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Nelson v. Araiza

OPINION FILED JANUARY 27, 1978.

DEBORAH NELSON, APPELLEE,

v.

THEODORE ARAIZA ET AL., APPELLANTS.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. James D. Crosson, Judge, presiding.

MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:

Plaintiff, Deborah Nelson, brought this action to recover damages for personal injuries under section 14 of article VI of the Dramshop Act (Ill. Rev. Stat. 1969, ch. 43, par. 135). At the close of plaintiff's case the defendant tavern owners moved for a directed verdict based on the affirmative defense of complicity. The circuit court of Cook County directed a verdict for defendants. The appellate court reversed and remanded for a new trial, deciding that complicity was an issue of fact. (43 Ill. App.3d 685.) We granted plaintiff's petition for leave to appeal under Rule 315 (58 Ill.2d R. 315).

Here the issue is whether evidence of complicity so overwhelmingly favored the dramshop defendants that no verdict in plaintiff's favor could stand. In a broader vein, we assess the essentials of complicity as a defense to a dramshop action.

Between 7 and 8 p.m. on March 2, 1970, plaintiff, 21 years old, and her girl friend, Marlene, went to Juan & Tina's Lounge. Neither had any money. Among the patrons were two of plaintiff's girl friends and defendant Theodore Araiza.

Plaintiff had known Araiza for a couple of years. Marlene had dated him previously. Araiza was seated at the bar with several beer bottles and a glass in front of him. He appeared to plaintiff to be "pretty drunk."

Araiza called plaintiff and Marlene to the bar and offered to buy them a drink. Plaintiff accepted a beer from Araiza and then joined her girl friends at their table. Plaintiff did not spend any time with Araiza after he bought her the beer. However, she noticed him at the bar drinking beer and behaving in a boisterous manner.

At 10 p.m. plaintiff and Marlene were going out the tavern door to walk five blocks to the home of friends. Araiza, upon learning their destination, insisted on giving them a ride. Plaintiff initially declined the offer. Araiza, six feet tall and about 250 pounds, persisted. To avoid a "hassle," the girls let Araiza drive them the short distance.

En route to their destination, Araiza made a detour. He stopped in front of Luke's Lounge, left plaintiff and Marlene in the car, and bought four six-packs of beer. He then drove them to the friends' home.

There the three remained for the next few hours. Plaintiff had one or two cans of beer. Araiza, already intoxicated, drank about eight cans of beer.

At 2 a.m. plaintiff and Marlene were leaving. Plaintiff's home was about two blocks away. Araiza protested vigorously and insisted that Marlene go out with him. Marlene agreed if plaintiff would also go. Plaintiff finally yielded to the pleas of both Marlene and Araiza, on condition that she be allowed to drive.

Plaintiff drove them about 20 blocks to a King Kastle restaurant. Plaintiff went into the restaurant to purchase the food. When she returned, Araiza had moved into the driver's seat. Plaintiff sat in the back seat. Araiza refused to let her drive.

It was now close to 3 a.m. and raining. Plaintiff was tired and had no money. Buses ran only once an hour to her neighborhood.

Plaintiff and Marlene told Araiza they wanted to go home. Araiza became very upset and drove away suddenly. The accident causing plaintiff ...


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