anything that the Village did produce.\nThe Cook County State\u2019s Attorney\u2019s office petitioned to intervene and moved to quash the subpoena served by Brown\u2019s on the Cook County medical examiner. The court allowed intervention but denied the motion.\nDuring discovery, Brown\u2019s produced numerous documents, including a franchise agreement which is relied upon by both parties. Brown\u2019s specifically points to the \u201cIndependent Contractors/ Indemnification\u201d clause within the agreement, which provides, \u201cnor shall Brown\u2019s be obligated for any damages to any person *** directly or indirectly arising out of the operation of the store or franchisee\u2019s business conducted hereunder, whether caused by franchisee\u2019s negligence or willful action or failure to act.\u201d Plaintiffs also point to various provisions within the agreement in support of their position. Section 10, entitled \u201cSpecifications, Standards, Procedures and Rules,\u201d states in pertinent part that \u201cfranchisee agrees to comply fully with all mandatory specifications, standards, operating procedures, and rules from time to time prescribed by Brown\u2019s *** including, without limitation, specifications, standards, operating procedures and rules pertaining to: (1) safety.\u201d Section 20 of the agreement, entitled \u201cTermination of Franchise,\u201d states: \u201cBrown may terminate this agreement *** if franchisee, the store or the principal owner or owners of the equity or operating control of franchisee: *** operates the store in a manner that presents a health or safety hazard to its customers, employees or the public.\u201d\nBrown\u2019s also presented Mary Childers, the director of franchise services for Brown\u2019s, for deposition. Ms. Childers conducted routine quality inspections for the franchise stores to monitor compliance with Brown\u2019s guidelines and to answer questions that employees might have. She visited the Palatine store at least once a month and would conduct her inspections based upon a preprinted quality inspection checklist. Out of the six inspections conducted after the Ehlenfeldts took over ownership of the Palatine store, Ms. Childers noted on one of the inspection sheets that the back door of the store was not locked and that this was bad for security and health. She testified that the reason she made that notation was because there was always a concern about employee theft. She also stated that there were state health regulations against open doors and windows in restaurants. Ms. Childers testified at her deposition that she did not inspect the stores for security but for safety. She was only concerned with safety as it related to food items and slip and fall hazards, and her inspections did not include anything related to crime prevention.\nJohn Gregornik, the owner of the Palatine franchise prior to the Ehlenfeldts, was also deposed. Mr. Gregornik owned up to six franchise stores at one time. He testified that there is a distinct difference between company-owned stores and franchises; that the franchisees developed their own policies and procedures; that memos from the corporation were often disregarded altogether; and that he was free to run his restaurants the way he saw fit and to implement any security measures he deemed necessary.\nOn December 17, 1996, Brown\u2019s filed a motion for summary judgment. Attached to the motion was an affidavit by Michelle Hudak, the director of training and human resources for Brown\u2019s. In that affidavit, Ms. Hudak stated that Brown\u2019s did not mandate any security measures for the franchisees, did not provide the franchisees with any written materials dealing with the issue of security, and did not employ any security personnel for the franchisees, and any security measures were left entirely up to the franchisees\u2019 discretion. Plaintiffs responded and attached a memo from Ms. Hudak dated November 25, 1992, which was sent to all Brown\u2019s company-owned stores, as well as to the owners of franchise stores. The memo stated in part:\n\u201cEach year, we see an increase in robberies at this time of year. Losing the money is one thing, but more importantly, our reputation for having only small quantities of money in the store must be maintained so potential robbers will regard us as poor targets. Therefore, please examine your deposit and security procedures and make certain there is no more than a minimal amount of money in the store at one time.\nAttached is a list of security procedures that will make your store less attractive to a robber. Implement immediately.\nLet\u2019s work together to make Brown\u2019s Chicken & Pasta a safe and pleasant place to work.\u201d (Emphasis in original.)\nOn August 6, 1997, Judge Hogan denied Brown\u2019s motion for summary judgment. Brown\u2019s filed a motion to reconsider the motion for summary judgment, which was denied as to the issue of \u201cvoluntary undertaking\u201d and granted as to the issue of proximate cause. On February 5, 1999, Judge Hogan granted Brown\u2019s renewed motion for summary judgment on the issue of proximate cause, but denied the motion with regard to the voluntary undertaking issue. He also denied plaintiffs\u2019 motion to compel discovery from investigating bodies or agencies, quashed their motion for subpoenas, denied the State\u2019s Attorney\u2019s motion to stay and later amended the order to include Rule 304(a) (134 Ill. 2d R. 304(a)) language. Plaintiffs\u2019 notice of appeal was filed on March 5, 1999. In addition to Brown\u2019s response to plaintiffs\u2019 appeal, Ehlenfeldt Enterprises, Inc., the Cook County State\u2019s Attorney\u2019s office, and the Village of Palatine and its task force have also filed responses to plaintiffs\u2019 brief.\nThe issues raised on appeal are (1) whether Brown\u2019s voluntarily undertook to provide security at the Palatine restaurant; (2) whether the circuit court erred in denying plaintiffs\u2019 discovery requests on the issue of proximate cause and then entering summary judgment against the plaintiffs on the basis that plaintiffs had not and could not prove that element; and (3) whether the State\u2019s Attorney and the Village of Palatine made a sufficient showing to invoke an investigative privilege.\nIn order to recover on a theory of negligence, the plaintiff must show that the defendant owed him a duty, that the defendant breached that duty, that he suffered injury as a result of that breach and that defendant\u2019s breach of duty or negligence was the proximate cause of his injuries. Martin v. McDonald\u2019s Corp., 213 Ill. App. 3d 487, 490, 572 N.E.2d 1073, 1076 (1991). The question of duty, the legal obligation imposed upon one for the benefit of another, is a question of law to be determined by the court. Martin, 213 Ill. App. 3d at 490, 572 N.E.2d at 1076. If no legal duty exists based upon a \u201cspecial relationship\u201d between the plaintiff and the defendant, liability can also be imposed on the defendant for negligent performance of a voluntarily undertaking. Martin, 213 Ill. App. 3d at 490, 572 N.E.2d at 1076.\nClearly, there is no legal duty on the part of Brown\u2019s because no special relationship exists between it and plaintiff. Therefore, the issue becomes whether Brown\u2019s was negligent in voluntarily undertaking to provide security for the plaintiffs. Whether a defendant has voluntarily undertaken a legal duty to a plaintiff seeking to bring a negligence action is a question of law that is properly addressed by the court on a motion for summary judgment. Lavazzi v. McDonald\u2019s Corp., 239 Ill. App. 3d 403, 409, 606 N.E.2d 845, 851 (1992).\nSection 324A of the Restatement (Second) of Torts provides in pertinent part:\n\u201cOne who undertakes *** to render services to another which he should recognize as necessary for the protection of a third person *** is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if\n(a) his failure to exercise reasonable care increases the risk of such harm, or\n(b) he has undertaken to perform a duty owed by the other to the third person, or\n(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.\u201d Restatement (Second) of Torts \u00a7 324A (1965).\nHowever, under the voluntary undertaking doctrine of liability, the duty of care to be imposed upon the defendant is limited to the extent of the undertaking. Frye v. Medicare-Glaser Corp. 153 Ill. 2d 26, 32, 605 N.E.2d 557, 563 (1992).\nIn Frye, the Illinois Supreme Court reversed an appellate court decisi\u00f3n and granted summary judgment in favor of defendants. Frye, 153 Ill. 2d 26, 605 N.E.2d 557. The court reasoned that, although defendants voluntarily placed drowsiness warnings on plaintiff\u2019s prescription, they did not assume the responsibility to warn decedent of all possible dangers and side effects related to the taking of the medication. Frye, 153 Ill. 2d at 29, 605 N.E.2d at 560. Plaintiff argued that the drowsy-eye label was inadequate to warn of the real dangers of the side effects associated with Fiorinal, namely, drinking alcohol while taking the drug, and that one would be misled into thinking that the worst side effect one could anticipate was drowsiness. Frye, 153 Ill. 2d at 30-31, 605 N.E.2d at 561. However, the court reasoned that, the \u201cplaintiff has taken an overly broad interpretation of the defendants\u2019 undertaking.\u201d Frye, 153 Ill. 2d at 33, 605 N.E.2d at 560. The extent of the defendants\u2019 undertaking was to warn of possible drowsiness associated with the drug, which they undertook with reasonable care.\nIn Kolodziejzak v. Melvin Simon & Associates, 292 Ill. App. 3d 490, 685 N.E.2d 985 (1997), reversing a lower court decision, the appellate court held that defendant was not negligent in conducting follow-up on its security company or in failing to hire additional guards. In Kolodziejzak, defendant entered into a one-year contract with a strip mall, Yards Plaza, to provide security to the common areas of the plaza and prepared daily reports that were submitted to the on-site operations manager. Kolodziejzak, 292 Ill. App. 3d at 491, 685 N.E.2d at 986. While attempting to apprehend a shoplifter, Kolodziejzak, a loss prevention specialist employed by one of the mail\u2019s tenants, was fatally shot by a shoplifter. Refusing to apply the reasoning in Martin, the court held that the only duty defendant undertook was the duty to review daily log reports, and this duty was adequately performed.\nIn Martin, a case relied upon by plaintiffs, a robbery and murder took place after closing at a McDonald\u2019s restaurant. Martin, 213 Ill. App. 3d at 489, 572 N.E.2d at 1076. In that case, the court concluded that by the licensor\u2019s control of the licensee\u2019s security procedures defendant voluntarily undertook to provide for the security of its licensee\u2019s employees and, therefore, a duty to provide security arose. Martin, 213 Ill. App. 3d at 492, 572 N.E.2d at 1078. The court reasoned that, although there was no legal duty to protect plaintiffs against the criminal acts of third parties, there was a voluntary undertaking by defendant\u2019s regional security supervisor, who acted directly as the security supervisor for the licensee. The licensee did not have an operations manager or security manager of its own, and defendant provided detailed, mandatory security measures to be followed by the licensee\u2019s employees. It created a branch of its corporation assigned to deal with security problems and even prepared a security bible for the benefit of the licensee. Additionally, McDonald\u2019s also communicated to the store management what the security policies were and followed up with the licensee to make sure that all problems were corrected. Martin, 213 Ill. App. 3d at 491, 572 N.E.2d at 1078. Based upon these facts, including testimony at trial, the appellate court concluded that a duty had been created by the defendant\u2019s voluntary undertakings. Martin, 213 Ill. App. 3d at 493, 572 N.E.2d at 1078.\nA similar conclusion was reached in Nelson, where the Illinois Supreme Court held that defendant insurance company\u2019s gratuitous safety inspections and safety engineering services with respect to a hoist on a construction site gave rise to a duty to plaintiff construction workers. Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 83, 199 N.E.2d 783 (1964). Seven of the plaintiffs were killed and thirteen others severely injured when the hoist cable broke and the plaintiffs plunged six floors to the ground. Nelson, 31 Ill. 2d at 71, 199 N.E.2d at 783. The Nelson court concluded that there was a voluntary undertaking because: (1) defendant had repeatedly advertised that it provided safety engineering services that could increase an insured\u2019s worker safety and lower an insured\u2019s costs; (2) defendant\u2019s safety engineer made frequent safety inspections, which included careful inspection of the hoist; (3) defendant\u2019s safety engineer filed reports of his safety inspections with defendant and the insured, and the reports specifically mentioned the hoist and sometimes included recommendations for changes to improve safety; and (4) the insured relied on defendant\u2019s safety inspections and did not employ a safety engineer or safety inspector of its own. Nelson, 31 Ill. 2d at 79-83, 199 N.E.2d at 779-83.\nIn the case at bar, the acts on the part of Brown\u2019s do not rise to the level of the \u201cvoluntary undertaking\u201d assumed by defendants in Martin or Nelson, nor do they satisfy the required elements under the Restatement (Second) of Torts. The facts of this case, as well as all of the supporting depositions, affidavits and pleadings on file, support summary judgment in favor of Brown\u2019s as to the duty issue. See also Decker v. Domino\u2019s Pizza, Inc., 268 Ill. App. 3d 521, 644 N.E.2d 515 (1994) (appellate court found voluntary undertaking on the part of defendant for establishing a security program to deter robbery and to protect its employees from harm in the event of a robbery by establishing a protective services department, setting up a hotline for security-related matters, setting up a committee to review security matters, and making it mandatory for both corporate and franchise stores to use the case management system and time-delay safe). Once again, the essential element of the voluntary undertaking doctrine is an undertaking, and the duty imposed upon defendant is the extent of that undertaking. Decker, 268 Ill. App. 3d at 526, 205 N.E.2d at 520.\nPlaintiffs argue that Brown\u2019s voluntary undertaking was evidenced by several factors, such as Ms. Hudak\u2019s November 25, 1992, memo to all store owners and several provisions contained in the purchase agreement. Plaintiffs allege that these factors demonstrate that Brown\u2019s had control over the franchisee and voluntarily undertook the responsibility of providing security for the Palatine location. Plaintiffs\u2019 position is incorrect.\nAlthough Ms. Hudak sent a letter regarding security to all stores, including the franchise stores, she testified in her deposition that Brown\u2019s did not mandate any security measures to be followed by the franchisees, they did not provide the franchisees with any written materials dealing with the issue of security, and they did not employ any security personnel for the franchisees. She further testified that all security measures were left entirely up to the franchisees\u2019 discretion.\nMs. Childers, the director of franchise services for Brown\u2019s Chicken, testified in her deposition that although she did conduct routine quality inspections at the franchise stores, she did not inspect, the stores for security purposes but for food safety purposes only. She stated it was against state health regulations for there to be open doors and windows in restaurants. She was only concerned with safety as it related to food items and slip and fall hazards, and her inspections did not include anything related to crime prevention. She explained during her deposition that the reason she included a statement about the door of the franchise being unlocked on one of her checklists was because there was always a concern about employee theft.\nMr. Gregornik, the owner of the Palatine franchise prior to the Ehlenfeldts and an owner of up to six franchises at a time, testified that there is a distinct difference between company-owned stores and franchises and that the franchisees develop their own policies and procedures with respect to security at their restaurant, including training the employees on security procedures. He further testified that memos from the corporation were often disregarded altogether and that he was free to run his restaurants as he saw fit and to implement any security measures he deemed necessary.\nFurthermore, the evidence from the police investigation suggests that the assailant probably gained entry during the restaurant\u2019s hours of operation, ordered a meal, and remained there until the restaurant closed. As such, even if Brown\u2019s had voluntarily assumed a duty to the decedents, this duty would have been limited to the extent of the undertaking \u2014 to follow up on the memo sent out by Ms. Hudak to make sure that the security procedure she suggested, i.e., \u201ckeeping the back door locked,\u201d was implemented. If, however, the assailant gained entry by means other than through this unlocked door, no duty assumed by Brown\u2019s was breached.\nWith respect to the franchise agreement, plaintiffs argue that several of the terms prove that Brown\u2019s had control over the franchisee\u2019s day-to-day operations, including security. The section entitled \u201cSpecifications, Standards, Procedures and Rules\u201d states in pertinent part that the \u201cfranchisee agrees to comply fully with all mandatory specifications, standards, operating procedures, and rules from time to time prescribed by Brown\u2019s *** including, without limitation, specifications, standards, operating procedures and rules pertaining to: (1) safety.\u201d The section entitled \u201cTermination of Franchise\u201d states in pertinent part that \u201cBrown may terminate this agreement *** if franchisee, the store or the principal owner or owners of the equity or operating control of franchisee: *** operates the store in a manner that presents a health or safety hazard to its customers, employees, or the public.\u201d\nCoty v. U.S. Slicing Machine Co., 58 Ill. App. 3d 237, 239, 373 N.E.2d 1371, 1373 (1978), was the first Illinois Appellate Court case to squarely address the issue of whether a franchisor\u2019s ability to terminate a contract was enough to constitute control over the franchisee\u2019s day-to-day activities and, therefore, impose liability on the franchisor for the actions of the franchisee. In that case, a 15-year-old girl who was injured while operating a meat slicing machine at the franchisee\u2019s restaurant sued based upon a theory of negligence. Coty, 58 Ill. App. 3d at 239, 373 N.E.2d at 1373. The appellate court held that, although based upon the franchise agreement, the franchisor could have requested that franchisee stop employing children to do that particular type of work or terminated the entire agreement if the franchisee failed to do so. The provision was insufficient to subject the franchisor to liability based upon agency or employer-independent contractor cases. Coty, 58 Ill. App. 3d at 241-42, 373 N.E.2d at 1375. The \u201cmere reservation of \u2018a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed *** does not mean that the contractor is controlled as to his methods of work, or as to operative detail.\u2019 [Citations.] *** [The] right to interdict unsafe practices must consist of something more than a general right to make suggestions or recommendations or to order the work stopped or resumed.\u201d Coty, 58 Ill. App. 3d at 241-42, 373 N.E.2d at 1375.\nThe Illinois courts have consistently followed the reasoning in Coty and have refused to impose liability on the defendant in franchisor-franchisee cases where the franchisee has retained total control over its own day-to-day operations, despite language in the agreement that gives the franchisor a right to rescind the contract. See Lavazzi, 239 Ill. App. 3d 403, 606 N.E.2d 845 (the court followed the reasoning in Coty that a right to rescind a contract or call off work is generally insufficient to'establish control and impose liability for workers\u2019 safety); Yassin v. Certified Grocers of Illinois, Inc., 150 Ill. App. 3d 1052, 502 N.E.2d 315 (1986) (defendant cannot be held liable under a principal-agent theory since plaintiffs father and her uncle both testified that they exercised day-to-day control over their store and they alone had the power to hire and fire employees).\nIn this case, nothing in the record supports the conclusion that Brown\u2019s controlled the franchisee\u2019s day-to-day operations in any way. Unlike the defendants in Martin, Nelson and Decker, Brown\u2019s did not implement mandatory security measures to be followed by the franchisee, it did not follow up to make sure that security recommendations were followed, it did not provide security for the Palatine restaurant or engage in routine security checks, and it did not set up a security hotline or a committee to review security measures. Martin, 213 Ill. App. 3d at 491-92, 572 N.E.2d at 1078; Nelson, 31 Ill. 2d at 79-83, 199 N.E.2d at 779-83; Decker, 268 Ill. App. 3d at 526, 205 N.E.2d at 520.\nIn addition, the purchase agreement also makes it clear that the franchisee was in control of the restaurant. Several provisions within the agreement were stricken by the parties, such as the section entitled \u201cTRAINING\u201d and \u201cSTORE OPENING.\u201d Furthermore, the first sentence of section 24 of the agreement, entitled \u201cINDEPENDENT CONTRACTORS/ INDEMNIFICATION,\u201d states: \u201cBrown and Franchisee are independent contractors.\u201d Finally, as Brown\u2019s points out in its response, there are no provisions within the agreement regarding the security of the store, nor is there any provision stating that Brown\u2019s is responsible for that security.\nTherefore, it is the opinion of this court that Brown\u2019s did not voluntarily undertake to provide security for the Palatine location, and summary judgment should have been granted in favor of Brown\u2019s on the issue of duty. Although the court was incorrect as to that particular issue, we may affirm the decision of the trial court to grant summary judgment on any basis in the record, regardless of whether it relied on that ground or whether its reasoning was correct. Grot v. First Bank of Schaumburg, 292 Ill. App. 3d 88, 93 (1997).\nThe next issue we address is the court\u2019s denial of plaintiffs\u2019 discovery requests on the issue of proximate cause and its entry of summary judgment against plaintiffs on the basis that they could not prove that element.\n\u201cProximate cause\u201d exists when injury to the plaintiff is the natural and probable result of a negligent act or omission of the defendant. N.W. v. Amalgamated Trust & Savings Bank, 196 Ill. App. 3d 1066, 1076, 554 N.E.2d 629, 636 (1990). Ordinarily, the issue of proximate cause is a question of fact. However, when the facts are undisputed, this issue becomes a question of law. N.W., 196 Ill. App. 3d at 1076, 554 N.E.2d at 636. The element of proximate cause must be established to a reasonable certainty, and no finding can be based upon mere speculation, guess, surmise or conjecture. Wilson v. Bell Fuels, 214 Ill. App. 3d 868, 875-76, 574 N.E.2d 200, 203 (1991). If, upon all the evidence contained in the record, it cannot be established with reasonable certainty that defendant\u2019s acts caused plaintiff\u2019s injury, summary judgment is appropriate. N.W., 196 Ill. App. 3d at 1075-76, 554 N.E.2d at 637.\nIn N.W., an unknown intruder sexually assaulted the plaintiff after gaining entry to her apartment. Plaintiff brought an action for negligence against the defendant claiming that defendant\u2019s negligence was the proximate cause of her injuries. N.W., 196 Ill. App. 3d at 1068, 554 N.E.2d at 631. Plaintiff alleged that defendant knew or should have known that the lock to the rear entrance was broken, that defendant failed to fix the lock, and that this failure was the proximate cause of her injuries. However, based upon the evidence, the other tenants in the building, as well as their guests, had free access to the stairwell that led up to the plaintiffs kitchen door. Therefore, plaintiff could not be reasonably certain that the intruder gained entry to the building by way of the rear entrance. In granting summary judgment in favor of defendant, the court reasoned that a \u201cgenuine issue of material fact\u201d means that there is evidence to support the position of the nonmoving party and that there was a reasonable certainty that defendant\u2019s acts caused the injury. N.W., 196 Ill. App. 3d at 1075, 554 N.E.2d at 636. The only evidence that could lead to an inference that the assailant gained entry to the building by way of the unlocked back door was that the lock was broken on the night that the plaintiff was sexually \u00bfssaulted. The court noted that this possible causal connection was insufficient to raise the requisite inference of fact. N.W., 196 Ill. App. 3d at 1075-76, 554 N.E.2d at 637.\nIn this case, even if plaintiffs were to establish that Brown\u2019s had voluntarily undertaken to \u201cprovide adequate security measures to prevent entrance to the premises after it was closed to the public,\u201d as they state in their complaint, they cannot establish that this undertaking was the proximate cause of the murders. According to investigative police reports it is highly likely that the killer gained entry to the restaurant through the front door prior to closing, purchased a meal as a ruse, and remained until after the store was closed. There was nothing to indicate he gained entry through the unlocked door. Therefore, even if Brown\u2019s had assumed a duty to make sure that the doors to the restaurant remained locked after closing, plaintiffs cannot establish with reasonable certainty that a breach of this duty was the proximate cause of the murders.\nPlaintiffs cannot point to anything in the record that would \u201cestablish to a reasonable certainty\u201d that Brown\u2019s alleged voluntary undertaking was the proximate cause of the crime committed at the Palatine restaurant. As the court reasoned in N.W., a genuine issue of material fact means that there is evidence to support the position of the nonmoving party and that there is a reasonable certainty that defendant\u2019s acts caused the injuiy. That has not been established here. The trial court\u2019s decision to grant summary judgment in favor of Brown\u2019s on the issue of proximate cause was correct.\nThe final issue we address is whether the State\u2019s Attorney and the Village of Palatine made a sufficient showing to invoke the investigative privilege.\nThe trial court has broad discretion in ruling on discovery matters. Avery v. Sabbia, 301 Ill. App. 3d 839, 844, 704 N.E.2d 750, 755 (1998). As such, a discovery order will not be disturbed absent an abuse of discretion. Avery, 301 Ill. App. 3d at 844, 704 N.E.2d at 755. An abuse of discretion occurs where the trial court acts arbitrarily and fails to employ conscientious judgment and ignores recognized principles of law. Avery, 301 Ill. App. 3d 839, 704 N.E.2d 750.\nThe Illinois Appellate Court has recently recognized the law enforcement investigatory privilege in In re Marriage of Daniels, 240 Ill. App. 3d 314, 607 N.E.2d 1255 (1992). This qualified common law privilege applies both to tangible evidence and oral testimony. Daniels, 240 Ill. App. 3d at 331, 607 N.E.2d at 1266. Incorporated under Rule 26(b) of the Federal Rules of Civil Procedure, it serves \u201cto prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witnesses and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.\u201d Hernandez v. Longini, No. 96C6203, slip op. at 9 (U.S. November 10, 1997). In determining whether this privilege applies to a particular case, the court must balance the public benefit of the confidentiality of the law enforcement investigation with the need of a civil litigant to receive such information. Daniels, 240 Ill. App. 3d at 331-32, 607 N.E.2d at 1266.\nIn Dellwood Farms v. Cargill, 128 F.3d 1122 (7th Cir. 1997), the seventh circuit held that the investigatory files in an ongoing criminal investigation are privileged and not subject to discovery and that it is improper for the judiciary to thrust itself into a criminal investigation for the purpose of facilitating a criminal investigation. \u201cThe balancing of *** the need of the litigant who is seeking investigative materials\u2014 against the harm to the government if the privilege is lifted is *** confided to the discretion of the district judge, meaning that appellate review is deferential.\u201d Dellwood, 128 F.3d at 1125. Furthermore, both the Illinois and federal Freedom of Information Acts are parallel in their recognition that investigatory files in ongoing criminal investigations should not be disclosed. 5 ILCS 140/7(c) (i) through (c) (viii) (West 1992); 5 U.S.C. \u00a7\u00a7 552(b)(7)(A), (b)(7)(D) (1976).\nIn Daniels, the court relied on both state and federal court opinions as well as the Illinois and federal Freedom of Information Acts (FOIA) in recognizing the investigatory privilege. The court noted that although the FOIA exemptions deal with the \u201cdisclosure to the public generally, not disclosure in response to discovery in litigation,\u201d the relation between discovery procedures and the FOIA is well established. Daniels, 240 Ill. App. 3d at 326, 607 N.E.2d at 1263. In determining whether the privilege applied in the Daniels case, the court relied on 10 criteria that were used in Frankenhauser v. Rizzo, 59 F.R.D. 339 (1973), to conduct the balancing test. However, it is important to note that the court was very clear in Frankenhauser that the additional criteria used in that case to conduct the balancing test should primarily be used in civil rights cases. Frankenhauser, 59 F.R.D. at 344. Therefore, the correct test in determining whether the privilege should be applied in this case is the balancing test where the court must balance the public benefit of the confidentiality of the law enforcement investigation with the need of a civil litigant to receive such information.\nHere, the trial court properly balanced the interests of the government in keeping the information obtained in the murder investigation confidential, against the interests of the plaintiffs. First, the investigation is not complete, and the perpetrator of this crime may still be at large. For this reason alone, it is imperative that the investigation remain confidential. The courts in both Dellwood and Daniels reasoned that, in an ongoing investigation, the courts should defer to the execulive branch and not interfere in the investigatory process. Second, the protection of the individuals involved in this investigation could be jeopardized if these files are disclosed. Third, if the task force and the Cook County State\u2019s Attorney\u2019s office are required to disclose this information, the entire investigation could be thwarted, and the ultimate goal of all the parties involved, i.e., the apprehension of the perpetrator, might never be accomplished. Therefore, the trial court\u2019s determination that the State\u2019s Attorney and the Village of Palatine have made a sufficient showing to invoke the investigative privilege must be upheld.\nBased upon the foregoing analysis, the judgment of the circuit court is affirmed.\nAffirmed.\nHALL and BARTH, JJ., concur.\n\"Special relationships\u201d that have been recognized by the courts have been common carrier/passenger, innkeeper/guest, possessor of land/member of the public, or one who had custody of another who is deprived of the opportunity to protect himself.\nIn that case, the court reasoned that, generally, when considering whether the investigatory privilege should apply, \u201cthe court must balance the public interest in the confidentiality of governmental information against the needs of a litigant to obtain data ***. In the context of discovery of police investigation files in a civil rights case, however, at least the following considerations should be examined ***.\u201d 59 F.R.D. at 344.\nIn Daniels, the court noted that this factor, whether the investigation is complete, is entitled to significant weight in the balancing process.", "type": "majority", "author": "JUSTICE SOUTH" } ], "attorneys": [ "Terrence E. Leonard, of Chicago, for appellants.", "Cassiday Schade & Gloor, of Chicago (Bruce M. Wall and Donald F. Ivansek, of counsel), for appellee Brown\u2019s Chicken & Pasta, Inc.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Maureen F. Mulvenna, Assistant State\u2019s Attorney, of counsel), for intervenor Cook County State\u2019s Attorney\u2019s Office.", "Hinshaw & Culbertson, of Chicago (Stephen R. Swofford, David H. Levitt, and Christine L. Olson, of counsel), for Ehlenfeldt Enterprise, Inc.", "Thomas R. Burney, Glenn C. Sechen, and James R. Griffin, all of Schain Burney Ross & Citron, Ltd., of Chicago, for Village of Palatine." ], "corrections": "", "head_matter": "EMMANUEL CASTRO, Adm\u2019r of the Estate of Michael Castro, Deceased, et al., Plaintiffs-Appellants and Cross-Appellees, v. BROWN\u2019S CHICKEN AND PASTA, INC., Defendant-Appellee and Third-Party Plaintiff (The Cook County State\u2019s Attorney\u2019s Office, Intervenor and Cross-Appellant; Ehlenfeldt Enterprises, Inc., Third-Party Defendant).\nFirst District (4th Division)\nNo. 1\u201499\u20140888\nOpinion filed June 15, 2000.\nTerrence E. Leonard, of Chicago, for appellants.\nCassiday Schade & Gloor, of Chicago (Bruce M. Wall and Donald F. Ivansek, of counsel), for appellee Brown\u2019s Chicken & Pasta, Inc.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Maureen F. Mulvenna, Assistant State\u2019s Attorney, of counsel), for intervenor Cook County State\u2019s Attorney\u2019s Office.\nHinshaw & Culbertson, of Chicago (Stephen R. Swofford, David H. Levitt, and Christine L. Olson, of counsel), for Ehlenfeldt Enterprise, Inc.\nThomas R. Burney, Glenn C. Sechen, and James R. Griffin, all of Schain Burney Ross & Citron, Ltd., of Chicago, for Village of Palatine." }, "file_name": "0542-01", "first_page_order": 560, "last_page_order": 574 }