APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
537 N.E.2d 832, 181 Ill. App. 3d 959, 130 Ill. Dec. 503 1989.IL.152
Appeal from the Circuit Court of Kane County; the Hon. Michael F. O'Brien, Judge, presiding.
JUSTICE WOODWARD delivered the opinion of the court. McLAREN and LINDBERG, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD
Plaintiff, Ronald Knief, appeals from an order of the circuit court of Kane County granting a motion for summary judgment in favor of defendants, George Sotos and Andrew Booras, and the Blue Moon Ballroom and Lounge, Inc. (Blue Moon). Plaintiff also appeals from the circuit court's order partially denying his motion to compel discovery. Plaintiff raises two issues on appeal: (1) whether summary judgment is proper in an action under section 6-12 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1985, ch. 43, par. 135) when the pleadings showed that the driver had consumed alcohol at the defendants' establishment and affidavits attested to unusual behavior on the part of the driver; and (2) whether the statements of a head manager and a head waitress of a restaurant bar are privileged from disclosure under the attorney-client privilege.
On July 17, 1987, plaintiff, individually and as special administrator for the estate of Christopher Knief, filed a complaint under section 6-21 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1985, ch. 43, par. 135) and section 27-6 of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 27-6) against defendants Sotos and Booras individually and doing business as the Blue Moon. The complaint alleged that on September 13, 1986, at approximately 10 p.m., Doreen Service, a waitress employed by defendants, was served an alcoholic beverage at the Blue Moon; that she left the Blue Moon with another Blue Moon employee, Debra Patel, in Service's car; and that the Blue Moon is located at 1900 Larkin Court, Elgin, Illinois. Plaintiff further alleged that Service was driving the car near 1500 Larkin Court at approximately 10:45 p.m. and that she struck and killed plaintiff's decedent, Christopher Knief, as he lay with his bicycle in the road.
In their answer, defendants admitted that on September 13, 1986, Service was served an alcoholic drink, a tequila sunrise, at defendants' restaurant bar. Blue Moon denied that Service became intoxicated as a result of the one drink. In an answer to one of plaintiff's interrogatories, Blue Moon stated that Service was given a tequila sunrise at approximately 10 p.m. and that Patel did not have anything to drink.
On January 19, 1988, defendants filed a motion for summary judgment. On March 23, 1988, plaintiff filed a motion to compel compliance with his discovery requests. Plaintiff sought statements taken from employees of Blue Moon who would have knowledge of the sale or gift of alcohol to Service. Defendants had taken the statements of Service, Patel, Rita Price, Mary Leffler, the head waitress, and Kenneth Cornelissen, the head manager. Defendants refused to provide these statements to plaintiff, claiming that they were privileged statements of agents of Blue Moon. The court granted plaintiff's motion as to the statements of Service and Patel but denied it as to the statements of Cornelissen and Leffler, because the court decided that they were members of the corporate control group.
At the hearing on the motion for summary judgment, plaintiff presented the affidavit of Dr. William Hillman, an expert in substance abuse. Dr. Hillman's affidavit averred that a person could become intoxicated after consuming only one alcoholic drink.
Plaintiff also presented the affidavit of Timothy Daniels. In his affidavit, Daniels stated that he was driving his car on Larkin Court at approximately 10:45 p.m. on September 13, 1986. He had two passengers in his car. He stated that when he reached the 1500 block of Larkin Court, he saw Christopher lying in the road with his bicycle. Daniels averred that he had to swerve his car in a broad arc to avoid hitting the boy. Daniels turned his car around and returned to where Christopher lay. Before Daniels could reach him, the car that was traveling behind Daniels hit Christopher. In Daniels' opinion, the driver of the other car should have been able to avoid hitting the boy, especially since Daniels swerved his car broadly so that the car behind his should have noticed that there was some hazard in the road.
Plaintiff also introduced the affidavit of one of Daniels' passengers, Becky Paulus. Paulus stated that she felt the car swerve "real hard" to avoid hitting something. She turned around to see what it was. Paulus asserted that she saw Christopher lying in the road. She also saw the car that was traveling behind them hit Christopher. Paulus averred that the car did not stop or slow down to avoid hitting Christopher. It was Paulus' opinion that she guessed that the other driver did not see the boy and his bicycle lying in the road.
Plaintiff next introduced the affidavit of William Mallette. Mallette stated that he was driving on Larkin Court shortly after the accident. He stopped his car because he recognized Christopher. Mallette averred that he approached a white Chevrolet when the police were opening the door of the car. Mallette asserted that he smelled a very strong odor of alcohol coming from inside the car. In Mallette's opinion, the police officers were being evasive and trying to "cover something up" when he asked whether the driver would be charged with drunk driving. Mallette later learned that the driver of the white Chevrolet was Service.
Plaintiff argued that the affidavits and defendants' admissions established evidence of Service's intoxication. The trial court found that parts of the affidavits of Daniels, Paulus, and Mallette consisted only of conjecture or inferences. Despite evidence that tended to establish that Service did not exercise ordinary care, the court decided that there was no evidence of intoxication. The trial court found that a jury could conclude that Service was negligent. When plaintiff asked whether the evidence tended to establish that Service's behavior was unusual, the court responded that the evidence "does not sustain any indication of any intoxication. It might ...