APPEAL from the Circuit Court of Williamson County; the Hon.
BROCTON LOCKWOOD, Judge, presiding.
PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Kevin Ozment brought a two-count complaint against his employer, Douglas C. Lance, Jr., and Thomas H. Vernier, a partnership, and M.R. Associates, Ltd., d/b/a Marion Ramada Inn (hereinafter Ramada Inn), for injuries received, resulting in physical and psychological damage, when he was subjected to deviate sexual abuse when assaulted by two male guests registered at the Ramada Inn where the plaintiff was employed as a bus boy.
Count I was brought under the Dramshop Act (Ill. Rev. Stat. 1979, ch. 43, par. 135). Count II alleged negligence on the part of the defendants in failing to provide plaintiff a safe place to work, in failing to control the criminal conduct of the guests who assaulted plaintiff, and in directing and allowing plaintiff to serve alcoholic beverages to the guest rooms at the Ramada Inn in violation of a section of the liquor control ordinance of the City of Marion which made it unlawful for a minor under 21 years of age to serve alcoholic liquor as an employee of a liquor licensee.
After discovery, defendants moved for summary judgment, asserting that plaintiff's exclusive remedy, as an employee of defendants, was under the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5), which applied automatically and without election to employers and their employees in establishments wherein alcoholic beverages are sold to the general public for consumption on the premises. (Ill. Rev. Stat. 1979, ch. 48, par. 138.3.) Defendants further asserted that the answers to interrogatories and discovery depositions conclusively established that the defendants had no duty to protect plaintiff against the criminal acts of third parties absent knowledge of previous incidents or special circumstances from which such acts could be anticipated.
The trial court denied that part of the motion for summary judgment which asserted that plaintiff's exclusive remedy was under the Workers' Compensation Act, apparently for the reason that the court concluded plaintiff's injuries did not arise out of his employment because the serving of liquor by plaintiff, a minor, was illegal under the liquor control ordinance of the City of Marion. The court refused to certify that question for review under Supreme Court Rule 308 (73 Ill.2d R. 308). The court entered summary judgment for defendants on count II of the complaint and made an express finding that there was no just reason for delaying appeal under Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)).
On April 11, 1977, plaintiff, a high school student, was employed part-time as a bus boy at defendant, Ramada Inn. He was 17 the day after the occurrence here in question. His duties were to assist the waitresses in the dining room. Bus boys, including plaintiff, also took food and beverage orders to guest rooms when so directed by the dining room hostess, including alcoholic beverages, although the restaurant manager who employed plaintiff did not consider delivering alcoholic beverages to guest rooms as part of his duties. No minor was allowed to go into the bar to obtain alcoholic beverages for the purpose of taking them to a guest room. Instead, such beverages would be brought to the dining room from the bar by a waitress.
On April 11, 1977, Robert Stacey, Larry Phelps and the sister of one of the men registered at the Ramada Inn and were assigned rooms 230-232. The men went into the lounge and each ordered one drink, a highball and a beer. Joan Gower, lounge manager, testified on deposition that from their mannerisms and conversation she could determine that they were "queer," presumably meaning homosexual. They did not appear intoxicated to her.
Joan Burton, dining room hostess, testified on deposition that on the evening of April 11, 1977, the plaintiff took an unopened six-pack of beer to the rooms of the individuals later determined to be plaintiff's assailants at her direction in response to a room service call that she received in the dining room. Plaintiff no sooner returned to the dining room than another call for another six-pack of beer was received from the same individual and Burton directed plaintiff to take another six-pack to the same rooms. Plaintiff was reluctant to go, but Burton only attributed this to the fact that plaintiff was busy with his chores in the dining room. She did not think that the person calling was intoxicated. Plaintiff was gone approximately 45 minutes and Burton became concerned and she sent others to look for him and called the room and spoke to two different individuals about plaintiff's whereabouts. Their answers made her further concerned, but plaintiff then returned to the dining room. He was emotionally upset and he told Burton what had occurred.
Plaintiff testified on deposition that the first six-pack of beer was delivered to the guest room without incident. Only one person was in the room, who plaintiff believed was intoxicated. When he returned the second time, two men were in the room. When he attempted to leave, one of the men blocked his exit. He was threatened and subjected to deviate sexual assault by both men.
• 1, 2 At the outset, we would note that we express no opinion whether plaintiff's injuries were received out of and in the course of his employment so that his exclusive remedy would be under the Workers' Compensation Act. (See Ferguson v. Roundtable Motor Lodge (1980), 83 Ill. App.3d 331, 404 N.E.2d 1039; Bloom v. Industrial Com. (1975), 61 Ill.2d 248, 335 N.E.2d 423.) The trial court rejected this contention and declined to certify this question for review under Supreme Court Rule 308. Nonetheless, the appellee may advance any argument supported by the record to sustain the judgment of the trial court (Peterson v. Norfolk & Western Ry. Co. (1976), 42 Ill. App.3d 570, 356 N.E.2d 391), and the reviewing court may affirm the trial court when justified in law for any reason (73 Ill.2d R. 366(a)(5)). We decline to address this issue, however, inasmuch as it was never advanced in appellee's brief and argument as a reason to sustain the judgment of the trial court. See Winston v. Mitchell (1977), 53 Ill. App.3d 206, 368 N.E.2d 460.
In a memorandum decision, the trial court stated:
"The general rule of law applicable to these circumstances is that a person has no duty to anticipate the criminal misconduct of third parties and to protect against them. (See Prosser, Torts Section 33 (1971). This rule may be explained in terms of no legal duty being imposed, or that such omission is no negligence as it is not a foreseeable injury. Actually, it would seem that there is no duty to foresee criminal misconduct. However, if it is reasonably foreseeable, then it cannot be ignored. See 65 C.J.S. Negligence Section III.
In this case, the plaintiff argues that the risk of injury was sufficiently foreseeable to impose a duty of care on the defendants. The plaintiff states [in] his brief:
`When two queers get a young boy in a room by themselves, where one of the queers is drunk and much larger than the boy, it certainly is not unforseeable, as a matter of law, that the larger, ...