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05/23/88 Arlene Glinka, v. the Flame of Countryside

May 23, 1988

ARLENE GLINKA, PLAINTIFF-APPELLANT

v.

THE FLAME OF COUNTRYSIDE, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

524 N.E.2d 1102, 171 Ill. App. 3d 81, 121 Ill. Dec. 54 1988.IL.805

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Quinn, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. CAMPBELL, P.J., AND O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The plaintiff, Arlene Glinka, filed a complaint against the defendants, The Flame of Countryside (the Flame), Ford City Bank, Peter G. Makris and Gloria Makris, alleging a loss of support for the fatal injuries that her husband, Arthur Glinka, suffered on November 5, 1985, when, following the consumption of alcoholic beverages in the Flame owned by the defendants, the car he was driving collided with another vehicle. Plaintiff's complaint alleged a breach of the Liquor Control Act of 1934, as amended (the Act) (Ill. Rev. Stat. 1985, ch. 43, par. 135), and sought recovery in excess of $20,000 for her loss of support. The defendants filed an appearance and moved the court to dismiss the suit with prejudice pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(9)). The court granted the defendants' motion on September 16, 1987, and, thereafter, the plaintiff filed a notice of appeal to this court challenging the constitutionality of the Liquor Control Act of 1934, as amended.

In her appeal, the plaintiff concedes both the applicability of the Liquor Control Act amendment of 1985 to her case and the technical appropriateness of granting a section 2 -- 619 dismissal inasmuch as the amended Act bars her cause of action. However, the plaintiff, Glinka, challenges the constitutionality of the 1985 amendment to the Liquor Control Act, claiming that it is an arbitrary classification which bars causes of action for loss of support by the relatives of intoxicated persons against the dramshop. Such classification, she argues, is against the original intent of the Liquor Control Act of 1934, which was, plaintiff claims, to apportion responsibility for injuries to others caused by the consumption of alcoholic beverages served by dramshops.

The Liquor Control Act of 1934, as amended by Public Act 84 -- 271, provides in relevant part:

"Every person who is injured in person or property by any intoxicated person, has a right of action in his or her own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. . . . An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication of any person resulting as hereinabove set out. The action, if the person from whom support was furnished is living, shall be brought by any person injured in means of support in his or her name for his or her benefit and the benefit of all other persons injured in means of support. . . .

Nothing in this Act shall be construed to confer a cause of action for injuries to the person or property of the intoxicated person himself, nor shall anything in this Act be construed to confer a cause of action for loss of means of support on the intoxicated person himself or on any person claiming to be supported by such intoxicated person." Ill. Rev. Stat. 1985, ch. 43, par. 135.

The plaintiff argues that the amendment is unconstitutional because it creates an arbitrary and discriminatory classification, which denies plaintiff equal protection of the laws under the Illinois Constitution (Ill. Const. 1970, art. 1, § 2) and is without a rational relationship to the original intent of the legislature. Glinka argues that she discharged her burden of showing the unconstitutionality of the statute when she provided the trial court with the amendment's legislative history and the trial court agreed, based on this evidence, that the "classification accomplishes no legitimate purpose or at least not the stated purpose under the original intent of the Act." Plaintiff asserts that the trial court improperly sustained the constitutionality of the statute after finding the challenged classification was without a rational basis.

The issue before this court is whether Public Act 84 -- 271 is unconstitutional in its classification of the families of intoxicated persons as persons not entitled to recover under the Liquor Control Act of 1934 for loss of means of support.

It is undisputed that loss of support to the family of the intoxicated person in consequence of his intoxication was a recognized cause of action in Illinois prior to the effective date of Public Act 84-271. (Ill. Rev. Stat. 1983, ch. 43, par. 135; Bejnarowicz v. Bakos (1947), 332 Ill. App. 151, 74 N.E.2d 614.) The parties also agree that the challenged amendment bars recovery only to the class of persons claiming a loss of support because of the death or injury of the intoxicated person. However, it is also undisputed that there is no common law right to recover for loss of support caused by the death or injury of an intoxicated person. See Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 442, 484 N.E.2d 1088, 1092; Cunningham v. Brown (1961), 22 Ill. 2d 23, 30, 174 N.E.2d 153, 156.

The Liquor Control Act of 1934 created a wholly statutory liability that is imposed solely as a condition of doing dramshop business in this State. (See Cruz v. Puerto Rican Society (1987), 154 Ill. App. 3d 72, 77, 506 N.E.2d 667, 670.) In Cruz v. Puerto Rican Society, the appellate court found that the sui generis nature of dramshop liability would permit the legislature to abrogate the available remedies provided under the Act through subsequent legislation because there can be no vested rights in a purely statutory remedy. (Cruz, 154 Ill. App. 3d at 76, 506 N.E.2d at 669; see also Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 122 N.E.2d 513.) The Cruz court held that the plaintiff wife of the deceased intoxicated person had "a mere expectation [of recovery] based upon an anticipated continuance of the existing law" and the court there held that a prospective cause of action could be terminated by ...


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