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06/12/89 Kim Bachman, Indiv. and As v. Sharon & Lo's Place

June 12, 1989

KIM BACHMAN, INDI

v.

AND AS MOTHER AND NEXT FRIEND OF BRANDI BACHMAN ET AL., ET AL., PLAINTIFFS-APPELLEES,

v.

SHARON & LO'S PLACE, INC., ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

(J.J.'s River City Landing et al., Defendants)

541 N.E.2d 153, 185 Ill. App. 3d 40, 133 Ill. Dec. 316

Appeal from the Circuit Court of Tazewell County; the Hon. Bruce W. Black, Judge, presiding.

Rehearing Denied July 31, 1989. 1989.IL.880

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. STOUDER, J., concurs. JUSTICE HEIPLE, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

The plaintiffs, Kim Bachman et al., brought suit against the defendants pursuant to the Dramshop Act (Ill. Rev. Stat. 1983, ch. 43, par. 135). The defendants-appellants, Sharon & Lo's Place et al. (hereinafter the defendants) bring this interlocutory appeal from the trial court's denial of their motion to dismiss two counts of the plaintiffs' complaint.

The plaintiffs are the spouse and children of Howard Bachman. After he was killed in a motorcycle accident on July 7, 1985, the plaintiffs sued the defendants under the Dramshop Act. Count II of the complaint alleged that the defendants were liable under the Act to the plaintiffs for injury to their means of support. Count IV of the complaint alleged that the defendants were liable under the Act to the plaintiffs for damage to their property.

The defendants filed a motion to dismiss counts II and IV of the complaint. The trial court denied the motion but granted the defendants' subsequent motion to certify the issue for interlocutory appeal (107 Ill. 2d R. 308). The trial court certified the following question for review:

"For an accident occurring on July 7, 1985, in which an alleged intoxicated person was killed while operating a motor vehicle, and no third person's conduct contributed to the accident, does the Dram Shop Act [citation], as then applicable, provide a cause of action for the spouse of the alleged intoxicated person to recover for property damage, including damage to the motor vehicle and funeral and medical expenses? If so, is the cause of action an 'in consequence' cause of action or is it a 'by' cause of action?"

Prior to discussing the certified issue, we note that the plaintiffs have filed a motion to strike part of the defendant's brief. The plaintiffs argue that the part which addresses count II of the complaint should be struck because the trial court certified an issue of law which concerned only count IV. The plaintiffs correctly point out that in an interlocutory appeal the reviewing court may only address the question certified by the trial court. (Potter v. Chicago Heights Motor Freight, Inc. (1979), 78 Ill. App. 3d 676, 396 N.E.2d 1366.) We agree with the plaintiffs that the question certified by the trial court concerned only count IV. Accordingly, we grant the plaintiffs' motion to strike and shall not consider the part of the defendants' brief addressing count II.

The defendants argue on appeal that the trial court erred in denying the motion to dismiss count IV. They note that under the Dramshop Act a cause of action may be maintained in either of two ways, based on the following statutory language:

"Section 6-21. Every person who is injured in person or property by any intoxicated person, has a right of action . . . 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 ...


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