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07/09/97 T.F. v. JAMES GHIBELLINI

July 9, 1997

T.F., A MINOR, BY HIS PARENT AND NEXT FRIEND, CALI R. BURKE, PLAINTIFF-APPELLANT,
v.
JAMES GHIBELLINI, JR., AND ANGELA GHIBELLINI, D/B/A THE BRASS RAIL TAVERN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Ogle County. No. 96--L--42. Honorable John B. Roe, Judge, Presiding.

Released for Publication August 8, 1997.

The Honorable Justice Colwell delivered the opinion of the court. Thomas and Rathje, JJ., concur.

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Plaintiff, T.F., appeals the trial court's order granting summary judgment in favor of the defendants. T.F. filed a complaint to recover damages under the Dramshop Act (235 ILCS 5/6--21 (West 1994)) for the loss to T.F.'s "means of support" caused by an intoxicated person. The trial court granted summary judgment on the basis that the decedent had never supported his son, T.F., prior to his death. On appeal, T.F. contends that the trial court's order is erroneous because there is a question of fact regarding whether a reasonable expectation of future support exists. We affirm.

The record shows that Cali Burke and Charles Andy Ferry, Jr. (Andy), met each other in high school. After dating for awhile, Cali became pregnant and the relationship ended. Call testified in a deposition that after the relationship ended she and Andy did not see or speak to each other.

On August 8, 1993, Call gave birth to T.F. Call said that, through a friend, Andy was made aware of T.F.'s birth. Andy did not pay any hospital bills related to the birth. Indeed, Cali testified that she never asked Andy to pay any of the bills and that Andy never provided any support for T.F. Further, Cali never requested any type of support for T.F. from Andy. When asked during her deposition why she did not demand support from Andy, Cali replied, "We never spoke."

After T.F. was born, Andy and Call's relationship did not improve. Andy did not visit T.F. or baby-sit for T.F. In fact, Call stated that to her knowledge T.F. was never even in the presence of Andy. Further, Call said that she did not have any phone conversations with Andy after T.F.'s birth. Call said that on one occasion she sent pictures of T.F. to Andy and his mother, but she did not get any response from Andy regarding the pictures. Finally, Call admitted that she knows of no one who had any knowledge that Andy ever expressed a willingness to support or pay support for T.F.

On April 7, 1994, on behalf of T.F., the Illinois Department of Public Aid filed a petition, naming Andy as the respondent, to determine the existence of the father and child relationship. Andy appeared in court on May 9, 1994. Andy denied that he was T.F.'s father and told the court that he wished to hire an attorney. The circuit court ordered Andy to submit to blood tests to determine T.F.'s parentage, and the court continued the case to May 23, 1994.

On May 23, Andy appeared in court again. Andy stated that he still wished to hire an attorney but had been unable to do so. The court granted a "last continuance" to June 27, 1994.

On June 27, Andy appeared in court without an attorney. Andy informed the court that he had hired an attorney but that his attorney was unable to come to court that day. The court continued the case "generally awaiting the blood test results."

On August 15, 1994, Andy was killed while riding in a car driven by an intoxicated driver. The driver had previously drunk 12 to 15 beers at the Brass Rail Tavern, which was owned and controlled by the defendants.

Andy's blood sample was collected shortly after his death. According to a blood test conducted in November 1994, the probability of Andy's paternity of T.F. was 99.99%. On January 30, 1995, the circuit court entered an order declaring Andy the father of T.F. T.F. began receiving social security benefits due to the death of his father.

On August 8, 1995, T.F., through Call, filed a complaint against the defendants pursuant to the Dramshop Act, seeking compensation for the loss to his means of support due to his father's death. The defendants subsequently moved for summary judgment on the basis that Andy was not a means of support for T.F. under the Dramshop Act. After a hearing, the trial court granted the defendants' motion on July 18, 1996. On appeal, T.F. argues that the court's ...


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