Herndon v. Kaminski
| Citation | 2022 IL App (2d) 210297,205 N.E.3d 802,461 Ill.Dec. 714 |
| Docket Number | 2-21-0297 |
| Decision Date | 24 February 2022 |
| Parties | Frances HERNDON, as Special Administrator of the Estate of Baby Danley, Deceased, Plaintiff-Appellant, v. Jacob KAMINSKI; Bedrocks and the Cave, Inc., d/b/a Bedrocks Craft Beer and Pizza Bar; Shorewood Plaza, LLC; Kenneth Groh; Richard Duffin; Jameson Pub, Inc., d/b/a Skooter's Roadhouse: Gus Gelis; George Gelis; and Peter Gelis, Defendants (Bedrocks and the Cave, Inc.; Kenneth Groh; Richard Duffin; Jameson Pub, Inc.; George Gelis; and Peter Gelis, Defendants-Appellees). |
| Court | United States Appellate Court of Illinois |
John M. Spesia and Jacob E. Gancarczyk, of Spesia & Taylor, of Joliet, for appellant.
Robert F. Hogan and Anne-Marie Foster, of Nyhan Bambrick Kinzie & Lowry, P.C., and Scott J. Brown and Julie A. Teuscher, of Cassiday Schade, LLP, both of Chicago, for appellees.
¶ 1 Plaintiff, Frances Herndon, as special administrator of the estate of Baby Danley, deceased, appeals from orders of the circuit court of Kendall County dismissing her amended complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2018) ) as to defendants Bedrocks and the Cave, Inc., doing business as Bedrocks Craft Beer and Pizza Bar; Shorewood Plaza, LLC; Kenneth Groh; and Richard Duffin (collectively Bedrocks), and granting judgment on the pleadings as to defendants Jameson Pub, Inc., doing business as Skooter's Roadhouse; George Gelis; and Peter Gelis (collectively Skooter's).1 We affirm.
¶ 3 On June 30, 2017, Alexis Danley was operating a motor vehicle northbound on Ridge Road in Minooka, Illinois, when Jacob Kaminski, an alleged intoxicated person, crossed the center line while driving southbound and collided with Danley's vehicle. As a result of the accident, Danley and her unborn fetus, Baby Danley, died.
¶ 4 Vonta Perry, Baby Danley's father, was appointed special administrator of Baby Danley's estate to sue Kaminski for wrongful death. On January 8, 2018, Perry filed a one-count complaint for wrongful death against Kaminski in La Salle County. Our supreme court consolidated Baby Danley's case with Alexis Danley's pending suit in Kendall County against Kaminski and other defendants. On June 29, 2018, Perry filed an amended complaint adding Bedrocks and Skooter's in Baby Danley's case. Perry alleged that Bedrocks and Skooter's violated the Liquor Control Act of 1934 ( 235 ILCS 5/6-21 (West 2018) ), commonly known as the Dramshop Act, in causing Kaminski's intoxication. The amended complaint also incorporated the wrongful death allegations into those counts directed against Bedrocks and Skooter's, alleged that Kaminski's wrongful and negligent acts or omissions caused Baby Danley's death, and prayed for damages pursuant to the Wrongful Death Act ( 740 ILCS 180/0.01 et seq. (West 2018)), rather than the Dramshop Act.
¶ 5 On October 16, 2018, Bedrocks moved to dismiss the amended complaint in Baby Danley's case because (1) Baby Danley's estate is not a proper plaintiff and (2) no cause of action exists under the Dramshop Act for the death of an unborn fetus. On November 30, 2018, the court granted that motion. Although the court gave Perry leave to replead, Perry stood on the amended complaint.
¶ 6 On June 12, 2019, the court granted Skooter's motion for judgment on the pleadings. In that motion, Skooter's argued only that no cause of action exists under the Dramshop Act for an unborn fetus.
¶ 7 Perry settled the wrongful death count with Kaminski. On June 11, 2020, the trial court entered an order to finally dispose of Baby Danley's case, and Perry appealed. While that appeal was pending, Perry died, and this court allowed Herndon to substitute as the special administrator of Baby Danley's estate.
¶ 8 When Perry filed the notice of appeal, Alexis Danley's case was still pending. Accordingly, this court dismissed the appeal for lack of appellate jurisdiction. Herndon v. Kaminski , No. 2-20-0363 (). On May 10, 2021, the trial court made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), and Herndon filed a timely notice of appeal.
¶ 10 Herndon contends that the trial court erred in granting the respective motions by Bedrocks and Skooter's. As noted, Bedrocks was dismissed pursuant to section 2-615 of the Code. We review de novo a section 2-615 dismissal. Winters v. Wangler , 386 Ill. App. 3d 788, 793, 325 Ill.Dec. 729, 898 N.E.2d 776 (2008). Skooter's was granted judgment on the pleadings, which we also review de novo. Gillen v. State Farm Mutual Automobile Insurance Co. , 215 Ill. 2d 381, 385, 294 Ill.Dec. 163, 830 N.E.2d 575 (2005).
¶ 11 A section 2-615 motion to dismiss attacks the legal sufficiency of a complaint. Illinois Graphics Co. v. Nickum , 159 Ill. 2d 469, 484, 203 Ill.Dec. 463, 639 N.E.2d 1282 (1994). The question presented on review of a dismissal pursuant to section 2-615 is whether the complaint contains sufficient facts that, if established, would entitle the plaintiff to relief. Zahl v. Krupa , 365 Ill. App. 3d 653, 658, 302 Ill.Dec. 867, 850 N.E.2d 304 (2006). To withstand a section 2-615 motion to dismiss, the plaintiff must allege facts that set forth the elements of a cause of action. Visvardis v. Ferleger , 375 Ill. App. 3d 719, 724, 313 Ill.Dec. 812, 873 N.E.2d 436 (2007). We take all well-pleaded facts as true and construe all reasonable inferences from those facts in the plaintiff's favor. Visvardis , 375 Ill. App. 3d at 724, 313 Ill.Dec. 812, 873 N.E.2d 436.
¶ 12 Judgment on the pleadings is proper when the pleadings disclose no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Gillen , 215 Ill. 2d at 385, 294 Ill.Dec. 163, 830 N.E.2d 575. In ruling on a motion for judgment on the pleadings, the court considers only those facts that are apparent on the face of the pleadings, matters subject to judicial notice, and judicial admissions in the record. Gillen , 215 Ill. 2d at 385, 294 Ill.Dec. 163, 830 N.E.2d 575. We take all well-pleaded facts and reasonable inferences therefrom as true. Gillen , 215 Ill. 2d at 385, 294 Ill.Dec. 163, 830 N.E.2d 575. On review, we determine whether there are any issues of material fact and, if not, whether the movant was entitled to judgment as a matter of law. Gillen , 215 Ill. 2d at 385, 294 Ill.Dec. 163, 830 N.E.2d 575.
¶ 14 Subsection (a) of the Dramshop Act provides, in pertinent part, that "[e]very person who is injured within this State, in person or property, by any intoxicated person has a right of action *** against any person, licensed *** to sell alcoholic liquor, who, by selling or giving alcoholic liquor ***, causes the intoxication of such person." 235 ILCS 5/6-21(a) (West 2018). Under the Dramshop Act, an action lies for either loss of support or loss of society, but not both. 235 ILCS 5/6-21(a) (West 2018). " ‘Loss of society’ " means the "mutual benefits that each family member receives from the other's continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection." 235 ILCS 5/6-21(a) (West 2018). " ‘Family’ " includes a "spouse, children, parents, brothers, and sisters." 235 ILCS 5/6-21(a) (West 2018).
¶ 15 At common law there was no cause of action arising from the sale or gift of alcoholic beverages. Charles v. Seigfried , 165 Ill. 2d 482, 486, 209 Ill.Dec. 226, 651 N.E.2d 154 (1995). Our legislature created a limited statutory cause of action in enacting the Dramshop Act. Charles , 165 Ill. 2d at 486-87, 209 Ill.Dec. 226, 651 N.E.2d 154. The legislature preempted the entire field of alcohol-related liability by enacting the Dramshop Act. Hicks v. Korean Airlines Co. , 404 Ill. App. 3d 638, 641, 344 Ill.Dec. 387, 936 N.E.2d 1144 (2010). The Dramshop Act imposes "no-fault" liability for selling or giving intoxicating liquors to persons who subsequently injure third parties. Charles , 165 Ill. 2d at 487, 209 Ill.Dec. 226, 651 N.E.2d 154. The Act is penal in character. Wessel v. Carmi Elks Home, Inc. , 54 Ill. 2d 127, 131, 295 N.E.2d 718 (1973). Although serving alcoholic liquors imposes liability on dramshops, that liability is not grounded in tort but arises exclusively from the Dramshop Act. Jodelis v. Harris , 118 Ill. 2d 482, 486, 115 Ill.Dec. 369, 517 N.E.2d 1055 (1987). Any extension of liability for damages arising from intoxication must come from the legislature, rather than the courts. Richardson v. Ansco, Inc. , 75 Ill. App. 3d 731, 732, 31 Ill.Dec. 599, 394 N.E.2d 801 (1979). The only remedy available to a plaintiff seeking to recover damages resulting from intoxication is an action under the Dramshop Act. Richardson , 75 Ill. App. 3d at 732, 31 Ill.Dec. 599, 394 N.E.2d 801. In construing the Dramshop Act, we are especially mindful that only the legislature has the power to set the terms of recovery and liability, without interference from the courts , for an action that was unknown at common law. McKeown v. Homoya , 209 Ill. App. 3d 959, 962, 154 Ill.Dec. 528, 568 N.E.2d 528 (1991). Consequently, our "freedom with which we may act to alleviate perceived injustices" is restricted. McKeown , 209 Ill. App. 3d at 962, 154 Ill.Dec. 528, 568 N.E.2d 528.
¶ 17 The amended complaint alleged the following against Bedrocks and Skooter's. On June 30, 2017, Baby Danley was a viable fetus of Alexis Danley. Baby Danley's surviving "next of kin" were her father, Vonta Perry, and her sister, Alyanna Perry. Vonta Perry brought this suit pursuant to the Wrongful Death Act. On June 30, 2017, the vehicle driven by Kaminski collided with the vehicle driven by Alexis Danley. Kaminski was guilty of one or more negligent acts or omissions that proximately caused the deaths of Alexis Danley ...
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