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Lowe v. Rubin

OPINION FILED JULY 17, 1981.

LEONARD LOWE, PLAINTIFF-APPELLANT,

v.

JULIE RUBIN ET AL., DEFENDANTS. — (JULIE RUBIN, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS J. GILIBERTO, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This appeal presents the question as to whether Illinois recognizes a common law negligence action against a noncommercial supplier of alcoholic liquor.

In count II of plaintiff's third amended complaint, it is alleged in substance that defendant served alcoholic liquor to the guests at a party in her home — including defendant Glen Begouin, a minor, who became intoxicated and struck plaintiff, causing the loss of his sight in one eye. Additionally, this count alleged that Rubin knew when she served Begouin that "he was an individual of violent propensities likely to injure others when intoxicated."

Rubin moved to dismiss count II, asserting that it failed to state a cause of action, *fn1 and in its order granting the motion the trial court also denied a request of plaintiff to further amend his complaint on the basis that no facts could be asserted to state a cause of action for dispensing liquor by a private individual. This appeal followed.

OPINION

In the consideration of a motion to dismiss, the allegations of fact in the complaint are taken as true (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 374 N.E.2d 437, cert. denied (1978), 436 U.S. 946, 56 L.Ed.2d 787, 98 S.Ct. 2849) and, in determining the propriety of such a dismissal, we are concerned only with the questions of law presented by the pleadings (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538).

The question of law presented by the parties here is whether a noncommercial supplier (as opposed to a dramshop) can be held liable under common law negligence for the service of alcoholic liquor to an intoxicated minor who subsequently injures a third party.

Historically, our supreme court has recognized that the common law gave no cause of action in negligence for the mere sale or gift of intoxicating liquor to the ordinary man. (Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708.) To the same effect are Schulte v. Schleeper (1904), 210 Ill. 357, 71 N.E. 325, and Meidel v. Anthis (1874), 71 Ill. 241, wherein the court stated that the Dramshop Act conferred remedies unknown to the common law against persons who may have caused the intoxication. As stated in Cruse v. Aden (1889), 127 Ill. 231, 234, 20 N.E. 73, 74:

"It was not a tort, at common law, to either sell or give intoxicating liquor to `a strong and able-bodied man,' and it can be said safely, that it is not anywhere laid down in the books that such act was ever held, at common law, to be culpable negligence, that would impose legal liability for damages upon the vendor or donor of such liquor."

More recently, in Miller v. Moran (1981), 96 Ill. App.3d 596, 421 N.E.2d 1046, this court held a social host should not be held liable in negligence to a third party injured when the automobile she was driving was struck by one driven by an intoxicated person who had been served liquor by the host. The court stated:

"[I]f any such liability is to be established it should be done by the legislature. That position is in accord with the position Illinois courts> have taken in the expansion of the Dramshop Act (Cunningham [v. Brown (1961), 22 Ill.2d 23, 174 N.E.2d 153]; Graham v. General U.S. Grant Post No. 2665, V.F.W., (1969), 43 Ill.2d 1, 248 N.E.2d 657) and on expansion of the common law (Richardson [v. Ansco, Inc. (1979), 75 Ill. App.3d 731, 394 N.E.2d 801]). * * * [W]e agree with the court's statement in Olsen [v. Copeland]:

`A change in the law which has the power to so deeply affect social and business relationships should only be made after a thorough analysis of all the relevant considerations. * * * The type of analysis required is best conducted by the legislature using all of the methods it has available to it to invite public participation.' 90 Wis.2d 483, 491, 280 N.W.2d 178, 181.

Another factor which compels us to exercise judicial restraint is that any common law liability we create would be unlimited. Dramshops are subject to civil liability for each occurrence which cannot exceed $35,000. (Ill. Rev. Stat. 1979, ch. 43, par. 135.) Thus, we would be exposing persons who make no profit from their service of alcohol to much greater liability than the legislature has seen fit to expose dramshops.

Further, as we have noted above, the problem is not one of adequate remedies for an injured plaintiff, as an injured plaintiff can sue the intoxicated driver. We believe that whether to provide additional remedies is a legislative ...


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