Illinois Supreme Court Does It The Other Guy’s Way. Argument Not Raised In Trial Court Is Waived In Supreme Court.

A third party drove a car through a wall at a Burger King and killed a customer. The customer’s estate sued Burger King. Burger King won a motion to dismiss in the trial court because, the court ruled, there was no legal duty to the customer. The customer’s estate appealed, and won a reversal in the court of appeals.

Burger King appealed the appellate court’s ruling. In the Illinois Supreme Court, Burger King argued the complaint failed to sufficiently allege proximate cause between its conduct and the customer’s death. That was the first time Burger King raised the insufficiency of proximate cause.

The Illinois Supreme Court ruled that Burger King waived the proximate cause argument. “…[D]efendants moved to dismiss plaintiff’s complaint in the circuit court solely on the basis that they owed no duty of care to the decedent. They did not argue proximate cause in their motion to dismiss, and the trial court’s ruling was limited to the issue of whether plaintiff adequately pleaded the existence of a duty. Therefore, the issue of proximate cause is not properly presented by the record in this case.”

Get the whole case here, Marshall v. Burger King Corp., No. 100372 (Ill. Sup. Ct. 2006).