Docket No. 108108.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
RYAN T. SIMMONS et al., Appellees, v. JOHN D. HOMATAS et
al. (On Stage Productions, Inc., Appellant).
Opinion filed March 18, 2010.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Kilbride, and
Karmeier concurred in the judgment and opinion.
Justice Freeman concurred in part and dissented in part, with
opinion, joined by Justice Burke.
OPINION
The separate plaintiffs in this case are special administrators of
the estates of the decedents, who were fatally injured in an
automobile collision. Plaintiffs allege that defendant, On Stage
Productions, Inc., operator of a strip club, negligently encouraged a
patron to consume alcoholic beverages until he became intoxicated
and then required him to drive off the premises, which resulted in the
collision that killed plaintiffs’ decedents. Defendant On Stage filed
a motion to dismiss all claims, which was denied by the circuit court
of Kane County. The circuit court did, however, certify two questions
for interlocutory appeal. The court sought guidance as to whether
defendant owed a duty of care to each plaintiff. The appellate court
answered both questions in the affirmative. 386 Ill. App. 3d 998.
Defendant On Stage then appealed to this court. We are asked now to
determine whether On Stage owed a duty to the decedents based on
its actions the night of the collision.
BACKGROUND
No factual findings have been made in the circuit court in this
case, as it arises from questions certified on denial of a motion to
dismiss. Therefore, the following summary of facts is drawn from the
allegations contained within plaintiffs’ complaints.
Around 9 p.m. on January 4, 2006, John Homatas and John
Chiariello arrived at Diamonds Gentlemens Club (Diamonds or the
club), which is operated by defendant On Stage Productions, Inc. On
Stage operates Diamonds as a fully nude strip club. The club is
located in Du Page County, which prohibits clubs featuring nude
dancing from receiving a license to serve alcohol. As a result,
Diamonds does not serve alcohol to its patrons. However, it does
allow patrons to bring their own alcohol. Diamonds also sells glasses,
ice, soft drinks and other mixers for making alcoholic drinks.
When Homatas and Chiariello arrived at the club, Homatas had
been driving. Homatas left his vehicle with the club’s valet service,
as the club requires. Homatas and Chiariello then went inside. The
two men had brought with them a fifth of rum and a fifth of vodka.
Over the course of the next two hours, the two men poured several
drinks. They purchased mixers, glasses and ice from the club.
Homatas became visibly intoxicated and around 11 p.m. was found
by Diamonds’ employees to be vomiting in the restroom. The
employees immediately ejected Homatas and Chiariello from the
club. They also instructed the valet service to start Homatas’s car and
bring it to the front door. When the car arrived, employees opened the
driver-side front door and directed Homatas to leave the premises.
Approximately 15 minutes later, Homatas collided with a vehicle
driven by April Simmons. The collision resulted in the deaths of
Chiariello, Simmons, and Simmons’ unborn daughter, Addison
Elizabeth Simmons. Homatas was injured, but has since recovered
from those injuries.
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Representatives of the decedents’ estates then brought suit,
alleging both common law negligence and liability under the
Dramshop Act (235 ILCS 5/6–21 (West 2008)). Chiariello’s estate is
represented by his father, plaintiff Gaetano Chiariello. April’s and
Addison’s estates are represented by April’s husband and Addison’s
father, plaintiff Ryan Simmons.
The Simmons complaint contains six counts. Counts I through IV
allege statutory liability under the Dramshop Act for property damage
and loss of society for each of Simmons’s decedents. Counts IV and
V allege common law claims for wrongful death of April and
Addison. The Chiariello complaint contains two counts. It alleges
common law wrongful death in count I and alleges a statutory
Dramshop Act claim for property damage and loss of society in count
II.
On Stage moved to dismiss under section 2–615 of the Code of
Civil Procedure (735 ILCS 5/2–615 (West 2008)), asserting that both
plaintiffs’ complaints fail to state a cause of action upon which relief
can be granted. First, On Stage argued that the Dramshop Act is the
sole remedy for actions involving liability from alcohol-related
injuries, thereby precluding plaintiffs’ common law claims. Second,
On Stage argued that because the Dramshop Act applies only to
businesses engaged in the sale or gift of alcohol, the Dramshop Act
does not extend liability to On Stage as a result of its policy of not
selling or serving alcohol to its patrons.
The circuit court granted, in part, On Stage’s motion to dismiss.
The court concluded that the Dramshop Act did not apply to the club
because it did not sell or give alcohol to its patrons. It also recognized
that there is no common law cause of action against a provider of
alcoholic beverages for injuries arising out of the sale or gift of such
beverages. However, the court allowed plaintiffs’ remaining common
law counts to proceed after considering whether On Stage nonetheless
otherwise owed a duty to plaintiffs. Regarding the Chiariello plaintiff,
the court found that a duty existed as a result of a business invitor-
invitee relationship between On Stage and Chiariello. Regarding the
Simmons plaintiff, the court concluded that although there was no
special relationship between Homatas and Simmons, a duty may exist
when the defendant’s affirmative conduct creates or contributes to the
risk of harm. After considering the foreseeability and likelihood of
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injury, and the magnitude and consequences of imposing a burden
guarding against the risk, the circuit court concluded that On Stage
also owed a duty to Simmons.
As part of its order denying On Stage’s motion to dismiss
plaintiffs’ common law claims, the circuit court identified this issue
as a question of law suitable for interlocutory appeal pursuant to
Supreme Court Rule 308 (155 Ill. 2d R. 308(a)). After receiving
suggested questions of law from the parties, the circuit court entered
an order certifying two questions. First, as to Chiariello:
“Whether the defendant, Diamonds, a business operator who
is not subject to the Dram Shop Act [sic] (because it does not
sell or serve alcoholic beverages upon its premises), owed a
duty of unreasonable risk of harm to a business invitee
Chiariello, who shortly after leaving the defendant’s place of
business, was killed in a motor vehicle accident on a public
highway, due to the negligent operation of a motor vehicle,
driven by Homatas, who within a short period of time prior to
the aforesaid motor vehicle collision, was also an invitee of
defendant’s place of business under the following
circumstances:
• where defendant’s valet service took control of
Homatas’s vehicle upon his entering defendant’s place of
business;
• where defendant as part of its business plan
encouraged its invitee Homatas to bring and consume
alcoholic beverages to and beyond the point of
intoxication upon its premises;
• thereafter removed its invitee Homatas from its
premises due to his intoxication;
• ordered and assisted the invitee Homatas into the
driver seat of his vehicle;
• ordered invitee Chiariello off the premises and into
the intoxicated Homatas’s vehicle;
• allowed said intoxicated invitee Homatas to drive
the vehicle away from the premises and onto the public
highway;
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• where defendant was aware that its business invitee
Chiariello was a passenger in said vehicle and the driver
invitee Homatas had a level of intoxication which was
obvious enough that a reasonable person would have
determined that he was unable to operate a motor
vehicle[.]”
Then, as to Simmons:
“Whether the defendant, Diamonds, a business operator who
is not subject to the Dram Shop Act [sic] (because it does not
sell or serve alcoholic beverages upon its premises), has a
duty of ordinary care to the Simmons Plaintiffs, who while
motoring on a public highway, were killed due to the
negligent operation of a motor vehicle driven by Homatas,
who within a short period of time prior to the aforesaid motor
vehicle collision, was an invitee of defendant’s place of
business under the following circumstances:
• where defendant’s valet service took control of
Homatas’s vehicle upon his entering defendant’s place of
business;
• encouraged its invitee Homatas to bring alcoholic
beverages onto its premises in order consume to the point
of intoxication;
• thereafter removed its invitee Homatas from the
premises because of his intoxication;
• ordered and assisted the invitee Homatas into the
driver seat of his vehicle;
• then after controlling its invitee’s automobile while
he was on its premises, relinquished said automobile into
the hands of its invitee Homatas
• while defendant knew or should have known that
due to Homatas’s intoxication he was unable to operate a
motor vehicle;
• then allowed said Homatas to drive the vehicle away
from the premises onto the public highway[.]”
On Stage appealed the order certifying the above questions. The
appellate court allowed the appeal. In reviewing the case, the court
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asked the parties to file supplemental briefs on whether section 876
of the Restatement (Second) of Torts provides a basis upon which it
could find a duty existed. Section 876 addresses the liability of a
defendant for harm resulting to a third person from the tortious
conduct of another. In its published decision, the court concluded that
section 876 does provide the basis of a duty On Stage owed to both
plaintiffs. Thus, the court answered both certified questions in the
affirmative and remanded for further proceedings.
On Stage petitioned for leave to appeal the appellate court’s
decision, which we allowed pursuant to Supreme Court Rule 315
(210 Ill. 2d R. 315). For the reasons that follow, we hold that On
Stage owed a duty of care to both plaintiffs, answer both certified
questions in the affirmative, and remand the cause for further
proceedings.
ANALYSIS
Our review of the appellate court’s ruling on certified questions
is governed by Rule 308. Certified questions, by definition, are
questions of law that we review de novo. We generally limit our
review to the certified questions, but in the interests of judicial
economy and the need to reach an equitable result we may also
consider the propriety of the circuit court order giving rise to these
proceedings. Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 354
(2007).
In answering the certified questions, we first note, as did the
appellate court, that the questions differ slightly as to their wording.
Both wordings, however, reflect the same concern with determining
whether On Stage owed a duty to each plaintiff. Therefore, we will
consider both of these similar questions together, conducting a single
analysis.
On Stage first contends that the legislature has preempted all
alcohol-related liability with passage of the Dramshop Act. On Stage
relies primarily on Charles v. Seigfried, 165 Ill. 2d 482 (1995), to
argue that the Dramshop Act altered the common law rule that no
liability existed on the part of a seller of alcohol, but that it extended
liability only to those licensed by the state to sell alcohol, and
precluded liability for all other alcohol-related injuries. On Stage also
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cites cases discussed in Charles and those which in turn have since
followed Charles. Therefore, we next summarize this body of case
law.
Charles was not the first case in Illinois to consider whether a
common law action exists in addition to liability under the Dramshop
Act, or in cases where the Dramshop Act does not apply. However,
Charles explained in detail the history of liability associated with
furnishing alcoholic beverages. As On Stage notes, this history began
with the court recognizing that there is no common law cause of
action for injuries arising out of the sale or gift of alcoholic
beverages. Charles, 165 Ill. 2d at 486. The basis for this common law
rule is that the drinking of an intoxicant is the proximate cause of
such injuries, and the furnishing of the beverage is too remote to be
considered the proximate cause of any injuries. Charles, 165 Ill. 2d
at 486.
In 1872, the legislature changed this rule, to a limited extent, with
passage of legislation that is now referred to as the Dramshop Act. At
that time, following the Civil War, the temperance movement took
advantage of what this court called a “great wave” of reform, and
sought to enact laws that would “ ‘provide against the evils resulting
from the sale of intoxicating liquors in the State of Illinois.’ ”
Cunningham v. Brown, 22 Ill. 2d 23, 27 (1961), quoting 4 E. Bogart
& C. Thompson, A Centennial History of Illinois 42-44 (1920). The
Dramshop Act extended liability to persons who sold or gave alcohol
to persons who later injured third parties as a result of being
intoxicated. Charles, 165 Ill. 2d at 487.
In 1889, this court clarified that the Dramshop Act created a cause
of action only against those engaged in the liquor trade. Cruse v.
Aden, 127 Ill. 231, 239 (1889). The legislature did not intend to
extend liability to a social host “who, in his own house, or elsewhere,
gives a glass of intoxicating liquor to a friend as a mere act of
courtesy and politeness.” Cruse, 127 Ill. at 239. The court again
emphasized that under the common law rule, no liability attached to
one who furnished alcohol to another person. Cruse, 127 Ill. at 234.
More recently, this court reaffirmed that the Dramshop Act is the
exclusive remedy for holding providers of alcohol liable for the
actions of an intoxicated person. In Cunningham v. Brown, 22 Ill. 2d
23 (1961), a wife sued tavern operators for providing alcohol to her
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husband, who become intoxicated and despondent, and took his own
life. The wife sought a remedy under what was then section 12 of the
Dramshop Act, which did not provide an express remedy. She also
sought to recover under a common law theory of liability.
The court concluded that neither cause of action was appropriate.
A particular remedy was provided elsewhere within the statute. The
plaintiff’s interests were intended to be protected by that remedy
alone. Cunningham, 22 Ill. 2d at 29. Thus, no common law remedy,
and no independent statutory remedy, was available to the wife as
against the tavern operator who had provided alcohol to her husband.
Cunningham, 22 Ill. 2d at 30-31.
Since Cunningham, this court has repeatedly reaffirmed these
conclusions. Thus, it is well established that under the common law,
no liability is imposed on a person who gives or sells alcohol to
another person who later harms a third party while intoxicated.
Hopkins v. Powers, 113 Ill. 2d 206, 211 (1986); Demchuk v.
Duplancich, 92 Ill. 2d 1, 5 (1982); Knierim v. Izzo, 22 Ill. 2d 73, 77
(1961). It is also established that the Dramshop Act imposes liability
only on those persons officially engaged in the business of selling
liquor in the State of Illinois. Wakulich v. Mraz, 203 Ill. 2d 223, 237
(2003) (rejecting social host liability); Charles, 165 Ill. 2d at 491
(same). Under these long-standing principles it is evident that On
Stage is not subject to liability under the Dramshop Act. On Stage
neither is in the business of selling liquor in Illinois nor is it providing
alcohol as a “social host.” Although the club provided glasses, ice and
mixers to its patrons, the club did not provide alcohol to either
Homatas or Chiariello. The circuit court was, therefore, correct in
concluding that the Dramshop Act does not apply.
On Stage’s primary argument, however, is that the Dramshop Act
further acts to preempt any other liability resulting from Homatas’s
intoxication. On Stage relies on a statement in Charles that the rule
in Illinois is “firmly established” that the General Assembly “has
preempted the entire field of alcohol-related liability through its
passage and continual amendment of the Dramshop Act.” Charles,
165 Ill. 2d at 491. For the reasons below, however, we conclude that
reliance on this statement is misplaced. Although this statement from
Charles applies broadly to those who provide alcohol to another
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person, it does not extend so far as to preempt a common law cause
of action under the circumstances posited by the certified questions.
The body of law cited by On Stage and discussed above primarily
focuses on the liability of those persons providing alcohol to a patron
or guest who ultimately cause injuries to a third party. Both Cruse and
Charles asked whether social hosts were subject to liability under the
Act. In Cunningham the defendants were tavern operators. These
cases demonstrate that the Dramshop Act provides a framework for
determining whether a provider of alcohol will be exposed to liability.
If the provider is a business that sells alcohol, liability may attach, but
only under the Dramshop Act, not under the common law. If the
provider is merely a social host, liability will not attach, either under
the statute or under the common law. What the above cases do not
discuss is liability for injuries that arise not as a result of the provision
of alcohol, but as a result of the encouragement of, or assistance in,
tortious conduct.
The preemption stated in Charles was limited in exactly this way.
In that case, this court concluded “few rules of law are as clear as that
no liability for the sale or gift of alcoholic beverages exists in Illinois
outside of the Dramshop Act.” (Emphasis added.) Although the
Charles court used the phrases “alcohol-related liability” (Charles,
165 Ill. 2d at 490) and “alcohol-induced injuries” (Charles, 165 Ill.
2d at 489), the court’s analysis addressed only claims arising from the
defendant’s provision of alcohol. The court did not need to consider
whether actions of the defendant, independent of providing alcohol,
led to the third party’s injuries. This distinction is relevant to the
present case.
We have previously recognized this distinction in the more recent
case of Wakulich v. Mraz, 203 Ill. 2d 223 (2003). In that case, the
plaintiff alleged that a pair of brothers, social hosts, provided alcohol
to the plaintiff’s minor daughter. The daughter became intoxicated as
a result and became unconscious. She began “vomiting profusely and
making gurgling sounds.” Wakulich, 203 Ill. 2d at 227. The hosts
removed her soiled blouse and provided a pillow under her head to
prevent aspiration, but did not drive her home or contact her parents,
and prevented others at the home from calling 911 or seeking medical
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attention. The daughter died the following day, after the brothers’
father allegedly ordered them to remove her from the house.1
The Wakulich plaintiff sued the brothers, alleging they were
negligent in providing alcohol to her daughter and negligent in failing
to act reasonably to protect her after voluntarily undertaking to care
for her after she became unconscious. Wakulich, 203 Ill. 2d at 227. In
affirming the dismissal of the negligence claim relating to the
brothers’ providing alcohol to the daughter, we reiterated that Illinois
law does not recognize social host liability for the provision of
alcohol, citing Charles.2 Regarding the plaintiff’s voluntary
undertaking claim, however, we agreed with the appellate court that
this claim should not have been dismissed. Wakulich, 203 Ill. 2d at
246-47. We reasoned that the fact the brothers served as social hosts
was irrelevant to this claim. Instead, the brothers’ liability arose “by
virtue of their voluntary assumption of a duty to care *** irrespective
of the circumstances leading up to that point.” Wakulich, 203 Ill. 2d
at 242.
The appellate court has also recognized situations where liability
arose not from the provision of alcohol to a patron, but from the
actions of the defendant tavern after the patron had become
intoxicated. A cocktail lounge owner was held responsible for failing
to protect a patron from an attack by another intoxicated, belligerent
patron. Lessner v. Hurtt, 55 Ill. App. 3d 195, 197 (1977). The court
recognized the rule in Cunningham barring liability for the sale or gift
of alcohol, but concluded that the lounge owner still owed a duty to
protect its patrons while on the premises. Lessner was subsequently
1
Although this court’s opinion in Wakulich does not provide details as
to the events following the daughter’s removal from the house, the
appellate court noted that she was taken first to a friend’s house, and later
to the hospital, where she was pronounced dead. Wakulich v. Mraz, 322 Ill.
App. 3d 768, 770 (2001).
2
Following this court’s decision in Wakulich, the General Assembly
enacted legislation that created a cause of action based on the liability of
persons, including social hosts, who provide alcohol to, and cause the
intoxication of, a person under 18 years of age. 740 ILCS 58/5 (West
2008).
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cited in Harris v. Gower, Inc., 153 Ill. App. 3d 1035, 1037 (1987). In
Harris, a bar patron became intoxicated, and subsequently became
unconscious, after being served several drinks. Bar employees then
removed the patron from the bar and placed him in his vehicle.
Overnight the patron froze to death. The court concluded that
allegations that the bar served the decedent alcohol were significant
only insofar as to how he became unconscious. Again, liability arose
not from providing alcohol, but from the bar employees’ negligence
in placing the decedent in peril. Harris, 153 Ill. App. 3d at 1038. Both
of these cases involved an “alcohol-related injury,” yet each held a
cause of action existed based on negligence unrelated to serving
alcohol.
On Stage argues that the appellate court later recognized Harris
as being based on premises liability and that it later distinguished
Harris in Holtz v. Amax Zinc Co., 165 Ill. App. 3d 578 (1988). The
court’s distinguishing of Harris, however, only emphasizes the
difference between the mere furnishing of alcohol to a person and
conduct that arises to negligence independent of providing alcohol.
In Holtz, an employee became intoxicated at a company picnic and
later drove away, which resulted in severe injuries to the plaintiff.
Holtz, 165 Ill. App. 3d at 579-80. The plaintiff argued that the
employer was negligent in permitting the employee to leave, knowing
that the employee was intoxicated. The court held that an employer
cannot be liable “where its agents have simply failed to take steps to
prevent an intoxicated employee from driving home.” Holtz, 165 Ill.
App. 3d at 583.
As On Stage notes, the court distinguished Harris as based on
premises liability. However, just as the voluntary undertaking
doctrine allowed recovery in Wakulich and the duty of a tavern to
protect its patrons from violence allowed recovery in Lessner,
premises liability in Harris was merely one vehicle through which
negligent conduct independent of serving alcohol could be properly
pled. Thus, in Holtz, the employer was not liable, as there was no
further conduct, beyond serving alcohol, that exposed the employer
to liability. The court in Holtz properly held that merely permitting an
intoxicated employee to leave does not create liability.
Similarly, On Stage’s duty does not arise from providing alcohol
to Homatas. Indeed, the parties agree that the club did not provide any
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alcohol at all. Rather, a duty under the facts alleged arose later,
following a series of actions taken by club employees in response to
discovering Homatas vomiting in the club’s restroom At that point,
employees allegedly ejected Homatas and Chiariello from the club,
ordered the parking attendant to bring Homatas’s car around to the
front door, and assisted Homatas and Chiariello into the vehicle,
directing him then to leave the premises.
On Stage also relies, in part, on Wienke v. Champaign County
Grain Ass’n, 113 Ill. App. 3d 1005 (1983), to contend that helping
Homatas to his vehicle does not trigger liability. In Wienke, the
plaintiffs’ decedents were injured when an intoxicated employee of
the defendant, while driving, collided with the decedents’ vehicle.
Wienke, 113 Ill. App. 3d at 1005-06. Prior to the collision, the
employee had been attending an event sponsored by the defendant, at
which he was served alcohol. The employee left the event with two
coworkers. The coworkers drove the employee to his vehicle, which
was parked approximately four miles from the event. At that time, the
intoxicated employee entered his vehicle and drove away, later
causing the collision. Wienke, 113 Ill. App. 3d at 1006.
The court first rejected a theory of liability based on the defendant
having furnished alcohol to its employee, consistent with both its own
precedent and this court’s holding in Cunningham. Wienke, 113 Ill.
App. 3d at 1009. The court also considered whether having coworkers
drive the employee to his car, knowing he was intoxicated, could
trigger liability for the employer. In so doing, the court cited
Gustafson v. Mathews, 109 Ill. App. 3d 884 (1982). In that case, an
intoxicated patron was assisted by bar employees out to the parking
lot to his van, where his five children had been waiting. The patron
drove away and later collided with a truck, killing the patron and four
of the children. Gustafson, 109 Ill. App. 3d at 885, 886. The
Gustafson court held that common law imposed no duty on the bar
owners, suggesting that to do so would require imposing the same
duty to all owners of parking lots, and would require them to
“evaluate the behavior of their customers to determine whether they
have the capacity to drive safely.” Gustafson, 109 Ill. App. 3d at 887.
The Wienke court echoed this statement, indicating that finding
liability would “impose a heavy burden upon those *** who aid
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others who may be intoxicated in getting to their automobiles.”
Wienke, 113 Ill. App. 3d at 1010.
Gustafson and Wienke, according to On Stage, represent courts’
efforts to prevent open-ended liability for dram shops, restaurants,
parking lot owners and others that may be put in a position of helping
a patron to his or her vehicle. On Stage argues that allowing recovery
in this case would open such a “Pandora’s box.” We disagree.
Of concern to the courts in Wienke and Gustafson was whether
persons should be given the burden of determining whether a person
was intoxicated and whether that person would drive safely or
recklessly. However, our decision in this case does not implicate
those concerns. On Stage took on the burden of determining whether
Homatas was dangerously intoxicated when club employees
discovered him vomiting in the restroom, a likely result of his
intoxication. On Stage, on its own initiative, made this determination
and expelled Homatas from the club. In doing so, On Stage acquired
a duty not to encourage and assist Homatas in the tortious conduct of
driving while intoxicated. On Stage, in effect, argues both that it
should not be required to determine whether a patron is intoxicated
and that it cannot be not responsible when it nonetheless voluntarily
chooses to make that determination and then facilitates that patron’s
tortious conduct. Such an argument is untenable. We conclude that
the Dramshop Act does not preempt plaintiffs’ common law claims
in this case, and does not preclude imposing a duty of care on On
Stage.
In addition to preemption, On Stage also argues that to impose a
duty in this case requires that there be a special relationship between
On Stage and the decedents. On Stage cites several cases requiring a
special relationship before a defendant may be held liable for the
criminal acts of a third party. However, its reliance on these cases is
misplaced.
On Stage is correct that a special relationship is required in order
to impose a duty on the defendant to protect others from the criminal
acts of a third party. Iseberg v. Gross, 227 Ill. 2d 78, 87 (2007);
Restatement (Second) of Torts §§314, 314A (1965) (concerning a
duty to act for the protection of others, and requiring a special
relationship for such duty to arise). This is true because a private
person generally has no affirmative duty to control the conduct of
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another to prevent such an act. Hills v. Bridgeview Little League
Ass’n, 195 Ill. 2d 210, 228 (2000). However, this case does not raise
a question as to whether On Stage had a duty to control Homatas’s
conduct. Indeed, had Homatas left on his own, and On Stage was
alleged to have merely failed to prevent him from leaving the club
and driving away intoxicated, sections 314 and 314A of the
Restatement may have applied. Under those circumstances, no duty
would have arisen absent a special relationship. As discussed above,
however, this case implicates a different section of the Restatement.
Section 876 imposes liability on those persons who act in concert
with another tortfeasor, giving substantial assistance or
encouragement to another’s tortious conduct. Restatement (Second)
of Torts §876 (1979) (describing in-concert liability).
These sections of the Restatement are not inconsistent. Although
one does not have a duty to prevent the criminal acts of a third party,
one does have a duty to refrain from assisting and encouraging such
tortious conduct. If a plaintiff can demonstrate that the defendant did
not merely fail to act, but also assisted the third party, then the
requirement of a special relationship no longer applies. Although On
Stage argues that Elizondo v. Ramirez, 324 Ill. App. 3d 67 (2001),
involved similar facts to the instant case, that case instead serves as
an example of how the two Restatement sections differ.
In Elizondo, the parents of a 15-year-old girl allowed the girl to
have a party at which she provided alcohol to her underage friends.
At that party, the plaintiff’s decedent was killed in a fight with
another of the party’s guests who was a member of a rival gang. The
plaintiffs argued that no special relationship was needed to impose a
duty on the girl’s parents. The court disagreed, however, reaffirming
that a special relationship is required in such situations. These facts
are not analogous to those presented this case. The parents in no way
assisted or encouraged the actions of the fighting party guests. They
did not provide a weapon or instigate the disagreement. In Elizondo,
the parents merely failed to prevent the fight. In this case, the
appellate court discerned that plaintiffs’ complaint raised a question
under section 876, in that plaintiffs alleged not that On Stage merely
failed to act, but that it affirmatively assisted Homatas in driving
while intoxicated. Under such circumstances, plaintiffs need not
establish a special relationship.
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Under the circumstance described by the circuit court, the
Dramshop Act does not preempt a claim under section 876 of the
Restatement. Nor does section 876 require plaintiffs to prove a
special relationship between the defendant and the decedents.
Therefore, we conclude that On Stage owed a duty to both plaintiffs’
decedents, and answer the certified questions in the affirmative.
On Stage argues, in the alternative, that even if the Dramshop Act
does not preempt a cause of action under section 876, and On Stage
did indeed owe a duty to the decedents, the plaintiffs have not alleged
facts sufficient to state a cause of action under that section. Thus,
according to On Stage, the circuit court nonetheless erred in denying
its motion to dismiss plaintiffs’ common law claims. A grant or
denial of a motion to dismiss is a question of law that we review de
novo. Wakulich, 203 Ill. 2d at 228.
The comment to subsection (b) of section 876 lists five factors to
be considered in determining whether in-concert liability will attach.
These factors are (1) the nature of the act encouraged, (2) the amount
of assistance given by the defendant, (3) his presence or absence at
the time of the tort, (4) his relation to the other and (5) his state of
mind. On Stage argues that plaintiffs’ complaints are not premised on
these factors, and the facts relied upon by the appellate court do not
state a cause of action based on these factors.
The question of whether a defendant has substantially assisted or
encouraged another person in his tortious conduct based on the above
factors is a question for the jury. Sanke v. Bechina, 216 Ill. App. 3d
962, 971-72 (1991). On Stage contends that the complaint fails, on its
face, to allege the necessary facts. An examination of plaintiffs’
complaint does not support On Stage’s argument.
To state a cause of action under section 876, plaintiffs must
demonstrate that On Stage knew Homatas’s conduct constituted a
breach of duty and that On Stage gave substantial assistance or
encouragement to Homatas in committing that breach of duty. The
comments to that section further note that “[a]dvice or encouragement
to act operates as a moral support to a tortfeasor and if the act
encouraged is known to be tortious it has the same effect upon the
liability of the adviser as participation or physical assistance.”
Restatement (Second) of Torts §876, Comment d, at 317 (1979).
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In the Simmons complaint, Simmons alleged in both of his
common law counts that On Stage knew or should have known that
Homatas was intoxicated and was leaving the premises by driving a
vehicle in that state. Simmons also alleged that On Stage “removed”
Homatas from the club, and “negligently and carelessly directed John
D. Homatas *** to leave the premises of the club.”
Similarly, the Chiariello plaintiff alleges that Homatas became
visibly intoxicated at the club, after purchasing mixers and glasses
from On Stage employees. The complaint alleges that On Stage
employees sometime later then discovered Homatas vomiting in the
bathroom and ejected him from the club. Chiariello further alleges
that employees directed the valet service to bring Homatas’s car,
opened the door for him when it arrived, and directed Homatas to
drive away from the premises.
The above facts, as alleged, are sufficient to state a cause of action
for common law negligence under section 876. In this case, a
reasonable jury could find that On Stage knew that the act of driving
while intoxicated is tortious conduct and constitutes a breach of duty
toward others traveling on the public highways. Further, from the face
of the complaints, plaintiffs allege On Stage knew Homatas was
intoxicated, and clearly knew he was driving from the premises. A
reasonable jury could also conclude that ejecting Homatas from the
club, having the parking valet bring Homatas’s car to the front of the
club, and assisting him into his vehicle and directing him to drive off
constitutes substantial assistance from, or encouragement by, On
Stage toward Homatas in his tortious conduct.
On Stage argues, however, that plaintiffs’ complaints allege
nothing about On Stage encouraging Homatas to speed, drive on the
wrong side of the road or otherwise drive erratically once Homatas
had left the club. Plaintiffs respond that On Stage need not have been
present at the time of the collision in order for liability to attach to its
conduct. We agree with plaintiffs.
A case upon which On Stage relies is Wolf v. Liberis, 153 Ill.
App. 3d 488 (1987). In Wolf, the defendant had a fight with her fiance
while having dinner at a restaurant. During the dinner the defendant
had several glasses of wine. The two went home separately. Later, the
defendant, intoxicated, drove to her fiance’s apartment. After
resolving their dispute, the defendant’s fiance offered to follow her
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as she drove home. During the drive the defendant crashed her
vehicle into a store window. The fiance backed the car out of the
store. He told the defendant to stay there as he went to call the police.
The defendant, however, chose to leave the scene. After she left,
her fiance became involved in a struggle with several assailants. In
his efforts to get away, he lost control of his car, striking the vehicle
being operated by the plaintiff’s decedent. The plaintiff sought to
recover from the defendant on a theory of in-concert liability, alleging
she had assisted and encouraged her fiance’s tortious conduct.
We find Wolf to be inapposite. The appellate court in Wolf
concluded that because defendant had already driven away by the
time of the accident, she could not have assisted or encouraged his
conduct. The defendant did not suggest or require her fiance to do
anything that would have caused him to act negligently. She left the
scene before she could have induced her fiance to drive in a particular
manner. Wolf does not stand for the proposition that a defendant must
be present in order to encourage tortious conduct. Rather, Wolf is
merely an example, under particular circumstances, of actions that do
not rise to assistance and encouragement.
In Wolf, the defendant made no suggestions as to what her fiance
should do in response to his being assaulted or required him to take
any action. Here, On Stage is alleged to have required Homatas to
leave the club, placed him into his vehicle, and required him to leave
its premises. Under the plaintiff’s theory, On Stage provided only one
option for Homatas to leave its premises. That option was to leave, by
car, even though it had determined that Homatas was intoxicated.
On Stage also cites Fugate v. Galvin, 84 Ill. App. 3d 573 (1980),
which upheld the general rule that passengers of a car are not
responsible for damages caused by the driver, unless the passenger is
the owner of the car, or otherwise has a right to control the vehicle.
Fugate, 84 Ill. App. 3d at 575. In that case, the passenger asked his
intoxicated friend to drive him to another friend’s house. The
appellate court rejected the argument that the passenger was liable for
putting the driver “in motion.” Fugate, 84 Ill. App. 3d at 574. In the
appellate court’s view, “[t]he decision to take to the road in an
intoxicated condition remained the driver’s alone.” Fugate, 84 Ill.
App. 3d at 576.
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Fugate is also readily distinguished. The context of a friend
simply asking another friend for a ride home is significantly different
from what plaintiffs allege in this case. Here, Homatas’s choices of
action were limited by his having club employees bring him his car,
opening his door, placing him inside and requiring him to leave the
premises. The facts, as alleged by plaintiffs, do not suggest that On
Stage was making a request of Homatas. Instead they suggest that On
Stage left Homatas little choice but to drive his vehicle off the club’s
property and onto the public highways.
As the circuit court recognized, this case presents a set of special
circumstances. We do not hold today that restaurants, parking lot
attendants or social hosts are required to monitor their patrons and
guests to determine whether they are intoxicated. We hold only that
where, as here, a defendant is alleged to have removed a patron for
being intoxicated, places the patron into a vehicle and requires him
to drive off, such facts are sufficient to state a common law
negligence cause of action that is not preempted by the Dramshop
Act.
CONCLUSION
We answer both certified questions in the affirmative, and remand
this cause to the circuit court for further proceedings consistent with
this opinion.
Certified questions answered;
cause remanded.
JUSTICE FREEMAN, concurring in part and dissenting in part:
I agree that the circuit court correctly dismissed plaintiffs’
Dramshop Act claims. Slip op. at 13. The more difficult question is
whether plaintiffs have adequately pled common law claims for in-
concert liability. It was this issue that prompted the certified questions
and the appellate court’s request for additional briefing on section 876
of the Restatement (Second) of Torts. I do not agree that plaintiffs’
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complaints, as currently pled, adequately state a cause of action based
upon section 876.
Section 876 of the Restatement (Second) of Torts sets forth three
situations of “in-concert” liability. Relevant here, section 876
provides:
“For harm resulting to a third person from the tortious
conduct of another, one is subject to liability if he
***
(b) knows that the other’s conduct constitutes a breach of
duty and gives substantial assistance or encouragement to the
other so to conduct himself ***.” Restatement (Second) of
Torts §876(b), at 315 (1979).
Comment d to section 876 further explains:
“Advice or encouragement to act operates as a moral
support to a tortfeasor and if the act encouraged is known to
be tortious it has the same effect upon the liability of the
adviser as participation or physical assistance. If the
encouragement or assistance is a substantial factor in causing
the resulting tort, the one giving it is himself a tortfeasor and
is responsible for the consequences of the other’s act.”
Restatement (Second) of Torts §876, Comment d, at 317
(1979).
This comment also stresses, however, that liability does not easily
attach, cautioning that “[t]he assistance of or participation by the
defendant may be so slight that he is not liable for the act of the
other.” Restatement (Second) of Torts §876, Comment d, at 317
(1979). In determining whether the “substantial assistance or
encouragement” required for imposition of in-concert liability exists,
the comment instructs that the following five factors are to be
considered:
“[1] the nature of the act encouraged, [2] the amount of
assistance given by the defendant, [3] his presence or absence
at the time of the tort, [4] his relation to the other and [5] his
state of mind ***.” Restatement (Second) of Torts §876,
Comment d, at 317 (1979).
This court has not addressed the question of what must be pled to
establish in-concert liability, but our appellate court has. Appellate
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decisions establish that a person is liable under this provision when
two elements are met: (1) he knows that the other person’s conduct
is tortious; and (2) he “gives substantial assistance or encouragement”
to that person to engage in tortious conduct. See, e.g., Kohn v.
Laidlaw Transit, Inc., 347 Ill. App. 3d 746, 758-59 (2004), quoting
Restatement (Second) of Torts §876(b), at 315 (1979); Fortae v.
Holland, 334 Ill. App. 3d 705, 716-17 (2002); Sanke v. Bechina, 216
Ill. App. 3d 962, 964 (1991).
The appellate court has also quoted from comment d of section
876 to underscore that the five factors make up the element of
“substantial assistance or encouragement,” and that for in-concert
liability to attach, heightened culpability is required to the extent that
a defendant’s conduct must be “more than benign.” Sanke, 216 Ill.
App. 3d at 971; see also Kohn, 347 Ill. App. 3d at 759 (the
Restatement makes a distinction “in assessing the quality of a
defendant’s conduct before subjecting the actor to liability, i.e., it is
not enough that a defendant assist or encourage another to engage in
a tort; rather, to subject a defendant to liability, the assistance or
encouragement must be substantial, not merely slight”); Fortae, 334
Ill. App. 3d at 719-20 (an analysis of in-concert liability “calls for us
to look at the language in the commentary [to] subsection (b) *** to
determine if [defendant’s] participation was so slight that one
defendant was to not be liable for the act of the other”).
Under this authority, there might indeed be a basis for in-concert
liability in this case. But that would require allegations that Homatas
was intoxicated to the point of rendering him incapable of safely
operating a motor vehicle, that this impairment was obvious to
defendant’s employees and they were aware of it, and, despite this
knowledge, the employees placed him behind the wheel of a running
motor vehicle and sent him off, the equivalent of a ticking time bomb.
Such conduct might constitute the “moral support to a tortfeasor”
referenced in comment d, and as illustrated by its accompanying five
factors, as well as the “substantial assistance” contemplated by the
Restatement.
The allegations of the complaints here, however, do not come
close to that. It is enough for the majority that the complaints allege
that defendant knew that Homatas was drunk, knew that drunk
driving is tortious conduct, and knew that he would drive away from
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defendant’s premises. Slip op. at 16. The element of knowledge,
however, is only one element to be pled and proven under section
876, and it is not the same as “substantial assistance.” As one legal
commentator has recognized:
“There are *** occasional statements that mere knowledge by
each party of what the other is doing is sufficient ‘concert’ to
make each liable for the acts of the other, but this seems
clearly wrong. Such knowledge may very well be important
evidence that a tacit understanding exists; but since there is
ordinarily no duty to take affirmative steps to interfere, the
mere presence of the particular defendant at the commission
of the wrong, or his failure to object to it, is not enough to
charge him with responsibility.” W. Prosser, Torts §46, at 292
(4th ed. 1971).
In other words, the element of “substantial assistance or
encouragement” is not satisfied by allegations that a defendant failed
to prevent another’s tortious conduct. Plaintiffs’ complaints are
deficient in pleading the “substantial assistance or encouragement”
element as required by our fact-pleading standards. Estate of Johnson
v. Condell Memorial Hospital, 119 Ill. 2d 496, 509-10 (1988).
Of the two complaints, Chiariello’s comes nearer to establishing
the basis for in-concert liability. A close look at what is actually
alleged shows the error in the majority’s conclusion. According to the
complaint, once Homatas arrived at the club, his car was “met by a
valet, Homatas paid a valet fee, and [his] car was then driven away.”
During the two hours Homatas was at the club, he “became visibly
intoxicated, but employees of [the club] continued to encourage [him]
to pour himself drinks and to that end provided him with additional
mixers and ice.” At 11 p.m., Homatas, “exhibiting obvious symptoms
of extreme intoxication, and perhaps, acute alcohol poisoning, began
vomiting in [the club’s] bathroom.” At that time, it is alleged that
club employees “discovered that Homatas was vomiting in the
bathroom and immediately ejected both Homatas and Chiariello from
the establishment.”
The allegations that Homatas was visibly intoxicated and
“perhaps” exhibited alcohol poisoning are conclusory. No facts are
alleged to support the conclusion of intoxication, i.e., slurred speech,
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compromised motor skills, etc.3 Exactly how the conclusion of acute
alcohol poisoning is supported is anyone’s guess. Parenthetically, the
vomiting that the majority relies on as an indication of possible
intoxication may have nothing to do with the ability to safely operate
a motor vehicle.
The element of “substantial assistance” being central to in-concert
liability, the allegations concerning what club employees did with
respect to the car deserve even more careful consideration.
Chiariello’s complaint alleges that some 10 minutes after Homatas
was found ill in the bathroom, club employees “ordered the valet
service to start Homatas’s car and bring it to the front door of the
club.” Its employees “then opened the driver’s door of the car and
directed Homatas and Chiariello to immediately drive away from the
premises.” “Directed” merely suggests that Homatas was told to
leave. This cannot be a basis of liability under section 876.
The Simmons complaint is even less factually specific. It alleges
that club employees knew or should have known that Homatas
“became intoxicated as a result of his consumption of alcoholic
beverages” in the club. The complaint further alleges that “[d]espite
their knowledge *** [employees] negligently and carelessly directed
*** Homatas, while he was in an intoxicated condition, to leave the
premises.” Again, the words “intoxication,” “intoxicated condition,”
and “directed” are conclusions that, alone, are insufficient as a basis
for in-concert liability. Other allegations even undermine the notion
of potential liability. For example, the complaint states that defendant
merely “remov[ed] [Homatas] from the premises and allow[ed] him
to drive [his] vehicle away from the premises.” Was Homatas
directed to leave or was he allowed to drive away? Neither allegation
is sufficient to establish defendant’s assistance or encouragement, as
would be necessary for liability under section 876 to attach.
Both complaints lack the factual allegations necessary to establish
“substantial assistance.” Therefore, I cannot agree with the majority
that they adequately plead a cause of action under section 876.
3
This is particularly true here where earlier in the Chiariello complaint
it is alleged that club employees were not given the proper training in
identifying “the signs of intoxication.”
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As I earlier noted, the majority’s reliance on allegations about
defendants’ knowledge is problematic. Beyond that, the majority
takes considerable license in casting the allegations in a light to
support its conclusion that the complaints, as pled, are sufficient to
withstand a motion to dismiss under section 2–615. For example,
with respect to the allegation that defendant’s employees “opened the
driver’s door” for Homatas, the majority characterizes the action as
the valet “assist[ed] him into his vehicle.” Slip op. at 16. Neither
complaint uses the verb “assisted” in its allegations. Elsewhere, the
majority states that defendant is alleged to have “placed [Homatas]
into his vehicle.” Slip op. at 17. In its conclusion, the majority again
states that it is alleged that defendant “place[d] the patron in a
vehicle.” Slip op. at 18. Neither complaint actually alleges this.
The majority’s paraphrasing paints a picture of club employees
throwing a drunken Homatas out of the club, kicking and screaming,
physically placing him in his car, and commanding him to drive off
into the night. That may be what happened, but the complaints do not,
in fact, allege this.
Although I agree with the majority that defendant’s reliance on
Wolf v. Liberis, 153 Ill. App. 3d 488 (1987), is misplaced, another
decision, Umble v. Sandy McKie & Sons, Inc., 294 Ill. App. 3d 449
(1998), is helpful in analyzing this issue. There, it was alleged that
employees of an automotive garage took possession of a car brought
in by an intoxicated customer. The customer’s condition was apparent
to the employees, who repaired the car and returned it to the customer
when he paid for it. The customer later collided with a car driven by
the plaintiff’s decedent. The plaintiff alleged that the defendant was
negligent in giving car keys to an obviously intoxicated driver.
Umble, 294 Ill. App. 3d at 451. The appellate court affirmed the
dismissal of the complaint because the allegations did not “establish
that defendant provided substantial assistance” to the customer.
Umble, 294 Ill. App. 3d at 452. Specifically, the court stated that it
could “not equate failing to prevent certain conduct with actively
encouraging that conduct.” Umble, 294 Ill. App. 3d at 451-52.
Umble underscores that a plaintiff must plead more than the fact
that a defendant simply assisted or encouraged another to commit a
tort under section 876. The defendant’s repair and return of the
customer’s car–even though, according to the opinion, the defendant
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knew the customer was intoxicated–did not satisfy this test. This
demonstrates that defendant here needed to do more than just return
the car to Homatas to constitute the substantial assistance
contemplated under section 876.
As things stand, plaintiffs have not pled that defendant
substantially assisted or encouraged Homatas’s tortious conduct, an
observation made by the appellate court in raising the issue of in-
concert liability. See 386 Ill. App. 3d at 1013 (acknowledging that
“plaintiffs do not appear to have strongly pressed the in-concert
liability argument before the trial court”). Accordingly, it is my view
that it is appropriate to remand this cause to allow plaintiffs the
opportunity to do so.
JUSTICE BURKE joins in this partial concurrence and partial
dissent.
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