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Janet Bell, Indiv. and As Special Adm'r of the Estate of v. Jeffrey Hutsell et al

May 19, 2011

JANET BELL, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF DANIEL BELL,
APPELLEE,
v.
JEFFREY HUTSELL ET AL.,
APPELLANTS.



The opinion of the court was delivered by: Justice Karmeier

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.

OPINION

Plaintiff, Janet Bell, individually and as special administrator of the estate of her son, Daniel Bell, filed an action in the circuit court of Lake County seeking damages from the defendants, Jeffrey and Sara Hutsell, as a result of Daniel's death. Daniel died in an automobile accident after allegedly consuming alcoholic beverages at defendants' residence. Ultimately, defendants filed a motion to dismiss pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 2006)) and plaintiff's second amended complaint (hereafter, complaint) was dismissed, with prejudice, in its entirety. Plaintiff appealed the dismissal of six counts of her nine-count complaint. The appellate court upheld the dismissal of counts IV through VI of plaintiff's complaint, but reversed and remanded as to counts I through III, which were based on a theory of voluntary undertaking. 402 Ill. App. 3d 654. We granted defendants leave to appeal pursuant to Supreme Court Rule 315(a) (Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010)), and now reverse the judgment of the appellate court as to counts I through III.

BACKGROUND

This case arises out of the death of Daniel Bell, age 18, who died in a single-car accident after he had allegedly consumed alcoholic beverages at the residence of defendants in the course of a party organized and hosted by the defendants' son, Jonathan. Plaintiff's second amended complaint implicitly acknowledges that the defendants did not provide alcohol for underage consumption, and in fact alleges that defendants informed Jonathan both that alcohol consumption would not be tolerated and that they would monitor the party to see that underage partygoers did not possess or imbibe alcoholic beverages. Plaintiff alleges, however, that the Hutsells were aware of underage consumption on their premises at prior parties; that their son, Jonathan, had previously pled guilty to underage consumption; that alcohol was brought to the party in question and underage guests drank, excessively, with the Hutsells' knowledge-in some instances in their presence-without objection or consequence; and that Jerry Hutsell "on multiple occasions spoke to a number of underage partygoers who had been drinking alcohol and requested that if they had been drinking at the party not to drive a vehicle when leaving." The complaint states that Daniel Bell drank alcohol "in full and open view of the defendants,"and that he later walked to his car, "began driving," and "crashed his car into a tree," resulting in his death.

With respect to plaintiff's theory of a voluntary undertaking, advanced in counts I through III of the complaint, it was alleged generally, without additional factual reference, that defendants "voluntarily undertook the duty" to prohibit underage drinking and possession of alcoholic beverages on their premises and to inspect, monitor, and supervise partygoers under the age of 21 to those ends.

The complaint then recites various respects in which defendants were "negligent," most of which mirror the general allegations of the complaint, without additional factual elaboration, with the exception of a statement in paragraph 50(i) of the complaint, which includes an allegation that defendants were negligent in "failing to comply with their own verbal directions to the party guests to ensure that underage drinking and driving thereafter from their home not occur." (Emphasis added.) Language with respect to the preclusion of driving after the party does not appear in any statements attributed to defendants when the alleged voluntary undertaking was communicated to their son. If the allegation is a reference to the complaint's recitation that Jerry Hutsell "on multiple occasions spoke to a number of underage partygoers who had been drinking alcohol and requested that if they had been drinking at the party not to drive a vehicle when leaving," then it inappropriately equates a "request" with "verbal directions" aimed at ensuring compliance.

Defendants moved to dismiss the complaint pursuant to section 2--615 of the Code (735 ILCS 5/2--615 (West 2006)). Pertinent to this appeal, defendants moved to dismiss counts I, II, and III, the voluntary undertaking counts, on the basis that defendants owed Daniel no duty because there is no social host liability in Illinois and the voluntary undertaking theory was simply a way of trying to circumvent the rule against social host liability. The trial court granted the motion to dismiss with prejudice, dismissing plaintiff's nine-count complaint in its entirety. With respect to counts I through III, the court stated:

"As to Counts I, II, and III, which alleges [sic] a voluntary undertaking, the court is familiar with [Wakulich v. Mraz, 203 Ill. 2d 223 (2003)], the new allegations that have been added to this Second Amended Complaint do not bring it under the rule as stated in Wakulich. The new allegations don't support a finding that the defendant owed any duty to the plaintiff that was breached under a voluntary undertaking."

Plaintiff filed a timely appeal challenging the dismissal of the first six counts of her complaint.

The appellate court affirmed the judgment of the circuit court as to counts IV through VI of the complaint, but reversed the dismissal of counts I though III. With respect to the latter, the appellate court first acknowledged the applicability of section 323 of the Restatement (Second) of Torts (Restatement (Second) of Torts §323 (1965)), which addresses an undertaking voluntarily assumed for the protection of another and the bases for liability attendant to such an undertaking. The court then discussed, principally, our decisions in Charles v. Seigfried, 165 Ill. 2d 482 (1995) (no social host liability in Illinois based on provision of alcohol), and Wakulich v. Mraz, 203 Ill. 2d 223 (2003) (recognizing liability of hosts on a theory of voluntary undertaking where defendants allegedly exerted control over a helpless, inebriated 16-year-old to her detriment) and concluded on these facts:

"The instant complaint alleged something different from the direct or indirect giving, selling, or delivery of alcohol. It alleged that defendants voluntarily undertook the duty to prevent the consumption of alcohol on their premises and that they negligently performed that duty. Because defendants did not supply the alcohol, store the alcohol, or affirmatively permit its consumption, they were not social hosts. Defendants repeat the rationale for the rule against social host liability, that it is 'the drinking of the intoxicant, not the furnishing of it, [that] is the proximate cause of the intoxication and the resulting injury.' Charles, 165 Ill. 2d at 486. Defendants did not furnish the alcohol, and we offer no opinion on whether the ...


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