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January 19, 1995


The Honorable Justice McMORROW delivered the judgment of the court: Justice Harrison took no part in the consideration or decision of this case. Justice Miller, specially concurring: Justice Freeman joins in this special concurrence. Chief Justice Bilandic, concurring in the judgment: Justice Nickels joins in this concurrence. Justice Heiple, dissenting:

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the judgment of the court:

In this appeal we review application of the doctrine of complicity, a judicially created affirmative defense to actions filed pursuant to section 6-21 of the Liquor Control Act of 1934 (the Dramshop Act) (Ill. Rev. Stat. 1987, ch. 43, par. 135 (now codified at 235 ILCS 5/6-21 (West 1992))).

Plaintiff, Wayne D. Walter, filed suit, in the circuit court of Effingham County, against the dramshop defendant, Carriage House, and the allegedly intoxicated individual who caused plaintiff's injuries, David Shelton. Shelton did not appear at trial and is not a party to this appeal. Carriage House filed an affirmative defense, alleging that plaintiff "was guilty of complicity in that plaintiff actively contributed to, participated in, or procured the intoxication of David Shelton and is therefore precluded from recovery." The trial court denied the dramshop's motions for directed verdict on the ground that the issue of plaintiff's complicity in Shelton's intoxication presented a question of fact for the jury.

The jury found in favor of plaintiff and awarded him approximately $39,600 in damages. The appellate court affirmed the judgment of the trial court. (239 Ill. App. 3d 710.) In this court, Carriage House contends that the trial court should have directed a verdict in its favor on the issue of plaintiff's complicity in the intoxication of Shelton and plaintiff's resulting injury. In addition, Carriage House cites to conflicting decisions in the different districts of our appellate court concerning the application of the doctrine of complicity. Further, Carriage House argues that it was denied a fair trial because the court denied its motion to sever its trial from that of the absent codefendant, Shelton.

For the reasons that follow, we affirm.


On the evening of July 17, 1988, plaintiff and his former wife, Loretta Garrett, went out to dinner with Shelton and Shelton's girlfriend, Connie Osborne. The four arrived at the Brass Rail and Lounge, where the waitress informed them that it was too late for food service. While there, plaintiff and Shelton each had one beer. The group then went to Ichabod's, where they ate dinner. Plaintiff and Shelton each had one beer with dinner, and plaintiff paid the bill.

From Ichabod's, the group drove to Carriage House Hotel and sat at a table in a lounge where they listened to music. They stayed at the lounge from approximately 8 p.m. to 11:45. Shelton did not sit at the table for the entire evening; sometimes he danced with Connie or went to the bar. During the evening, Shelton consumed 10 or 12 beers and an equal number of shot glasses of whisky. Plaintiff drank three or four beers. He testified that Shelton was drinking heavily but plaintiff did nothing to encourage or discourage him. Shelton bought all of the liquor that was consumed at the Carriage House Hotel.

At approximately 10:30, Shelton and his date, Connie, began to argue. Connie left the bar and plaintiff asked Loretta to go after her. Shelton became belligerent, and when plaintiff offered to take the car and go look for Connie, Shelton ordered him to sit down. They remained awhile longer, until plaintiff persuaded Shelton it was time to leave. Outside the Carriage House Hotel, plaintiff, Shelton, and Loretta found Connie waiting at plaintiff's car. Plaintiff drove everyone back to his apartment. Shelton's car was in a lot adjacent to plaintiff's apartment, and Shelton got into his own car and sped away, leaving Connie behind. Loretta offered to let Connie spend the night at Loretta's apartment and the two women left.

Plaintiff testified that he drove to a nearby restaurant for a cup of coffee and a sandwich, then returned to his apartment. Shortly after his arrival home, at approximately 1 or 1:30 a.m., Shelton appeared at plaintiff's door. As he entered plaintiff's apartment he asked where Connie was and plaintiff told him. Plaintiff suggested that Shelton spend the night on plaintiff's couch. Shelton became belligerent, insisting on calling Connie immediately. Plaintiff tried to reach Loretta by telephone, without success. Shelton took the telephone receiver and hit plaintiff with it, repeatedly smashing it into plaintiff's face and jaw. Plaintiff fell to the floor and feigned unconsciousness. Shelton went into the bathroom, at which time plaintiff rose and headed toward his bedroom. Shelton intercepted him and resumed the attack, knocking plaintiff down and kicking him repeatedly. Again, plaintiff pretended to lose consciousness and Shelton left the apartment. A neighbor summoned the police and plaintiff was taken to a hospital. There he was diagnosed with a broken jaw, a fractured skull, four broken ribs, eye injuries, and numerous cuts and bruises.

Plaintiff filed a two-count complaint naming Shelton and Carriage House Hotels, Ltd., as defendants. Count I was a dramshop action against Carriage House and count II was a battery action against Shelton. Before trial, Shelton wrote a letter to the trial court, stating that he was incarcerated and would not be able to attend the trial. He also claimed that he had no money to pay for legal representation. Carriage House moved to sever the two counts of the complaint, but the trial court denied the motion.

After plaintiff completed his case in chief at trial, Carriage House moved for directed verdict. At the close of all of the evidence, Carriage House again moved for directed verdict. In its motions, Carriage House relied on its affirmative defense, which charged plaintiff with complicity in causing the intoxication of Shelton. The trial court declined to direct the verdict in favor of Carriage House, ruling that the issue of complicity raised a factual question to be resolved by the jury.



The central issue on appeal is whether the trial court properly denied Carriage House's motions for directed verdict because of plaintiff's alleged complicity in causing the inebriation of Shelton. In considering a motion for directed verdict, the evidence is to be viewed in the light most favorable to the party opposing the motion, and the motion should be allowed only if the evidence so overwhelmingly favors the movant that no contrary verdict based upon that evidence could ever stand. ( Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) The issue of plaintiff's complicity is a question of fact for the jury if the facts are disputed or capable of more than one inference. Nelson v. Araiza (1978), 69 Ill. 2d 534, 14 Ill. Dec. 441, 372 N.E.2d 637.

In essence, Carriage House contends that plaintiff's "willing participation" in Shelton's drinking constitutes complicity as a matter of law and, pursuant to the complicity affirmative defense, plaintiff is barred from recovering dramshop damages against Carriage House. We examine the existing law of complicity to determine whether the trial court properly denied the motions of Carriage House.

The complicity doctrine is a judicially created, affirmative defense to the statutory liability of those who own or operate establishments that sell liquor. If a person is injured by an intoxicated individual, the injured person has a statutory right of action for limited damages against the dramshop that furnished the alcohol to the inebriated person. (235 ILCS 5/6-21(a) (West 1992).) The "statute was designed to give a substantial remedy and should be allowed to have effect according to its natural and plain meaning." ( Hernandez v. Diaz (1964), 31 Ill. 2d 393, 399, 202 N.E.2d 9.) The legislative intent of the Dramshop Act is to place responsibility for damages caused by the intoxication from the consumption of alcohol on those who profit from its sale ( Kingston v. Turner (1987), 115 Ill. 2d 445, 457, 106 Ill. Dec. 14, 505 N.E.2d 320.) The "no fault" liability under the Act has been characterized as penal, "designed to act as a constraint upon those dispensing liquor to the public." (E.g., Scheff v. Homestretch, Inc. (1978), 60 Ill. App. 3d 424, 427, 18 Ill. Dec. 152, 377 N.E.2d 305.) This court has observed that the Dramshop Act "is to be liberally construed to protect the health, safety, and welfare of the people from the dangers of traffic in liquor. [Citation.] It grants every person injured a right of action. It provides no statutory defenses." Nelson, 69 Ill. 2d at 538.

Nothing in the Act itself permits a dramshop defendant to defeat an injured party's right of action under the statute because of a plaintiff's contribution to the intoxication of the person causing the injuries. However, early cases developed the "unique defense" of complicity, under which an injured party must be free from fault in order to recover. ( Nelson, 69 Ill. 2d at 538.) Thus, the majority of decisions permitted the dramshop to escape liability to the plaintiff, if the plaintiff had contributed, even to a slight degree, to the inebriation of the one who caused the plaintiff's injuries. See, e.g., Reget v. Bell (1875), 77 Ill. 593, 595 (denying dramshop recovery to widow whose husband drank himself to death; she did not remove his drinking jug and thus was held to be "a willing party to the conduct of her husband, and instrumental in bringing the loss upon herself"); see also Holcomb v. Hornback (1964), 51 Ill. App. 2d 84, 200 N.E.2d 745 (affirming summary judgment for dramshop on complicity issue because plaintiff drank one beer purchased for her by inebriate, who shot her four times); Phenicie v. Service Liquor Store, Inc. (1960), 23 Ill. App. 2d 492, 163 N.E.2d 220 (plaintiff held in complicity for drinking beer with the inebriate).

Nelson v. Araiza (1978), 69 Ill. 2d 534, 14 Ill. Dec. 441, 372 N.E.2d 637, is the seminal decision of this court that explores the nature and development of the complicity doctrine. For that reason, we discuss the opinion at some length. The Nelson court attempted to ameliorate the harshness of the application of the complicity doctrine by holding that the plaintiff should be precluded from recovery of dramshop damages only if plaintiff "actively contributed to or ...

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