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Nakis v. Amabile

OPINION FILED DECEMBER 31, 1981.

ALFRED NAKIS, PLAINTIFF-APPELLANT,

v.

DANIEL AMABILE, D/B/A TENEMENT WEST, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES TRAINA, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, Alfred Nakis, appeals the trial court's refusal to direct a verdict in his favor as to count I (on liability), pursuant to section 14 of article VI of the Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, par. 135), and the trial court's granting of the defendants' motion for a directed verdict as to count II (common law negligence).

On October 31, 1975, plaintiff filed a complaint alleging in count I that defendants were the operators of a dram shop and were engaged in selling intoxicating liquors; that on July 25, 1975, defendants, by their agents, sold to certain customers alcoholic beverages which caused them to become intoxicated; and that as a consequence, plaintiff, while a patron in the tavern, was assaulted and injured by the intoxicated customers in violation of the Dramshop Act; and in count II that, alternatively, plaintiff was a patron in the tavern, and defendants had a duty to exercise due care and caution to see that the patrons conducted themselves properly with reference to the safety of others; that defendants permitted certain patrons to threaten and become dangerous to other patrons, including the plaintiff; and that defendants should have known of the conduct of the violent patrons, and it became the duty of defendants to protect plaintiff from injury by the abusive patrons.

On appeal, plaintiff presents the following issues for review: (1) whether the court erred in directing a verdict in favor of the defendants on count II of the complaint; (2) whether the court erred in refusing to grant his motion for a directed verdict; (3) whether the court erred in not allowing him to testify as to the intoxication of a second and third individual; (4) whether the court erred with regard to absent potential witnesses; (5) whether an affirmative statement in the pleadings denying allegations can be used as evidence that the pleader had knowledge of the facts in issue; and (6) whether improper argument and comment by defense counsel constitutes reversible error.

We affirm.

The testimony at trial was as follows. Plaintiff testified that on July 25, 1975, he went to the Tenement West in Melrose Park with his cousin, Andrew Sofiakis. As they entered, there were men who checked for identification, requested admission charges, and gave them a chip that paid for the first drink. He and his cousin stopped at the bar and ordered a drink. Nakis stated that after going to the restroom he went back to the bar, took his drink, and walked toward the entrance to the dance floor. Sofiakis saw a friend and stopped to talk with her.

Plaintiff began dancing with a girl. Thereafter, because he was perspiring, he went to the bar to get some napkins. He saw a group of people at the bar, loudly laughing. He remembered having seen them there earlier when he had gone to the washroom. Plaintiff tapped one of them on the shoulder and asked for a napkin. That person turned, looked at him, and someone else pushed his face away, saying, "Get out of here." The person who pushed his face was intoxicated and his manner of speech was slurred. Nakis turned to put his drink down and the same person hit him in the face with his fist. At least five other people became involved, jumping on his back and completely ripping off his shirt. As he struggled to his feet, he was kicked and punched by everyone. Someone hit him again in the face; he fell to the floor again and a group of people kicked and punched him.

Nakis stated that he got up again and finally said, "All I wanted was a napkin." Then someone swung at him and five, six, or seven people again involved themselves in the fight. He grabbed the person who had hit him three times before and they fell to the floor together. When bouncers grabbed him from behind, he raised his arms to indicate that he had not initiated the fight. The other people wanted to proceed with the fight.

After the fight, the owner of the tavern took him to the restroom to clean himself. Plaintiff stated that his pants were full of blood and his shoes were cut up; and he had cuts on his back, chest, hand and palms of his hands. Plaintiff's face was numb, swollen and disfigured.

Plaintiff went to a hospital emergency room for medical attention and later he saw a medical doctor. Subsequently, he was admitted to the hospital where he stayed for 8 days.

Plaintiff did not call his cousin to testify and gave an offer of proof as to why his cousin could not come to testify. There were no other occurrence witnesses. The defense called no other witnesses to testify.

Defendants made a motion for a directed verdict with regard to both count I and count II. The trial judge granted the motion for a directed verdict as to count II only. The jury was given two special interrogatories with the verdict forms. They answered the interrogatory that found the person who hit plaintiff three times was not intoxicated. The jury returned a verdict for defendants and against plaintiff on count I.

Plaintiff contends that the court erred in directing a verdict in favor of defendants on count II, the common law count based upon the duty of an innkeeper to use ordinary care for the safety of the patrons. Further, plaintiff asserts there was notice to the innkeepers that plaintiff might suffer injury after he was first hit in the face. Plaintiff concedes this first blow, but complains of the second and third blows in count II.

The rule is established that verdicts should only be directed "in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.) Plaintiff contends that the evidence ...


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