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Wimmer v. Koenigseder





Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. John Hughes and the Hon. Robert McQueen, Judges, presiding.


Judith Ann Silva, a 17-year-old Illinois resident accompanied Lawrence Koenigseder, a 19-year-old Illinois resident to two taverns, the Rock-It North and Horsin Around, located in Trevor, Wisconsin, less than a fifth of a mile north of the Illinois border. Early the following morning, Koenigseder drove his car off the road in McHenry County, Illinois, hitting two mail boxes and a utility pole. Silva died from the injuries she received in the accident.

Irene Silva Wimmer, as special administrator, pendente lite of Silva's estate and individually, sued Gilbert, Rita, Christopher and Mark Meisgeier and two Wisconsin corporations, Rock-It North and Horsin Around (hereinafter the defendants), along with Koenigseder, in the circuit court of Lake County seeking damages under the common law and under the Illinois Dramshop Act (the Act) (Ill. Rev. Stat. 1981, ch. 43, par. 135) on account of Silva's death. The plaintiff alleged that the defendants controlled and operated the two Wisconsin taverns, that they were negligent in serving alcoholic beverages to Koenigseder and Silva and also violated the Act. She alleged that the alcoholic beverages sold to Koenigseder by the defendants caused him to become intoxicated, to drive his car at a high rate of speed, and to have the accident in McHenry County which resulted in Silva's death.

An affidavit of service filed by a process server appointed by the circuit court in this case reveals that the defendant Rita Meisgeier and her son Mark were both personally served with summons at Fox Lake, Illinois. Koenigseder was also served in Illinois. The other defendants were served in Wisconsin, and the plaintiff alleged jurisdiction as to them, and also as to Rita and Mark Meisgeier, under two sections of our long-arm statute (Ill. Rev. Stat. 1981, ch. 110, pars. 2-209(a)(1), (2)). All of the defendants filed special appearances for the purpose of contesting jurisdiction. In support of their motions to dismiss for lack of jurisdiction, the defendants submitted affidavits stating that they were Wisconsin residents and corporations with no jurisdictional contacts with Illinois. Two attorneys for the plaintiff also filed affidavits detailing contacts in Illinois which they believed were sufficient to establish jurisdiction under the long-arm statute. Koenigseder moved to transfer the cause to McHenry County, Illinois. After a hearing the circuit judge granted the motions to dismiss and Koenigseder's motion to transfer.

The appellate court reversed the order of the circuit court dismissing the complaint against the defendants (128 Ill. App.3d 157), and we allowed their petition for leave to appeal (94 Ill.2d R. 315). The appellate court addressed only the question of whether personal jurisdiction over the defendants could properly be obtained under the Illinois long-arm statute. In doing so, it ruled that the "commission of a tortious act" as well as the "transaction of any business" sections of the Illinois long-arm statute had been satisfied. The appellate court decision, therefore, injects into this appeal the issue of the sufficiency of the complaint which alleged that the defendants engaged in conduct which was tortious under the laws of either Illinois or Wisconsin.

The defendants did not argue in the circuit court that they owed no duty to refrain from serving alcoholic beverages to Koenigseder. It is in order, however, at any stage of the proceedings, and particularly as in this case before verdict, to raise the objection that the complaint fails to state a cause of action and is therefore legally insufficient. (See Swager v. Couri (1979), 77 Ill.2d 173, 185.) We recently observed that this court "will consider an issue not raised in the circuit court if the record contains all the factual material that is necessary to decide the issue." (Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill.2d 135, 142.) There is nothing that the plaintiff could allege beyond what her amended complaint includes to establish that the conduct of the defendants was tortious. Moreover, it would be a complete waste of judicial resources to permit this proceeding to continue by ruling that there is long-arm jurisdiction if it is clear, as the defendants argue before this court, that neither statutes nor the common law in Wisconsin or Illinois would permit recovery.

The defendants argue here that they did not commit any tort in either Illinois or Wisconsin. The first step in our inquiry is to identify the alleged tort. The connection between the defendants and the automobile accident in Illinois must be through the allegedly negligent or illegal sale of liquor to Koenigseder in Wisconsin, which caused him to become intoxicated, to drive negligently, and to have the accident in Illinois resulting in Silva's death.

As in any action for negligent conduct, a defendant must have breached a duty owed to the plaintiff. (Ferentchak v. Village of Frankfort (1985), 105 Ill.2d 474, 480; Curtis v. County of Cook (1983), 98 Ill.2d 158, 162; Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 554; Cunis v. Brennan (1974), 56 Ill.2d 372, 374; Prosser, Torts sec. 30, at 143 (4th ed. 1971).) Whether there was a legal duty must be determined by the courts as a matter of law. (Ferentchak v. Village of Frankfort (1985), 105 Ill.2d 474, 480; Curtis v. County of Cook (1983), 98 Ill.2d 158, 163; see also Barnes v. Washington (1973), 56 Ill.2d 22, 26.) In this case, we find no duty breached by the defendants under either Illinois or Wisconsin statutory or common law by the allegedly negligent or improper sale of alcohol to defendant Koenigseder.

Wisconsin has no dramshop statute; therefore, no statutory duty is owed by Wisconsin tavernkeepers to their patrons. (Hennes v. Loch Ness Bar (1983), 117 Wis.2d 397, 344 N.W.2d 205.) Nor does Wisconsin recognize any common law action in tort against a dispenser of alcoholic beverages for serving an intoxicated customer who then injures a third party. Olsen v. Copeland (1979), 90 Wis.2d 483, 280 N.W.2d 178; Garcia v. Hargrove (1970), 46 Wis.2d 724, 176 N.W.2d 566.

Plaintiff suggests that Wisconsin law has been changed by Sorensen v. Jarvis (1984), 119 Wis.2d 627, 350 N.W.2d 108. Sorensen held that a third party injured by an intoxicated minor may sue a tavernkeeper for negligent sale of liquor to a person the tavernkeeper knew or should have known was a minor. In this case the driver Koenigseder, 19 years old at the time of the accident, was above the legal age for the consumption of liquor in Wisconsin. He was not a minor for the purpose of applying Wisconsin law, and there were no restrictions in Wisconsin on serving alcoholic beverages to him. Although Silva was only 17, there is no allegation in the complaint or factual support in the record suggesting that her death was caused by the sale of liquor to her. Further, Sorensen is specifically limited to allegedly negligent sales of liquor to minors which occurred on or after September 1, 1984, and thus it cannot apply to these acts which occurred in 1982.

While the defendants owed Silva no duty under Wisconsin law to refrain from serving Koenigseder, it is necessary to inquire whether they owed any duty to her under Illinois common or statutory law in order to determine whether any tort was committed in Illinois by the defendants. Here again the answer is in the negative.

The Act (Ill. Rev. Stat. 1981, ch. 43, par. 135) applies to sales of liquor by Illinois tavernkeepers for injuries sustained in Illinois. In Graham v. General U.S. Grant Post No. 2665, V.F.W. (1969), 43 Ill.2d 1, this court held the Act did not apply extraterritorially to an accident which occurred in Wisconsin after the sale of liquor by an Illinois tavernkeeper in Illinois. (See also Cunningham v. Brown (1961), 22 Ill.2d 23; Rubitsky v. Russo's Derby, Inc. (1966), 70 Ill. App.2d 482; Colligan v. Cousar (1963), 38 Ill. App.2d 392.) Plaintiff argues that the controlling feature in Graham was the place of the accident, and that even if the Illinois dramshop law does not apply to an Illinois sale which results in a Wisconsin accident, it does apply to a Wisconsin sale which results in an Illinois accident. This was not the reasoning in Graham, and plaintiff's argument is without merit.

The Graham court quoted an earlier case which stated that "`[i]t is a well established principle that a statute has no extraterritorial force and is prima facie operative only as to persons or things within the jurisdiction of the state where such statute is enacted.'" (Emphasis added.) (Graham v. General U.S. Grant Post No. 2665, V.F.W. (1969), 43 Ill.2d 1, 3-4, quoting Butler v. Wittland (1958), 18 Ill. App.2d 578, 583-84.) The holding of Graham is that the Act applies only to a sale in Illinois by ...

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