United States District Court, Northern District of Illinois, E.D
June 26, 1968
CARL KONSLER, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Marovitz, District Judge.
Defendant's Motion to Dismiss
This action is brought against the United States under the
Federal Tort Claims Act, 28 U.S.C. § 1346. Plaintiff, Carl
Konsler, claims he was injured when his automobile was struck by
one driven by George E. Davis, who was intoxicated at the time.
Davis had allegedly
become intoxicated from liquor purchased at the Fort Sheridan
Non-Commissioned Officer's Club, located on the Fort Sheridan,
Illinois, military base maintained by the United States Army. The
lawsuit is hinged upon the provisions of the Illinois Dram Shop
Act, Chap. 43, § 135, Ill.Rev.Stat. That Act provides a right of
action in favor of one who is injured by an intoxicated person,
against any person who caused such intoxication, in whole or in
part, by "selling or giving alcoholic liquor."
The United States has moved to dismiss on a variety of grounds.
We need consider only one of those, for it will be
The United States has waived its sovereign immunity from suit,
in the Tort Claims Act, but only to the extent provided therein.
The Act provides: (in pertinent part)
"* * * the district courts * * * shall have exclusive
jurisdiction of civil actions on claims against the
United States, for money damages * * * for injury or
loss of property, or personal injury or death caused
by the negligent or wrongful act or omission of any
employee of the Government while acting within the
scope of his office or employment, under
circumstances where the United States, if a private
person, would be liable to the claimant in accordance
with the law of the place where the accident or
omission occurred. (emphasis supplied) (28 U.S.C.A. §
Hence, the Government has consented to suit only for "negligent
or wrongful" acts or omissions which "caused" death or injury.
In Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97
L.Ed. 1427 (1952), the Supreme Court held that the United States
has not waived its immunity to theories of absolute liability,
and that the Act meant what it said in stating that suit lies
only for "negligent or wrongful act[s] or omission[s]". Many
cases have adhered to Dalehite. See e.g., United States v. Hull,
195 F.2d 64 (1st Cir. 1952); United States v. Page, 350 F.2d 28
(10th Cir. 1965); United States v. Taylor, 236 F.2d 649, 653 (6th
Cir. 1956); Allison v. United States, 264 F. Supp. 1021 (E.D.Ill.
Therefore, it is settled that the Federal Tort Claims Act
requires a "negligent or wrongful" act that has caused injury as
understood under traditional concepts of tort liability. But it
is equally well settled that the Dram Shop Act imposes liability
without fault, and does not require a showing of negligence.
Osinger v. Christian, 43 Ill. App.2d 480, 485, 193 N.E.2d 872
(1963); Lichter v. Sher, 11 Ill. App.2d 441, 452, 138 N.E.2d 66
(1956); Robertson v. White, 11 Ill. App.2d 177, 184,
136 N.E.2d 550 (1956); Danhof v. Osborne, 11 Ill.2d 77, 142 N.E.2d 20, 65
A.L.R.2d 917 (1957). Indeed, plaintiff's complaint does not
allege that defendant committed a "negligent or wrongful" act.
Hence, a cause of action premised upon the Dram Shop Act seeks to
recover on a theory of absolute liability, and must fail when
asserted against the United States. Dalehite v. United States,
Two cases in this District have considered the same issues, and
have reached opposing conclusions. In Garfield v. United States,
No. 64 C 1155 (N.D.Ill. October 29, 1965), Judge Decker
dismissed a complaint against the United States premised on the
Dram Shop Act, brought under the Tort Claims Act, on the basis of
Dalehite. But in Hanna v. United States, No. 64 C 191,
(N.D.Ill. November 18, 1964), Judge Robson denied a motion to
dismiss by the United States on the same ground, stating: (at p.
3-4 of the transcript)
"The Government contends that since the complaint
alleges no negligent act or omission, a Dram Shop
violation cannot come within the purview of the FTCA.
However, although an allegation of negligence is not
required by the Dram Shop Statute, a substantive
violation of that statute could constitute a
`negligent or wrongful act or omission' under the
Tort Claims Act. The United States incorrectly
assumes that the Dram Shop standard for liability,
rather than the fact of violation, should be the FTCA
Aside from the fact that no negligence is pleaded by the
instant plaintiff, it is submitted, with all respect, that Judge
Robson's interpretation misconceives the nature of the Dram Shop
Act. Certainly, a given violation of the Act could involve direct
causal negligence for plaintiff's injuries. Such a case might be
one where the bar owner served liquor to an obviously intoxicated
person.*fn2 But every statute imposing liability without fault
necessarily will include within its purview a proportion of cases
where actual negligence could have been proven, if necessary. But
the Illinois Dram Shop Act cannot be asserted as a basis for
liability because it requires no allegation of negligence. A
cause of action asserted thereunder which also alleges negligence
as a basis for liability under the Act, pleads the same cause of
action as if the allegations respecting negligence were absent.
The claim created under the Act is not capable of division into
several theories. It simply creates an action for liability
without fault. Thus Judge Robson's distinction between the
standard of liability, and the fact of violation is without
significance, in our judgment. Violation based upon direct
negligence creates the same liability as that based upon absolute
Hence, under Dalehite, plaintiff cannot maintain a cause of
action based on the Dram Shop Act.
But, plaintiff argues, he may still assert a common law action
for the same acts covered by the Dram Shop Act. First, his
complaint contains no such allegations. Secondly, his argument
was answered and denied by the Illinois Supreme Court in
Cunningham v. Brown, 22 Ill.2d 23, 174 N.E.2d 153 (1961), which
held that the Dram Shop Act remedy is exclusive. See also Howlett
v. Doglio, 402 Ill. 311, 83 N.E.2d 708, 6 A.L.R.2d 790 (1949);
Busser v. Noble, 22 Ill. App.2d 433, 161 N.E.2d 150 (1959).
That, absent the Dram Shop Act, a common law cause of action
would have been proper, as was intimated in Cunningham, supra
at 29-30, and Colligan v. Cousar, 38 Ill. App.2d 392,
187 N.E.2d 292 (1963), is of no aid to plaintiff. For as those cases
recognized, the Legislature has spoken, and in exclusive terms.
As a result, the common law action never evolved. Furthermore,
both of those cases addressed themselves to the situation
referred to above, where the sale was made to an intoxicated
person, a factual situation not here alleged.
The Government's motion to dismiss is sustained.