dissenting:
I disagree with the result reached by the majority. The majority relies solely upon Jackson v. Navik (1976), 37 Ill. App. 3d 88, 346 N.E.2d 116, which I believe is factually distinguishable from this case. In Jackson, the second district states that absent proof that injury or death was caused by something other than intoxication, a court cannot determine the absence of proximate cause as a matter of law. This proposition is not adhered to by other courts in this State or in subsequent decisions of the second district. Furthermore, this broad statement was not required by the facts in the Jackson case. I, therefore, believe that the majority ignores the weight of.authority in this area, and I would have affirmed the trial court.
As the majority opinion states, Jackson involved a diving accident witnessed by several members of a boating party who knew Jackson to be a good swimmer who was familiar with the sandbar and knew him to be intoxicated. On the other hand this case involves a situation where there were no witnesses to the accident and no witnesses to the deceased’s behavior immediately preceding the accident. Therefore, it would be impossible in this case for a jury to determine that intoxication was the cause of the accident, unlike in Jackson where a jury could have determined that intoxication was the proximate cause of the accident.
Furthermore, the court in Jackson stated the following theory which I find no support for in subsequent cases. The court stated that
“it is only where the cause of injury or death would have occurred regardless of intoxication that it can be held as a matter of law the intoxication is not the proximate cause.” (Jackson v. Navik (1976), 31 Ill. App. 3d 88, 94, 346 N.E.2d 116, 122.)
This theory presumes that intoxication is the proximate cause of the injury or death absent proof to the contrary. In both Rose v. Brozman’s Tavern, Inc. (1981), 102 Ill. App. 3d 1087, 430 N.E.2d 282, and Reese v. Roth (1978), 62 Ill. App. 3d 937, 379 N.E.2d 932, where no evidence existed as to the cause of the accident, the second district held that the tavern was not liable as a matter of law. In both cases the court found that a jury cannot base its decision purely upon speculation, as there must be some evidence as to the cause of the accident. Accord, Lang v. B.I.T., Inc. (1981), 96 Ill. App. 3d 37, 420 N.E.2d 767.
I find this case more closely analogous to the facts in Reese v. Roth, where Bedal, the driver of one of the automobiles involved in a two-car collision, was alleged to be intoxicated. The only survivor was the passenger in Bedal’s car, who testified that Bedal was not in control of his vehicle, the car was weaving and swerved to avoid another car, and Bedal had drunk three beers while in the car before the passenger fell asleep. Both drivers were killed and there were no witnesses to the collision. Despite seemingly overwhelming evidence of intoxication, the court in Reese remanded with instructions to enter a directed verdict in favor of the defendant, because no evidence was presented or could have been presented from which a jury could determine the actual cause of the accident. In the instant case, where no evidence as to the cause of the accident exists, any determination of proximate cause must be based upon speculation.
The result reached by the majority runs the risk of imposing absolute liability upon dramshops for injury or death whére some party involved has been drinking, despite the fact that no proof exists that intoxication was the actual cause of the injury or death. In Danhof v. Osborne (1957), 11 Ill. 2d 77, 142 N.E.2d 20, the supreme court cautioned against such broad application of the Liquor Control Act (Ill. Rev. Stat. 1981, ch. 43, par. 135). The court stated:
“The line must be drawn somewhere, for the statute obviously does not impose absolute liability or make the dramshop owner responsible for every injury incurred by a person to whom he sells liquor.” (11 Ill. 2d 77, 84,142 N.E.2d 20, 24.)
I, therefore, would have affirmed the decision of the trial court granting summary judgment because I do not believe that proximate cause was or can ever be proved in this case, and "without such proof an “in consequence” case can never stand. See Danhof v. Osborne (1957), 11 Ill. 2d 77, 81, 142 N.E.2d 20, 22.