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04/27/87 Danette Dee Hartness, v. Katherine Ruzich

April 27, 1987

DANETTE DEE HARTNESS, PLAINTIFF-APPELLEE

v.

KATHERINE RUZICH, D/B/A KAJO'S TAVERN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

508 N.E.2d 1071, 155 Ill. App. 3d 878, 108 Ill. Dec. 494 1987.IL.542

Appeal from the Circuit Court of Williamson County; the Hon. Robert H. Howerton, Judge, presiding.

APPELLATE Judges:

JUSTICE WELCH delivered the opinion of the court. KARNS, P.J., concurs. JUSTICE JONES, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

Plaintiff Danette Dee Hartness commenced this action under the Dramshop Act (Ill. Rev. Stat. 1981, ch. 43, par. 135) against defendant Katherine Ruzich, doing business as KaJo's Tavern, for personal injuries arising out of a May 9, 1982, collision between plaintiff's automobile and one driven by James Watson, the alleged intoxicated person. A Williamson County jury returned a verdict of $50,000 in favor of plaintiff. The trial court entered judgment in favor of plaintiff for $15,000, the statutory limit on damages.

On May 9, 1982, at about 10:10 p.m., Watson drove his southbound automobile across the center line of Route 37 just north of Marion and into the path of a northbound auto in which plaintiff was a passenger. Plaintiff was injured and her fiance killed in the resulting collision.

To recover under the Dramshop Act, a plaintiff must prove the defendant caused the intoxication by giving or selling intoxicating liquor. (Ill. Rev. Stat. 1981, ch. 43, par. 135.) Under the current provisions a defendant must have caused intoxication and not merely furnished a negligible amount of liquor. (Kingston v. Turner (1987), 115 Ill. 2d 445, 457.) The principal issue on appeal is whether plaintiff presented a prima facie case for recovery sufficient to withstand defendant's motion for a directed verdict at the close of plaintiff's evidence. Defendant argues plaintiff failed to prove defendant caused Watson's intoxication. Plaintiff argues she presented sufficient circumstantial evidence on that point.

Danny Crozlyn testified as follows: He was Watson's friend. On the day in question he met Watson at Sambo's restaurant in Marion at about 2:30 p.m. They got into Watson's car and started driving around. Watson had a Styrofoam cooler containing seven-ounce bottles of beer, which they drank as they rode. Crozlyn did not know how many bottles were in the cooler or how many either of them drank. He did not know whether Watson drank anything before they met at Sambo's. They drove to Carbondale and, after driving around Carbondale, drove to the Eagles Lodge at Herrin, arriving at 4:30 p.m. Watson did not appear intoxicated at that time. At the Herrin Eagles they had "a couple of drinks. I don't recall the number." Watson did not appear intoxicated when they left the Herrin Eagles. They drove to KaJo's, defendant's tavern, north of Marion on Route 37. En route from Eagles to KaJo's, Crozlyn picked up his own car. Crozlyn did not believe Watson was intoxicated when they arrived. Once inside KaJo's, Crozlyn and Watson stood at the bar. Crozlyn continued drinking. He did not know whether Watson drank because they did not stay together and Crozlyn did not see him drinking. Watson left about 10 p.m. to 11 p.m., before Crozlyn did.

Watson testified he remembered little of the evening's events. He testified he remembered going into KaJo's but could not recall what happened or what he drank there and remembered nothing of drinking at the Herrin Eagles or of the beer in his car.

An emergency medical technician testified that when she placed Watson in the ambulance at the accident scene he smelled strongly of beer and was in her opinion intoxicated. She testified that to get to Watson in Watson's car, she moved a grocery sack full of beer bottles and that there were at least 20 beer bottles in the sack and strewn around in the car. A police officer testified he administered a breathalyzer test to Watson at 12:09 a.m. on May 10; the reading was .10 percent alcohol content. He testified that aside from the breathalyzer reading, his opinion was that Watson was intoxicated. Defendant testified she knew Watson and he was not in KaJo's on the evening of May 9, 1982. Three other witnesses testified they knew Watson and were at KaJo's that evening and Watson was not there.

The trial court denied defendant's motion for directed verdict at the close of plaintiff's evidence and at the close of all evidence, concluding there was some evidence that defendant caused Watson's intoxication in light of Crozlyn's testimony that Watson was not intoxicated when they arrived at KaJo's and further evidence that Watson was intoxicated at the scene of the collision.

Circumstantial evidence is the proof of certain facts and circumstances from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. (People v. Rhodes (1981), 85 Ill. 2d 241, 248-49, 422 N.E.2d 605, 608; Devine v. Delano (1916), 272 Ill. 166, 179-80, 111 N.E. 742, 748.) Circumstantial evidence is not limited to instances in which the circumstances support only one logical Conclusion; it suffices whenever an inference may reasonably be drawn therefrom. (Mort v. Walter (1983), 98 Ill. 2d 391, 396, 457 N.E.2d 18, 21.) The sole limitation on the use of circumstantial evidence is that the inferences drawn therefrom must be reasonable. Pearson v. Ford Motor Co. (1975), 32 Ill. App. 3d 188, 191, 336 N.E.2d 528, 530.

In the instant case there was direct evidence that Watson was in defendant's tavern on the date in question and was not intoxicated when he arrived and that he was intoxicated at the time of the wreck. There was no direct evidence that Watson drank anything or became intoxicated at defendant's tavern. However, under the directed verdict standard of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, we find sufficient circumstantial evidence to permit the trier of fact to infer that Watson was in defendant's tavern for a period of hours, that Watson drank alcoholic liquor there, and that he became intoxicated there. On this record it was for the jury to determine whether those ...


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