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KONSLER v. UNITED STATES

June 26, 1968

CARL KONSLER, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Marovitz, District Judge.

MEMORANDUM OPINION

Defendant's Motion to Dismiss

The United States has moved to dismiss on a variety of grounds. We need consider only one of those, for it will be dispositive.*fn1

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. §
  1346(b)).

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. 1967).

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, supra.

  "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
  criterion."

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 liability.

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. ...


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