Appeal from the Circuit Court of Fulton County; the Hon.
Charles H. Wilhelm, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
This suit was brought under the Liquor Control Act (Ill. Rev. Stat. 1981, ch. 43, par. 135) by Rebecca Marie Reed, widow of John Alan Reed. John was killed as a result of a one-car accident in Fulton County. A motion for summary judgment by defendant Wilbur Wallace Fleming was initially denied, but on reconsideration the motion was granted on the ground that plaintiff failed to produce any evidence that the accident was proximately caused by the deceased's intoxication. Plaintiff appeals. We reverse.
The relevant facts as they appear in the record on appeal are as follows: During the week of December 4-5, 1981, John Reed was working the third shift at Sherex Chemical Co. in Peoria County. On the morning of December 4, Reed returned home from his employment around 7 a.m., ate and went to bed. Around 3:30 p.m., his wife, Rebecca, awakened him before leaving for work and arranged for Reed to take the children to her mother's home for the night. Reed was scheduled to begin work again at 10:20 that evening. When Rebecca finished work around 10:30 p.m., she stopped at Cheri's tavern in Canton and learned that her husband had not gone to work as scheduled, but had been drinking with a friend. It appears that Reed had telephoned his supervisor at Sherex earlier in the evening to say that he was having car trouble and would be late for work. He then proceeded to several drinking establishments. Around midnight Rebecca left Cheri's tavern in search of her husband. She checked at several taverns before reaching Butler's Supper Club in Morton around 1 a.m. There she found Reed at the bar, drinking a beer. The two argued about Reed's failure to go to work on time. Reed said he was only two minutes from the plant gate and he planned to leave the tavern at "a quarter till 2:00" to be there at 2:20. Reed ordered two more beers for himself and Rebecca, and when she rejected hers, he proceeded to drink all three, including the one he already had. According to Rebecca, Reed had glassy eyes and slurred his words. He staggered when he got off the stool to buy cigarettes. He returned with the wrong brand. Rebecca was of the opinion that Reed was intoxicated. She was still angry with her husband when Reed ordered yet another beer for himself. Rebecca left Butler's at 1:45 a.m. At 4 a.m. of December 5, 1981, John Reed was found dead at the scene of a one-car accident about 15 miles from Butler's at a point where the highway forms a broad curve between Butler's and the Reeds' home. Reed's automobile was overturned in a ditch, and Reed's fatally injured body lay several feet away. Rebecca explained that the road was the same route Reed had traveled to and from work for the past five years.
Body fluid samples taken by the coroner indicated that Reed's blood alcohol content was .285%. The coroner also observed that the body exuded a strong odor of alcohol. No skid marks were noted on the highway to indicate the reason Reed's vehicle left the road. No eyewitnesses to the accident were discovered, and no details of the decedent's activities between 1:45 a.m. and 4 a.m. are available.
Plaintiff initiated her action against defendant Wilbur Wallace Fleming, doing business as Butler's Supper Club, in May of 1982, alleging loss of means of support for herself and her two children, Timothy and Cappi Kearns, caused in consequence of the intoxication of John Reed. Fleming filed a third-party complaint against several other dramshop proprietors who allegedly sold alcoholic beverages to the decedent during the evening of December 4 or early morning of December 5, 1981. The third-party complaint was dismissed on motion of the third-party defendants. The instant appeal raises no issues with respect to the third-party action. Our discussion, therefore, relates solely to the propriety of granting defendant Fleming's motion for summary judgment.
Defendant Fleming's theory in moving for summary judgment and on appeal is that, since there were no eyewitnesses who could attest to any erratic driving by the decedent, a jury verdict for the plaintiff could never be upheld because a conclusion that Reed's intoxication caused the accident would necessarily be based upon pure speculation. In other words, plaintiff's evidence would be insufficient as a matter of law to prove the proximate causation element of the statutory cause of action.
Defendant relies primarily on two factually similar cases decided by the second district in which dramshop defendants successfully established their entitlement to directed verdicts. (Reese v. Roth (1978), 62 Ill. App.3d 937, 379 N.E.2d 932; Rose v. Brozman's Tavern, Inc. (1981), 102 Ill. App.3d 1087, 430 N.E.2d 282.) The trial court, on reconsideration of its denial of defendant's motion for summary judgment, relied on these decisions in ruling in defendant's favor as well. A third dramshop case, Jackson v. Navik (1976), 37 Ill. App.3d 88, 346 N.E.2d 116, is urged by plaintiff as a factually analogous situation which should control our disposition. Without denying the existence of factual similarities between the instant case and those cited by defendant, we agree with plaintiff that the principles set forth therein fail to compel the same result when applied to the situation under consideration here. Before discussing these three cases, we will set forth a few of the principles underlying the granting or denial of summary judgment in this case.
Our analysis necessarily focuses upon whether the pleadings, affidavits and depositions of record pose any genuine issue of material fact. If they do not, the movant is entitled as a matter of law to judgment in his favor. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005; Joiner v. Benton Community Bank (1980), 82 Ill.2d 40, 411 N.E.2d 229.) The harshness of this remedy has given rise to the corollary rule that if there exists any doubt as to the movant's right to summary judgment, that doubt must be resolved in favor of the non-movant so that evidence may be presented to the trier of fact. (Cato v. Thompson (1980), 83 Ill. App.3d 321, 403 N.E.2d 1239.) An order by the trial court granting summary judgment will be reversed on review if it is determined that a material question of fact exists.
• 1 The elements of the statutory tort cause of action as pleaded by plaintiff are established upon: (1) proof that the decedent was intoxicated at the time of his death; (2) proof that defendant sold intoxicating liquor to the decedent; (3) proof that the liquor contributed to the decedent's intoxication; (4) proof that intoxication was a proximate cause of the decedent's death; and (5) resultant injury to the plaintiff's means of support. As indicated above, the basis for the trial court's entry of summary judgment in this case was the plaintiff's failure to allege sufficient facts to support her allegation of proximate causation (element 4). The court's written opinion, however, specifically found sufficient evidence of intoxication (element 1). It is, therefore, our task to determine whether the pleadings, affidavits and depositions filed in this case raise a genuine issue as to whether the decedent's intoxication was a proximate cause of the automobile accident in which he was killed.
Careful scrutiny of relevant precedent as cited by the parties on appeal discloses that summary judgment for the defendant should not have been granted in this case.
In Reese v. Roth (1978), 62 Ill. App.3d 937, 379 N.E.2d 932, plaintiff's decedent, Reese, was killed when his automobile collided with another driven by Edward Bedal, who also died as a result of the collision. Bedal's passenger, Beebe, survived and his testimony was admitted at trial. The evidence concerning the events of the day immediately preceding the accident established that Bedal had drunk six bottles of beer during the afternoon and evening prior to 1 a.m. on September 1, 1974, when he left the defendants' tavern in his car. Thereafter, during the ride, Beebe observed Bedal drink three more cans in the car before Beebe fell asleep. Beebe testified at trial that Bedal had weaved the car within its own lane and did not seem in control. Bedal was "pretty high" but not totally "out of it," and at one point during the ride, Beebe had said to Bedal, "You f____ up." However, Beebe had no recollection of the collision and could not therefore relate his remark to erratic driving. Beebe did not regain consciousness until he found himself in the hospital.
Evidence at trial conflicted as to what direction the two vehicles were headed prior to colliding. Testimony concerning a gouge mark on the pavement at the scene of the accident and oil spilled on the road was inconclusive to establish in which lanes the vehicles were traveling at the point of impact.
The appellate court concluded that under the circumstances presented in Reese, a jury's determination as to the cause of the collision, the position of the vehicles prior to impact and the events leading up to the collision would be based upon "pure speculation and conjecture." Reasoning that the proof failed to establish that intoxication was the cause of the collision, the reviewing court reversed the trial court's denials of defendants' motions for a directed verdict and for judgment notwithstanding the verdict, and ordered the entry of judgment for the defendants.
Rose v. Brozman's Tavern, Inc. (1981), 102 Ill. App.3d 1087, 430 N.E.2d 282, was decided three years later by the second district and resulted in an affirmance of the trial court's granting of defendant's motion for a directed verdict on the following facts. Plaintiff's decedent, Moland, was a passenger in a vehicle driven by Eddy Stumbo the evening of September 2, 1978, when the car the two men were in missed an "S" curve, struck a bridge abutment and overturned. Evidence admitted at trial ...