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12/01/94 JUDITH WEST v. GRANNY'S ROCKER NITECLUB

December 1, 1994

JUDITH WEST, SPECIAL ADMINISTRATOR OF THE ESTATE OF DAYMOND WEST, JR., DECEASED, PLAINTIFF-APPELLANT,
v.
GRANNY'S ROCKER NITECLUB, INC.; LARRY R. ROLENS; FRED D. DUBLO, SR., D/B/A FRED'S TOWING; AND CITY OF ALTON, ILLINOIS, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County. No. 91-L-1706. Honorable Philip J. Kardis, Judge, presiding.

Presiding Justice Lewis delivered the opinion of the court: Welch, J., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Judith West, as the special administrator of the estate of Daymond West, deceased, brought this wrongful death suit against defendants, Granny's Rocker Niteclub, Inc., Larry R. Rolens, who owns Granny's (both referred to collectively as Granny's), Fred D. Dublo, Sr., doing business as Fred's Towing (Fred's), and the City of Alton, Illinois (the city), after Daymond was killed in a motorcycle accident. The trial court dismissed the complaint as to Granny's and entered summary judgment against plaintiff and in favor of Fred's and the city. Plaintiff appeals, raising three issues: (1) whether the complaint states a cause of action for willful and wanton misconduct by Granny's; (2) whether the trial court erred in entering summary judgment in favor of Fred's; and (3) whether the trial court erred in entering summary judgment in favor of the city. For reasons we will more fully set forth herein, we affirm the trial court's dismissal of the complaint as to Granny's, we affirm the entry of summary judgment in favor of the city, and we reverse the entry of summary judgment in favor of Fred's.

I. LIABILITY OF GRANNY'S OUTSIDE THE LIQUOR CONTROL ACT

Plaintiff's complaint, as to Granny's, alleged that Daymond was a patron of Granny's on September 20, 1990, and while a patron Daymond participated in a promotion called "the chair," wherein customers paid a fee to be placed in a barber chair, have alcoholic beverages placed in their mouths, and have the chair spun around three times. Successful participants, those who do not throw up, win T-shirts. The complaint alleged that Daymond became intoxicated as a result of his participation in "the chair," that as a result of his intoxication Daymond "caused the motorcycle he was driving to cross over into the westbound lane of traffic and collide head-on with another vehicle," and that Daymond died as a result of injuries received in that collision.

The complaint alleged that Daymond's death was a direct and proximate result of the willful and wanton acts of Granny's in violation of certain provisions of the Liquor Control Act of 1934 (Liquor Control Act). (235 ILCS 5/1-1 et seq. (West 1992).) The complaint was brought solely as a wrongful death action against Granny's; there were no counts of the complaint alleging a cause of action against Granny's or any other party under section 6-21 of the Liquor Control Act. (235 ILCS 5/6-21 (West 1992).) The trial court granted Granny's motion to dismiss, which argued that the complaint was insufficient at law to state a cause of action against Granny's because plaintiff's exclusive remedy against Granny's was pursuant to section 6-21 of the Liquor Control Act. 235 ILCS 5/6-21 (West 1992).

Plaintiff claims that Granny's promotion of "the chair" event is a willful and wanton violation of the provision of the Liquor Control Act, section 6-28(b), that prohibits happy hours. (235 ILCS 5/6-28(b) (West 1992).) Plaintiff argues that "the chair" clearly violates at least one provision of section 6-28, and therefore, the Liquor Control Act is not the exclusive remedy. Although we do not answer the question of whether "the chair" violates section 6-28, we assume for the purpose of this opinion only that such is the case. See Granny's Rocker, Inc. v. State of Illinois Liquor Control Comm'n (May 16, 1994), No. 5-92-0861 (section 6-28 unconstitutionally vague), rehearing granted (July 7, 1994).

Section 6-21 of the Liquor Control Act (formerly section 14 of article VI (Ill.Rev. Stat. 1957, ch. 57, par. 135)) "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 or in consequence of intoxication." ( Cunningham v. Brown (1961), 22 Ill. 2d 23, , 174 N.E.2d 153, 157.) Since the supreme court's decision in Cunningham, numerous decisions have upheld the general rule under various factual scenarios. See Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157 (holding that an action cannot be maintained against tavern owners and operators under the Wrongful Death Act for a death caused by an intoxicated person or in consequence of intoxication); McKeown v. Homoya (1991), 209 Ill. App. 3d 959, 568 N.E.2d 528, 154 Ill. Dec. 528 (holding that the Liquor Control Act provides the exclusive remedy for the negligent sale or supply of liquor, if the alleged injury arises in any way from the sale of intoxicating beverages).

Plaintiff argues that there has been "some erosion recently of the general rule prohibiting common law causes of action for situations involving the distribution of alcohol." Plaintiff is correct that certain cases have allowed a common law cause of action for situations outside the Liquor Control Act, but plaintiff is incorrect that the general rule is eroding or that this is a situation in which we should recognize an exception to the Liquor Control Act. See McKeown, 209 Ill. App. 3d 959, 568 N.E.2d 528, 154 Ill. Dec. 528.

Plaintiff is correct that certain cases now recognize the common law liability of defendants other than tavern owners or operators; however, all of the cases cited by plaintiff are factually distinguishable from the instant case. ( Haben v. Anderson (1992), 232 Ill. App. 3d 260, 597 N.E.2d 655, 173 Ill. Dec. 681 (liability of lacrosse club at university); Cravens v. Inman (1991), 223 Ill. App. 3d 1059, 586 N.E.2d 367, 166 Ill. Dec. 409 (liability of social host under certain, specified conditions); Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 507 N.E.2d 1193, 107 Ill. Dec. 824 (liability of fraternity).) None of these cases recognize the common law liability of a tavern owner or operator in situations involving the sale of intoxicating beverages.

Plaintiff contends that some degree of common law liability has already been recognized for tavern owners and operators, citing Harris v. Gower, Inc. (1987), 153 Ill. App. 3d 1035, 506 N.E.2d 624, 106 Ill. Dec. 824. Again, Harris is factually inapposite to the case at bar. In Harris, tavern employees placed an unconscious and intoxicated customer in his vehicle after closing hours on a very cold winter night. This court held that the tavern owner's act, through its agents, of placing an unconscious person outside in a vehicle on such a cold night was the proximate cause of the death, not the serving of alcohol. ( Harris, 153 Ill. App. 3d 1035, 506 N.E.2d 624, 106 Ill. Dec. 824.) In the case at bar, plaintiff's complaint did not allege any act of Granny's by which it could be held liable except the act of selling alcohol in violation of the Liquor Control Act.

Plaintiff asserts, however, that Granny's willful and wanton violation of the statute prohibiting happy hours should somehow take the case out of the exclusivity of the Liquor Control Act. The same question has been answered adversely in a similar factual scenario. In Ruth v. Benvenutti (1983), 114 Ill. App. 3d 404, 449 N.E.2d209, 70 Ill. Dec. 335,the court held that a common law cause of action does not exist against tavern owners or operators for the willful, wanton, and intentional violation of the Liquor Control Act's prohibition against selling alcohol to minors, even though the minor in that case severely injured himself after consuming alcohol at defendant's tavern and even though the tavern owner knew that he was selling alcohol to a minor who was very susceptible to the effects of alcohol. A violation of the happy hour prohibition, such as that alleged by plaintiff's complaint, is not so different from the prohibition against selling alcohol to minors. Therefore, we follow the reasoning and the rule of Ruth, 114 Ill. App. 3d 404, 449 N.E.2d ...


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