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Thompson v. Tranberg





APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, JR., Judge, presiding.


Cindy Thompson, a minor, was severely injured when she was struck by a car driven by an allegedly intoxicated driver, Glenn Theroux. An action was filed on behalf of the minor against the defendants Patricia Tranberg and Denise Caraher, as operators of "Pat's Den," and against the defendant Edward O'Neill, the operator of "Hilltop Tap," alleging violation of the Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, par. 135), commonly referred to as the Dramshop Act. *fn1 Margaret Hansen, the mother of Cindy Thompson, individually, joined in the suit claiming injury to her property caused by her obligation to pay medical and hospital bills for her daughter.

The complaint essentially alleged that the defendants had sold or given alcoholic liquors to Theroux which resulted in his intoxication, and that he struck Cindy Thompson while so intoxicated. The defendants denied the allegations. At trial, the jury answered special interrogatories finding that each of the defendants had caused the intoxication of Theroux and rendered a verdict in favor of Cindy Thompson in the amount of $100,000, and in favor of Margaret Hansen in the amount of $50,000. *fn2 Pat's Den appeals contending that Margaret Hansen did not incur any injury to her "property" on the theory that the term does not include pecuniary losses. This defendant also contends that the court erred in not permitting a showing that the hospital and medical expenses were paid by an insurance company in order to negative the claim of injury to property. Hilltop Tap appeals, contending that the court erred in refusing to direct a verdict in favor of Hilltop and that the special interrogatory, together with the verdict, were against the manifest weight of the evidence.

• 1 The contention on behalf of Pat's Den that there was no proof of injury to the property of Margaret Hansen is not persuasive. Medical and hospital expenses are compensable under the Dramshop Act. (Shepherd v. Marsaglia, 31 Ill. App.2d 379, 383-86 (1961), cited with approval in Graul v. Adrian, 32 Ill.2d 345, 347 (1965). See also Jackson v. Navik, 37 Ill. App.3d 88, 97 (1976).) Nor does the fact that the expenses were in fact either wholly or partly paid from the collateral source of insurance proceeds available to the plaintiff Margaret Hansen, prevent recovery. (Bireline v. Espenscheid, 15 Ill. App.3d 368, 369-70 (1973).) We perceive no considerations of policy which should lead us to change these well established rules. We find nothing in the Dramshop Act or in its underlying policy which would relieve dramshops of even limited responsibility for redressing injuries based on the fortuitous circumstance that an injured party has planned and paid for insurance coverage of family expenses.

The defendant Hilltop in support of its contention that a verdict should have been directed principally argues that the 1971 amendment to the Illinois Liquor Control Act limits the application of the statute to the dramshop "which causes the intoxication rather than to any dram who contributed to the condition." (Emphasis added.)

Article VI, section 14 of the Liquor Control Act, as pertinent states:

"Every person who is injured in person or property by any intoxicated person, has a right of action * * *, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. * * * An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication * * *." Ill. Rev. Stat. 1973, ch. 43, par. 135.

Prior to the amendment of the statute in its present form in 1971, the reference in the statute to causing the intoxication included the phrase "in whole or in part." (See Ill. Rev. Stat. 1967, ch. 43, par. 135.) This defendant claims that the effect of the deletion is to restrict liability under the act to the dramshop which causes intoxication and exclude from liability a dramshop which merely contributes to the intoxication. Under the facts in the record, this defendant argues that the other defendant, Pat's Den, was wholly responsible for the intoxication of Theroux.

The amendment basically establishes the requirement that there must be evidence that the charged dramshop has not merely furnished a negligible amount of intoxicating liquor but has in fact caused the intoxication. Caruso v. Kazense, 20 Ill. App.3d 695, 697 (1974).

It does not follow, however, that the legislature intended to limit recovery to a single defendant who caused the intoxication. The statute recognizes this by giving the right of action "severally or jointly" against any person who causes the intoxication. (Ill. Rev. Stat. 1973, ch. 43, par. 135; see Comment, The Illinois Dramshop Act: Effect of the 1971 Amendment, 1974 U. Ill. L.F. 466, 472-73.) Moreover, the ordinary meaning of the word "causes" as used in the statute does not exclude the possibility that two or more causes may join to result in a single intoxication. If the legislature had intended that liability be limited to the one dramshop which is most responsible for causing the intoxication, it would most likely have retained the alternative that intoxication may be caused "in whole" rather than deleting it with the "in part" alternative. Further there is a general recognition in the law that causation giving rise to liability may be the result of two or more independent acts. (See, e.g., Perfect v. Kaley, 130 Ill. App.2d 61, 65 (1970); Johnson v. City of Rockford, 35 Ill. App.2d 107, 120 (1962). See also Illinois Pattern Jury Instructions, Civil, No. 15.01 (2d ed. 1971).) Similarly in workmen's compensation cases the petitioner need not prove that the defendant's act was the sole causative factor or even that it was the principal causative factor in the resulting injury. See Republic Steel Corp. v. Industrial Com., 26 Ill.2d 32, 45 (1962).

• 2, 3 In interpreting the Dramshop Act, it is unnecessary to import all of the general tort principles of causation without qualification. We have concluded that the legislative intention in the use of the word "causes" in the Dramshop Act is best effectuated by a focus on whether the defendant's conduct was a material and substantial factor in producing or contributing to produce the intoxication. This conclusion seems to accord with the background surrounding the legislative amendment of 1971. There had been a number of legal decisions under the prior act defining "in whole or in part" strictly against a defendant with the result that proof of gift or sale of intoxicating liquor in any degree no matter how slight was sufficient. (See, e.g., Baker v. Sauber, 62 Ill. App.2d 66, 71 (1965); Brown v. Butler, 66 Ill. App. 86, 89 (1895).) In some cases, however, it was recognized that the elements of the quantity of liquor consumed and the remoteness in time could support a denial of recovery. (See, e.g., Pellico v. Jackson, 70 Ill. App.2d 313, 328-29 (1966); Schneider v. Kirk, 83 Ill. App.2d 170, 180 (1967).) It seems fair to conclude that the intent of the legislature with respect to the 1971 amendment was to eliminate the possibility that dramshop liability could be founded on any consumption of alcohol no matter how slight but to impose liability only when intoxication could be said as a matter of fact to have been caused by a dramshop.

In this respect we note that in dramshop litigation the issue of complicity in causing the intoxication is often determined by the material and substantial factor test. A plaintiff is not permitted to recover under the Dramshop Act if he voluntarily participated to a material and substantial extent in the drinking which led to the intoxication of the tortfeasor. (Illinois Pattern Jury Instructions, Civil, No. 150.17 (2d ed. 1971); Nelson v. Araiza, 43 Ill. App.3d 685, 688 (1976); Krepfl v. Burke, 24 Ill. App.3d 173, 178-79 (1974); Tezak v. Cooper, 24 Ill. App.2d 356, 362 (1960).) The fact that the test has been adopted to determine whether complicity in the drinking which produced intoxication will bar recovery suggests that the test may also be of assistance in determining the cause of the intoxication itself.

• 4 Various factors must be considered in determining whether liquor consumed at a given dramshop is a material and substantial factor in causing the intoxication. Some of the relevant elements are discussed in the Restatement (Second) of Torts § 433 (1965).

"The following considerations are in themselves or in combination with one another important in determining whether the actor's conduct is a substantial ...

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