2016 IL App (1st) 122731

                                                                         SECOND DIVISION
                                                                         September 6, 2016

                                        No. 1-12-2731


ERIN ANDREWS,                                         )          Appeal from the
                                                      )          Circuit Court of
                      Plaintiff-Appellant,            )          Cook County
                                                      )
v.                                                    )
                                                      )
MARRIOTT INTERNATIONAL, INC., a Delaware              )
Corporation; WEST END HOTEL PARTNERS, LLC,            )
d/b/a Nashville Marriott at Vanderbilt University, a  )
Delaware Limited Liability Company; WINDSOR           )
CAPITAL GROUP, INC., a Colorado Corporation;          )
RADISSON HOTELS INTERNATIONAL INC., a                 )
Delaware Corporation; ASREL, INC., d/b/a Radisson     )
Hotel Milwaukee Airport, a Wisconsin Corporation; THE )
OHIO STATE UNIVERSITY, d/b/a The Blackwell Inn; )
and Michael David Barrett, an individual,             )          Honorable
                                                      )          Kathy Flanagan,
                      Defendants                      )          Judge Presiding.
                                                      )
(Preferred Hotel Group, Inc., d/b/a Summit Hotels and )
Resorts, a Delaware Corporation, Defendant-Appellee). )

       PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.
       Justices Neville and Hyman concurred in the judgment and opinion.

                                         OPINION


¶1     In 2008, while plaintiff Erin Andrews was a guest of The Blackwell Inn (Blackwell), she

was secretly recorded on video in the privacy of her hotel room by another guest, Michael David

Barrett. Plaintiff filed this action sounding in negligence and invasion of privacy against
1-12-2731

defendant, Preferred Hotel Group (Preferred), 1 the service provider of Blackwell’s online

reservation system, for, among other things, Blackwell’s disclosure of the details of her hotel

stay to Barrett. Plaintiff’s theory of liability is that Preferred was either (1) engaged in a joint

venture operation of the hotel or (2) voluntarily assumed a duty to protect plaintiff’s privacy.

Preferred moved to dismiss the complaint pursuant to sections 2-615 and 2-619(a)(9) of the Code

of Civil Procedure (Code) (735 ILCS 5/2-615, 619(a)(9) (West 2010)) arguing that it did not owe

a duty to plaintiff and was not engaged in a joint venture to operate Blackwell. After two years of

discovery, the circuit court granted Preferred’s section 2-619(a)(9) motion to dismiss. Plaintiff

appeals from the dismissal, which we affirm for the following reasons.

¶2                                       BACKGROUND

¶3      Relevant to plaintiff’s claims against Preferred, the following facts are taken from the

complaint. On February 4, 2008, Andrews was a guest at Blackwell located in Columbus, Ohio.

Blackwell is owned and operated by Ohio State University (OSU). In the days leading up to her

hotel stay, Illinois resident Michael David Barrett, contacted Blackwell by phone to confirm that

Andrews was staying at the hotel and asked to be assigned the room next door to her. Blackwell

granted Barrett’s requests. After checking into the hotel on February 4, Barrett retrofitted the

peephole on Andrew’s hotel room door. In doing so, he was able to record video of her activities

in the room, including changing and dressing. Eventually, he posted these videos on the Internet.

¶4      Defendant Preferred is a corporation with its principal place of business in Chicago,

Illinois. It provides marketing, sales and reservation services to its network of hotels for a fee.

Blackwell is a member of Preferred’s network and utilizes Preferred’s marketing and Internet

        1
        Plaintiff’s complaint also contained allegations against other defendants for similar events that
occurred at other hotels on other dates. Those counts were all dismissed on procedural grounds.



                                                    2
1-12-2731

reservation services. Andrews alleged that Preferred is liable for Blackwell’s staff disclosing her

hotel stay and room number to Barrett and assigning him the room next door to her, without her

prior consent thereby allowing him to engage in his tortious activities.

¶5     Plaintiff’s theory of liability is that Preferred “owned, operated, controlled, maintained,

managed, supervised, handled reservations for and/or were otherwise responsible for The

Blackwell Inn” and that Blackwell “was the agent and/or joint venture of Preferred *** acting

within the course, scope and authority of said agency and/or venture.” Preferred “had a duty to

exercise reasonable and ordinary care and action in and about the ownership, management,

maintenance, supervision, control and operation of Blackwell and its reservation system, and

each of their employees, agents, servants and independent contractors, all to the benefit of the

guests.” Preferred was “negligent in the selection, hiring, training and supervision of each and

every other defendant as an agent and/or joint venturer.” Plaintiff also alleged that Preferred and

OSU were associated with the purpose of “carrying out a specific enterprise for profit.” Preferred

and OSU had a community of interest and proprietary interest in Blackwell; Preferred had a right

to govern the hotel’s policies and share in the hotel’s profits and losses. Based on this theory,

plaintiff alleged claims against Preferred for negligent infliction of emotional distress and

invasion of privacy.

¶6     In response to the complaint, Preferred filed a hybrid motion to dismiss under section 2-

619.1 of the Code, which permits a party to combine a section 2-615 motion to dismiss with a

section 2-619 motion to dismiss. 735 ILCS 5/2-619.1 (West 2010). Preferred argued that the

claims must be dismissed pursuant to section 2-615 of the Code because plaintiff failed to allege

sufficient facts to support the conclusory allegation that Preferred owed plaintiff a legal duty.

Preferred also argued dismissal of the claims pursuant to section 2-619(a)(9) of the Code because


                                                 3
1-12-2731

Preferred did not owe a duty to plaintiff for the acts of Blackwell’s staff, there was no principal-

agent or joint venture relationship between Preferred and Blackwell and Preferred had no

knowledge that Andrews was a guest at the hotel.

¶7     Attached to Preferred’s motion to dismiss was a written agreement governing the

relationship between Preferred and OSU. The preamble to the agreement provides that Preferred

“is a service organization designed to provide marketing, sales and reservation services to

member hotels.” In return for these services, Blackwell pays membership and booking fees to

Preferred, it agrees to “conform strictly” with Preferred’s “Quality Assurance Program”

(Standards of Excellence) and allows Preferred “to evaluate the quality of the property and

related services rendered at the hotel *** from time to time *** and bear the cost of these

evaluations.” The agreement explains that Preferred will invoice Blackwell every 30 days for any

amounts owed and if any amounts remain unpaid after 60 days, Preferred has the right to

suspend all services and charge 1.5% per month on the unpaid sums.

¶8     The affidavit of Xen Riggs, the associate vice president of administration and planning at

OSU, was also attached to Preferred’s motion to dismiss. In this affidavit, Mr. Riggs attested that

Blackwell is owned by OSU, its operations are governed by OSU’s board of trustees and it is

managed by OSU’s office of administration and planning. Blackwell runs a deficit, but if it were

to make a profit, any profit would solely benefit OSU. Preferred does not have any employees at

Blackwell, does not handle any phone calls to Blackwell and does not have any involvement in

the operations or management of Blackwell.

¶9     Also supporting Preferred’s motion was the affidavit of Ken Mastrandrea, Preferred’s

executive managing director of corporate operations. Mr. Mastrandrea averred that Preferred

provides online hotel reservation services to Blackwell via Preferred’s Internet booking engine


                                                 4
1-12-2731

(iBook). Blackwell maintains a link to iBook on its website. Preferred’s involvement with

reservations made with Blackwell are limited to those made through the iBook platform. A guest

inputs the reservation information into iBook, which then electronically sends the reservation

request to Blackwell’s computer system, and if accepted, the guest receives electronic

confirmation including the room rate and type. Preferred’s involvement with reservations at

Blackwell is limited to providing the platform for the electronic transmittal of reservation

confirmation to and from the hotel and its guests via the Internet. If room reservations are made

other than through iBook, Preferred does not have access to any guest identity or information.

Preferred never has had access to Blackwell’s guest list or any guest’s room number. Preferred

has no access to any information regarding guests who booked their rooms directly through the

hotel, or through any other means. Because Preferred does not have access to guest identity or

guest room numbers, if someone called their office requesting this information, Preferred could

not give the caller any such information.

¶ 10   Mr. Mastrandrea also attested that Preferred has no ownership interest in the hotel and

does not share in its profits or losses. Preferred charges Blackwell a fee for membership in the

network and for its booking services. Preferred has no involvement in the operation or

management of its member hotels, including Blackwell’s policies and procedures regarding

safety and/or privacy. There are no “Preferred” employees at Blackwell or any of its member

hotels and it does not handle phone calls placed to the member hotels. According to Preferred’s

records, Andrews’ reservation was not made through Preferred’s system, and therefore, it had no

knowledge that Andrews was a guest at the hotel. Barrett made a reservation through iBook on

Blackwell’s website for which Preferred was paid a service fee. However, Preferred’s actions in

respect to Barrett’s reservation were limited to the electronic reservation request automatically


                                                5
1-12-2731

generated through the hotel’s computer system and a confirmation notice sent to Barrett over the

Internet.

¶ 11    At plaintiff’s request, the circuit court permitted discovery regarding the matters raised in

the motion to dismiss. This discovery was conducted over a two year period and included the

deposition of Mr. Mastrandrea.

¶ 12    At his deposition, Mastrandrea testified that Preferred’s “Standards of Excellence” are

comprised of “1600 items of guest service standards that we provide to the hotel to manage their

service to guests.” Member hotels are required to comply with the standards. Once a year, third-

party independent inspectors perform a check to determine the level of compliance. The

inspectors prepare a report that informs the hotels of their aggregate compliance score and ways

to improve. A follow-up inspection is required only if a hotel falls below 70% compliance. The

compliance reports are reviewed by one of Preferred’s regional managers. A Preferred executive

only reviews an inspection report if the compliance score is lower than 70%. Preferred relies on

the hotels to make the inspector’s suggested corrections. If corrections are not successfully made,

Preferred might request an improvement plan from the hotel and follow up as needed. If a hotel

still fails to remediate, then Preferred reviews the results and possibly extends the improvement

plan or takes further action. Preferred has close to 800 member hotels. In its history Preferred has

terminated its relationship with only three or four hotels. All of Blackwell’s inspections have

exceeded a 70% compliance rate, and therefore, no executive at Preferred has been referred to

review Blackwell’s reports. There are no standards or inspection criteria that address hotel staff

informing a third party about other guests staying at the hotel or granting a guest’s request to be

placed in the hotel room next to another guest, without prior consent.

¶ 13    After completion of discovery, plaintiff filed a written response to the motion to dismiss.


                                                  6
1-12-2731

Plaintiff argued that Preferred’s motion should be denied because it was a “disguised motion for

summary judgment,” Preferred’s “ ‘evidence’ ” merely refutes plaintiff’s ultimate facts which

does not constitute affirmative matter and a question of fact exists as to whether Preferred owed

a duty of care to plaintiff. Plaintiff asserted that Preferred owed her a duty of care because either

it was in a joint venture with OSU in the operation of Blackwell or Preferred voluntarily assumed

a duty of care. Plaintiff contended that because Preferred requires its member hotels to comply

with the “Standards of Excellence” that includes matters of privacy (communicating a guest’s

room number in writing rather than verbally and requiring identification before issuing a

duplicate key), Preferred voluntarily assumed a duty to protect the privacy of guests at its

member hotels. Plaintiff also argued that Preferred exercised control over the safety measures

and policies of Blackwell and these actions created a joint venture, giving rise to Preferred’s

liability for the actions of Blackwell’s staff.

¶ 14    After the hearing, the circuit court granted Preferred’s motion to dismiss pursuant to

section 2-619(a)(9) of the Code. The circuit court found that the parties’ discovery established

that “[t]he relationship between Preferred and Blackwell was limited to services provided for

electronic transmittal of requests to Blackwell in transmission of confirmation numbers back to

guests.” The agreement between Preferred and OSU/Blackwell was the “limitation of the

undertaking,” and the discovery established that Preferred does not have access to room numbers

or other information concerning guests. Preferred is simply “a contract service provider; they

charge for their services and they get paid for their services.” Although plaintiff alleged that

Preferred and OSU were engaged in a joint venture, plaintiff was unable to provide the court

with any evidence to dispute Preferred and OSU’s “contractual relationship.” Preferred and

OSU’s written agreement for services defined their duties “which do *** not cover the conduct


                                                  7
1-12-2731

alleged in the complaint,” and therefore, Preferred cannot be held liable to plaintiff for the acts of

Blackwell’s staff. In view of this ruling, the circuit court found Preferred’s section 2-615 motion

to dismiss moot and also ordered that there was “not [sic] just reason for delay of appeal or

enforcement of this order.” Thereafter, plaintiff timely filed this appeal.

¶ 15                                   ANALYSIS

¶ 16    First, plaintiff argues that Preferred’s motion was improperly designated as a motion to

dismiss and, therefore, should have been denied outright. Plaintiff contends that the motion was a

“disguised” summary judgment motion that did not involve an “affirmative matter” but merely

refuted plaintiff’s well-pled allegations. In response, defendant disagrees and argues that if its

arguments for dismissal were more appropriate for summary judgment rather than section 2-619

dismissal, reversal is only required where the nonmovant was prejudiced by the misdesignation.

¶ 17    “The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and

easily proved issues of fact at the outset of litigation” (Van Meter v. Darien Park District, 207
Ill. 2d 359, 367 (2003)) and is “similar to a summary judgment motion because [it] ‘***

essentially amounts to a summary judgment procedure.’ ” Peterson v. Randhava, 313 Ill. App.
3d 1, 9 (2000) (quoting Malanowski v. Jabamoni, 293 Ill. App. 3d 720, 724 (1997)). These types

of motions are similar because in order to rule on them we must determine “whether the

existence of a genuine issue of material fact should have precluded the dismissal or, absent such

an issue of fact, whether the dismissal is proper as a matter of law.” Raintree Homes, Inc. v.

Village of Long Grove, 209 Ill. 2d 248, 254 (2004). Misdesignation of a motion for summary

judgment as a motion to dismiss is not fatal to the movant’s right to prevail where the

nonmoving party did not suffer any prejudice or unfair surprise due to the error. Peterson, 313
Ill. App. 3d at 9.


                                                  8
1-12-2731

¶ 18   Here, the affirmative matter presented in Preferred’s motion is that it did not owe a duty

of care to plaintiff because it did not have a principal-agent or joint venture relationship with the

hotel and did not otherwise voluntarily undertake a duty of care. To support its motion, Preferred

attached to its motion a copy of the written agreement between Preferred and OSU/Blackwell

and the Riggs and Mastrandrea affidavits. Over the course of two years, the circuit court

permitted the parties to conduct written and oral discovery on the matters raised in Preferred’s

motion. Therefore, in this instance, where a defined issue was raised in Preferred’s motion and

plaintiff was granted time to conduct lengthy discovery on Preferred’s assertions, we find that,

whether viewed as a motion to dismiss or a motion for summary judgment, plaintiff was not

prejudiced in the designation of the motion to dismiss as a motion under section 2-619(a)(9) of

the Code.

¶ 19   The circuit court dismissed plaintiff’s complaint pursuant to section 2-619(a)(9) of the

Code, which permits the involuntary dismissal of a claim where the claim asserted is “barred by

other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-

619(a)(9) (West 2010). Affirmative matter is “something in the nature of a defense which

negates the cause of action completely or refutes crucial conclusions of law or conclusions of

material fact contained in or inferred from the complaint.” Illinois Graphics Co. v. Nickum, 159
Ill. 2d 469, 486 (1994). “Unless the affirmative matter is already apparent on the face of the

complaint, the defendant must support the affirmative matter with an affidavit or with some other

material that could be used to support a motion for summary judgment.” Pleasant Hill Cemetery

Ass’n v. Morefield, 2013 IL App (4th) 120645, ¶ 21. Once a defendant has presented adequate

affidavits or other evidence of support, “ ‘the defendant [has] satisfie[d] the initial burden of

going forward on the motion’ ” and the burden then shifts to the plaintiff who is required to


                                                  9
1-12-2731

establish that the affirmative matter is either unfounded or involves an issue of material fact.

Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 37 (quoting Kedzie &

103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). A plaintiff may overcome

this burden by presenting “affidavits or other proof.” 735 ILCS 5/2-619(c) (West 2010).

However, a plaintiff cannot rely on the allegations from his own complaint to refute such

evidence. Hollingshead v. A.G. Edwards & Sons, Inc., 396 Ill. App. 3d 1095, 1101-02 (2009). In

addition, if a plaintiff does not come forward with a counteraffidavit refuting the evidentiary

facts in the defendant’s affidavit or other evidence, those facts may be admitted and the motion

may be granted on the basis that plaintiff “failed to carry the shifted burden of going forward.”

Hodge, 156 Ill. 2d at 116; Pleasant Hill Cemetery Ass’n, 2013 IL App (4th) 120645, ¶ 21.

¶ 20   The affirmative matter raised by Preferred in its motion to dismiss, and supported with

affidavits and deposition testimony, is that it did not owe a duty of care to plaintiff and it was not

in a joint venture with Blackwell, and therefore, it could not be held liable for Blackwell’s

disclosure of details regarding plaintiff’s hotel stay to Barrett or the assignment of Barrett to the

room next to plaintiff without her prior consent.

¶ 21   Plaintiff argues that Preferred can be held liable for the events that occurred at Blackwell

because either (1) Preferred was a member of a joint venture with Blackwell to operate the hotel

or (2) Preferred voluntarily assumed a duty of care to plaintiff. She contends that these theories

of liability involve questions of fact that should have precluded dismissal of her claims.

¶ 22                                   Joint Venture

¶ 23   A joint venture is an association of two or more persons to carry out a single enterprise

for profit. O’Brien v. Cacciatore, 227 Ill. App. 3d 836, 843 (1992). Members of a joint venture

are vicariously liable for the joint venturers’ negligent acts committed during the course of the


                                                 10
1-12-2731

venture. Hiatt v. Western Plastics, Inc., 2014 IL App (2d) 140178, ¶ 72. Ordinarily whether a

joint venture exists is a question of fact, however, where there is no evidence to support the

existence of a joint venture, its existence can be decided as a matter of law. Anderson v. Boy

Scouts of America, Inc., 226 Ill. App. 3d 440, 444 (1992); Oliveira-Brooks v. Re/Max

International, Inc., 372 Ill. App. 3d 127, 134 (2007). “The existence of a joint venture is shown

by allegations demonstrating (1) a community of interest in the purpose of the joint association,

(2) a right of each member to direct and govern the policy and conduct of the other members,

and (3) a right to joint control and management of the property used in the enterprise.” Romanek

v. Connelly, 324 Ill. App. 3d 393, 405 (2001) (citing Behr v. Club Med, Inc., 190 Ill. App. 3d
396, 409 (1989)). A formal agreement is not essential to establish a joint venture (Hiatt, 2014 IL

App (2d) 140178, ¶ 73), and its existence “may be inferred from the facts and circumstances

demonstrating that the parties in fact entered into a joint venture” (O’Brien, 227 Ill. App. 3d at

843). However, the most significant element to consider in determining whether a joint venture

exists is the intent of the parties. Thompson v. Hiter, 356 Ill. App. 3d 574, 582 (2005).

¶ 24   Plaintiff claims Preferred is liable for Blackwell’s actions because Preferred and OSU

were engaged in a joint venture to operate Blackwell. Plaintiff argues Preferred and

OSU/Blackwell’s course of conduct created a joint venture, specifically, Preferred’s control over

the operations and policies of Blackwell and the sharing of reservation fees. We disagree and

find that, on the record before us, Preferred and OSU were nothing more than two separate

entities contracting with one another for a particular service from which each would derive their

own individual profit.

¶ 25   The record before us includes a written agreement between Preferred and OSU that

governs their relationship regarding limited services for Blackwell. Under the agreement,


                                                 11
1-12-2731

Preferred provides OSU/Blackwell with marketing, sales and reservation services in exchange

for a fee. The agreement does not mention the creation of a joint venture or enterprise, and

Preferred and OSU’s rights and obligations under the agreement are different from one another.

In fact, we found nothing in the agreement to infer that Preferred and OSU intended to operate

Blackwell as a joint venture enterprise. Furthermore, as we discuss below, plaintiff has not

provided any “affidavits or other proof” to refute Preferred’s affidavits and testimony supporting

the affirmative matter that Preferred and OSU/Blackwell did nothing to create a joint venture

either through the written agreement or through their conduct.

¶ 26                                   Common Interest

¶ 27   As to the first element necessary to establish a joint venture, plaintiff contends that a

community of interest is evidenced by Blackwell becoming a member of Preferred’s hotel

network and Blackwell having access to Preferred’s iBook reservation system, evidences a joint

venture relationship. We are not persuaded. Nothing in the parties’ agreement or conduct, as

developed from the discovery in the record, supports the conclusion that they shared a

community of interest in association with Blackwell. Certainly, both parties expected to benefit

from their contractual association, but this does not indicate the intention to create a joint venture

to operate Blackwell. See Kaporovskiy v. Grecian Delight Foods, Inc., 338 Ill. App. 3d 206, 212

(2003). In fact, the agreement indicates that Preferred and Blackwell had two different interests

in doing business with one another. Preferred would allow Blackwell the use of its reservation

system so that Internet users could book a hotel stay, and Preferred would be paid a fee for

reserving a room using its iBook service. This fee would be earned regardless of whether the

reservation proved profitable to Blackwell. In return, Blackwell would sell a room and generate

revenue from that and other services. There is no evidence Preferred would financially benefit


                                                  12
1-12-2731

beyond the fee earned through iBook. Simply put, two distinct entities doing business together

does not equate to the establishment of a joint venture. See id.

¶ 28           Right to Govern Blackwell’s Policy and Joint Control Over the Enterprise

¶ 29   Next, as to the second and third joint venture elements, plaintiff suggests that Preferred’s

contractual requirement that its member hotels comply with its “Standards of Excellence”

equates to Preferred’s right to direct the conduct and policy of Blackwell and exert control over

its operation. Contractual agreements that require one party to perform or forbid performance of

a particular act does not equate to control of management for the purpose of imposing a joint

venture. Kaporovskiy, 338 Ill. App. 3d at 212 (limiting one contracting party from selling

competing food products did not equate to “control over property” or policy); Barton v. Evanston

Hospital, 159 Ill. App. 3d 970, 974-75 (1987) (“mutuality of control” absent in a contractual

relationship where doctor has discretion in patient treatment even though hospital supplied

doctor with necessary equipment and personnel).

¶ 30   Here, the written agreement does not give Preferred any degree of joint control over the

operation of Blackwell. Although Preferred requires that its member hotels follow the “Standards

of Excellence,” the evidence before us establishes that member hotels, including Blackwell, are

not required to be in complete compliance with Preferred’s standards and the hotels may

interpret the standards and make adjustments or improvements at their discretion. Preferred

merely provides a list of standards that it wants its member hotels to meet at a 70% or higher

level, but Preferred does not actually engage in any management or control over the hotel, its

operations or its staff. According to Mr. Mastrandrea’s affidavit and deposition testimony, which

has not been refuted by plaintiff through “affidavits or other proof,” Preferred does not have any

employees at Blackwell, Preferred does not and never had access to Blackwell’s guest list or the


                                                 13
1-12-2731

assignment of hotel room numbers. Therefore, we find that Preferred and Blackwell did not have

“mutuality of control” over the hotel’s property and policies necessary to establish that element

of a joint venture.

¶ 31    Although plaintiff also contends that there was a sharing in the profits and the losses of

Blackwell, there is no evidence in the record to support this conclusion. Preferred’s receiving a

fee for its marketing and reservation services is not akin to having a common interest and sharing

profits in the operation of Blackwell. Landers-Scelfo v. Corporate Office Systems, Inc., 356 Ill.

App. 3d 1060, 1066 (2005) (cooperation between two entities consisting of one handling of the

payroll and human resources function of another company for a fee is insufficient as a matter of

law to show a joint venture existed). There is nothing in the record to suggest that Preferred and

Blackwell were anything other than two separate entities doing business with one another for

their separate financial benefit. More than a mere interest in another entity’s success must be

asserted to allege a joint venture. Two businesses entering into a service agreement “seeking to

mutually profit from it” is not enough to turn a business relationship into a joint venture

sufficient to impose vicarious liability on a contracting party. Kaporovskiy, 338 Ill. App. 3d at

212. While Preferred may have hoped for Blackwell’s continued success so that it could earn

more fees through its booking and reservation services, this is not enough to support the legal

conclusion that these entities were engaged in a joint venture. Finally, after two years of

discovery, a further indication that no joint venture existed is the evidence that Preferred would

collect booking fees even if Blackwell operated at a financial loss.

¶ 32    In the absence of any one of the required elements, a joint venture cannot be found to

exist in fact or in law. Powell v. Dean Foods Co., 2013 IL App (1st) 082513-B, ¶ 76. It is

plaintiff’s burden to show that she can support her claim that Preferred engaged in a joint venture


                                                 14
1-12-2731

to operate Blackwell. Petry v. Chicago Title & Trust Co., 51 Ill. App. 3d 1053, 1057 (1977).

Beyond mere conclusory allegations, plaintiff has failed to support her legal conclusion or

establish that a question of fact exists as to the existence of a joint venture. Therefore, we affirm

the ruling of the circuit court that Preferred did not have a duty to plaintiff on this basis.

¶ 33                                    Voluntary Undertaking

¶ 34    Next, plaintiff argues that whether Preferred voluntarily assumed a duty to protect her

privacy as a guest of Blackwell is a question of fact that precludes dismissal under section 2-

619(a)(9) of the Code. We disagree and find that no genuine issue of material fact exists as to

whether Preferred voluntarily undertook a duty to protect the privacy of Blackwell’s guests.

¶ 35    Negligence cannot be established unless the defendant owed the plaintiff a duty of care.

LaFever v. Kemlite Co., 185 Ill. 2d 380, 388 (1998). Whether a duty of care exists is a question

of law. Id.; Chelkova v. Southland Corp., 331 Ill. App. 3d 716, 722 (2002). Illinois courts have

adopted section 324A of the Restatement (Second) of Torts (1965), which provides that one may

be liable to a third person for the negligent performance of a voluntary undertaking. The relevant

sections of section 324A of the Restatement, provide as follows:

        “One who undertakes, gratuitously or for consideration, to render services to another

        which he should recognize as necessary for the protection of a third person or his things,

        is subject to liability to the third person for physical harm resulting from his failure to

        exercise reasonable care to protect his undertaking, if:

                (a) his failure to exercise reasonable care increases the risk of such harm, or

                (b) he has undertaken to perform a duty owed by the other to the third person, or

                (c) the harm is suffered because of reliance of the other or the third person upon

        the undertaking.” Restatement (Second) of Torts § 324A (1965).


                                                   15
1-12-2731

See Bell v. Hutsell, 2011 IL 110724, ¶¶ 12-14; Pippin v. Chicago Housing Authority, 78 Ill. 2d
204 (1979). Under this theory, the scope of an assumed duty “ ‘is limited to the extent of the

undertaking’ ” and must be narrowly construed. Jablonski v. Ford Motor Co., 2011 IL 110096,

¶ 123 (quoting Bell, 2011 IL 110724, ¶ 12); Siklas v. Ecker Center for Mental Health, Inc., 248
Ill. App. 3d 124, 131 (1993); Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32 (1992). To

determine the extent of the voluntary undertaking we consider, on a case by case basis, both the

specific act undertaken and a reasonable assessment of its underlying purpose. Bourgonje v.

Machev, 362 Ill. App. 3d 984 (2005).

¶ 36   Plaintiff argues that Preferred’s voluntary undertaking was evidenced by several factors:

(1) Preferred’s requirement that its member hotels comply with its “Standards of Excellence,”

which included two standards involving guest privacy; (2) Preferred’s hiring of independent

inspectors to review compliance with these standards; and (3) the appearance of Preferred’s

signage in the hotel informing hotel guests that the hotel is a member in Preferred’s network.

Plaintiff contends that, because Preferred has two privacy related standards (that the hotel

communicate the room rate and room number in writing at check-in and proof of identity must

be shown before a duplicate key is issued), the absence of a standard relating to disclosing guest

identity and room number or placing a guest next to another on request is a breach of voluntary

undertaking to protect a guest’s privacy. Further, plaintiff argues that Preferred negligently failed

to prevent Blackwell from disclosing the identity of Andrews, the dates of her stay, her room

number, and in granting Barrett’s request to be assigned a room next door to Andrews. Plaintiff

asserts that even though Preferred does not have a standard specifically prohibiting these acts,

the failure to employ such standards was a breach of the privacy standards it did embrace.

¶ 37   We find that Preferred’s actions do not rise to the level of a voluntary undertaking under


                                                 16
1-12-2731

the Restatement. The extent of Preferred’s undertaking is reflected in the written contract

between Preferred and Blackwell: Preferred allowed Blackwell to join Preferred’s member

network and agreed to let Blackwell use Preferred’s online booking platform for a fee. As

explained by Mr. Mastrandrea, although Preferred provides its hotels with a list of guest

standards to follow, Preferred has no employees at its member hotels and exercises no control

over the policies, procedures and general operation of these hotels. Plaintiff fails to identify

anything in the record to support its assertion that Preferred assumed any duty to protect the

privacy of Blackwell’s guests under its marketing and reservation agreement with Blackwell

other than the two standards related to written room rates and room assignment and issuance of

duplicate keys. Plaintiff does not provide any support for her assertion that Preferred “render[ed]

services to another which *** [it] should recognize as necessary for the protection of a third

person.” From this record, it is clear that the extent of Preferred’s undertaking to Blackwell was

to provide a reservation platform for booking rooms over the Internet and issuing the two

aforementioned standards. There is no evidence that supports the conclusion that, by providing

this service and publishing these standards, Preferred voluntarily undertook an additional duty to

protect the privacy of other guests of Blackwell, of which it had no knowledge or connection

whatsoever, by undertaking duties to instruct Blackwell’s staff against giving guest information

or room numbers or assigning guests in the manner that is alleged in this complaint.

¶ 38   There is no evidence to conclude that Preferred could have voluntarily undertaken a duty

to protect plaintiff’s privacy where Preferred only contracted with OSU/Blackwell for marketing

and reservation services and did not have contact with or put forth any service for plaintiff’s

benefit. Mastrandrea testified that plaintiff did not book her hotel room through Preferred’s

iBook system. Other than guests who used the iBook reservation system, Preferred has no


                                                17
1-12-2731

contact with any other Blackwell guest and does not have access to Blackwell records to learn

the identity, duration or room assignment for anyone staying at the hotel. Defendant supported its

motion to dismiss with affidavits and other evidence to show that this affirmative matter defeated

plaintiff’s claims. Plaintiff was afforded ample opportunity to discover evidence that would

refute defendant’s affirmative matter or demonstrate that a question of material fact exists. The

allegations contained in plaintiff’s complaint are insufficient to refute the affirmative matter

properly raised and produced by defendant. Hollingshead, 396 Ill. App. 3d at 1101-02.

¶ 39   To the extent that Preferred’s quality standards that hotels put room rates and numbers in

writing at check-in and that called for identification prior to issuing duplicate room keys may be

relevant to the issue of a voluntary undertaking, we find this is insufficient to expand the

undertaking to include all other conceivable security measures. Voluntary undertakings are to be

strictly construed and even if we considered these two standards to be security related they do

not extend the duty of care to an act that was not voluntarily undertaken. The complained of acts

did not involve oral identification of a room number at check-in or the giving of a duplicate key

to a room without producing identification. Preferred did not undertake a privacy standard for its

member hotels that it should not identify guests or their rooms over the phone or assign adjoining

rooms upon request and without the other guests consent. Plaintiff has not demonstrated a

plausible argument to extend the theory of voluntary undertaking to conduct that is the

equivalent to a failure to perform.

¶ 40   We conclude, based on this record, there is no evidence to support a finding that a

voluntary undertaking was made by Preferred to protect the privacy of plaintiff. We find that the

circuit court properly found that Preferred did not voluntarily undertake a duty of care to protect

plaintiff’s privacy and therefore properly dismissed the complaint. Tedrick v. Community


                                                18
1-12-2731

Resource Center, Inc., 235 Ill. 2d 155 (2009) (dismissal of a complaint sounding in negligence

against a husband’s mental health care providers was upheld where the providers could not have

voluntarily undertaken a duty to protect the wife from his violent acts because the providers did

not render a service to the wife or for her protection); Pippin v. Chicago Housing Authority, 78
Ill. 2d 204 (1979) (summary judgment for landlord upheld in wrongful death action of a social

guest of the tenant on landlord’s premises because landlord did not voluntarily undertake a duty

to protect the guest where landlord did not provide “protective services” itself but rather hired a

third party to provides “protective services” on the premises); cf. Nelson v. Union Wire Rope

Corp., 31 Ill. 2d 69 (1964) (defendant insurance company owed a duty to protect plaintiff

construction workers from injury where it voluntarily advertised, planned, directed, and

undertook safety inspections and safety engineering services to ensure safety on construction

project and filed reports with the insurance agency and insured relied on these inspections).

¶ 41                                  CONCLUSION

¶ 42   For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 43   Affirmed.




                                                19