APPEAL from the Circuit Court of St. Clair County; the Hon.
PATRICK FLEMING, Judge, presiding.
MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:
Plaintiff seeks to recover for loss of means of support resulting from the death of her husband under the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135). The jury rendered a verdict for defendants, judgment was entered thereon, and plaintiff's post-trial motion was denied. Plaintiff appeals, contending that the trial court committed reversible error in allowing defendants' tendered Illinois Pattern Instruction, Civil, No. 150.17 (2d ed. 1971) (hereinafter IPI). The sole issue is whether this instruction accurately reflects the concept of "complicity," as defined by the supreme court in Nelson v. Araiza (1978), 69 Ill.2d 534, 372 N.E.2d 637.
The record reveals that on July 5, 1974, Edgar Parsons and his wife Margaret were riding about St. Clair County on a motorcycle, with Edgar driving. At about 3 p.m., the Parsons stopped at Veterans of Foreign Wars Post 6372 (defendant herein), when Edgar noticed a friend was there. The Parsonses sat at a table with the friend, Lloyd Goodfellow, and both Edgar and Margaret ordered bottles of beer. For the next 1 1/2 to two hours the three sat together, during which time Edgar drank six or seven 12-ounce beers. Margaret drank about the same amount and got all of the beer from the bar for Edgar and Goodfellow, who took turns paying. After about two hours, a number of other people joined the three.
By 5 p.m. Margaret could tell that Edgar was becoming intoxicated. She asked him to take the motorcycle home and return with the car, but he refused. At about 6 o'clock she asked him again, and again he refused. During the period from 5 to 7:30, Edgar drank eight or nine more beers, served by Margaret.
At about 7:30 Edgar, obviously drunk, decided to leave on the motorcycle. When he attempted to mount the cycle, it fell over twice, and Edgar was helped by two other patrons of the bar. They attempted to convince him to stay, but he drove off. Margaret testified that she knew at this point that Edgar "had no business" getting on the motorcycle.
A couple of miles from the VFW, some other motorcyclists saw Edgar in the ditch with his bike. They helped him up; but as he then passed them, he lost control of the motorcycle and fell. As a result of his injuries, he spent several months in a coma and died.
At the trial, Margaret Parsons sought to recover from the VFW for loss of means of support in consequence of the death of her husband, which resulted from his intoxication. The jury was given the following instruction on "complicity," which follows IPI Civil No. 150.17: *fn1
"If you find that the plaintiff did any of the following things then the plaintiff cannot recover damages in this case from Veterans of Foreign Wars Post 6372:
Willingly encouraged the drinking which caused the intoxication of Edgar Parsons.
Voluntarily participated to a material and substantial extent in the drinking which led to the intoxication of Edgar Parsons. The law does not state what is participation to a material and substantial extent. This is for you to decide."
It is defendant's assertion that since Nelson v. Araiza (1978), 69 Ill.2d 534, 372 N.E.2d 637, IPI Civil No. 150.17 no longer accurately states the law. In Nelson the plaintiff and her girlfriend saw Theodore Araiza, an acquaintance, at a bar. The women accepted a beer from Araiza and then joined other friends at a table. Plaintiff noticed Araiza drinking at the bar and behaving boisterously. At 10 p.m. Araiza insisted on giving plaintiff and her girlfriend a ride to the home of friends. Plaintiff initially declined the ride, but then accepted to avoid a "hassle."
On the way to the friend's house, Araiza bought four six-packs of beer. The three then spent several hours at the friend's house, where plaintiff had one or two cans of beer, and Araiza drank eight more beers. At 2 a.m., as plaintiff and her friend were leaving, Araiza insisted that the friend go out with him. She agreed if plaintiff would also accompany them. Plaintiff agreed, on condition that she drive the car. She then drove about 20 blocks to a restaurant, went inside to get food, and when she returned to the car, Araiza was seated in the driver's seat. He drove off with plaintiff in the back seat, and an accident occurred a few blocks away.
At the close of plaintiff's case at trial, the defendant tavern owners moved for a directed verdict based on the affirmative defense of complicity. The circuit court directed a verdict for defendants, the appellate court reversed and remanded for a new trial, and the supreme court affirmed the appellate court.
The supreme court noted that the Dramshop Act imposes no-fault liability and that complicity, which interdicts recovery under the Act, is of judicial origin. (Nelson, 69 Ill.2d 534, 536, 372 N.E.2d 637, 638.) Complicity is based "on the premise that one who is guilty of complicity in the inebriate's intoxication should not be allowed to succeed." (Nelson, 69 Ill.2d 534, 538, 372 N.E.2d 637, 638-39.) Since recovery under the Dramshop Act is not predicated on negligence, contributory neglience is not an issue. Complicity does not relate to the plaintiff's role in causing his own injury or loss, but only to the plaintiff's role in causing the inebriate's intoxication (Nelson, 69 Ill.2d 534, 538, 372 N.E.2d 637, 639); and because of the confusion of many courts> in applying this doctrine, a mass of inconsistent cases has been generated. Complicity cannot be based upon a variant of the inapplicable contributory negligence concept, nor upon an "assumption of risk" theory, nor ...