Coulter v. Swearingen

• Decision Date: 25 March 1983
• Docket Number: No. 82-440,82-440
• Citation: 447 N.E.2d 561,69 Ill.Dec. 344,113 Ill.App.3d 650
• Parties: , 69 Ill.Dec. 344 Charles COULTER and Geri Coulter, Plaintiffs-Appellants, v. John SWEARINGEN, Vernon Swearingen and Phyllis Swearingen, individually and as the parents of John Swearingen, Defendants-Appellees, and Ricky Louck, Ruth Engle, as parent of Ricky Louck, John Adams and Mary Adams, d/b/a Adams Tavern, Defendants.
• Court: United States Appellate Court of Illinois

Page 561

447 N.E.2d 561

113 Ill.App.3d 650, 69 Ill.Dec. 344

Charles COULTER and Geri Coulter, Plaintiffs-Appellants, v. John SWEARINGEN, Vernon Swearingen and Phyllis Swearingen individually and as the parents of John Swearingen, Defendants-Appellees and Ricky Louck, Ruth Engle, as parent of Ricky Louck, John Adams and Mary Adams, d/b/a Adams Tavern, Defendants.

No. 82-440.

Appellate Court of Illinois Third District.

March 25, 1983.

Stuart Lefstein and Samuel S. McHard, Katz, McAndrews, Durkee, Balch & Lefstein, P.C., Rock Island, for plaintiffs-appellants.

Burrel Barash and J. Ronald Henson, Barash, Stoerzbach & Henson, Galesburg, for defendants-appellees.

SCOTT, Justice:

This appeal stems from a judgment dismissing certain counts of the plaintiffs' (the Coulters) complaint which sought to impose liability for common law negligence upon the defendants (the Swearingens) resulting from the permitting of the availability and consumption of intoxicating liquor by a minor while a guest in the home of the defendants and who thereafter drove a motor vehicle into a vehicle operated by the plaintiff, Charles Coulter.

Specifically, Charles Coulter, in Count XI of his complaint, alleged that John Swearingen, a minor, gave liquor to Ricky Louck, a minor, who while intoxicated operated his motor vehicle in such a manner as to cause it to collide with Charles Coulter's tractor, which caused injury. The plaintiff Geri Coulter, wife of Charles, in Count XII sought damages for loss of consortium. Charles Coulter in Count XIII alleged that the intoxicating liquors given by John Swearingen to Ricky Louck were negligently stored by Vernon and Phyllis Swearingen, parents of John, so that they were accessible. In Count XIV Geri Coulter sought damages against Vernon and Phyllis Swearingen for loss of consortium.

The foregoing counts were the target of a motion to dismiss on the grounds that there is no common law negligence action against anyone who supplies intoxicating liquor to another and any causes of action for injuries resulting from a sale or gift of intoxicating liquors is limited to those who are liable under the Dram Shop Act. The circuit court of Mercer County agreed with the defendants thereby granting the motion and judgment was entered dismissing the complaint as to the defendant Swearingen.

The issue presented in this appeal, reduced to its simplest form, is whether the trial court was correct in holding that John Swearingen, a minor who permitted another minor to drink intoxicating liquor in the Swearingen home, and Vernon and Phyllis Swearingen, parents who permitted accessibility to the liquor in their home, are guilty of common law negligence.

Counsel for plaintiffs presented a strong argument as to why by judicial interpretation this court should hold that Illinois Revised Statutes 1979, chapter 43, paragraph 135, should not preempt the field of liability related to alcohol and that there should be a common law negligence cause of action against social hosts who gave alcoholic beverages to minor and because of the resulting intoxication by the minor, injuries or death occur. The plaintiffs in support of their argument make an analogy to the supplying of alcoholic liquor with the furnishing of firearms, morphine or glue to a minor and where recovery was permitted against the supplier for furnishing the latter items. The plaintiffs cite cases from foreign jurisdictions where defendants were held liable for providing alcoholic beverages to a minor who in a state of intoxication harmed third parties. The plaintiffs further attempt to equate the supplying of liquor to a minor which causes injuries to the attractive nuisance doctrine where a landlord can be held liable for injuries to a minor because of harm resulting from defects or dangerous conditions upon his property. The plaintiffs further remind this court, as other courts have been reminded, that our State constitution provides that there shall be a legal remedy to every person for injuries and wrongs he receives to his person, property, privacy and reputation. See Ill. Const.1970, art. I, sec. 12.

The issue presented in this appeal and the arguments presented by the plaintiffs are not new to the supreme court and appellate courts of this state. These courts have consistently held that a social host is not liable under common law negligence for injuries sustained by a third party. Our courts have adhered to this position and make no distinction as to whether the intoxicated individual is a corporate defendant, a strong and able-bodied man, or a minor. Our legislature enacted in 1872 what was called the Temperance Bill, the ancestor of our present Dram Shop Act. Substantial changes were made in 1874, and throughout the years the Act has been amended a number of times, however, our courts have throughout its history consistently held that it confers the only civil remedies available for injuries and harm resulting from intoxication. Reliance upon section 12 of our Constitution has been raised by other parties situated similarly to the plaintiffs in the instant case. Relief sought by such parties by relying upon section 12 has been unavailing in that it has been held "that Section 12, like its predecessor Section 19 of Article II of the 1870 Illinois Constitution, is 'an expression of a philosophy and not a mandate that a "certain remedy" be provided in any specific form * * *.' (Sullivan v. Midlothian Park District (1972), 51 Ill.2d 274, at 277, 281 N.E.2d 659, at 662)" See Berlin v. Nathan (1978), 64 Ill.App.3d 940, 21 Ill.Dec. 682, at 689, 381 N.E.2d 1367, at 1374.

The landmark case of Cunningham v. Brown (1961), 22 Ill.2d 23, 174 N.E.2d 153, provides an in-depth informative history of the Dram Shop Act and the remedies provided therein. In Cunningham a widow attempted to recover damages against tavern operators when her husband took his own life because of despondency resulting from intoxication. She predicated her suit on the theory of common law negligence. Our supreme court held that there was no common law remedy against the defendants for sale of liquor to intoxicated persons and that the only remedy provided was to be found in the Liquor Control Act (Dram Shop Act) and that such remedy was exclusive. Cunningham concluded that there was never a common law action for negligence against the purveyors of intoxicating liquor and in enacting what we now call the Dram Shop Act the legislature intended to provide a remedy where it believed none existed. The plaintiffs quarrel with Cunningham's conclusion by asserting that the court was misled by the lack of precedent for a common law remedy when the Temperance Bill of 1872 was enacted. It is plaintiffs' theory that in 1872 the legislature could...