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Wilk v. 1951 W. Dickens

June 09, 1998

KENNETH J. WILK, SPECIAL ADM'R OF THE ESTATE OF BRIAN K. WILK, DECEASED, PLAINTIFF-APPELLANT,
v.
1951 W. DICKENS, LTD, D/B/A DANNY'S TAVERN, A CORPORATION, TERRANCE ALEXANDER AND JOHN DOE, AN UNKNOWN OWNER OR OWNERS, DEFENDANT-APPELLEES.



The opinion of the court was delivered by: Justice Rakowski

Appeal from the Circuit Court of Cook County.

No. 96 L 4286

Honorable Kathy M. Flanagan, judge Presiding.

Approximately an hour after leaving Danny's Tavern, 20 year-old Brian Wilk, plaintiff's decedent (decedent), was found beaten and unconscious. Decedent ultimately died from his injuries. Finding that defendants, 1951 W. Dickens, Ltd. and Terrance Alexander (Alexander), owed no duty to ensure decedent's safety away from the tavern's premises, the trial court granted defendants' motion to dismiss and denied plaintiff leave to file a proposed amended complaint. We affirm.

I. FACTS

The material facts are not in dispute. On the evening of April 27, 1994, decedent and several companions were at defendants' establishment, commonly known as Danny's Tavern, located at 1951 W. Dickens, in Chicago. At about 11:30 p.m., a verbal exchange occurred between decedent's party and another party. Although the confrontation did not become physical, Alexander, president and shareholder of 1951 W. Dickens Ltd., instructed decedent's party to stay at the tavern and instructed the other group to leave. Sometime later, decedent and his companions left the tavern.

Approximately an hour and a half after the first party left the tavern, a customer came into the tavern and informed Alexander that a street fight was occurring a block away at 2110 N. Winchester. When Alexander arrived, he found decedent lying on the ground unconscious.

Plaintiff's original complaint and proposed amended complaint essentially allege that defendants owed decedent a "higher duty" that required them to ensure decedent's safety after he left the tavern's property. Plaintiff anchors this theory on the allegation that defendants kept a "disorderly house" by operating an enterprise that served alcohol to underage persons. Plaintiff claims that this activity creates unreasonably dangerous conditions for minors from which defendants could reasonably foresee that decedent would be harmed away from the tavern's property. Plaintiff alleges that defendants breached their "higher duty" by failing to detain those who threatened decedent while giving decedent time to leave the vicinity and avoid a violent confrontation outside. Plaintiff also alleges that defendants breached their duty by failing to call the police to arrest those involved in the verbal altercation including decedent and by failing to ensure that decedent arrived home safely.

Defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure. 735 ILCS 5/2-619(a)(9) (West 1994). Defendants included an affidavit by Alexander and other supporting materials with their motion to dismiss. These materials show that decedent was injured a block away and around the corner from the tavern approximately an hour after decedent left defendants' establishment. As such, defendants argued that plaintiff failed to allege a cause of action because, under these facts, they were not under a legal duty to ensure decedent's safety after decedent left the tavern. Plaintiff did not object to or controvert this evidence.

The trial court granted defendants' motion to dismiss and subsequently denied plaintiff's motion for leave to file its amended complaint. This court has jurisdiction pursuant to Supreme Court Rule 301, allowing appeals from final orders. 134 Ill. 2d R. 301.

II. DISCUSSION

Section 2-619 of the Illinois Code of Civil Procedure was designed to provide an efficient means to dispose of issues of law or easily proved issues of fact. Longfellow v. Corey, 286 Ill. App. 3d 366, 368 (1997). The court reviews de novo the trial court's ruling of defendants' section 2-619 motion. Longfellow, 286 Ill. App. 3d at 368. This court considers as true all well-pleaded facts in plaintiff's complaint and all reasonable inferences drawn from those facts. Griffin v. Universal Casualty Co., 274 Ill. App. 3d 1056, 1063 (1995).

Section 2-619(a)(9) permits a defendant to move for involuntary dismissal of plaintiff's complaint where plaintiff's claim is "barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 1994). Once the defendant satisfies his initial burden of going forward on a section 2-619(a)(9) motion, plaintiff must controvert the affirmative matter by asserting that it is unfounded or requires the resolution of an essential element of material fact. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997). If plaintiff fails to meet its burden, the court may dismiss the complaint. Epstein, 178 Ill. 2d at 383. Thus, as can be seen, a motion pursuant to ...


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