Some of my friends and visitors may have noticed that it has been quite some time since I last blogged, and it is something that I have been meaning to do. To be honest though, nothing I’ve seen or read on an issue or topic recently has sparked my desire or interest enough to take the time to do so. Additionally, other things, responsibilities, interests, obligations to current clients, a knee surgery, a much needed vacation, and mood, I think have also hindered my desire to post something to better educate my visitors, existing clients, and potential clients; and, while the desire to provide information seekers the education and information they may be searching for is one reason bloggers blog, search engine optimization gurus and social media experts will tell you that blogging is also a very good self-promotional tool and helps increase web rankings. So, because of this, it took a lot of pondering before I figured out what to blog about, and ultimately decided to write about this particular issue. It is also an issue that my office recently had to deal with in a wrongful death case we spent years prosecuting and was just recently able to bring to finality.¹

Over the course of the past several years, our firm represented the Estate of a deceased motorcyclist who was killed when a driver of a motor vehicle pulled out of a bar’s parking lot directly into the path of our decedent. The driver of the vehicle leaving the bar had a BAC quite a bit above the legal limit, and as I just mentioned, had just left the property of the bar he had been drinking at. In any event, our decedent was not wearing a helmet and likely died instantaneously; not to say that the helmet would have saved his life, but it very well may have.² After much research and investigation into other potential causes of action against the tavern and property owner, it was decided that our only causes of action lied in negligence against the driver for wrongful death, and a dramshop cause of action against the tavern and property owner.³ The decedent left two children, both of whom were minors at the time they lost their father, and an ex-wife now responsible for raising these two children without the benefit of any support or assistance from her now deceased ex-husband. So, you might be saying to yourself, the other driver either killed or contributed to the death of the decedent, so that family must be entitled to a rather large sum of money to compensate them for their loss. Due to the state of the law in Illinois, your thoughts are simply that, wishful thinking. Had their father survived, but been left with permanent injuries, your initial thoughts would have been accurate. How can that be you ask? Someone died!! The short answer and reason for this absurdity – an absurdity in my opinion at least – is due primarily to the fact that wrongful death causes of action, created by the Illinois Legislature in 1853 through the Wrongful Death Act⁴ , are statutorily created causes of action that did not exist at Common Law and do not allow recovery for punitive damages. 

So, if that is the law, how is the family compensated for their loss if the defendant driver does not have or has very little insurance? Very good question! The family can pursue damages for pecuniary losses. Pecuniary losses include deprivation of support, depravation of the companionship, guidance, advice, love and affection, and now mental suffering.⁵) Pecuniary loss can include loss of gifts, benefits, goods and services, and society, taking into consideration the gifts, benefits, goods and services customarily contributed by the decedent in the past and was likely to contribute in the future.6 The family can also seek compensation for loss of instruction, moral training, superintendence of education the decedent may have reasonably be expected to give his children had he lived, taking into consideration his age, sex and health; his habits of industry and thrift; his occupational abilities; and his relationship with his children.⁷ However, If the defendant driver does not have insurance, the defendant is more or less judgment proof, unless he or she has equity in other assets (such as a home, vehicle or liquid assets) that may allow the Estate of the decedent to place a lien on those assets after a judgment is secured. Even if there are assets with equity, unless a jury returns a verdict for punitive damages, the defendant can simply bankrupt the judgment if that option is available to him, and walk away without paying a nickel. Oh, and guess what, as previously indicated, punitive damages are not currently allowed in Wrongful Death and Survival actions. So, where does that leave the family of the decedent who has lost their loved one? Mostly, Out-of-Luck!!

Seems a little unfair doesn’t it? The victim lives, and punitive damages are available, but he dies, sorry. So, as the law currently stands, a defendant driver who either kills or contributes to the death of another, who was driving without state mandated insurance, and who committed an intentional tort can just walk away without any recourse should he be judgment proof and have the ability to discharge the debt in bankruptcy? How can this be? What can be done about it? To answer these questions, one only needs to turn to the Illinois General Assembly. As previously mentioned supra, Wrongful Death and Survival Actions were created by the legislative branch, so they can easily amend the statutes to enable plaintiffs to pursue punitive damages in such cases. With all of the attention that has been given over the years by the Illinois General Assembly to the social implications of those driving while under the influence, the increased enhanced penalties the General Assembly continues to impose on DUI drivers, the atrocities suffered by those who have fallen victim to those who decide to get behind the wheel while impaired, and the attention given to the problem by legislatures, the media, and social interest groups such as MADD., it is amazing to me that this conundrum has not been remedied⁸   

Should MADD., other social interest groups or one of our legislatures fail to close this loophole, the only other possible solution is that the Illinois courts create a judicial theory that would allow the Estate of the decedent the ability to pursue punitive damages. One court did just that, although its holding hasn’t seemed to take hold elsewhere in our judiciary. See Penberthy v. Price, 281 Ill.App.3d 16, 666 N.E.2d 352 (Ill. App. Ct. 5^th Dist 1996) (relating to punitive damages in survival actions); Ford v. Herman, 316 Ill.App.3d 726, 737 N.E.2d 332 (Ill. App. Ct. 5^th Dist. 2000); Hennessy v. Foley, 154 Ill.App.3d 1039, 507 N.E.2d 1258 (Ill. App. Ct. 5^th Dist. 1987).

In Penberthy, Defendant Kenly operated a motor vehicle while intoxicated, and while doing so, crossed the centerline and collided with the vehicle being driven by Michael Penberthy. ((Id. at 353))  Penberthy and his passenger, David C. Walpole were injured, and Kenly died as a result of the accident.  Plaintiffs sought punitive damages for the willful and wanton behavior of Kenly. ⁹  Kenly’s Estate filed a motion to dismiss alleging that the Survival Act only allows the recovery of compensatory damages where either the victim or the tortfeasor is deceased. ¹⁰

Relying on Raisl v. Elwood Industries, Inc., 134 Ill.App.3d 170, 479 N.E.2d 1106 (1985); Grunloh v. Effingham Equity, Inc., 174 Ill.App.3d 508, 528 N.E.2d 1031 (1988); and Howe v. Clark Equipment Co., 104 Ill.App.3d 45, 432 N.E.2d 621 (1982), the fifth district upheld the punitive damages award in Penberthy.  Penberthy, 666 N.E.2d at 355-56.  Quoting Grunloh, the court stated:

The factors generally considered in determining whether an action for punitive damages survives are: (1) whether under ordinary circumstances the requested punitive damages have a statutory basis or are an integral component of a regulatory scheme and the remedy available thereunder; and (2) whether strong equitable considerations favor survival of an action for punitive damages.  Matters which are relevant in considering the second of the above factors include whether the defendant’s alleged conduct offends against a strong and clearly articulated public policy; whether the underlying conduct constituted intentional misconduct which is also a crime, instead of mere willful and wanton conduct which shades into simple negligence; and whether absent an award of punitive damages, a plaintiff who prevailed on the merits of his or her claim would at most be entitled to only a comparatively small recovery.

Penberthy, 666 N.E.2d at 356.

The court concluded that the second factor quoted above was applicable and held that “[Kenly’s] conduct, driving under the influence of alcohol, unquestionably offends against a strong and clearly articulated public policy.”  The fact that driving under the influence is also a criminal offense weighed heavily in the court’s decision, as did the strong equitable considerations justifying the survivability of the punitive damages claim against the decedent’s estate. ¹¹

In our case, after we filed a motion for leave to amend our complaint in an effort to allow us to seek punitive damages against the intoxicated defendant driver that caused or contributed to the death of our decedent, we argued that Penberthy was applicable, and that we should, therefore, be allowed to pursue punitive damages against the defendant. Our request was denied; obviously, a ruling which I did not agree with then, and still do not agree with today. In fact, had the defendant not decided to settle, it was an appeal I was very much looking forward to, and which I would have solicited amicus briefs on.¹²

The only true distinction that I see between Penberthy and our case is this: in Penberthy, surviving plaintiffs sued a decedent driver, whereas in our case, decedent plaintiff was suing surviving defendant driver. A distinction I fail to see, and an injustice I truly do. Personally, I think the fifth district’s opinion is well rationalized, and should be adopted by the rest of the districts of the Illinois Appellate Court. Aren’t the equitable considerations the fifth district relied on to uphold the punitive damages award in Penberthy, applicable in any case in which death is caused by an intoxicated driver? Doesn’t that driver’s conduct still offend against a strong and clearly articulated public policy? Doesn’t the underlying conduct constitute an intentional misconduct which is also a crime, instead of mere willful and wanton conduct which shades into simple negligence? Lastly, isn’t the estate of the decedent still left with a comparatively small recovery if punitive damages aren’t available, and more importantly, left with nothing if the award is dischargeable in bankruptcy? Isn’t the threat of punitive damages yet another deterrent to someone getting behind the wheel after he’s had too much to drink?

It is my belief that all of the concerns expressed by the fifth district are applicable regardless of who is blessed enough to walk away from such a tragedy. However, the behavior of the intoxicated driver should, without question, expose him to punitive damages. Making this remedy available should also serve as yet another weapon in the arsenal of remedies available against those who may be inclined to put their life and possible other lives at risk by getting behind the wheel after they’ve had too much to drink. So, talk to your state legislatures or  MADD., and let your voice be heard by those who have the ability to close this loophole in the laws of our State.

1. Before I began this blog, my very capable assistant, Jeanette, and the other girls in the office were having a discussion about the Casey Anthony trial. During the discussion, one of the girls was expressing her outrage that Ms. Anthony was found not-guilty of the murder counts she was facing. That’s when Jeanette suggested that I blog about the Anthony trial and the issues that presented themselves in that case. I huffed at the idea and still am as I’m sitting here typing. “No”, I said, “I’m sure there are plenty of people who are going to be writing about that circus show for some time to come; and, I really didn’t follow the case that closely” – I also really just don’t care – As the title of my blog suggests, this blog is not about that trial, but I will share with you that I wasn’t really surprised at all by the verdict (not that I agree with it, but I have to have faith that those 12 people came to the right decision, and whether or not she is truly guilty is now between her and her Savior), and in fact, I had told someone within a few days of the verdict that I thought she might be found innocent primarily due to the fact that most of the case hinged on circumstantial evidence. Honestly though, I’ve never really been one to follow the big media cases – O.J., Michael Jackson, Barry Bonds, and other celebrities or media darlings who for some reason found themselves in the press really just bore me honestly, and often there really isn’t a whole lot to learn from them. Their issues also often don’t have much practical application in my opinion; of course, I could be wrong, and maybe I could have witnessed some great lawyering; or, at the very least, some really good entertainment. I guess Roger Clemmons is next up to bat – pun intended. Follow it closely, although I can assure you that I won’t be. [↩]
2. yes, yet another sad story to tell your loved one who refuses to wear a helmet while riding; unfortunately, I personally have witnessed the death of several in my lifetime [↩]
3. please see my previous blog about dramshop causes of action dated December 6, 2010, located here:  http://www.doddslawoffice.com/blog/?p=104 [↩]
4. See 740 ILCS 180/0.01 [↩]
5. See Clarke v. Medley Moving and Storage, Inc., 885 N.E.2d 396 (Ill. App. Ct. 1st Dist. 2008 [↩]
6. Id. at p. 404 [↩]
7. Id. [↩]
8. I previously contacted the Illinois Chapter of MADD to ensure they were aware of this loophole in the law, and to ascertain if they were lobbying the General Assembly to close it. The response I received asked me to forward my inquiry to the State Executive Director, Susan McKeigue. I am awaiting her response, and will update my blog if and when I receive one. [↩]
9. Id. [↩]
10. Id. at 353-354 [↩]
11. Id. [↩]
12. Amicus briefs are filed with permission of the court by nonparties with strong interest in or views on the subject matter of an action. They are usually filed in very controversial cases or high-profile cases with strong public implication. [↩]

Filed under: Personal Injury by Terry Dodds
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Supreme Court of Illinois Weighs in on Bars with BYOB Policies and Discusses Common Law Theories of Liability Outside the Scope of Illinois Dramshop Act

Did you know that pursuant to the Illinois Dramshop Act that each bar, liquor store, or liquor establishment who contributed to the intoxication of someone who later causes personal injury to another might be liable to reimburse the injured party or their loved ones for losses they may have incurred? Probably not, and a majority of people do not. This is certainly something you should know if you have been involved in an accident or have been injured by someone who was intoxicated at the time of the accident or injury; it is certainly something your attorney should know and immediately investigate the possibility of if there has been such a travesty, because recovery pursuant to the Act is only allowed for one year; in other words, a one year statute of limitations.

Due to the Illinois Legislature’s enactment of the Dramshop Act, the general rule is that an injured person cannot bring suit under common law theories of liability, including negligence, against individuals or entities who merely furnish alcohol to another person when that person or entity is not engaged in the liquor trade. This is also known as “social host” liability exclusion, which is not allowed. Remedy against those who are engaged in the liquor trade and profit from its sale are generally limited only to the remedies provided in the Dramshop Act, which sets statutory thresholds of recovery.

Why is the bar that served the drunk (Alleged Intoxicated Person or AIP in legal terminology) liable you may ask? According to judicial precedence, the purpose of “the Dram Shop Act is designed to fulfill a need for discipline of traffic in liquor and to provide a remedy for evils and dangers which flow from such traffic”, and “to place the burden of the evils of the liquor traffic on those who profit therefrom”. Wendt v. Richter, 17 Ill.App.3d 230, 307 N.E.2d 756 (Ill. App. Ct. 1^st Dist. 1974); Tresch v. Nielson, 57 Ill.App.2d 469, 207 N.E.2d 109 (Ill. App. Ct. 1^st Dist. 1965).

On March 18, 2010, the Illinois Supreme Court ruled in the case of Ryan Simmons v. John D. Homatas, On Stage Productions Inc., d/b/a “Diamonds Gentlemen’s Club, et al. This was a unique case in which the Court allowed the estates of the decedents to recover under common law theories of negligence, a very uncommon occurrence, which is why I have chosen to blog about it. One unique aspect about the case is that Diamonds is located in Du Page County, Illinois, which apparently prohibits clubs featuring nude dancing from receiving a liquor license. However, according to the Court’s opinion, Diamonds does sell “glasses, ice, soft drinks and other mixers for making alcoholic drinks”.

Due to the fact that Diamonds could not obtain a liquor license the club allowed patrons to bring their own alcohol (BYOB). The plaintiffs, who were the special administrators of the estates of the decedents fatally injured in an automobile collision alleged that the club “encouraged a patron to consume alcoholic beverages until he became intoxicated and then required him to drive off the premises, which resulted in the collision that killed plaintiffs’ decedents”.

According to the Court’s opinion, defendant John Homatas arrived at the club on January 4, 2006, at approximately 9 p.m. and left his vehicle with the club’s valet service, as the club required. Hamatas and his friend John Chiariello brought with them a fifth of rum and a fifth of vodka. They mixed their alcohol with the glasses, ice, and mixers purchased from the club. Homatas apparently drank so much that he was found by one of the Diamonds’ employees vomiting in the restroom at around 11 p.m. As a result, the club ejected Homatas and Chiariello. Employees then instructed the valet service to start Homatas’s car and bring it to the front door so that he and Chiariello would leave. They then opened the driver-side front door and directed Homatas to leave the premises.

Minutes later, Homatas collided with a vehicle driven by April Simmons. Unfortunately several people died, including Ms. Simmons, her unborn daughter, and Mr. Chiariello; Homatas survived, and cases were filed as a result of the deaths of Simmons, her unborn child, and Chiariello.

The legal theories alleged in the Complaints were common law theories of negligence and liability under the Dramshop Act. On Stage (Diamonds) apparently filed a Motion to Dismiss “asserting that both plaintiffs’ complaints fail to state a cause of action upon which relief can be granted. First, On Stage argued that the Dramshop Act is the sole remedy for actions involving liability from alcohol-related injuries, thereby precluding plaintiffs’ common law claims. Second, On Stage argued that because the Dramshop Act applies only to businesses engaged in the sale or gift of alcohol, the Dramshop Act does not extend liability to On Stage as a result of its policy of not selling or serving alcohol to its patrons.”

The issue the Illinois Supreme Court was asked to rule on was whether or not the affirmative acts of Diamonds, by way of its employees, could be found liable under common law theories of negligence, despite the Dramshop Act’s preemption of alcohol-related liability. According to the Court’s opinion, these acts included:

• Diamonds’ valet service taking control of Homatas’ vehicle upon his entering defendant’s place of business;
• Having a business plan that encouraged its invitee Homatas to bring and consume alcoholic beverages to and beyond the point of intoxication upon its premises;
• removing its invitee Homatas from its premises due to his intoxication;
• ordering and assisting its invitee Homatas into the driver’s seat of his vehicle;
• ordering its invitee Chiariello off the premises and into the intoxicated Homatas’ vehicle;
• allowing its intoxicated invitee Homatas to drive the vehicle away from the premises and onto the public highway;
• knowledge that its business invitee Chiariello was a passenger in said vehicle and the driver invitee Homatas had a level of intoxication which was obvious enough that a reasonable person would have determined that he was unable to operate a motor vehicle.

In its ruling, the Supreme Court of Illinois distinguished this case from other cases cited by On Stage, including Charles v. Seigfried, 165 Ill.2d 482 (1995), and Cruse v. Aden, 127 Ill. 231, 249 (1889), cases involving issues of “social hosts”, in that those cases primarily focused on the liability of those persons providing alcohol to a patron or guest who ultimately caused injuries to a third party. This case was different in the eyes of the court in that liability arose not as a result of the provision of alcohol, but as a result of the encouragement of, or assistance in, tortious conduct, including the aforementioned activities. Prior decisions by the Court, and other cases cited by defendants did not address whether actions of the defendants, aside from the provision of alcohol, led to third party injuries. The Court cited Wakulich v. Mraz, 203 Ill.2d 223 (2003) and Lessner v. Hurtt, 55 Ill.App.3d 195, 197, and Harris v. Gower, Inc., 153 Ill.App.3d 1035, 1037 (1987) in support of this distinction. The Court also distinguished its ruling from prior precedence in Wienke v. Champaign County Grain Ass’n, 113 Ill.App.3d 1005 (1983), and Gustafson v. Mathews, 109 Ill.App.3d 884 (1982), cases which held that a defendant should not bear the burden of having to ascertain the level of intoxication of an individual, in that in this case, it believed On Stage knew that Homatas was dangerously intoxicated when club employees discovered him vomiting in the restroom. The affirmative act of Diamonds’ employees in assisting Homatas leave the establishment in the manner it did appeared to seal the deal in the mind of the Court, because the Court wrote in its opinion that, “Indeed, had Homatas left on his own, and On Stage was alleged to have merely failed to prevent him from leaving the club and driving away intoxicated, sections 314 and 314A of the Restatement may have applied.” In light of the affirmative acts of On Stage, Section 876 became applicable and imposes liability.

The careful words chosen by the Illinois Supreme Court in this case and the facts accompanying it appear to limit its applicability for such future causes of actions. It appeared the case was very fact specific. In fact, at the conclusion of the Court’s opinion, the Court wrote: “this case presents a set of special circumstances. We do not hold today that restaurants, parking lot attendants or social hosts are required to monitor their patrons and guests to determine whether they are intoxicated.”

While the court in this case found the Illinois Dramshop Act inapplicable in this case, it does discuss liability relating to the consumption of alcohol, and the history and public policy concerns implicated by the Dramshop Act.

At the Dodds Law Office, we have successfully prosecuted cases involving dramshop liability, as well as, cases involving a defendant’s duty to protect someone from criminal acts of a third party causing injury. A lawyer should be consulted in such cases that has experience in handling such matters, because the legal theories are complex, very litigious, and must be prosecuted by someone willing to invest the time required to bring the case to resolution.

Filed under: Personal Injury by Terry Dodds
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