Appeal from the Circuit Court of McHenry County. No. 08-LA-383 Honorable Maureen P. McIntyre, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justice Hutchinson concurred in the judgment and opinion.
Justice Hudson specially concurred in the judgment, with opinion.
Plaintiff, Patricia Tilschner, appeals from the trial court's orders dismissing count II of her third-amended complaint and denying her motion to reconsider. Patricia claims on appeal that the trial court erred in concluding that this State has not adopted section 318 of the Restatement (Second) of Torts (1965).*fn1 We affirm.
Patricia was injured during a party at the home of defendant Lowell Spangler when defendant Ralph Ruppel ignited fireworks. Patricia's third amended complaint contained three counts. Count
I alleged common-law negligence against Spangler. Count II alleged negligence against Spangler pursuant to section 318 of the Restatement (Second) of Torts. Count III alleged common-law negligence against Ruppel. Spangler moved to dismiss count II, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2008)). The trial court granted the motion to dismiss with prejudice and denied Patricia's subsequent motion to reconsider. Patricia filed an application for leave to appeal to this court pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), which was denied. Patricia was also denied leave to file a fourth amended complaint. She then voluntarily dismissed count I of the third amended complaint, and the trial court found no just reason to delay enforcement or appeal, pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). This appeal followed.
Patricia now contends that the trial court erred in dismissing count II of her third amended complaint. When a defendant challenges the legal sufficiency of a complaint with a section 2-615 motion to dismiss, all well-pleaded facts alleged in the complaint are taken as true. King v. Senior Services Associates, Inc., 341 Ill. App. 3d 264, 266 (2003). On review of a dismissal pursuant to section 2-615, this court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted. King, 341 Ill. App. 3d at 266. The motion should be granted only if the plaintiff can prove no set of facts to support her cause of action. King, 341 Ill. App. 3d at 266. As this process does not require the trial court to weigh findings of fact or determine credibility, this court is not required to defer to the trial court's judgment, and we will review the matter de novo. King, 341 Ill. App. 3d at 266.
To state a cause of action in negligence, a plaintiff must allege facts that establish a duty, a breach of that duty, and proximate causation. Ryan v. Yarbrough, 355 Ill. App. 3d 342, 345 (2005). Patricia alleged that Spangler:
"[o]wed a duty to the Plaintiff and his other invited guests to keep control and care over his property and to protect them against any unreasonable risks of harm known due to acts of a third person under his control, including the Defendant, RALPH RUPPEL, pursuant to the Restatement (Second) of Torts, §318."
Section 318 of the Restatement (Second) of Torts provides:
"If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and, (b) knows or should know of the necessity and opportunity for exercising such control." Restatement (Second) of Torts §318 (1965).
A restatement is not binding on Illinois courts unless it is adopted by our supreme court. Eckburg v. Presbytery of Blackhawk of the Presbyterian Church (USA), 396 Ill. App. 3d 164, 169 (2009); In re Estate of Lieberman, 391 Ill. App. 3d 882, 890 (2009). Thus, we must determine whether our supreme court has adopted section 318 of the Restatement (Second) of Torts; if it has not, Spangler owed no duty to Patricia.
Citing a line of both supreme court and appellate court cases, Patricia argues that section 318 has "unquestionably" been adopted in Illinois. However, this is not the first time that this court has examined this question and concluded to the contrary. In Zimring v. Wendrow, 137 Ill. App. 3d 847, 850 (1985), this court specifically found that "[n]o Illinois case has adopted section 318 of the Restatement (Second) of Torts, upon which plaintiff relies." Ultimately, we concluded that we "need not consider" the sufficiency of the complaint in relation to section 318. Zimring, 137 Ill. App. 3d at 853. In Elizondo v. Ramirez, 324 Ill. App. 3d 67, 73 (2001), the plaintiff asserted that section 318 "has been adopted in Illinois and cite[d] two cases in support." After analyzing those cases-Cravens v. Inman, 223 Ill. App. 3d 1059 (1991), and Teter v. Clemens, 112 Ill. 2d 252 (1986)-we concluded that "it is unclear whether these cases represent the law in Illinois" (Elizondo, 324 Ill. App. 3d at 73-74), and we declined to "express an opinion on whether section 318 represents the law in Illinois" (Elizondo, 324 Ill. App. 3d at 74). We note with interest that Patricia cites to Elizondo but fails to mention, let alone address, this court's refusal to find that ...