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08/15/89 Joseph Stevens, Adm'r of v. Lou's Lemon Tree

August 15, 1989

JOSEPH STEVENS, ADM'R OF THE ESTATE OF IN-GRID STEFANSKI, DECEASED ET AL., PLAINTIFFS-APPELLANTS

v.

LOU'S LEMON TREE, LTD., ET AL., DEFENDANTS-APPELLEES (VERNELL AYERS, JR., DEFENDANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

543 N.E.2d 293, 187 Ill. App. 3d 458, 135 Ill. Dec. 58 1989.IL.1254

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg and the Hon. Odas Nicholson, Judges, presiding.

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. BILANDIC, P.J., and SCARIANO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Upon two successive defense motions, the circuit court dismissed counts IV and V of plaintiffs' second amended complaint, and counts II and III

On February 7, 1986, plaintiffs Joseph Stevens, as administrator of the estate of In-grid Stefanski (Ingrid), and Alexander Stefanski (Alexander), individually, filed a complaint against Vernell Ayers, Jr. (Ayers). In count I, plaintiffs alleged that on January 1, 1986, Ayers negligently struck and killed In-grid with an automobile as she crossed Burley Street in Chicago. Plaintiffs' second amended complaint named as defendants: Ayers; Lou's Lemon Tree, Limited (Lou's), a corporation; and Daniel Delich (Delich) (sometimes collectively defendants). Count I was repeated and count II asserted that Lou's owned, operated and managed a tavern and licensed dramshop, known as the Lemon Tree Inn, on Muskegon Street in Chicago. Delich allegedly owned the Lemon Tree Inn building and premises and permitted the giving or selling of alcoholic liquors on those premises. On January 1, 1986, Delich and Lou's, acting through Lou's agents or servants, allegedly sold or gave to Ayers alcoholic liquor which he consumed, causing his intoxication, which was "at least one cause" of the accident. As a result of this occurrence, Ingrid suffered personal injury and permanent damage, and both In-grid and Alexander incurred damage to their property, in the nature of hospital, medical and funeral expenses. Citing the Act (Ill. Rev. Stat. 1987, ch. 43, pars. 93.9, 135), plaintiffs sought judgment against Lou's and Delich for the property damage delineated above.

In count III, plaintiffs again sought recovery pursuant to the Act, contending that as a result of defendants' negligence and Ingrid's death, Alexander suffered injury to his means of support, suitable comforts which might have been expected from In-grid and deprivation of Ingrid's companionship, society, love and affection.

Counts IV and V alleged common law negligence, otherwise tracking the preceding allegations.

Lou's section 2-615 motion to dismiss plaintiffs' second amended complaint (Ill. Rev. Stat. 1987, ch. 110, par. 2-615), joined in by Delich, resulted in an order entered February 29, 1988, which: dismissed counts IV and V of the second amended complaint with prejudice; struck counts II and III with leave to refile; and found no just reason to delay appeal of the order. (124 Ill. 2d R. 304(a).) On March 23, 1988, plaintiffs filed a notice of appeal (docket No. 1-88-0963).

In their third amended complaint, filed March 25, 1988, plaintiffs asserted second and third counts virtually identical to those alleged in the second amended complaint, which were again dismissed, on June 28, 1988. By notice filed July 11, 1988, plaintiffs appealed this order (docket No. 1 -- 88 -- 2206). The appeals were consolidated. Ayers is not a party to these appeals. I

Plaintiffs first assign error to the circuit court's refusal to recognize a common law, dramshop cause of action, permitting recovery against Lou's and Delich for damages allegedly incurred by Alexander as a result of Ingrid's death. *fn1 Admitting all well-pleaded facts and any reasonable inferences they permit, this court must determine whether those facts, viewed most favorably to plaintiffs, are sufficient to set forth causes of action upon which relief may be granted. Farmers State Bank & Trust Co. v. Lahey's Lounge, Inc. (1988), 165 Ill. App. 3d 473, 479, 519 N.E.2d 121.

The right of recovery by virtue of negligence caused by intoxication was unknown at common law. (Howlett v. Doglio (1949), 402 Ill. 311, 318, 83 N.E.2d 708; Thompson v. Capasso (1959), 21 Ill. App. 2d 1, 4, 157 N.E.2d 75.) The legislature has recognized such an action in the Act (Ill. Rev. Stat. 1987, ch. 34, par. 135) and has the power to set the terms of recovery and liability therefor, without interference from the courts. (Howlett v. Doglio, 402 Ill. at 320-21; Zamiar v. Linderman (1985), 132 Ill. App. 3d 886, 889, 478 N.E.2d 534; Thompson v. Capasso, 21 Ill. App. 2d at 8.) As many Illinois authorities have held, the Act provides the only remedy against tavern operators and owners of tavern premises for injuries to person, property or means of support by an intoxicated person. Cunningham v. Brown (1961), 22 Ill. 2d 23, 30-31, 174 N.E.2d 153; Puckett v. Mr. Lucky's Ltd. (1988), 175 Ill. App. 3d 355, 357, 529 N.E.2d 1169 (collecting authorities); see also Hopkins v. Powers (1986), 113 Ill. 2d 206, 210, 497 N.E.2d 757; Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 5, 440 N.E.2d 112; Ruth v. Benvenutti (1983), 114 Ill. App. 3d 404, 406, 449 N.E.2d 209.

Claiming that the $40,000 ceiling on damages now available under the Act is almost worthless by virtue of inflationary erosion and the unrealistic limitation articulated in the Act on the types of damages offered (Ill. Rev. Stat. 1987, ch. 43, par. 135), plaintiffs contend that the deterrent intent underpinning the statute (see Ill. Rev. Stat. 1987, ch. 43, par. 94) has dissipated. In effect, tavern owners and operators are immunized from the exponentially larger amounts commonly awarded today as damages in simple negligence claims. Plaintiffs well recognize legislative prerogatives and limitative precedent; nevertheless, they press for a change in the law which has created the present state of inJustice. They point to recent cases in which reviewing courts explicitly have called for legislative relief to no avail (Zamiar v. Linderman, 132 Ill. App. 3d at 890; Ruth v. Benvenutti, 114 Ill. App. 3d at 406), and inferentially urge that we follow the cogent and erudite Dissent written by Justice Knecht in Puckett v. Mr. Lucky's Ltd. (175 Ill. App. 3d at 358-66), if parity is to be established for recovery in dramshop cases and common law recoveries. Parenthetically, we note that our supreme court recently denied leave to appeal in Puckett (124 Ill. 2d 561). Plaintiffs earnestly importune this ...


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