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Elam v. O'Connor & Nakos, Ltd.

Court of Appeals of Illinois, First District, Fourth Division

September 26, 2019

DEBRA ELAM and WILLIAM ELAM, Plaintiffs-Appellants,
O'CONNOR & NAKOS, LTD., and DANIEL V. O'CONNOR, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County. No.16 L 5671 Honorable James N. O'Hara, Judge, presiding.

          Attorneys for Appellants: George W. Spellmire and Jessica Lynn Dagley, of Spellmire Bruck LLP, of Chicago, for appellants. Eugene J. Schiltz, of Crotty & Schiltz, LLC, of Chicago, for appellants.

          Attorneys for Appellees: Daniel F. Konicek and Amanda J. Hamilton, of Konicek & for Dillon, P.C., of Chicago, for appellees.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Burke concurred in the judgment and opinion.



         ¶ 1 In this legal malpractice action, plaintiffs Debra and William Elam have sued defendants, the law firm of O'Connor & Nakos, Ltd., and attorney Daniel V. O'Connor, who had represented plaintiffs in the underlying wrongful death action against several entities following the death of their daughter, Megan Elam, who suffered fatal injuries as a passenger in a car driven by an intoxicated friend after a concert. After the wrongful death litigation settled, plaintiffs sued defendants, alleging they failed to investigate the wrongful death claim, conduct discovery, and plead particular theories of liability against the concert venue operator, Live Nation Worldwide, Inc. (Live Nation), and thereby forced plaintiffs to accept an inadequate settlement.

         ¶ 2 The trial court granted summary judgment in favor of defendants, ruling that plaintiffs could not have succeeded on their underlying wrongful death action against Live Nation because the independent acts of the intoxicated driver of the car in which Megan was a passenger broke the causal connection between any alleged negligence by Live Nation and Megan's fatal injuries.

         ¶ 3 On appeal, plaintiffs argue that defendants were not entitled to summary judgment in the legal malpractice action because plaintiffs could have recovered more money from Live Nation in the wrongful death action if defendants had pled that Live Nation (1) breached its duty to concertgoers to prevent injuries that were a reasonably foreseeable consequence of the alcohol consumption and tailgating activity that occurred on Live Nation's premises, and (2) failed to exercise due care in its voluntary undertaking to provide security at its concerts and monitor concertgoers for signs of intoxication that would place them and their passengers at risk if they were allowed to drive off the premises while intoxicated.

         ¶ 4 For the reasons that follow, we affirm the judgment of the circuit court that granted summary judgment in favor of defendants.[1] We hold that plaintiffs could not establish that they would have recovered more money from Live Nation in the wrongful death action but for defendants' alleged negligent failure to plead business premises and voluntary undertaking theories of liability against Live Nation because plaintiffs cannot show a basis for Live Nation's liability under either theory.

         ¶ 5 I. BACKGROUND

         ¶ 6 According to the pleadings, depositions and affidavits filed in this matter, on August 13, 2011, Megan attended a concert in Tinley Park with her friends, including Sarah Lavko. Live Nation hosted and promoted the concert and owned, operated, managed and maintained the premises where the concert was held. Live Nation also employed certain individuals to provide security services for the concert.

         ¶ 7 Prior to the concert, Lavko purchased a bottle of rum at a store and then she, Megan and others went to the home of a friend and drank a large quantity of rum from that new bottle and a previously opened bottle. Lavko then drove to the concert and Megan was one of her passengers. Live Nation's security personnel were present in the parking lot and some concertgoers were drinking alcohol and smoking marijuana. Whereas some deposition testimony indicated that Lavko joined an ongoing party in the parking lot and drank from the bottle of rum she had brought, other testimony indicated that the group did not drink in the parking lot because they were running late. When Lavko and her passengers passed through the gates and entered the concert venue, Live Nation's gate security personnel did not confiscate a glass marijuana pipe in Lavko's purse or identify her as an already intoxicated guest.

         ¶ 8 Some deposition testimony indicated that, during the concert, Lavko drank beer and a mixture of codeine and clear soda and she appeared obviously intoxicated, swaying and stumbling woozily. However, other testimony from two of Lavko's passengers indicated that they did not recall observing her drink while at the concert. Nevertheless, there was no dispute that Live Nation's personnel did not notice Lavko during the concert. When another friend of Megan's offered her a ride home with his friends and their designated driver, Megan declined his offer. After the concert, Live Nation's personnel did not prevent Lavko from getting behind the wheel of her car, and no evidence indicates that Live Nation's personnel noticed her or her condition as she walked to her car. Lavko drove away from the concert venue with Megan as one of her passengers. Tinley Park police officers controlled the traffic that left the venue.

         ¶ 9 According to a police accident reconstruction analysis, about one mile from the venue, Lavko was driving approximately 83 miles per hour in a posted 50-mile-per-hour zone while approaching a curve. She drove off the laned roadway and onto the gravel shoulder and then steered back onto the roadway. She then steered the vehicle to the right, causing it to sideslip in a clockwise direction. At that point, the speed of the vehicle exceeded 73 miles per hour. The vehicle went off the road, into a drainage ditch, and rolled over. Megan was not wearing a seatbelt and was ejected from the car. Police recovered at the scene Lavko's bottle of rum, which was more than three-quarters empty. Megan was transported to a hospital where she was pronounced dead at 12:29 a.m. on August 14, 2011. Lavko's blood alcohol concentration level (BAC) was taken approximately 1.25 hours after the crash and registered at .197, which exceeded the .08 legal limit set forth in the Illinois statute.

         ¶ 10 In August 2011, plaintiffs retained defendants to pursue money damages from various defendants in connection with the car accident. In July 2012, plaintiffs settled with Lavko and her insurance company for the $100, 000 full policy limit.

         ¶ 11 On August 13, 2012, defendants filed plaintiffs' wrongful death action, which alleged a claim for breach of section 6-21 of the Liquor Control Act of 1934, commonly known as the Dramshop Act (235 ILCS 5/6-21 (West 2010)), against Live Nation; Aramark Sports & Entertainment Services, LLC (Aramark), a food, beverage and retail merchandise vendor at the concert; and two residents of the home where Megan and Lavko had consumed alcohol before the concert. In 2013, plaintiffs settled with Aramark for $135, 891.98.

         ¶ 12 Also in 2013, defendants filed a third amended complaint alleging that Live Nation was liable for the wrongful death of Megan because it negligently directed and required vehicles, including Lavko's vehicle, to exit the venue onto a road that led to a dark and dangerous street with unexpected turns. Although the third amended complaint still included the Dramshop Act claim against the two residents of the home, plaintiffs ultimately voluntarily dismissed that claim.

         ¶ 13 Live Nation denied the allegations of negligence. In its affirmative defenses, Live Nation alleged that (1) Megan was contributorily negligent for failing to fasten her seatbelt and riding in a vehicle operated by an impaired person; (2) Lavko, who consumed intoxicating liquors and operated her vehicle while impaired, was the sole proximate cause of Megan's injuries; and (3) Live Nation was entitled to set-off the money plaintiffs had received from other alleged joint tortfeasors.

         ¶ 14 Thereafter, Live Nation moved for summary judgment, arguing that plaintiffs did not present a factual basis that would arguably entitle them to a judgment because Live Nation did not owe Megan any duty to direct the traffic that left the concert onto public roadways, did not cause the auto accident, and was not a proximate cause of her injuries and death. Specifically, Live Nation cited the affidavit of its employee, Courtney Rouke, to establish that Live Nation employees did not dictate the direction of travel as vehicles exited the venue parking lot and entered onto public roadways. Rather, Tinley Park police exclusively directed the vehicles exiting the venue and dictated the direction the vehicles traveled upon entering those public roadways. Live Nation also cited the undisputed facts that the crash occurred more than one mile away from the concert venue; Lavko was intoxicated and her BAC exceeded the limit set by Illinois law; and she was traveling approximately 83 miles per hour in a posted 50-mile-per-hour zone while approaching a curve in the road.

         ¶ 15 The court did not rule on Live Nation's motion for summary judgment because in July 2014 plaintiffs signed a settlement agreement accepting $10, 000 from Live Nation.

         ¶ 16 In 2016, plaintiffs sued defendants for legal malpractice, alleging that they negligently evaluated, prepared and prosecuted plaintiffs' case against Live Nation, failed to timely plead recognized theories of liability against Live Nation, and thereby forced plaintiffs to accept an inadequate settlement of $10, 000 from Live Nation. Specifically, plaintiffs alleged that Live Nation (1) knew concertgoers had "a propensity to drive drunk and *** had a policy in place prohibiting unauthorized liquor, drinking and tailgating in the parking lot"; (2) "voluntarily undertook to provide security measures *** and *** assumed the duty to provide security and protection to [concertgoers]"; (3) "had the obligation to perform this duty with due care and competence"; and (4) "was negligent by providing inadequate security, failing to enforce its own rules and policies, and facilitating Lavko driving off from the venue knowing of her impaired state." Plaintiffs argued that defendants "[f]ailed to timely plead viable theories of liability against Live Nation based on breach of duty to provide adequate security and an in-concert theory of liability.[2] According to plaintiffs, defendants instead negligently pled the futile theory that Live Nation negligently directed Lavko to drive on an unsafe roadway even though the local police were solely responsible for directing traffic once vehicles left the venue's parking lot. Plaintiffs also alleged that defendants failed to timely reply to Live Nation's affirmative defenses, oppose its motion for summary judgment, and explain to plaintiffs that they were time barred from amending their complaint to plead viable claims based on Live Nation's negligent conduct inside the venue because those claims would not relate back to their original filing.

         ¶ 17 In their answer, defendants denied plaintiffs' allegations of negligence.

         ¶ 18 Thereafter, defendants moved for summary judgment, arguing that plaintiffs could not show that any alleged negligence by defendants proximately caused plaintiffs to lose any viable claim against Live Nation. Specifically, defendants argued that Live Nation, as a matter of law, could never have been liable in the wrongful death litigation because the auto collision that caused Megan's death occurred outside Live Nation's control and Live Nation did not proximately cause the accident. Furthermore, defendants argued that no evidence showed that Live Nation either failed to provide adequate security or observed Lavko enter her car while intoxicated and proceed to drive away. Defendants also argued that plaintiffs were estopped from bringing their malpractice action because they had accepted the $10, 000 settlement from Live Nation to avoid the matter being dismissed on summary judgment.

         ¶ 19 In response, plaintiffs argued that proximate cause was a question of fact, and the trier of fact could find that Live Nation's negligence contributed to or acted in combination with ...

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