Judge: Man who was shot while waiting in drive-thru lane at South Side restaurant can’t sue Wendy’s

A federal judge in Chicago has ruled Wendy’s wasn’t legally obligated to protect a man who was shot while waiting in a drive-through line at a South Side restaurant.

Vonzell Scott said he and a passenger visited the Wendy’s on West Garfield Boulevard, just north of Chicago’s Englewood neighborhood, around 3 a.m. Dec. 31, 2018. He alleged he saw an SUV stop in an adjacent alley for about 30 seconds, then drove to the north side of the parking lot, out of the view of the restaurant’s security cameras. At 3:15 a.m., Scott said, two men from the vicinity of the parked SUV approached his car from behind with each man shooting multiple times into the windows and fleeing on foot.

Scott’s negligence lawsuit argued Wendy’s should’ve had armed security on premises beyond the scheduled hours of 9 a.m. to 10:30 p.m. because a criminal attack was predictable.

In an opinion filed April 24, U.S. District Judge Manish Shah granted summary judgment to Wendy’s.

According to Shah, Scott’s attempt to establish Wendy’s owed him a duty of care rests on the customer relationship, but the legal threshold also includes showing the attack was “reasonably foreseeable.”

Wendy’s framed the incident as a “targeted, military style” attack, Shah said, and pointed to incidents where courts have held restaurants aren’t liable when patrons are victims of “intentional and targeted” attacks such as a stabbing.

“Scott concedes that there is no record of a prior shooting reported at this Wendy’s location,” Shah wrote. “Between June 2016 and December 2018, the Chicago Office of Emergency Management recorded 29 calls for service at the West Garfield Wendy’s location, but none of the reported incidents involved shootings.”

Shah noted the 2006 Illinois Supreme Court opinion, Marshall v. Burger King, involving a restaurant patron killed when a car crashed with the building, “cautioned against conflating duty with breach and proximate cause.” There is a foreseeable risk of criminal assault by third parties committed against restaurant patrons, Shah wrote, including “the general nature of harm that Scott faced.”

However, the question was not just whether Wendy’s should protect its patrons, but whether it breached that duty with specific regards to Scott’s circumstances. While Scott argued the restaurant should’ve provided armed guards on an overnight shift, Shah said “no reasonable jury could find” Wendy’s caused the shooting to occur.

Shah said he previously allowed expert testimony arguing an armed guard on patrol would’ve deterred the gunmen, but that was on the issue of cause in fact, not legal cause, and the expert can’t be allowed to offer opinions on what the restaurant did or didn’t know.

“There is inherently some measure of uncertainty in considering how an injury could have been avoided if a certain precaution was taken, and Scott argues that this lack of certainty about how the gunmen would have reacted if an armed security guard was present should be resolved by a jury,” Shah wrote. “Legal cause considers whether Wendy’s reasonably could have anticipated the shooting as a ‘natural and probable consequence’ of its conduct.”

Although Shah heard from restaurant officials about security practices and the overnight shift, and although the record includes facts suggesting “Wendy’s understood there was some level of risk associated with conducting business at this location,” he wrote, the best Scott could do was show negligence, falling short of proof the restaurant caused the shooting.

“Scott’s suffering is tragic,” Shah concluded, “but the shooting constituted an intervening criminal act that was not reasonably foreseeable to Wendy’s, the causal chain was broken, and Wendy’s is not liable for Scott’s injuries.”

Scott was represented in the case by attorney John J. Muldoon, of the firm of Muldoon & Muldoon, of Chicago.

Wendy’s did not respond to a request for comment on the decision.

This article was first published in Cook County Record.

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