concurring in part and dissenting in part:
I agree that the circuit court correctly dismissed plaintiffs’ Dramshop Act claims. 236 Ill. 2d at 475. 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’ 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 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 appeUate 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 hable 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 defendant’s premises. 236 Ill. 2d at 478-79. 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, 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.
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.” 236 Ill. 2d at 479. Neither complaint uses the verb “assisted” in its allegations. Elsewhere, the majority states that defendant is alleged to have “placed [Homatas] into his vehicle.” 236 Ill. 2d at 480. In its conclusion, the majority again states that it is alleged that defendant “place[d] the patron in a vehicle.” 236 Ill. 2d at 481. 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 plaintiffs 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 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.
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.”