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12/29/89 William L. Gilman, Jr., Et v. Gene Kessler

December 29, 1989





548 N.E.2d 1371, 192 Ill. App. 3d 630, 139 Ill. Dec. 657 1989.IL.2075

Appeal from the Circuit Court of Carroll County; the Hon. John W. Rapp, Jr., Judge, presiding.


JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT, P.J., and DUNN, J., concur.


Plaintiffs, William and Cathy Gilman, appeal from jury's verdicts entered against them on their dramshop and negligence actions brought against defendants, Gene Kessler, d/b/a Gene's Oasis, and Sue Mills, d/b/a Palisades Tap. The actions arose from an incident occurring between William Gilman and John Rubio, at Gene's Oasis on November 8, 1984. Rubio was allegedly intoxicated at the time. William was injured as a result of the incident and brought suit against the owner of Gene's Oasis and the owner of Palisades Tap, a tavern Rubio had visited earlier that day. The jury returned verdicts against plaintiffs, and the trial court entered judgment on the verdicts. Plaintiffs filed this appeal. Plaintiffs raise the following issues on appeal: (1) whether the jury verdicts are supported by the evidence; (2) whether the trial court erred in finding that provocation was a defense to the negligence actions; (3) whether defendants' closing arguments were improper and prejudicial to plaintiffs; (4) whether the trial court incorrectly permitted defendants to question witnesses as to their intoxication; and (5) whether the jury instructions were erroneous and misleading. We affirm.

The facts, as set forth by the parties at trial and in their briefs presented to this court, are complicated and controversial. Below, we have summarized the facts and testimony pertinent to this appeal.

On November 8, 1984, at 2 p.m., John Rubio picked up his then girlfriend, Candy Orth, at Pool 13 Supper Club, where they each had one beer. They then went to Gene's Oasis at approximately 2:30 p.m. where Rubio had two or three beers. Rubio and Candy left Gene's at approximately 4:30 p.m. with Glen and Terry Derrer and went to Palisades Tap. Candy testified that Rubio had "maybe three beers and a couple of peach schnapps" at Palisades. Rubio, Candy and the Derrers then went to the Derrers' home, where Rubio had nothing to drink. Rubio and Candy stayed at the Derrers for an hour or two and then returned to Palisades where, according to Candy, Rubio had "a can of beer and peach schnapps on the rocks." Candy testified that Rubio got into an argument at Palisades with Gary Derickson. The bartender at Palisades, Terry Prowant, told Rubio "to get out," which he did. Candy opined that Rubio was "definitely intoxicated" at that time and she, herself, was "not far behind."

Terry Prowant, the bartender at Palisades and defendant Sue Mill's sister, testified that she served Rubio one drink that night. She stated that Rubio got into an argument with Vinny Poliso, not Gary Derickson. Prowant stated that she then asked Rubio to leave and that he did. Prowant did not recall Rubio slurring his words or having any problems walking that night. However, she did testify that Rubio was obnoxious. When asked, "Did you tell Bill Gilman that John Rubio was intoxicated when he was there that evening?" she testified, "[t]he longer he was there, it was more noticeable, yeah."

From Palisades, Rubio and Candy proceeded to Gene's Oasis. Approximately 30 patrons were present at Gene's that evening with only one employee working, Brenda Brinkmeier. What occurred after Rubio arrived varies somewhat with each witness.

William Gilman testified that he had been at Gene's since approximately 7:15 p.m. playing pool in a league along with Rick Miller, Kent Rettenberger, Lee Woodhurst and Rick Crest. According to William, Rubio was loud, angry and obnoxious when he entered Gene's, which was sometime after 10 p.m.. Shortly after Rubio arrived, he kicked a bar stool at Dick Arisio and had a few words with him. About five minutes later, Rubio yelled obscenities at Lee Woodhurst. However, nothing became of the incident, and Rubio did not pursue it. Ten minutes later, Rubio shoved Woodhurst and there was more shouting.

William testified that the physical contact between Rubio and Woodhurst ceased "for a little while." About 10 minutes after the second episode between Woodhurst and Rubio, William Gilman went to the restroom. When William exited the restroom about two minutes later, he observed a scuffle 20 to 30 feet away between Kent Rettenberger, John Rubio, and Lee Woodhurst. Rettenberger was trying to "contain" Rubio, who was trying "to get at" Woodhurst. William testified that he thought Rubio had a hold of Woodhurst's arm and that Rettenberger was trying to break the hold. William then walked over to Rubio, grabbed his arm, and told him to "knock it off." According to William, Rubio kept after Woodhurst, so William picked Rubio up and "set" him on a table so Woodhurst could get out the back door. William then released Rubio "because they were friends" and stepped back a couple of steps. Rubio then shoved William back, pulled William's shirt over his head, and shoved William again. As William braced himself against Rubio's shove, his knee "went" and he fell to the floor.

William admitted that Rubio had no problems walking or talking that night. William recalled nothing unusual about Rubio's behavior other than that he was in an angry mood and it was clear that Rubio was not getting along with his girlfriend, Candy, that night as they were arguing. On redirect examination, however, William testified that he felt Rubio was intoxicated when he first saw him at Gene's because Rubio was loud and obnoxious. William testified that later that evening after the incident, Rubio came back to Gene's and apologized to William for what had happened.

When asked as to the amount of alcohol consumed that night, William stated that he saw Rubio order a beer for himself and a beer for his girlfriend. William testified that he, himself, had four or five beers at Gene's and by 10:30 p.m. was "relaxed," "feeling pretty good," and maybe "a tad light-headed."

Candy testified that she and Rubio arrived at Gene's sometime after 9 p.m. Upon entering the bar, Candy went to the restroom, and when she came out, Rubio was arguing with Woodhurst over darts. Rubio was poking Woodhurst in the chest with his finger. Candy testified that she told Rubio "to stop arguing and to just knock it off," and after she "found out that he wasn't going to stop, [she] just turned around and left the bar." Rubio did not have a beer in his hands when Candy left or prior to that time. Candy stated that Rubio came out of Gene's "fifteen minutes or more" later.

Candy testified that Rubio changes when he drinks in that he gets "mean," "pushy," and "violent." Candy admitted that on January 13, 1986, she wrote and signed a written statement in which she stated, among other things, that both she and Rubio were sober. Candy testified that the statement contained what Rubio told her to write; and, while she did not agree with what he was saying, she wrote it because she was "scared of him." Candy admitted that she married Rubio in April 1986 and divorced him two years later. Plaintiffs' attorney represented Candy in her divorce from Rubio. She discussed the Gilman case with him after coming back from court for her final appearance in her divorce case. She gave plaintiffs' attorney a statement regarding the Gilman case in June 1988.

Richard Miller, a member of William's pool team, and William's brother-in-law, testified that Rubio came into Gene's at approximately 9:30 or 9:45 p.m. Rubio started arguing with Woodhurst, who ignored Rubio. Rubio pushed a chair at Steve Schneider, who also ignored Rubio. Rubio then left and did not return to Gene's until about one-half hour later. Miller testified that Rubio "started back in" with Woodhurst again. William went to the restroom, and Miller followed soon after. When Miller came out of the restroom, Rettenberger and William were standing in front of Rubio so Woodhurst could leave. Miller did not see William pick Rubio up, but he saw Rubio pull William's shirt up and push him backwards. William then fell and twisted his knee.

As to intoxication, Miller opined that there was not much doubt that Rubio was intoxicated when he came into Gene's. Miller testified that Rubio gets violent when he has had too much to drink and that Rubio was pretty loud that evening. Rubio had a can of beer in his hand the first time he was at Gene's, but Miller could not recall if Rubio had any beer the second time. Miller testified that he, himself, had "probably five or six" drinks between 6:30 and 9:30 p.m. but was not affected by it.

Kent Rettenberger, also a member of William's pool team, testified that Rubio came into Gene's around 9:15 or 9:20 p.m. Rubio walked up to Woodhurst and started yelling at him, but there was no physical contact. Rubio had words with Gary and John Derickson and kicked a bar stool at Arisio. About 45 minutes later, Rubio came up to Woodhurst and pushed him. They "wrestled around," and Rettenberger stated that he then went between Rubio and Woodhurst as Woodhurst was attempting to get out of Gene's. Rettenberger stated that it was at this point that William came out of the restroom. However, Rettenberger later stated that he had a hold of Rubio when William came out of the restroom and that Woodhurst was half way out the door.

Rettenberger testified that when William came out of the restroom, Rubio pushed William and William put his arms out to push back at Rubio. Rubio then pulled William's shirt over his head. Rettenberger did not see William put Rubio in a bear hug or pick him up.

As to intoxication, Rettenberger testified that he did not know if Rubio was intoxicated when he came into Gene's but stated that Rubio was loud and obnoxious. Rettenberger stated that Rubio was served a beer and a mixed drink three to five minutes after he came into Gene's, but Rettenberger did not know if there was alcohol in the mixed drink. Rettenberger did not recall Rubio slurring his speech or having any trouble walking. However, when Rettenberger held Rubio, he came to the opinion that Rubio was intoxicated because Rubio was not normally a troublemaker and he could smell alcohol on Rubio. Rettenberger had no alcohol to drink that night.

At the close of plaintiffs' case, the trial court granted directed verdicts for Harry Martin, d/b/a Pool 13 Supper Club and Pool 13 Supper Club, Inc. Plaintiffs apparently are not appealing this part of the trial court's ruling as they have presented no argument in their post-trial motion or in their briefs to this court in that regard.

In his case in chief, defendant Kessler, d/b/a Gene's Oasis, called Lee Woodhurst. Woodhurst, who is also a member of William's pool team, testified that when he first saw Rubio, Rubio was at the bar and looked "a little outraged or something." Woodhurst asked Rubio twice "ow's it going?" to which Rubio did not reply. Woodhurst then asked Rubio, "ell, what's your problem?" Rubio turned around, swore at Woodhurst, and started to come at Woodhurst. Woodhurst had his back to the pool table. Rubio came up and pinned Woodhurst against the table with his knees and "just held [him] there." Woodhurst pushed Rubio back. Other patrons grabbed Rubio and broke it up. Woodhurst heard the bartender screaming to stop it.

Woodhurst then tried to get out the back door. Rubio lunged for Woodhurst as he was half way out the door. Rubio's lunge pushed Woodhurst out the door. Other patrons grabbed Rubio, and the door slammed. According to Woodhurst the whole incident took place within about 12 minutes because Woodhurst did not notice Rubio until about 12 minutes before he left. Woodhurst did not see William pick Rubio up or set him on a table.

As to intoxication, Woodhurst testified that he did not see Rubio stagger or stumble but that Rubio was in a "very bad" mood and was "spitting and slobbering and making no sense." In answer to a question as to whether Rubio looked any different from other persons Woodhurst had seen who had been very angry, but had not been drinking, Woodhurst stated, "I don't know. If I wasn't in a bar, I wouldn't have said he was drinking. I don't know."

After defendants had rested, plaintiff made an oral motion dealing "with the fact that provocation is not a defense to an action under the Dram Shop Act." The issue was argued, and the trial court ruled in plaintiff's favor. Defendants then moved for a mistrial based upon the court's ruling because plaintiff failed to bring his motion regarding ...

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