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Kingston v. Turner





Appeal from the Circuit Court of Madison County; the Hon. William E. Johnson, Judge, presiding.


Rehearing denied June 25, 1985.

On July 19, 1982, a motorcycle driven by John C. Berry struck the left side of a pickup truck driven by plaintiff Jim Kingston. Berry was killed in the accident, and plaintiff was injured. Subsequently, plaintiff and his wife, individually and as parents and next friends of their children, filed a complaint directed partly against defendants, owners of two taverns where Berry consumed alcoholic beverages prior to the accident. The count of the complaint directed against defendants sought recovery pursuant to article VI, section 14, of the Liquor Control Act (Ill. Rev. Stat. 1981, ch. 43, par. 135). A trial by jury resulted in a verdict for defendants, and the trial court entered judgment on the verdict. Plaintiffs appeal, raising several issues for our consideration. For the reasons which follow, we need only address plaintiffs' contention that the court erred in failing to give a jury instruction tendered by plaintiffs.

The evidence offered by plaintiffs tended to establish that Berry consumed beer at both the New Moon Tavern and MD's Tavern prior to the accident. David Scott testified that he was at both taverns with Berry, and that the beer consumed by Berry had "some effect" on Berry's disposition and behavior. Debra Dugan indicated that she was driving west along Route 140 in Bethalto, on the date of the accident, when a motorcycle came onto the highway from MD's Tavern, drove close to the rear of her car, and accelerated past her at a high rate of speed. The motorcycle continued along for a short distance and then struck the plaintiff's truck, which was attempting to cross the four lanes of Route 140. According to Ms. Dugan, plaintiff had pulled out from a street on the right-hand side of the road, had crossed the first lane of traffic, and was positioned partly in the second lane of traffic and partly in a central lane provided for motorists wishing to turn left off of westbound Route 140 at the intersection where the accident occurred. Ms. Dugan, who was driving in the right-hand lane, testified that the motorcycle "had plenty of time * * * to get back into my lane where he could have cleared the pickup truck," but that the motorcycle did not make this maneuver. Plaintiff James Kingston testified that he looked in both directions before proceeding into the intersection, and that he did not see the motorcycle until it was about 20 feet away from him. A toxicologist testified that a sample of vitreous fluid taken from Berry's eye after the accident revealed an ethanol concentration of .195, and, in the opinion of the toxicologist, this reading indicated that Berry was intoxicated at the time of his death. Defendants offered no evidence.

During the jury instruction conference, plaintiff tendered the following non-Illinois Pattern Jury (IPI), Civil, instruction:

"The sales and consumption of alcoholic beverages at two or more dramshops may result, that is, cause a single intoxication. When I use the phrase `caused the intoxication of John Clark Berry,' I mean the liquor consumed at a given dramshop is a material and substantial factor in causing the intoxication. This is a question of fact for you to determine."

The court refused to give this instruction. Subsequently, during its deliberations, the jury sent the court a note which referred to part of one of the jury instructions, and asked the following question:

"3.) That the liquor thus consumed caused the intoxication of John Clark Berry.

Does this question mean that one or both establishments is totally responsible for Berry's intoxication; or that one or both contributed to Berry's intoxication?"

In a discussion following receipt by the court of the note, plaintiff retendered the instruction quoted above, and the court again refused to give it. The jury resumed its deliberations without further instruction, and ultimately returned the following verdict and answers to special interrogatories:

"Was John Clark Berry intoxicated at the time of the collision on July 19, 1982?

Yes: X

No: ____

If yes, was such intoxication the result of consuming alcoholic beverages sold by (A) ...

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