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02/20/87 James M. Kingston Et Al., v. Kathleen R. Turner Et Al.

February 20, 1987





505 N.E.2d 320, 115 Ill. 2d 445, 106 Ill. Dec. 14 1987.IL.203

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. William E. Johnson, Judge, presiding.


JUSTICE RYAN delivered the opinion of the court. JUSTICE SIMON, Dissenting.


Plaintiffs, James Kingston and his wife, individually and as parents and next friends of their two minor children, brought suit in the circuit court of Madison County seeking recovery for injuries sustained as a result of an accident on July 19, 1982, involving vehicles driven by James Kingston and John Clark Berry. Named as defendants were the owner/operators of two taverns where Berry consumed alcoholic beverages prior to the accident and the owners of the tavern premises. Recovery was sought pursuant to article VI, section 14, of "An Act relating to alcoholic liquors," 1934, as amended (the Liquor Control Act or the Act) (Ill. Rev. Stat. 1981, ch. 43, par. 135). A jury trial resulted in a verdict for defendants. A divided appellate court found that the trial court committed reversible error when it refused to give a jury instruction tendered by plaintiffs and remanded the cause for a new trial. (133 Ill. App. 3d 677.) We granted defendants' petition for leave to appeal.

John Clark Berry arrived at the New Moon Tavern in Cottage Hills, Illinois, between 4:45 and 5 p.m. on the afternoon of July 19, 1982. He remained at the tavern with two acquaintances, Kenneth Thaller and David Scott, for approximately 1 1/2 hours. Scott testified that during this time, while he played pool, Berry and Thaller consumed one, possibly two, half-gallon pitchers of beer. According to Scott, at about 6:15 p.m., Berry and Thaller told him that they were going to a local restaurant for a hamburger. Scott told the two men that he would join them after he finished playing pool, and Berry and Thaller left the New Moon Tavern. Both men rode to the restaurant on Berry's motorcycle.

Between 6:15 and 6:45 p.m., the three men met at the restaurant and found it closed. Scott testified that Berry then suggested they go on to MD's Tavern in Bethalto, Illinois. The three men arrived at this tavern at approximately 7 p.m. and stayed for one hour. Evidence revealed that during this period Berry ate a large hamburger and consumed one 12-ounce schooner of beer. Scott testified that when the three men left MD's Tavern Berry was in a "jovial" mood. He also testified that, in his opinion, the alcohol Berry had consumed was having some effect on his Disposition and behavior. When the three men left the tavern, Thaller again rode with Berry on his motorcycle.

Sometime between 8 and 8:15 p.m., James Kingston, while driving in a southerly direction, attempted to turn his pickup truck left into the eastbound lanes of Illinois Route 140 from North Lincoln Street in Bethalto. Kingston stopped to let a vehicle pass from his right and then proceeded into the intersection. While his vehicle was still in the second westbound lane, Kingston turned and saw Berry's motorcycle only 20 feet away. The motorcycle which was westbound on Route 140 struck Kingston's pickup truck on the left door. Berry was killed in the accident, and Thaller and Kingston were seriously injured.

As noted above, James Kingston and his wife, Rickey, as individuals and as parents and next friends of their two minor children, subsequently filed a complaint in the circuit court of Madison County containing counts against Kathleen Turner as the owner/operator of the New Moon Tavern, against Wayne and Virginia Tenison as owners of the New Moon's premises, against Donald Emde as the owner/operator of MD's Tavern, and against John Augustine, Jr., as owner of the premises of MD's Tavern. Plaintiffs sought recovery for James Kingston's personal injuries and property damage and for injuries to the means of support of his wife and the Kingston's two minor children pursuant to article VI, section 14, of the Act (Ill. Rev. Stat. 1981, ch. 43, par. 135). The statute imposes liability for such damages, when caused by an intoxicated person, on those whose sale or gift of alcohol "causes the intoxication." (Ill. Rev. Stat. 1981, ch. 43, par. 135.) Recovery was also sought for Rickey Kingston's payment of her husband's medical bills under the family-expense statute (Ill. Rev. Stat. 1981, ch. 40, par. 1015).

During voir dire, plaintiffs' counsel asked the first panel of four prospective jurors whether any of them had relatives or friends who were associated with other taverns. Plaintiffs' counsel did not repeat this question to all the members of the second panel of four jurors. However, the court did inquire whether any of the questions asked of the other prospective jurors would create any problems in their hearing the case. After plaintiffs tendered the second panel it was discovered that one juror's father had owned a tavern for a number of years. After the panel had been accepted by both parties, plaintiffs' counsel requested permission to question this juror further, urging that the information was material to the effective exercise of any peremptory challenge. The trial court stated that the panel could not be broken once it was accepted and refused plaintiffs' request. At that point another accepted juror revealed that his father had been a bartender for 20 years. These two jurors remained impaneled for the trial.

At trial, Debra Dugan, an eyewitness to the accident, testified that she had observed Berry and Thaller from the time they left the parking lot at MD's Tavern, and that Berry had been driving his motorcycle erratically. Dugan recalled that as Kingston's truck cleared the first westbound lane in the intersection, Berry pulled into the second westbound lane to pass her automobile. Dugan stated that in her opinion Berry was speeding and that he had ample time to return to the first lane and avoid striking Kingston's truck. Another witness, Shawn Norman, who was driving east on Illinois 140, also testified that Berry was speeding at the time of the accident. Norman further stated that, as the motorcycle passed the Dugan automobile, Berry was looking back, talking to his passenger. Dr. John Spikes, the chief toxicologist for the Illinois Department of Public Health, testified that a sample of vitreous fluid taken from Berry's eye after the accident revealed an ethanol content of .195, and that in his opinion this level indicated that Berry was intoxicated at the time of his death.

During the conference on jury instructions, plaintiffs tendered an instruction purporting to define the term "cause the intoxication" as used in article VI, section 14, of the Act. The instruction is not contained in Illinois Pattern Jury Instructions , Civil (2d ed. 1971); it reads:

"The sales and consumption of alcoholic beverages at two or more dram shops may result, that is, cause a single intoxication. When I use the phrase 'cause the intoxication of JOHN CLARK BERRY', I mean 'the liquor consumed at a given dram shop is a material and substantial factor in causing the intoxication.' This is a question of fact for you to determine."

Both sets of defendants objected to this instruction on the grounds that the first sentence was contrary to the provisions of the statute. After hearing arguments on this objection, the trial court refused to give the instruction.

During its subsequent deliberations, the jury sent a note to the court regarding the instructions that were given:

"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 response to this inquiry, plaintiffs again tendered the jury instruction quoted above. Defendants maintained that the jury had been adequately instructed, and the trial court again refused it. The jury was informed that there would be no further instructions from the court.

Ultimately, the jury returned a general verdict in favor of all defendants and against the plaintiffs. The jury also answered special interrogatories by finding that Berry was intoxicated at the time of the collision but that his intoxication was not the result of consuming alcoholic beverages at either tavern. Judgment was entered on the verdict, and plaintiffs appealed.

As noted above, a divided appellate court reversed the trial court's decision and remanded the cause for a new trial. (133 Ill. App. 3d 677.) The appellate court stated that it was the duty of a trial Judge to attempt to clarify explicit questions regarding relevant points of law raised by a jury during its deliberations. (133 Ill. App. 3d 677, 681.) The court also stated that "when the meaning of a word used in a statute has been judicially construed, an instruction reflecting this construction may appropriately be given. [Citation.]" (133 Ill. App. 3d 677, 681.) The court then noted that the word "causes," as used in the Act, had been specifically construed in Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, and that plaintiffs' instruction accurately incorporated the language of that case. The majority also noted that plaintiffs' instruction would have answered the specific ...

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