MARGARET BORCIA, as Special Administrator of the Estate of Antonio Borcia, Deceased; ERIN BORCIA, a Minor, Through Her Mother and Next Friend, Margaret Borcia; JOSEPH BORCIA, a Minor, Through His Mother and Next Friend, Margaret Borcia; KALEIGH BORCIA; and JAMES BORCIA, Plaintiffs-Appellants,
DAVID HATYINA, SPRING LAKE MARINA, LTD., and FOX WATERWAY AGENCY, Defendants, Renee Melbourn, Defendant-Appellee
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Appeal from the Circuit Court of Lake County. No. 12-L-961. Honorable James R. Murphy, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.
[¶1] Plaintiffs, Margaret Borcia, as special administrator of the estate of Antonio Borcia, deceased, Erin and Joseph Borcia, minors, through their mother and next friend, Margaret Borcia, Kaeleigh Borcia, and James Borcia, filed personal-injury and wrongful-death actions against defendants, David Hatyina, Renee Melbourn, Spring Lake Marina, Ltd., and Fox Waterway Agency, for damages they sustained in a boating accident, which claimed the life of 10-year-old Antonio Borcia. Plaintiffs appeal from the trial court's dismissal with prejudice of their second amended complaint against Melbourn. The trial court found that plaintiffs failed to state claims for wrongful death based on an " in-concert" theory of liability and the negligent infliction of emotional distress, and it then dismissed the counts against Melbourn pursuant to section 2-615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2012)). Melbourn is the only defendant involved in this appeal. For the following reasons, we reverse and remand for further proceedings.
[¶2] I. BACKGROUND
[¶3] On December 13, 2012, plaintiffs filed a 10-count complaint against Hatyina and Melbourn. This appeal concerns counts VI and VII, directed against Melbourn. Count VI attempted to allege a claim for wrongful death based on an in-concert theory of liability. Count VII attempted to allege a claim for negligent infliction of emotional distress. As amended, plaintiffs' complaint reflected the following allegations, which are taken as true for purposes of this appeal (see Doe v. Chicago Board of Education, 213 Ill.2d 19, 28, 820 N.E.2d 418, 289 Ill.Dec. 642 (2004)).
[¶4] On July 28, 2012, Hatyina was operating a 29-foot cigarette boat named " Purple Haze" on Petite Lake in Lake Villa; Melbourn was a passenger in the boat. James Borcia was operating a pontoon boat, and Antonio and Erin were riding in inflatable tubes being towed by the pontoon boat. While being towed, Antonio fell off the tube and was floating on the water. Antonio was wearing a red personal floatation device and waving both of his arms above his head so others could see him in the water.
[¶5] During this time, Hatyina had been consuming alcohol and cocaine. Hatyina was impaired by the alcohol and cocaine and was operating the boat at speeds in excess of 40 miles per hour. Hatyina struck Antonio with the boat. Antonio suffered severe injuries that resulted in his death on July 28.
[¶6] Melbourn resided with and had a romantic relationship with Hatyina for several years. Melbourn knew that Hatyina had a history of drug and alcohol abuse and dependency. On or prior to July 28, 2012, Melbourn contributed money to purchase alcohol and cocaine that she and Hatyina would consume.
[¶7] On July 28, 2012, Melbourn, after contributing money to purchase and purchasing cocaine, provided Hatyina with cocaine while they were both occupying the cigarette boat. While on the boat, Melbourn consumed cocaine and observed Hatyina consume cocaine. Melbourn provided Hatyina with numerous alcoholic beverages and consumed alcohol with Hatyina while they were both on the boat. Prior to the boating accident, Melbourn observed Hatyina become obviously impaired by his consumption of alcohol and cocaine, as shown by his slurred speech, bloodshot eyes, and erratic behavior. Melbourn continued to provide alcohol and cocaine to Hatyina while he was operating the boat. Melbourn knew that providing Hatyina with and encouraging his consumption of alcohol and cocaine would result in his intoxication and further impair his ability to safely operate the boat.
[¶8] Plaintiffs further alleged that Melbourn had a duty to exercise reasonable care so as to not proximately cause injury to other persons who were also using the lake.
[¶9] Plaintiffs alleged that Melbourn, after providing both alcohol and cocaine to Hatyina in amounts that made him obviously impaired, verbally encouraged Hatyina to drive the boat at speeds in excess of 40 miles per hour and in an otherwise reckless and dangerous manner while on the lake near other boaters, swimmers, and people being pulled on tubes.
[¶10] With respect to count VI, plaintiffs alleged that Melbourn breached her duty and was negligent in one or more of the following respects:
" Violated section 5-16(E) [of the Boat Registration and Safety Act (625 ILCS 45/5-16(E) (West 2012))] in that she verbally encouraged the unsafe operation of the boat at speeds in excess of 40 miles per hour by Hatyina while he was under the influence of alcohol, cocaine, or a combination;
Substantially assisted and/or encouraged *** Hatyina to operate said watercraft under the influence of alcohol, cocaine, or a combination thereof, when she knew or should have known consumption of alcohol and/or cocaine while operating said watercraft was negligent and careless, so as to compromise the safety of other occupants of the 'Chain of Lakes'; and
Acted in concert with *** Hatyina in that she actively participated in his consumption of alcohol and cocaine which caused him to become intoxicated while operating the aforementioned watercraft while impaired so as to ...