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07/13/88 Jacob T. Engel, A Minor By v. Lamplighter

July 13, 1988

FRIEND, ET AL., PLAINTIFFS-APPELLANTS

v.

LAMPLIGHTER, INC., A/K/A LAMPLITER, INC., D/B/A LAMPLITER CLUB, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

JACOB T. ENGEL, a Minor by Diane Engel, his Mother and Next

526 N.E.2d 641, 172 Ill. App. 3d 59, 122 Ill. Dec. 382 1988.IL.1092

Appeal from the Circuit Court of La Salle County; the Hon. Louis J. Perona, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. STOUDER and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

This case comes on appeal of the trial court's order, dated November 5, 1987, dismissing plaintiffs' complaint (counts I through VI) with prejudice.

Plaintiffs filed their complaint on June 30, 1987, in the circuit court of La Salle County against defendants, three tavern owners, under section 6-21 of the Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 135). The six-count complaint was based upon an incident that took place on August 4, 1987, in which a certain person, Richard Hall (Hall), allegedly became intoxicated at the dramshops owned by the three defendants. As a result of said intoxication, plaintiffs allege that Hall shot and killed Julie Ann McCormick while she was on the front porch of plaintiffs' home and while plaintiffs were also present on the porch at the time.

The first count against each defendant (being the odd-numbered counts) alleged typical dramshop actions except that each claimed, by way of injury, that plaintiffs were in close proximity to Julie Ann McCormick when she was shot by the intoxicated person and, as a result, both plaintiffs had a great and reasonable fear or expectation of risk of physical injury. Furthermore, as a result of emotional distress caused by witnessing at close proximity the shooting death of the victim, both plaintiffs sustained permanent physical and mental illness.

The second count against each defendant (being the even-numbered counts) alleged that as a result of Hall becoming intoxicated, he willfully and wantonly shot and killed Julie Ann McCormick and that his conduct was extreme and outrageous and carried out in reckless disregard of the probability of causing severe emotional distress to plaintiffs standing nearby. Additionally, that by reason of the emotional distress caused by witnessing at close proximity the shooting of Julie Ann McCormick, both plaintiffs sustained permanent physical and mental illness.

Plaintiffs further represented to this court that Hall, after the shooting, committed suicide and left no appreciable estate against which an action could be brought. We assume this is to be true as defendants have not disputed this contention.

Pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615), the defendants filed motions to dismiss the complaint as being insufficient as a matter of law. Addressing this question, we are cognizant that well-pleaded facts are taken as true. MBL Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 484 N.E.2d 371.

Section 6 -- 21 of the Liquor Control Act of 1934 (also known as the Dramshop Act) states:

"(a) Every person who is injured within this State, 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, licensed under the laws of this State, or of any other state to sell alcoholic liquor, who, by selling or giving alcoholic liquor, within or without the territorial limits of ...


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