Reynolds v. Jimmy John's Enterprises, LLC

ILLINOIS OFFICIAL REPORTS
Appellate Court
Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139
Appellate Court ROBERT W. REYNOLDS, Plaintiff-Appellant, v. JIMMY JOHN’S
Caption ENTERPRISES, LLC, a/k/a and/or d/b/a JIMMY JOHN’S FRANCHISE,
LLC, a/k/a and/or d/b/a JIMMY JOHN’S, LLC; and JTHREE, INC., an
Illinois Corporation, a/k/a and/or d/b/a JIMMY JOHN’S, Defendants-
Appellees.
District & No. Fourth District
Docket No. 4-12-0139
Filed April 2, 2013
Rehearings denied May 6, 2013
Held In an action for the injuries suffered by plaintiff when the motorcycle he
(Note: This syllabus was riding collided with a car driven by one of defendant’s delivery
constitutes no part of drivers, the trial court’s dismissal of the counts of plaintiff’s amended
the opinion of the court complaint alleging negligent training and supervision of the driver were
but has been prepared reversed and the cause was remanded on the grounds that a cause of
by the Reporter of action for negligence was stated and defendant used sections 2-615 and
Decisions for the 2-619 of the Code of Civil Procedure to contest the sufficiency of
convenience of the plaintiff’s factual allegations.
reader.)
Decision Under Appeal from the Circuit Court of Sangamon County, No. 11-L-89; the
Review Hon. Patrick W. Kelley, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on Gregory P. Sgro (argued), of Sgro, Hanrahan, Durr & Rabin, LLP, and
Appeal Jason P. Young, of Jason Young Law Office, both of Springfield, for
appellant.
Jill B. Lewis (argued), of Marasa Lewis, of Chicago, for appellee Jimmy
John’s Enterprises, LLC.
Scott E. Umland (argued), of Fleming & Umland, of Peoria, for appellee
JThree, Inc.
Panel JUSTICE KNECHT delivered the judgment of the court, with opinion.
Presiding Justice Steigmann concurred in the judgment and opinion.
Justice Turner dissented, with opinion.
OPINION
¶1 In April 2011, plaintiff, Robert W. Reynolds, sued defendants, Jimmy John’s Enterprises,
LLC, Jimmy John’s Franchise, LLC, Jimmy John’s, LLC (collectively Jimmy John’s); and
JThree, Inc. (JThree), alleging liability for personal injuries resulting from a motor vehicle
accident. In October 2011, plaintiff filed a seven-count amended complaint alleging multiple
direct liability claims against defendants. JThree and Jimmy John’s filed motions to dismiss
plaintiff’s amended complaint pursuant to sections 2-615 and 2-619(a) of the Code of Civil
Procedure (Code) (735 ILCS 5/2-615, 2-619(a) (West 2010)). In January 2012, the trial court
dismissed all seven counts contained in plaintiff’s amended complaint.
¶2 On appeal, plaintiff asserts his amended complaint adequately pled counts of direct
liability for (1) negligent supervision against JThree and Jimmy John’s and (2) negligent
training against JThree and Jimmy John’s. Because the trial court erred in granting
defendants’ motion to dismiss, we reverse in part the court’s dismissal of plaintiff’s amended
complaint as it applies to counts I, II, III and IV; we affirm the dismissal in part insofar as it
applies to counts V, VI, and VII.
¶3 I. BACKGROUND
¶4 In April 2011, plaintiff filed a single-count complaint against defendants, alleging they
were liable for personal injuries plaintiff sustained from an April 2010 motor vehicle
accident between himself and Jake Sawyer, a delivery driver for defendants. Jimmy John’s
is a franchiser of various “Jimmy John’s” sandwich restaurants throughout the United States.
JThree is a franchisee of Jimmy John’s and independently owns a “Jimmy John’s” restaurant
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located on Iles Avenue in Springfield, Illinois.
¶5 In May 2011, JThree filed a motion to dismiss pursuant to section 2-615 of the Code (735
ILCS 5/2-615 (West 2010)) because plaintiff “cannot hold [it] directly liable for creating a
situation which allegedly fostered unsafe driving practices.” In June 2011, Jimmy John’s
filed a motion to dismiss pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West
2010)), asserting plaintiff commingled theories of direct and vicarious liability in his April
2011 complaint. In August 2011, the trial court granted defendants’ motions to dismiss and
dismissed with prejudice all vicarious liability claims pursuant to section 2-619 of the Code
(735 ILCS 5/2-619 (West 2010)) and allowed plaintiff to amend his complaint on theories
of direct liability. In February 2011, plaintiff and Sawyer entered into a settlement agreement
resolving liability between those two parties.
¶6 In October 2011, plaintiff filed a seven-count amended complaint alleging as follows: (1)
negligent training against JThree (count I); (2) negligent training against Jimmy John’s
(count II); (3) negligent supervision against Jimmy John’s (count III); (4) negligent
supervision against JThree (count IV); (5) implied authority against JThree (count V); (6)
joint venture against all defendants (count VI); and (7) “principal agent/apparent authority”
against all defendants (count VII).
¶7 According to plaintiff, on April 13, 2010, at approximately 6:35 p.m., plaintiff was
traveling westbound on Iles Avenue in Springfield on his Harley-Davidson motorcycle. At
that time, Sawyer, a delivery driver for defendants, driving a 1990 Chrysler LeBaron, exited
a commercial driveway onto Iles Avenue. Sawyer had driven across the parking lot in front
of the Jimmy John’s restaurant and into the U.S. Bank parking lot to exit at this driveway.
Sawyer turned left out of the U.S. Bank driveway, failing to yield to traffic, and collided with
plaintiff’s motorcycle. Plaintiff suffered serious and permanent injury as a result of the
collision, including a permanent partial disability.
¶8 In paragraph eight of his amended complaint, addressing general allegations against all
defendants, plaintiff alleged:
“Defendants ([Jimmy John’s]) are franchisors to Defendant JThree, Inc. *** and as
such the above Defendants have a business relationship among said entities that
controlled certain acts and conduct of the Defendants (and its employees, agents or
representatives) at the time of the subject ‘incident’.”
¶9 In paragraph 19 of his amended complaint, plaintiff asserted defendants “hold themselves
out as making ‘freaky fast’ deliveries to the public and specifically instruct and encourage
their drivers to expedite such deliveries,” and that defendants “assert said deliveries will be
made within 15 minutes of receiving the sandwich order.” (At oral argument, plaintiff used
the term “mandate” to describe this 15-minute delivery claim. For purposes of simplification,
we phrase this allegation as having a “policy” of delivering the sandwiches within 15 minutes
of ordering.)
¶ 10 In paragraph 22 of his amended complaint, plaintiff alleged, when first hired, Sawyer was
given a manual to review for 20 minutes. The manual included information on proper
uniform requirements and knife safety, but no information “on how to make proper and safe
deliveries of sandwiches.”
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¶ 11 In paragraph 38 of his amended complaint, under count IV (negligent supervision)
against JThree, plaintiff alleged:
“That this Defendant knew or should have known that its drivers, and in particular
Jake Sawyer, made a regular practice of exiting its parking lot by driving into the parking
lot of its neighbor, U[.]S[.] Bank, and making a left turn from a driveway in order to
avoid the delay associated with using the traffic light to exit its own parking lot.”
In paragraph 40 of his amended complaint, plaintiff alleged JThree knew or should have
known its delivery drivers made a regular practice of “making an illegal left turn in order to
avoid the delay associated with using the traffic light to exit its own parking lot.”
¶ 12 In October 2011, JThree filed a motion to dismiss all counts against JThree contained in
plaintiff’s amended complaint. The motion, in its entirety, states as follows:
“Pursuant to 735 ILCS 5/2-615 and/or 735 ILCS 5/2-619, Defendant JTHREE, INC., an
Illinois Corporation, a/k/a and/or d/b/a Jimmy John’s (JTHREE) moves to dismiss
Counts I, IV, V, VI, and VII of Plaintiff’s Amended Complaint.”
The document continues as a memorandum of law for 16 pages. The memorandum in
support of its motion asserted count I (negligent training) should be dismissed pursuant to
section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)) and count IV (negligent
supervision) pursuant to both sections 2-615 and 2-619 of the Code. As part of the
memorandum, JThree filed a copy of Sawyer’s September 2011 discovery deposition
transcript, including a map exhibit (the transcript consists of 133 pages of testimony and is
printed 4 pages of testimony per printed page, totaling 34 pages in length), and case law. In
total, JThree’s filing was 67 pages in length.
¶ 13 In November 2011, Jimmy John’s filed a motion to dismiss all claims against it pursuant
to section 2-619(a)(9) of the Code. The motion, in its entirety, states as follows:
“NOW COME the defendants, JIMMY JOHN’S ENTERPRISES, LLC, JIMMY
JOHN’S FRANCHISE, LLC, and JIMMY JOHN’S LLC, by and through their attorneys
***, and pursuant to § 2-619(a)(9) of the Illinois Code of Civil Procedure, move this
Court for entry of an Order dismissing with prejudice plaintiff’s Amended Complaint
and, in support thereof, state as follows[.]”
The document continues as a memorandum of law for 14 pages to which Jimmy John’s
appended Sawyer’s deposition testimony, a map exhibit, and an affidavit from Jeff Vaughan,
chief financial officer of Jimmy John’s Franchise, LLC. In total, Jimmy John’s filing was 67
pages long.
¶ 14 In January 2012, the trial court dismissed, with prejudice, all counts contained in
plaintiff’s amended complaint. The court did not state a basis for its decision or citation for
its dismissal.
¶ 15 This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 On appeal, plaintiff asserts his amended complaint adequately pled counts of direct
liability for (1) negligent supervision against Jimmy John’s and JThree (counts I and II) and
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(2) for negligent training against JThree and Jimmy John’s (counts III and IV). Specifically,
plaintiff contends (1) defendants were negligent for failing to instruct their employees in the
making of “rapid deliveries in a safe and reasonable manner” because (a) defendants have
a policy of “freaky fast” delivery within 15 minutes of the sandwich order, (b) defendants
“instructed and encouraged” their drivers to “expedite” the delivery, and (c) when hired,
defendants’ employees were provided with a manual to review, which contained no
information on how to make proper and safe deliveries; and (2) defendants’ “freaky fast”
delivery policy creates a duty to the public to properly supervise their employees in making
such deliveries. Defendants both argue (1) they did not owe a duty to plaintiff to supervise
or train Sawyer and (2) plaintiff did not adequately plead facts to support such duty.
¶ 18 The trial court’s January 2012 order provides no guidance into its decision to grant
defendants’ motions. There is no transcript or bystander’s report (Ill. S. Ct. R. 323(c) (eff.
Dec. 13, 2005)) to illuminate the court’s basis for granting these motions and dismissing
plaintiff’s amended complaint with prejudice. At oral argument, plaintiff asserted the trial
court did not permit him the opportunity to amend his amended complaint because there
were no facts that could be pleaded to state a cause of action against these defendants, i.e.,
a section 2-615 dismissal. As (1) plaintiff can state a cause of action against these defendants
based on negligence, and (2) defendants improperly used section 2-615 and section 2-
619(a)(9) to contest the sufficiency of factual allegations–as apparent from defendants’ use
of facts outside the pleadings–the trial court erred in granting defendants’ motions to dismiss.
¶ 19 A. Motions Combining Section 2-615 and Section 2-619
¶ 20 JThree’s motion to dismiss asserted it was based on section 2-615 “and/or” section 2-619
of the Code, and fails to comply with the procedural requirements for combined motions.
Section 2-619.1 of the Code permits combined motions pursuant to section 2-615, section
2-619, and section 2-1005. 735 ILCS 5/2-619.1 (West 2010). Section 2-619.1 of the Code
“explicitly requires that a motion combining both sections 2-615 and 2-619(a)(1) must be in
parts, (2) must ‘be limited to and shall specify that it is made under’ either section 2-615 or
2-619, and (3) must ‘clearly show the points or grounds relied upon under the [s]ection upon
which it is based.’ ” (Emphases in original.) Howle v. Aqua Illinois, Inc., 2012 IL App (4th)
120207, ¶ 73, 978 N.E.2d 1132 (quoting 735 ILCS 5/2-619.1 (West 2010)). Section 2-619.1
does not authorize the commingling of distinctive claims pursuant to section 2-615, 2-619,
or 2-1005. Howle, 2012 IL App (4th) 120207, ¶ 72, 978 N.E.2d 1132; Jenkins v. Concorde
Acceptance Corp., 345 Ill. App. 3d 669, 674, 802 N.E.2d 1270, 1276 (2003) (First District)
(section 2-619.1 “does not authorize hybrid motion practice”); Northern Trust Co. v. County
of Lake, 353 Ill. App. 3d 268, 278, 818 N.E.2d 389, 398 (2004) (Second District) (section
2-619.1 does not authorize hybrid motion practice); Higgins v. Richards, 401 Ill. App. 3d
1120, 1125, 937 N.E.2d 215, 220 (2010) (Fifth District) (“[S]ection 2-619.1 was the
legislature’s response to the fact that ‘[r]eviewing courts have long disapproved of [the]
slipshod practice’ of filing hybrid motions to dismiss pursuant to both sections 2-615 and 2-
619 because those motions ‘cause[ ] unnecessary complication and confusion.’ ” (quoting
Talbert v. Home Savings of America, F.A., 265 Ill. App. 3d 376, 379, 638 N.E.2d 354, 357
(1994) (First District))); see also Janes v. First Federal Savings & Loan Ass’n of Berwyn, 57
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Ill. 2d 398, 405-06, 312 N.E.2d 605, 609 (1974) (rejecting “hybrid procedure” combining
motion challenging the legal sufficiency and at the same time answering the complaint while
filing affidavits stating facts and demanding judgment on the merits). Combined motions
pursuant to section 2-619.1 retain procedural distinctions between section 2-615, section 2-
619, and section 2-1005 based motions, and parties are not free to ignore these distinctions.
See Green v. Trinity International University, 344 Ill. App. 3d 1079, 1086, 801 N.E.2d 1208,
1214 (2003) (Second District) (section 2-619.1 does not permit a party to “submit evidentiary
material going to the truth of the allegations contained in the complaint because a motion
pursuant to either section 2-615 or 2-619 concedes the truth of all well-pleaded allegations”).
¶ 21 “[T]rial courts should not–and need not–accept for consideration combined motions
under section 2-619.1 that do not meet these statutory requirements.” Howle, 2012 IL App
(4th) 120207, ¶ 73, 978 N.E.2d 1132. Where a motion does not comply with section 2-619.1,
commingles claims, or creates unnecessary complications and confusion, trial courts should
sua sponte reject the motion and give the movant the opportunity (if they wish) to file a
motion that meets the statutory requirements of section 2-619.1, or the movant may choose
to file separate motions under section 2-615 and section 2-619 “thereby avoiding any
improper commingling of their claims.” Howle, 2012 IL App (4th) 120207, ¶ 73, 978 N.E.2d
1132.
¶ 22 Here, JThree’s motion does not comply with section 2-619.1 because it is pursuant to
section 2-615 “and/or” section 2-619, not in separate parts, and does not specify the points
or grounds relied on. JThree’s basis for dismissal and points and grounds relied on must be
gleaned from reading the memorandum of law. JThree’s motion is an example of the hybrid
motion practice section 2-619.1 does not authorize.
¶ 23 B. JThree’s “Motion” Pursuant to Section 2-615 of the Code
¶ 24 JThree’s memorandum of law supporting its one-sentence “motion to dismiss” asserted
the trial court should dismiss count I (negligent training) of plaintiff’s amended complaint
pursuant to section 2-615 of the Code. The memorandum asserted (1) an employer does not
have a duty to train or control its delivery driver employees when those drivers are licensed
drivers, because the dangers incident to driving “were fully understood by the employee, Jake
Sawyer” (in its brief, JThree further asserts plaintiff is restricted to a theory of vicarious
liability because Sawyer’s actions were committed within the scope of employment), and (2)
plaintiff’s amended complaint consisted of “conclusory allegations [that] are meaningless
without facts to explain them,” such as (a) how JThree instructs its drivers, (b) how its
advertising campaign of “freaky fast” deliveries implies it accepted, directed, encouraged,
or required unsafe driving, and (c) why deliveries made within 15 minutes cause a dangerous
situation. In support of its arguments, JThree cited section 317 of the Restatement (Second)
of Torts (Restatement (Second) of Torts § 317 cmt. a (1965) (duty of master to control
conduct of servant)), and National Convenience Stores Inc. v. Matherne, 987 S.W.2d 145
(Tex. Ct. App. 1999). JThree makes these same arguments on appeal.
¶ 25 A section 2-615(a) motion to dismiss tests the legal sufficiency of the complaint based
on defects apparent on its face. Doe-3 v. McLean County Unit District No. 5 Board of
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Directors, 2012 IL 112479, ¶ 15, 973 N.E.2d 880. “In other words, the defendant in such a
motion is saying, ‘So what? The facts the plaintiff has pleaded do not state a cause of action
against me.’ ” Winters v. Wangler, 386 Ill. App. 3d 788, 792, 898 N.E.2d 776, 779 (2008).
A section 2-615(a) motion presents the question of whether the facts alleged in the
complaint, viewed in the light most favorable to the plaintiff, and taking all well-pleaded
facts and all reasonable inferences that may be drawn from those facts as true, are sufficient
to state a cause of action upon which relief may be granted. Doe-3, 2012 IL 112479, ¶ 16,
973 N.E.2d 880; Winters, 386 Ill. App. 3d at 793, 898 N.E.2d at 780. “[A] cause of action
should not be dismissed pursuant to section 2-615 unless it is clearly apparent that no set of
facts can be proved that would entitle the plaintiff to recovery.” Marshall v. Burger King
Corp., 222 Ill. 2d 422, 429, 856 N.E.2d 1048, 1053 (2006); Thurman v. Champaign Park
District, 2011 IL App (4th) 101024, ¶ 8, 960 N.E.2d 18 (To survive a section 2-615 motion
a “ ‘plaintiff must allege facts sufficient to bring a claim within a legally recognized cause
of action.’ ” (quoting Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161, 920
N.E.2d 220, 223 (2009))). In ruling on a section 2-615 motion, the court only considers (1)
those facts apparent from the face of the pleadings, (2) matters subject to judicial notice, and
(3) judicial admissions in the record. Gillen v. State Farm Mutual Automobile Insurance Co.,
215 Ill. 2d 381, 385, 830 N.E.2d 575, 577 (2005); Thurman, 2011 IL App (4th) 101024, ¶ 8,
960 N.E.2d 18. A section 2-615(a) motion dismissal is reviewed de novo. Doe-3, 2012 IL
112479, ¶ 15, 973 N.E.2d 880.
¶ 26 JThree’s “motion” attacks both the factual and legal sufficiency of plaintiff’s amended
complaint. A section 2-615(a) motion only attacks the legal sufficiency of the complaint and
accepts all well-pleaded facts as true. Thus, it is a red flag of impropriety to append
deposition testimony to such a motion. JThree’s memorandum cites Sawyer’s deposition
testimony in support of its contention plaintiff’s complaint needs additional facts to “explain”
the factual allegations and asserting Sawyer “understood” the risks associated with “the job
of delivery driving.” JThree’s use of Sawyer’s deposition testimony in support of its section
2-615(a) motion is procedurally improper.
¶ 27 JThree’s attacks on the legal sufficiency of the amended complaint are unpersuasive. A
claim of direct negligence “alleges that the employer was itself negligent.” (Emphasis in
original.) Vancura v. Katris, 238 Ill. 2d 352, 375, 939 N.E.2d 328, 343 (2010). To establish
a claim of direct negligence, plaintiff does not have to show the injury was committed within
the scope of the employee’s employment, but that a special relationship, such as an
employer-employee relationship, exists between the actor and the party whose conduct is to
be controlled. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 231-32, 234, 745
N.E.2d 1166, 1180, 1181-82 (2000); Simpkins v. CSX Transportation, Inc., 2012 IL 110662,
¶¶ 14, 21, 965 N.E.2d 1092 (quoting Marshall, 222 Ill. 2d at 430, 856 N.E.2d at 1053)
(setting out elements for negligence and four factors to determine whether a duty ran from
the defendant to the plaintiff); see also Restatement (Second) of Agency § 213(a) (1958)
(principal may be directly liable for harm resulting from negligently giving improper or
ambiguous orders); Restatement (Third) of Agency § 7.05(1) (2006) (principal who conducts
an activity through an agent is subject to liability to third party caused by the conduct if the
harm was caused by the principal’s negligence in training or supervising). Section 317 of the
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Restatement does not support JThree’s assertion its liability is restricted to vicarious liability
where Sawyer’s conduct occurred within the scope of employment. JThree’s reliance on
Matherne for the proposition it does not have “a duty to control the legal driving
choices/habits of an employee” is misplaced as the Texas appellate court only addressed
whether an employer owed its employee a duty to warn about driving hazards and not
whether an employer owes a member of the public a duty to train its employees. Matherne,
987 S.W.2d at 149. See also Dowler v. New York, Chicago & St. Louis R.R. Co., 5 Ill. 2d
125, 131, 125 N.E.2d 41, 45 (1955) (ordinarily employer does not have a duty to warn its
employees where the risk is obvious and nothing is gained by warning). Plaintiff’s claims are
not about whether JThree had a duty to control its employee’s driving behavior, but whether
it had a duty to train its employees in how to make safe deliveries.
¶ 28 Plaintiff pleaded sufficient facts, taken as true, to raise a question under Illinois
negligence principles whether JThree engaged in a course of action creating a foreseeable
risk of injury to members of the public, thereby creating a duty to ameliorate that risk by
training its employees that the rules of the road trump its 15-minute policy and must always
be adhered to, even while trying to accomplish deliveries within the 15-minute window. See
Simpkins, 2012 IL 110662, ¶ 19, 965 N.E.2d 1092 (“Thus, if a course of action creates a
foreseeable risk of injury, the individual engaged in that course of action has a duty to protect
others from such injury.” (Emphasis in original.)). It remains to be seen whether (1) JThree
has an actual policy of 15-minute delivery rather than an advertising slogan of “freaky fast”
delivery, and (2) JThree provided some form of training to instruct its employees to maintain
their conduct within the confines of the law. However, a section 2-615(a) motion does not
require plaintiff to prove his case at this juncture, and plaintiff’s allegations are sufficient to
show liability may attach. Plaintiff should be permitted (if he so chooses) to amend his
amended complaint on count I.
¶ 29 C. Motion Practice Under Section 2-619(a)(9) of the Code
¶ 30 Section 2-619(a)(9) of the Code provides a defendant may file a motion for dismissal of
the action on the grounds “the claim asserted against defendant is barred by other affirmative
matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West
2010). Section 2-619(a)’s purpose is to provide litigants with a method of disposing of issues
of law and easily proved issues of fact–relating to the affirmative matter–early in the
litigation. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367, 799 N.E.2d 273, 278
(2003).
¶ 31 A motion for involuntary dismissal under section 2-619(a)(9) of the Code admits the
legal sufficiency of the complaint, admits all well-pleaded facts and all reasonable inferences
therefrom, and asserts an affirmative matter outside the complaint bars or defeats the cause
of action. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361, 919 N.E.2d 926, 931-32
(2009); Smith v. Waukegan Park District, 231 Ill. 2d 111, 120, 896 N.E.2d 232, 238 (2008);
Snyder v. Heidelberger, 2011 IL 111052, ¶ 8, 953 N.E.2d 415. In a section 2-619(a) motion,
the movant is essentially saying “ ‘Yes, the complaint was legally sufficient, but an
affirmative matter exists that defeats the claim.’ ” Winters, 386 Ill. App. 3d at 792, 898
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N.E.2d at 779. When ruling on the section 2-619(a)(9) motion, the court construes the
pleadings “in the light most favorable to the nonmoving party” (Sandholm v. Kuecker, 2012
IL 111443, ¶ 55, 962 N.E.2d 418), and should only grant the motion “if the plaintiff can
prove no set of facts that would support a cause of action” (Snyder, 2011 IL 111052, ¶ 8, 953
N.E.2d 415). A section 2-619(a)(9) motion dismissal is reviewed de novo. Kean, 235 Ill. 2d
at 361, 919 N.E.2d at 932.
¶ 32 1. Affirmative Matter Under Section 2-619(a)(9)
¶ 33 The standard articulation of an affirmative matter is
“ ‘[A] type of defense that either negates an alleged cause of action completely or refutes
crucial conclusions of law or conclusion[s] of material fact unsupported by allegations
of specific fact contained [in] or inferred from the complaint *** [not] merely evidence
upon which defendant expects to contest an ultimate fact stated in the complaint.’ ”
Smith, 231 Ill. 2d at 121, 896 N.E.2d at 238 (quoting 4 Richard A. Michael, Illinois
Practice § 41.7, at 332 (1989)).
The supreme court has further described an affirmative matter as “some kind of defense
‘other than a negation of the essential allegations of the plaintiff’s cause of action’ ” (Smith,
231 Ill. 2d at 120-21, 896 N.E.2d at 238 (quoting Kedzie & 103rd Currency Exchange, Inc.
v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993)), and “ ‘something in the nature
of a defense which negates the cause of action completely’ ” (Van Meter, 207 Ill. 2d at 367,
799 N.E.2d at 278 (quoting Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 486, 639 N.E.2d
1282, 1290 (1994))). For example, the existence of tort immunity or plaintiff’s lack of
standing is a proper affirmative matter pursuant to section 2-619(a)(9) as each completely
defeats the plaintiff’s ability to successfully prosecute its claim against the defendant. Smith,
231 Ill. 2d at 121, 896 N.E.2d at 238 (tort immunity); Jackson v. Randle, 2011 IL App (4th)
100790, ¶ 12, 957 N.E.2d 572 (standing); see also 4 Richard A. Michael, Illinois Practice
§ 41:7, at 475-78 (2d ed. 2011) (listing other defenses Illinois courts have held to be
affirmative matters).
¶ 34 An affirmative matter does not include “ ‘evidence upon which defendant expects to
contest an ultimate fact stated in the complaint.’ ” Smith, 231 Ill. 2d at 121, 896 N.E.2d at
238 (quoting 4 Richard A. Michael, Illinois Practice § 41.7, at 332 (1989)); Malanowski v.
Jabamoni, 293 Ill. App. 3d 720, 723, 688 N.E.2d 732, 735 (1997) (First District) (“Evidence
that merely refutes a well-pled fact in the complaint is not an ‘affirmative matter’ within the
meaning of [section 2-619(a)(9)].”); Zahl v. Krupa, 365 Ill. App. 3d 653, 659, 850 N.E.2d
304, 310 (2006) (Second District) (affirmative matter is “ ‘something more than evidence
offered to refute a well-pleaded fact in the complaint’ ” (quoting Heller Equity Capital Corp.
v. Clem Environmental Corp., 232 Ill. App. 3d 173, 178, 596 N.E.2d 1275, 1280 (1992)
(First District))). In other words, an affirmative matter is not the defendant’s version of the
facts as such a basis merely tends to negate the essential allegations of the plaintiff’s cause
of action. Howle, 2012 IL App (4th) 120207, ¶ 34, 978 N.E.2d 1132; Smith, 231 Ill. 2d at
120-22, 896 N.E.2d at 238; In re Marriage of Vaughn, 403 Ill. App. 3d 830, 835-36, 935
N.E.2d 123, 127 (2010) (First District) (“ ‘[W]here the affirmative matter is merely evidence
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upon which defendant expects to contest an ultimate fact stated in the complaint, section 2-
619(a)(9) should not be used.’ ” (quoting A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., 243
Ill. App. 3d 905, 912, 611 N.E.2d 619, 624 (1993) (Second District))); Glass Specialty Co.,
v. Litwiller, 147 Ill. App. 3d 653, 655, 498 N.E.2d 876, 878 (1986) (Third District) (an
affirmative matter “does not include every statement of evidentiary fact which tends to
negate allegations of the complaint”). Accordingly, section 2-619(a)(9) does not authorize
the defendant to submit affidavits or evidentiary matter for the purpose of contesting the
plaintiff’s factual allegations and presenting its version of the facts. See Smith, 231 Ill. 2d at
121-22, 896 N.E.2d at 238-39. Where a defendant seeks to address the complaint’s factual
allegations, a summary judgment motion pursuant to section 2-1005 of the Code is the proper
vehicle. Howle, 2012 IL App (4th) 120207, ¶ 37, 978 N.E.2d 1132; Barber-Colman Co. v.
A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1077, 603 N.E.2d 1215, 1224 (1992)
(Fifth District) (“[S]ection 2-619 motions should not be used to attack the factual basis of the
claim itself; if such an attack is to be made, it should be by a summary judgment motion
under section 2-1005 [(735 ILCS 5/2-1005 (West 2010))].”).
¶ 35 In Howle, this court addressed a motion to dismiss pursuant to section 2-619(a)(9) in
which the defendant argued it was not liable for personal injuries sustained as a result of a
dog bite. Howle, 2012 IL App (4th) 120207, ¶ 21, 978 N.E.2d 1132. The defendant attached
to its motion an affidavit from defendant’s vice president which claimed defendant never
owned or controlled any of the dogs involved. Howle, 2012 IL App (4th) 120207, ¶ 21, 978
N.E.2d 1132. This court concluded the defendant’s arguments addressed an essential issue
regarding liability “and amounted to nothing more than [the defendant’s] negation of an
essential element of [the plaintiff’s] complaint.” Howle, 2012 IL App (4th) 120207, ¶ 32, 978
N.E.2d 1132. This court characterized the defendant’s response as an answer and, similar to
the descriptions provided in Winters, described the defendant’s motion as a “ ‘Not true’ ”
response “that is essentially an answer denying an allegation set forth in the complaint.”
Howle, 2012 IL App (4th) 120207, ¶ 36, 978 N.E.2d 1132.
¶ 36 2. Burden of Presenting an Affirmative Matter
¶ 37 As the movant of a motion for involuntary dismissal pursuant to section 2-619(a)(9) of
the Code, the defendant, “has the burden of proof on the motion, and the concomitant burden
of going forward.” 4 Richard A. Michael, Illinois Practice § 41:8, at 481 (2d ed. 2011). “It
is well settled that the ‘affirmative matter’ asserted by the defendant must be apparent on the
face of the complaint; otherwise, the motion must be supported by affidavits or certain other
evidentiary materials.” Van Meter, 207 Ill. 2d at 377, 799 N.E.2d at 284; Hodge, 156 Ill. 2d
at 116, 619 N.E.2d at 735 (“By presenting adequate affidavits supporting the asserted
[affirmative] defense [citation], the defendant satisfies the initial burden of going forward
on the motion.”); see Nichol v. Stass, 192 Ill. 2d 233, 247-48, 735 N.E.2d 582, 591 (2000)
(defendant did not submit affidavits or other material in support of motion to dismiss and the
allegations in the complaint did not disclose that the action was barred by affirmative
matter); Betts v. Manville Personal Injury Settlement Trust, 225 Ill. App. 3d 882, 894-97, 588
N.E.2d 1193, 1201-03 (1992) (discussing use of deposition testimony to establish cause of
action was barred by statute of limitations). If the defendant carries this initial burden of
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going forward, the burden then shifts to the plaintiff, who must establish that the affirmative
matter asserted either is “ ‘ “unfounded or requires the resolution of an essential element of
material fact before it is proven.” ’ ” Van Meter, 207 Ill. 2d at 377, 799 N.E.2d at 284
(quoting Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383, 687 N.E.2d 1042,
1049 (1997), quoting Hodge, 156 Ill. 2d at 116, 619 N.E.2d at 735). The plaintiff may
establish this burden by presenting “affidavits or other proof.” 735 ILCS 5/2-619(c) (West
2010).
¶ 38 D. JThree’s “Motion To Dismiss” Count IV (Negligent Supervision)
¶ 39 In its memorandum, JThree asserted the trial court should dismiss count IV because
“Plaintiff has failed to allege true facts to establish a duty and breach of duty.” JThree
articulated count IV was deficient because (1) pursuant to section 2-619(a)(9), the court
should strike plaintiff’s “false” allegation that Sawyer made an “illegal” left turn out of the
U.S. Bank parking lot “based on Jake Sawyer’s [deposition] testimony and consider whether
Plaintiff has stated a cause of action without the allegation” and “the burden is on Plaintiff
to support his allegation and supply an affidavit to contradict Jake Sawyer’s testimony”; (2)
an employer does not have a duty to supervise its employees to select among various streets
based on their anticipated degree of safety to other roadway users; and (3) pursuant to section
2-615, plaintiff has failed to plead facts to support his allegation JThree knew or should have
known its employees made a regular practice of making an “illegal” left turn.
¶ 40 As with its “motion” to dismiss count I, JThree’s “motion” combines section 2-615(a)
and section 2-619(a)(9) based arguments and is not in compliance with section 2-619.1’s
requirements.
¶ 41 JThree moved to strike plaintiff’s “false” allegation the left turn is “illegal” pursuant to
section 2-619(a)(9). A motion to strike is properly brought pursuant to section 2-615(a), not
section 2-619(a)(9), and is “appropriate only if the allegation attacked is both irrelevant and
prejudicial to the moving party.” 3 Richard A. Michael, Illinois Practice § 27:2, at 687 (2d
ed. 2011); 735 ILCS 2-615(a) (West 2010). JThree does not attack the “illegal” allegation
as irrelevant or prejudicial, but as “false.” JThree’s concern may be that it does not want to
admit the allegation the turn was illegal. It is true “facts and not conclusions are to be
pleaded” (Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 519, 544 N.E.2d 733,
744 (1989)), and plaintiff’s amended complaint alleges Sawyer failed to yield to traffic on
the day of the accident, but did not cite any state statute or local ordinance for his allegation
the turn was illegal. (On appeal, plaintiff provides two City of Springfield ordinances
(Springfield Ordinance Code § 74.86 (adopted Mar. 21, 1989); Springfield Ordinance Code
§ 74.08(c) (adopted Mar. 21, 1989)) in support of the assertion Sawyer’s conduct was illegal
for avoiding the traffic signal.) A section 2-619 motion only admits the essential allegations
of the cause of action pleaded and “[f]acts pleaded that are not relevant to the pleader’s prima
facie case are not ‘well pleaded.’ ” 4 Richard A. Michael, Illinois Practice § 41:2, at 418-20
(2d ed. 2011). Plaintiff provided factual allegations stating Sawyer (1) drove across the
parking lot to avoid the traffic signal and (2) turned left out of the U.S. Bank parking lot
(plaintiff does not expressly allege Sawyer crossed a lane of traffic, only that Sawyer was
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turning east and plaintiff was traveling westbound). Plaintiff’s allegations are sufficient to
support his claim JThree negligently supervised its employee. See Doe v. Brouillette, 389 Ill.
App. 3d 595, 606, 906 N.E.2d 105, 115-16 (2009); Platson v. NSM, America, Inc., 322 Ill.
App. 3d 138, 144, 748 N.E.2d 1278, 1284 (2001) (setting forth prima facie elements of
negligent supervision). For sake of argument, when the adjective “illegal” is omitted from
plaintiff’s allegations, its absence has no effect on whether plaintiff adequately pleaded a
cause of action for negligent supervision.
¶ 42 JThree’s motion to dismiss pursuant to section 2-619(a)(9) does not properly assert an
affirmative matter. JThree’s memorandum selectively emphasized the definition of an
“affirmative matter” to read “a defense which negates conclusions of material fact contained
in the complaint” and asserts the burden is on plaintiff to “contradict” Sawyer’s deposition
testimony. JThree attempts to shift the burden of production of proving the “affirmative
matter” by presenting deposition testimony and asserts the court should determine the
legality of the turn based on the deposition testimony. This is a blatant attempt to contradict
plaintiff’s allegations, and is a guise for what JThree is really saying, “Plaintiff’s allegations
I was negligent are not true because the facts presented in Sawyer’s deposition prove I am
not.” It is JThree’s burden to prove the existence of an affirmative matter that completely
bars plaintiff’s cause of action and presenting evidence it seeks to contest plaintiff’s factual
allegation–with Sawyer’s deposition–is not an affirmative matter. The legality of the turn
relates to plaintiff’s essential allegation that JThree negligently supervised Sawyer and does
not completely bar or negate plaintiff’s claim. It does not demand the conclusion JThree is
or is not negligent or that JThree is protected from liability for its negligence. See Kalata v.
Anheuser-Busch Cos., 144 Ill. 2d 425, 434-35, 581 N.E.2d 656, 661 (1991) (ordinance
violation does not constitute per se negligence). Section 2-619(a)(9) is not a proper vehicle
to contest factual allegations; nor does it authorize a fact-based “mini-trial” on whether
plaintiff can support his allegations, as JThree implies. Such a fact-based motion is properly
treated under summary judgment.
¶ 43 Plaintiff should be permitted (if he so chooses) to amend his amended complaint on
count IV.
¶ 44 E. Jimmy John’s “Motion To Dismiss” Count II (Negligent Training)
and Count III (Negligent Supervision)
¶ 45 Jimmy John’s moved in its single-sentence motion to dismiss pursuant to section 2-
619(a)(9) of the Code. In its memorandum section, it argued for dismissal under section 2-
619(a)(9) on the grounds (1) it owed no duty to plaintiff to train or supervise Sawyer because
“it did not authorize or encourage its delivery drivers to ignore the rules of the road or
operate their vehicles in a negligent fashion,” and (2) based on the “undisputed evidence” of
Sawyer’s deposition testimony and Vaughan’s affidavit, an agency relationship did not exist
between it and Sawyer. Jimmy John’s memorandum relies on Vaughan’s affidavit and
Sawyer’s deposition testimony to assert (1) it did not assert control over JThree, JThree’s
employees, or Sawyer, and (2) Sawyer is JThree’s employee.
¶ 46 Jimmy John’s inclusion of an affidavit and deposition testimony in support of its
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“motion” is a red flag the “motion” merely contests plaintiff’s factual allegations and is not
in compliance with section 2-619 of the Code. Here, Jimmy John’s sought to use an
unopposed affidavit and deposition testimony to establish “undisputed” facts to show
plaintiff’s cause of action is defective. Rather than asserting an affirmative matter, Jimmy
John’s is misusing section 2-619(a)(9) to contest–with facts outside the pleadings–the
amended complaint’s factual allegations. The crux of Jimmy John’s “motion” asserts Sawyer
was not its employee, i.e., plaintiff’s allegations it is liable as Sawyer’s employer are not true.
Paragraph eight of the amended complaint does not distinguish which defendants have
control over whom and frustrates plaintiff’s claim of Jimmy John’s control over JThree and
Sawyer; however, it implies the franchisor is the entity asserting control over the franchisee.
In his brief on appeal, plaintiff asserts Jimmy John’s controlled Sawyer as evidenced by (1)
the fact Jimmy John’s auditors visit the franchise store on Iles Avenue “to grade the store and
have checklists they complete about the cleanliness of the store and appearance of the
employees,” and (2) Sawyer and other delivery drivers parked their delivery vehicles along
the curb (plaintiff speculates the vehicles were parked in the fire lane) outside the restaurant,
thus giving defendants knowledge about dangerous driving behavior. Plaintiff did not include
these factual allegations in his amended complaint although Sawyer’s deposition was taken
before it was filed. Ordinarily, “[t]he existence and scope of an agency relationship are
usually questions of fact to be decided by the trier of fact, unless the parties’ relationship is
so clear as to be undisputed.” Zahl, 365 Ill. App. 3d at 661, 850 N.E.2d at 312. This is not
a case where the agency relationship between Jimmy John’s and Sawyer is so clear as to be
undisputed. The question of Jimmy John’s control over Sawyer is a question appropriately
resolved either at trial or in a fact-based motion. See Howle, 2012 IL App (4th) 120207, ¶ 37,
978 N.E.2d 1132. Moreover, Jimmy John’s purported section 2-619(a)(9) “motion” admitted
the legal sufficiency of the complaint and accepted, for purposes of its motion, plaintiff’s
factual allegations about training and its control over franchisee employees. To attack
plaintiff’s complaint for failure to plead facts to bring the claim within a recognized cause
of action, Jimmy John’s should have brought a section 2-615 motion.
¶ 47 As discussed above, at this stage, plaintiff is not required to prove how Jimmy John’s
negligently instructed or trained its employees. Plaintiff has alleged sufficient facts, taken as
true, under general negligence principles to indicate Jimmy John’s owed a duty to plaintiff
to properly train its delivery driver employees in light of its 15-minute delivery policy.
¶ 48 As to the merits of count III (negligent supervision), we note plaintiff did not incorporate
its allegation of Sawyer’s driving maneuver contained in paragraph 38 of the amended
complaint against Jimmy John’s but only asserted it against JThree. In an action for negligent
supervision, plaintiff must allege the employer knew or should have known its employees
behaved in a “dangerous or otherwise incompetent manner.” (Internal quotation marks
omitted.) Doe, 389 Ill. App. 3d at 606, 906 N.E.2d at 115-16. Ordinarily, an occurrence on
the date of the accident is insufficient to show an employer knew or should have known of
a routine practice of the alleged dangerous behavior before the accident. See Van Horne v.
Muller, 185 Ill. 2d 299, 315, 705 N.E.2d 898, 906 (1998) (“The type of prior conduct by an
employee which will be sufficient to put an employer on notice that the employee is unfit for
a particular position will differ in every case.”). The allegation of Sawyer’s left turn on the
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day of the accident is the only factual allegation against Jimmy John’s about an employee’s
dangerous behavior. However, Jimmy John’s section 2-619(a)(9) “motion” admitted the legal
sufficiency of the complaint but did not assert it failed to properly state a claim for negligent
supervision.
¶ 49 As the grounds stated in its “motion” and set forth and argued in its memorandum and
on appeal are not proper grounds for dismissal under section 2-619(a)(9), the trial court erred
in granting Jimmy John’s motion to dismiss on count II and count III. Plaintiff should be
permitted (if he so chooses) to amend his amended complaint on count II and count III.
¶ 50 F. A Note on Defendants’ Motions
¶ 51 At oral argument the parties suggested section 2-615 and section 2-619 motions are
similar to a motion for summary judgment pursuant to section 2-1005 of the Code (735 ILCS
5/2-1005 (West 2010)), and both parties used sections 2-615(a) and 2-619(a)(9) to argue
factual issues outside the amended complaint. We reiterate section 2-615(a) and section 2-
619(a)(9) are not proper vehicles to contest factual allegations contained in the complaint.
The Code and meticulous motion practice demands preservation of the distinctions between
sections 2-615, 2-619, and 2-1005.
¶ 52 A crucial distinction between a section 2-615(a) motion and a summary judgment motion
lies in what each motion assumes from the trial court: a section 2-615(a) motion accepts all
well-pleaded facts while questioning whether the pleadings sufficiently state a cause of
action; in contrast a motion for summary judgment challenges the facts and “ ‘ “assumes that
a cause of action has been stated.” ’ ” Mydlach v. DaimlerChrysler Corp., 226 Ill. 2d 307,
315, 875 N.E.2d 1047, 1055 (2007) (quoting Delgatto v. Brandon Associates, Ltd., 131 Ill.
2d 183, 190, 545 N.E.2d 689, 692 (1989), quoting Janes, 57 Ill. 2d at 406, 312 N.E.2d at
609). Another distinction is a section 2-615 motion considers only the facts on the face of
the pleadings while a section 2-1005 summary judgment motion goes beyond the pleadings
to determine if the case presents an issue of fact. See 4 Richard A. Michael, Illinois Practice
§ 38:3, at 308-12 (2d ed. 2011) (discussing relationship of summary judgment motion to
other dispositive motions); see also Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217,
227, 930 N.E.2d 895, 901 (2010) (describing a motion for judgment on the pleadings (735
ILCS 5/2-615(e) (West 2010)) as “ ‘like a motion for summary judgment limited to the
pleadings’ ” (internal quotation marks omitted) (quoting Employers Insurance of Wausau v.
Ehlco Liquidating Trust, 186 Ill. 2d 127, 138, 708 N.E.2d 1122, 1129 (1999), quoting 3
Richard A. Michael, Illinois Practice § 27.2, at 494 (1989)).
¶ 53 A section 2-619(a)(9) motion shares procedural similarities with a summary judgment
motion in that affidavits and other evidentiary matter is permitted to support the affirmative
matter, and a shifting burden of proof upon satisfaction of the defendant’s burden of
producing an affirmative matter that completely bars the plaintiff’s cause of action. A section
2-619(a)(9) motion is not a substitute for a summary judgment motion. Malanowski, 293 Ill.
App. 3d at 724, 688 N.E.2d at 735. A section 2-619(a)(9) motion to dismiss is the proper
vehicle to assert “Plaintiff’s complaint states a legally sufficient claim, but an affirmative
matter defeats plaintiff’s claim.” See Winters, 386 Ill. App. 3d at 792, 898 N.E.2d at 779.
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Section 2-619(a)(9) does not authorize motions asserting plaintiff’s essential allegations are
“not true”–the motion accepts all well-pleaded facts as true–and is not a shortcut to resolve
factual issues about the veracity of plaintiff’s essential allegations. When the defendant
submits a “Not true” motion, defendant’s burden of production has not been met–there is no
affirmative matter–and the burden does not shift to the plaintiff to refute the defendant’s
factual allegations contained in the motion. See Smith, 231 Ill. 2d at 121-22, 896 N.E.2d at
238-39 (plaintiff’s failure to respond to affidavit is not fatal because the affidavit, which
attempted to negate the essential allegations of the plaintiff’s claim, does not constitute an
affirmative matter); Van Meter, 207 Ill. 2d at 379-80, 799 N.E.2d at 285-86 (municipal
defendants failed to met their burden of establishing their affirmative defense of immunity).
Section 2-619(a)(9) permits resolution of “easily proved issues of fact” about the affirmative
matter, and evidentiary material submitted in support of the motion must go to the
affirmative matter. Where the defendant uses the material to support its version of the facts,
point out the factual deficiencies in plaintiff’s case, or allege plaintiff cannot prove his case,
it is apparent the defendant is merely challenging the truthfulness of the plaintiff’s factual
allegations and a fact-based motion such as a section 2-1005 motion should be used. If the
defendant improperly submits a motion pursuant to section 2-619 that argues the plaintiff
cannot prove his case, and the plaintiff is not prejudiced by the defendant’s misdesignation,
the motion may be treated as a summary judgment motion. Malanowski, 293 Ill. App. 3d at
724, 688 N.E.2d at 735; Howle, 2012 IL App (4th) 120207, ¶ 39, 978 N.E.2d 1132; see also
Willett v. Cessna Aircraft Co., 366 Ill. App. 3d 360, 368-69, 851 N.E.2d 626, 633-34 (2006)
(discussing use of supporting affidavits for summary judgment motions).
¶ 54 G. Plaintiff’s Other Counts
¶ 55 Where an appeal is from dismissal of multiple counts of the complaint but the appellant
only argues certain counts in the brief on appeal, the other counts are not considered as they
are deemed forfeited pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008).
See Sellers v. Rudert, 395 Ill. App. 3d 1041, 1046, 918 N.E.2d 586, 591 (2009) (appellant
forfeits points not raised in initial brief). As plaintiff did not argue error in the trial court’s
dismissal of count V (implied authority), count VI (joint venture), or count VII (apparent
authority), he has abandoned those counts on appeal and forfeited them for purposes of
remand.
¶ 56 III. CONCLUSION
¶ 57 We reverse the trial court’s dismissal of plaintiff’s amended complaint as to counts I, II,
III, and IV, affirm dismissal of all other counts due to plaintiff’s failure to argue them in this
appeal, and remand for further proceedings.
¶ 58 Affirmed in part and reversed in part; cause remanded.
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¶ 59 JUSTICE TURNER, dissenting.
¶ 60 I respectfully dissent and would affirm the trial court’s judgment in toto.
¶ 61 Here, the trial court dismissed plaintiff’s original complaint but granted leave to file an
amended complaint based on a theory of direct liability. According to Jimmy John’s, the
court allowed plaintiff to take the deposition of Jake Sawyer to determine whether there were
any facts upon which he could state direct liability claims. Plaintiff does not dispute Jimmy
John’s assertion, and page one of Sawyer’s deposition states, “Discovery deposition of Jake
Sawyer taken at the instance of the Plaintiff.”
¶ 62 Following Sawyer’s deposition, plaintiff filed an amended complaint asserting the direct
liability counts which are the subject of this appeal. Paragraph 22 of count I of the amended
complaint alleges “Jake Sawyer was given a manual to ‘review’ for twenty (20) minutes
when he was first hired as a delivery driver for Defendants. There was no information
reviewed on how to make proper and safe deliveries of sandwiches, and the only areas of the
manual committed to memory by Jake Sawyer were the provisions as to how to
dress/uniform requirements for Defendants and safety rules as to use of knives at the stores
of the Defendants.” This paragraph was incorporated into each count at issue in this appeal,
and it is indisputable the facts plaintiff alleged were plucked from Sawyer’s discovery
deposition.
¶ 63 All defendants filed motions to dismiss and cited the transcript of Sawyer’s deposition,
which was filed with the trial court. Jimmy John’s also attached to its motion to dismiss an
affidavit of Jeff Vaughan, the chief financial officer of Jimmy John’s Franchise, LLC. The
record does not reflect plaintiff objected to the court’s consideration of Sawyer’s discovery
deposition or to the consideration of Vaughan’s affidavit in ruling on the motions.
¶ 64 As noted by the majority, Jimmy John’s motion was filed pursuant to section 2-619(a)
of the Code and JThree’s motion was filed in part pursuant to section 2-619(a) of the Code.
¶ 65 “The purpose of a motion to dismiss under section 2-619 *** is to afford litigants a
means to dispose of issues of law and easily proved issues of fact at the outset of a case ***.”
Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000, 1002 (1995). “Section 2-619(a)(9)
allows dismissal when ‘the claim asserted *** is barred by other affirmative matter avoiding
the legal effect of or defeating the claim.’ ” Zedella, 165 Ill. 2d at 185, 650 N.E.2d at 1002
(quoting Ill. Rev. Stat. 1991, ch. 110, ¶ 2-619(a)(9)). “In ruling on a motion to dismiss under
section 2-619, the trial court may consider pleadings, depositions, and affidavits. [Citation.]
When supporting affidavits have not been challenged or contradicted by counter-affidavits
or other appropriate means, the facts stated therein are deemed admitted.” Zedella, 165 Ill.
2d at 185, 650 N.E.2d at 1002.
¶ 66 As the majority concedes, plaintiff, pursuant to paragraph 19 of the amended complaint,
has alleged and must prove defendants had a policy of delivering sandwiches within 15
minutes of ordering. Supra ¶ 9. When considering the deposition and affidavit submitted
with the motions to dismiss, the trial court correctly concluded plaintiff’s cause of action was
completely negated. Plaintiff simply cannot prove the existence of a 15-minute policy or that
Sawyer, due to a perceived 15-minute company policy, was attempting a “freaky fast”
delivery when the accident occurred. Thus, even assuming arguendo defendants had a duty
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to train or supervise, plaintiff’s amended complaint should be dismissed.
¶ 67 I agree with the majority that the bar and trial courts should be attentive to rules and
labels governing motion practice. However, I do not equate what happened here to be a
slipshod practice. Supra ¶ 22. Plaintiff was afforded the opportunity to depose Sawyer to
discover facts that would allow him to properly plead a cause of action. Indeed, the trial court
was invited to consider the deposition testimony and heard no objection to consideration of
the affidavit.
¶ 68 The majority notes section 2-619(a)(9) is an inappropriate vehicle to contest factual
allegations (supra ¶ 42) and states Jimmy John’s use of an affidavit and deposition testimony
in support of its motion is improper (supra ¶ 46). The majority concludes that where the
defendant seeks to attack the factual sufficiency of the claim because there is no genuine
issue of material fact, the defendant should move for summary judgment pursuant to section
2-1005 of the Code. Supra ¶ 34. I would add that “[a]lthough a section 2-619(a)(9) motion
may not be used as a substitute for a summary judgment motion ***[,] they are similar in that
a fact motion under section 2-619 essentially amounts to a summary judgment procedure.”
Malanowski v. Jabamoni, 293 Ill. App. 3d 720, 724, 688 N.E.2d 732, 735 (1997). While the
deposition and affidavit here may not be typical “other affirmative matter,” the parties invited
the trial court to consider them as such. Accordingly, in the interest of judicial economy, I
would follow the Howle precedent where this court opted to address an argument incorrectly
raised in a section 2-619(a)(9) motion to dismiss as a section 2-1005 motion for summary
judgment. Howle, 2012 IL App (4th) 120207, ¶ 39, 978 N.E.2d 1132. In similarly opting, I
would find plaintiff’s action must necessarily fail against Jimmy John’s. Moreover, based
on the facts already known by the parties and the trial court, the same result should apply to
JThree even though it, in part, sought dismissal using section 2-615. See Economy Fire &
Casualty Co. v. Brumfield, 384 Ill. App. 3d 726, 730, 894 N.E.2d 421, 425 (2008) (noting
we may affirm the trial court’s judgment on any basis supported by the record); see also
Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161, 920 N.E.2d 220, 223
(2009) (noting a cause of action should not be dismissed pursuant to section 2-615 unless it
is clearly apparent no set of facts can be proved entitling the plaintiff to relief).
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