Two decisions came down yesterday, but it’s not clear if the Illinois Supreme Court recognized that it was engaging in self-parody.

In the Tri-G legal malpractice case, Tri-G’s case against its bank was dismissed with prejudice when its law firm failed to be ready to try the case. Tri-G accused its law firm of losing a lawsuit, and sought to recover the damages, including punitive damages, it would have won had the lawsuit been appropriately prosecuted. The Supreme Court held the law firm immune from paying those lost punitive damages, because “holding the [law] firm liable for the intentional or willful and wanton misconduct of a third party” would be inappropriate. (I commented on the different standards for legal and other malpractice at Point of Law.) Effectively, Illinois plaintiffs’ lawyers are now immune from malpractice claims for any failure to achieve punitive damages.

Meanwhile, the same day, in the case of Marshall v. Burger King, which we covered Aug. 3, the Illinois Supreme Court held that Burger King could be held liable for a case where the decedent plaintiff “was killed when a car driven by Fritz crashed through the wall of the Burger King restaurant where the decedent was eating and fatally injured him.” Justice McMorrow’s dissent notes:

According to the majority, a duty to protect a business invitee from the negligent driving of a third person exists where: the landowner’s property is not inherently dangerous or defective and the landowner’s own conduct has not created any risk of harm to the invitee through negligent design or construction; the landowner has complied with all applicable building codes and safety regulations; the landowner has experienced no previous incidents of any sort involving automobile-related accidents, whether similar or not; the parking lot is unremarkable, a sidewalk is present, and the invitee is inside a building behind a half-brick wall; and the only means of protecting the invitee from the negligent driving is to construct an impregnable barrier around the building that, even if possible to construct, may have a negative effect on the safety of business invitees in other circumstances. If there is an affirmative duty to protect a business invitee from out-of-control vehicles on these facts, then such a duty exists for every business which owns a building that abuts a road or parking lot.

The majority’s holding is exceptionally broad and has the potential to alter substantially the function and appearance of every city in the state. With its far-reaching implications, I do not believe that the adoption of the duty of protect, as described by the majority, is an appropriate undertaking for this court.

Filed under: Illinois, personal responsibility