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10/13/88 Dianna Lynn Puckett, v. Mr. Lucky's Ltd.

October 13, 1988

PUCKETT, A DISABLED PERSON, PLAINTIFF-APPELLANT

v.

MR. LUCKY'S LTD., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

DIANNA LYNN PUCKETT, Guardian of the Estate of Charles T.

529 N.E.2d 1169, 175 Ill. App. 3d 355, 125 Ill. Dec. 93 1988.IL.1528

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., concurs. JUSTICE KNECHT, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

The plaintiff guardian brought an action in the circuit court of Macon County against the defendant tavern alleging defendant negligently hired an unfit person to sell liquor. Defendant's employee sold liquor to a minor who then operated an automobile while intoxicated and injured plaintiff's ward. The trial court granted defendant's motion to dismiss plaintiff's complaint for failure to state a cause of action. Plaintiff appeals. We affirm.

Plaintiff Dianna Lynn Puckett is guardian of the estate of Charles T. Puckett (Charles, Jr.), a minor and disabled person. On April 14, 1987, plaintiff filed a complaint against defendant, Mr. Lucky's Ltd., alleging defendant negligently hired Charles William Puckett (Charles, Sr.) to sell liquor at defendant's tavern-liquor store. The complaint contained the following allegations.

Charles, Sr., is the father of Charles, Jr. Charles, Sr., formerly operated a package liquor store known as the Library Lounge and had on many occasions been known to sell, and had been convicted of selling, alcoholic beverages to minors.

On April 17, 1987, in the City of Decatur, Illinois, Charles, Jr., was a passenger in an automobile also occupied by Timothy Banks and driven by Bryon Martin. Charles, Sr., while acting as defendant's agent, sold or gave beer to the three minors. The trio consumed beer and Martin, while intoxicated, drove the automobile at a speed of 85 to 100 miles per hour and hit a tree. Charles, Jr., was injured.

Defendant filed a motion to dismiss plaintiff's complaint for failure to state a cause of action. Defendant argued there is no common law right to recover against a tavern for giving away or selling intoxicating liquor. The sole remedy is in the Illinois Dramshop Act (Act) (Ill. Rev. Stat., 1986 Supp., ch. 43, par. 135).

Plaintiff filed a motion requesting the court to take judicial notice of State records containing the statistics on alcohol-related fatal accidents and the consequences of raising the legal minimum drinking age in Illinois.

The trial court refused to take notice of the State records, granted defendant's motion, and dismissed plaintiff's complaint with prejudice.

On appeal, plaintiff concedes Illinois does not recognize actions grounded in common law negligence against liquor providers and the Act provides the sole remedy to third persons injured by intoxicated persons. However, plaintiff argues the lack of common law precedent for dramshop liability has needlessly paralyzed the Illinois courts. Plaintiff urges this court to carve out an exception to the common law rule of non-liability so that a dramshop is potentially liable if it sells liquor to a minor who, as a result of his intoxication, causes injury to a third party.

We recognize that there may well be validity to the position of the plaintiff. It may be that statistics justify making all those who furnish alcoholic beverages to minors financially responsible for the injuries resulting from the alcohol use. However, we feel bound by the decisions of our supreme court which have long limited liability relating to furnishing alcohol to the coverage of the Illinois Dramshop Act. Cunningham v. Brown (1961), 22 Ill. 2d 23, 28-29, 174 N.E.2d 153, 157; see also Hopkins v. Powers (1986), 113 Ill. 2d 206, 497 N.E.2d 757; Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 484 N.E.2d 1088; Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 440 N.E.2d 112; Graham v. General U. S. Grant Post No. 2665 (1969), 43 Ill. 2d 1, 248 N.E.2d 657; Ruth v. Benvenutti (1983), 114 Ill. App. 3d 404, 449 N.E.2d 209; Gora v. 7-11 Food Stores (1982), 109 Ill. App. 3d 109, 440 N.E.2d 279.

In Miller v. Moran (1981), 96 Ill. App. 3d 596, 598, 421 N.E.2d 1046, 1049, our court refused to create a common law cause of action against a social host who wilfully and wantonly served liquor to a guest, holding the Dramshop Act was the exclusive source of liability.

We are requested to change the law, but we find that such a decision is best left to the supreme court or the legislature. A supreme court decision would be binding upon all of the State, not just the 30 counties of the Fourth Judicial District. Needless to say, the possible conflicts among the appellate districts on this particular subject could lead to a certain amount of economic and social havoc. The decision of the circuit court of Macon County is affirmed.

Affirmed.

CASE RESOLUTION

Judgment ...


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