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05/16/94 PAULA L. BZDEK v. SUSAN M. TOWNSLEY AND

May 16, 1994

PAULA L. BZDEK, A MINOR, BY HER FATHER AND NEXT FRIEND, ROBERT J. BZDEK, PLAINTIFFS-APPELLANTS,
v.
SUSAN M. TOWNSLEY AND NICKI TOWNSLEY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court from Lake County. No. 92-L-1238. Honorable Stephen E. Walter, Judge, Presiding.

Petition for Leave to Appeal Allowed October 6, 1994.

PECCARELLI, Doyle, Colwell

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Paula L. Bzdek (plaintiff), a minor, brought an action by Robert J. Bzdek, her father and next friend, alleging social host liability against defendants, Susan M. Townsley and Nicki Townsley. The circuit court of Lake County dismissed plaintiff's second amended complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)) for failure to state a cause of action. Plaintiff appeals. We reverse and remand.

Plaintiff's second amended complaint (the complaint) contained two counts which both alleged that on or about September 15, 1990, defendants: (1) hosted a party at their residence; (2) knew that most of the guests in attendance at the party were under 21 years of age and several were under 18 years of age; (3) provided and served alcoholic beverages to their guests, including those under 21 and 18 years of age (underage guests), who consumed the alcoholic beverages; (4) knew or should have known that many of their underage guests arrived at and would depart from the party in motor vehicles; (5) knew that the consumption of the alcoholic beverages by their underage guests could and would affect their underage guests' mental faculties, including the underage guests' judgment and ability to operate safely a motor vehicle; (6) continued to provide and serve alcoholic beverages to their underage guests when defendants knew or should have known the underage guests were becoming intoxicated; (7) permitted and caused two of the underage guests, David A. Duff (Duff) who was 18 years old, and plaintiff, who was 15 years old, to continue consuming alcoholic beverages to the point of and while in a state of intoxication; and (8) knowingly permitted Duff and plaintiff to leave the premises while still intoxicated and likely to depart in a motor vehicle.

Count I of the complaint was based on a theory of social host liability by negligent service of alcohol to an underage driver. Count I alleged that after leaving the party, Duff, while intoxicated from the alcoholic beverages he consumed at the party, drove a motor vehicle in an uncontrolled and reckless manner until he lost control of the vehicle, crossed into oncoming traffic, and caused the vehicle to crash. Count I also alleged that plaintiff, who was a passenger in the vehicle driven by Duff, sustained severe and permanent injuries in the crash.

Count II of the complaint was based on a theory of social host liability by the negligent service of alcoholic beverages to an underage passenger. Count II alleged that as a result of plaintiff's intoxication, plaintiff's judgment was impaired and she allowed herself to be transported in a vehicle operated by Duff who wasobviously intoxicated. Count II also alleged that Duff operated the motor vehicle in a reckless and uncontrolled manner until he lost control of the vehicle, allowed it to cross into oncoming traffic, and caused a crash in which plaintiff suffered severe and permanent injuries.

On appeal, plaintiff argues that the circuit court erred when it dismissed her complaint. Plaintiff contends that her complaint stated a proper cause of action under Cravens v. Inman (1991), 223 Ill. App. 3d 1059, 166 Ill. Dec. 409, 586 N.E.2d 367.

In reviewing a dismissal for failure to state a cause of action, we must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn from the well-pleaded facts to determine whether the complaint alleges sufficient facts to establish a cause of action upon which relief may be granted. ( Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill. 2d 1, 9, 180 Ill. Dec. 307, 607 N.E.2d 201.) A court should not dismiss a cause of action on the pleadings unless it clearly appears that no set of facts can be proven which will entitle a plaintiff to recover. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504, 152 Ill. Dec. 121, 565 N.E.2d 654.

In order to state a cause of action in common-law negligence, a plaintiff must show the existence of a duty owed by defendant to plaintiff and allege breach of that duty by defendant and resulting injury to plaintiff proximately caused by defendant's breach of the duty. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140.) The existence of a duty is a question of law to be determined by the court and may be based on defendant's violation of a statute designed to protect human life or property. ( Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542-43, 163 Ill. Dec. 842, 582 N.E.2d 108.) The violation of a statute designed to protect human life or property is prima facie evidence of negligence when plaintiff shows: (1) the violation of the statute proximately caused plaintiff's injury; and (2) the statute was intended to protect a class of persons to which plaintiff belongs from the kind of injury plaintiff suffered. Gouge, 144 Ill. 2d at 543.

The Illinois appellate court districts are split as to whether pleadings alleging common-law social host negligence liability state a viable cause of action. This split occurred in 1991, when the Appellate Court, First District, filed Cravens v. Inman (1991), 223 Ill. App. 3d 1059, 166 Ill. Dec. 409, 586 N.E.2d 367, which recognized social host negligence liability for automobile accident injuries caused by a minor driver who became intoxicated at a party given by the social host. Prior to Cravens, the appellate court had consistently held that a cause of action for common-law social host negligence liability would not lie because section 6-21 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1991, ch. 43, par. 93.9 et seq.

Page 241

(now 235 ILCS 5/1-1 et seq. (West 1992))) (historically called the Dramshop Act) preempted the field of alcohol-related liability, and because any extension of the law to include social host liability should come either from the legislature or from the Illinois Supreme Court. See, e.g., Puckett v. Mr. Lucky's Ltd. (1988), 175 Ill. App. 3d 355, 357-58, 125 Ill. Dec. 93, 529 N.E.2d ...


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