Hicks v. Korean Airlines Co., 1-09-0542.

• Decision Date: 29 September 2010
• Docket Number: No. 1-09-0542.,1-09-0542.
• Citation: 936 N.E.2d 1144,344 Ill.Dec. 387,404 Ill.App.3d 638
• Parties: Alfreda HICKS, Individually and as Special Administrator of the Estate of Terrell K. Simmons, Deceased, Plaintiff-Appellant, v. KOREAN AIRLINES COMPANY, a/k/a Korean Air, a/k/a Korean Airlines, Defendant-Appellee (New Seoul Korean, a/k/a New Seoul Charcoal Barbeque Ribs, a/k/a New Seoul Restaurant; Tom Kim; Marek Jaczynski; Unknown Owners of Colonial Plaza West located at 638 W. Algonquin Road, Des Plaines, Illinois, 60016, and Colonial Plaza East; Michael Namovitz; Estate of Tracy C. Kim, Deceased; and Keun Kim, Defendants).
• Court: United States Appellate Court of Illinois

936 N.E.2d 1144 404 Ill.App.3d 638 344 Ill.Dec. 387 Alfreda HICKS, Individually and as Special Administrator of the Estate of Terrell K. Simmons, Deceased, Plaintiff-Appellant, v. KOREAN AIRLINES COMPANY, a/k/a Korean Air, a/k/a Korean Airlines, Defendant-Appellee (New Seoul Korean, a/k/a New Seoul Charcoal Barbeque Ribs, a/k/a New Seoul Restaurant; Tom Kim; Marek Jaczynski; Unknown Owners of Colonial Plaza West located at 638 W. Algonquin Road, Des Plaines, Illinois, 60016, and Colonial Plaza East; Michael Namovitz; Estate of Tracy C. Kim, Deceased; and Keun Kim, Defendants). No. 1-09-0542. Appellate Court of Illinois, First District, Third Division. Sept. 29, 2010.

Law Offices of Joseph G. Klest, Schaumburg, IL (Joseph G. Klest, of counsel), Novoselsky Law offices, Chicago, IL (David A. Novoselsky and Brian A. Schroeder, of counsel), for Plaintiff-Appellant.

Greenberg Traurig, LLP, Chicago, IL (Michael D. Karpeles, Gregory E. Ostfeld, and Tiffany S. Fordyce, of counsel), for Defendant-Appellee.

OPINION ON DENIAL OF REHEARING

Justice STEELE delivered the opinion of the court:

[344 Ill.Dec. 388, 404 Ill.App.3d 638]

Plaintiff Alfreda Hicks (Hicks), individually and as special administrator of the estate of Terrell K. Simmons, deceased (Simmons), appeals an order of the circuit court of Cook County granting summary judgment to defendant Korean Airlines Company, a/k/aKorean Air, a/k/a Korean Airlines (Korean Air), on Hicks' claim that Korean Air was vicariously liable for the allegedly negligent and intoxicated driving of a Korean Air employee. The circuit court ruled that Hicks' claim was preempted by the Dramshop Act (235 ILCS 5/6-21 (West 2000)). For the following reasons, we reverse and remand the case for further proceedings.

BACKGROUND

The record discloses the following facts. On March 5, 2003, Hicks filed her first amended complaint against Korean Air and other defendants,¹ arising out of an automobile collision that occurred on the night of October 4, 2001. Tracy Kim, an employee of Korean Air, struck a car driven by Simmons, killing both Kim and Simmons. Count II of the first amended complaint alleged that Korean Air was liable for Kim's allegedly negligent and intoxicated driving, because Kim was acting within the scope of her employment with Korean Air. Count III of the first amended complaint alleged that Korean Air was liable under the Dramshop Act ( 235 ILCS 5/6-21 (West 2000)) for supplying and serving Kim alcohol at a dinner purportedly sponsored by Korean Air prior to the automobile collision.

On January 12, 2005, Korean Air filed a motion for summary judgment. Korean Air argued that it was not vicariously liable because Kim was not acting within the scope of her employment when the collision occurred. Korean Air asserted that Kim had voluntarily attended a spontaneous dinner attended by Korean Air employees for the purpose of saying goodbye to another employee being transferred to Atlanta, Georgia. Korean Air also asserted that Kim was not expressly invited to a second restaurant (that did not serve alcohol) for karaoke after dinner. Korean Air further asserted that when Kim left the second restaurant, she was not going to or coming from work or performing job-related duties. Moreover, Korean Air argued that it was neither a dramshop nor a social host and, thus, had no liability under the Dramshop Act (235 ILCS 5/6-21 (West 2000)).

In her response to Korean Air's motion, Hicks argued that the purpose of the initial dinner was to entertain the general manager of the Los Angeles branch of the marketing department for Korean Air,and secondarily, a farewell dinner for the transferred employee. Hicks claimed that the manager was visiting different branches of Korean Air to discuss the launch of a credit card linked to the company's frequent flyer program. Hicks also asserted

[344 Ill.Dec. 389, 936 N.E.2d 1146]

that the dinner was paid for by the deputy general manager of Korean Air, although he gave a deposition denying that he submitted the bill to his expense account. Hicks further asserted that Korean Air paid the bill at the second restaurant as a sales promotion expense. Hicks maintained a genuine issue of material fact existed as to whether Kim was acting within the scope of her employment after she left the second restaurant. However, Hicks conceded that she had not uncovered sufficient facts to find that Korean Air acted as a dramshop and, thus, made no argument against the motion for summary judgment on that issue.

On July 17, 2005, the circuit court entered an order denying Korean Air's motion for summary judgment. The transcript of proceedings shows that the circuit court believed there were genuine issues of material fact about whether Kim was acting within the scope of her employment at the time of the collision.

On July 24, 2008, Korean Air filed a second motion for summary judgment, arguing that, based on case law, including Charles v. Seigfried, 165 Ill.2d 482, 488, 209 Ill.Dec. 226, 651 N.E.2d 154, 158 (1995), it could not be directly or vicariously liable for Kim's alleged negligence because the Dramshop Act preempts "the entire field of alcohol-related liability." On August 26, 2008, Hicks filed a response, arguing: (1) the circuit court already ruled there was a genuine question of material fact about whether Kim was acting within the scope of employment; (2) there was evidence that attendance at such dinner meetings—and consumption of alcohol at such meetings—was considered a condition of employment; and (3) a statement from a Korean Air employee, Peter Yang, supported the theory that Korean Air voluntarily assumed the duty of preventing employees from driving drunk after such events.

On September 30, 2008, following a hearing on the matter, the circuit court entered an order granting summary judgment to Korean Air "for the reasons stated in the record." The transcript of proceedings discloses that the circuit court upheld its denial of the first motion for summary judgment, but ruled that the causes of action against Korean Air were preempted by the Dramshop Act (235 ILCS 5/6-21 (West 2000)). Hicks filed a motion to reconsider. The circuit court denied her motion on February 11, 2009, additionally finding no just reason to delay enforcement or appeal under Illinois Supreme Court Rule 304(a) (210 Ill.2d R. 304(a)). On February 27, 2009, Hicks filed a timely notice of appeal to this court.

DISCUSSION

The sole issue on appeal is whether the circuit court erred in granting summary judgment to Korean Air. Appellate review of a summary judgment ruling is de novo. Arangold Corp. v. Zehnder, 204 Ill.2d 142, 146, 272 Ill.Dec. 600, 787 N.E.2d 786, 789 (2003). Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2008).

The question before us is whether the claims against Korean Air are preempted by the Dramshop Act (235 ILCS 5/6-21 (West 2000)). "The historic common law rule, adhered to in this State, is that there is no cause of action for injuries arising out of the sale or gift of alcoholic beverages." Charles v. Seigfried, 165 Ill.2d 482, 486, 209 Ill.Dec. 226, 651 N.E.2d 154, 157 (1995). "[I]n Illinois, the

[344 Ill.Dec. 390, 936 N.E.2d 1147]

General Assembly has preempted the entire field of alcohol-related liability through its passage and continual amendment of the Dramshop Act." Charles, 165 Ill.2d at 488, 209 Ill.Dec. 226, 651 N.E.2d at 158. "[F]ew rules of law are as clear as that no liability for the sale or gift of alcoholic beverages exists in Illinois outside of the Dramshop Act." Charles, 165 Ill.2d at 490, 209 Ill.Dec. 226, 651 N.E.2d at 158. As a result, this court has generally refused to impose liability under either the common law or the Dramshop Act on employers who supply their employees with free alcohol at employer-sponsored events. Holtz v. Amax Zinc Co., 165 Ill.App.3d 578, 583, 116 Ill.Dec. 464, 519 N.E.2d 54, 58 (1988); Martin v. Palazzolo Produce Co., 146 Ill.App.3d 1084, 1087, 100 Ill.Dec. 703, 497 N.E.2d 881, 883 (1986); Desmond v. Stearns, 134 Ill.App.3d 479, 483, 89 Ill.Dec. 528, 480 N.E.2d 1271, 1273 (1985); Thompson v. Trickle, 114 Ill.App.3d 930, 932, 70 Ill.Dec. 563, 449 N.E.2d 910, 912 (1983); Wienke v. Champaign County Grain Ass'n, 113 Ill.App.3d 1005, 1008, 69 Ill.Dec. 701, 703, 447 N.E.2d 1388, 1390 (1983); Brehm v. Dobson, 15 Ill.App.3d 285, 304 N.E.2d 149 (1973) (abstract); Richardson v. Ansco, Inc., 75 Ill.App.3d 731, 733, 31 Ill.Dec. 599, 394 N.E.2d 801, 802 (1979); Miller v. Owens-Illinois Glass Co., 48 Ill.App.2d 412, 423-24, 199 N.E.2d 300, 306 (1964). Korean Air relied on this body of case law to obtain summary judgment in the circuit court.

During the pendency of this appeal, the Illinois Supreme Court issued its decision in Simmons v. Homatas, 236 Ill.2d 459, 338 Ill.Dec. 883, 925 N.E.2d 1089 (2010). In Simmons, the court answered two certified questions, including:

" 'Whether the defendant, Diamonds, a business operator who is not subject to the Dram Shop Act [ sic ] (because it does not sell or serve alcoholic beverages upon its premises), has a duty of ordinary care to the Simmons Plaintiffs, who while motoring on a publichighway, were killed due to the negligent operation of a motor vehicle driven by Homatas, who within a short period of time prior to the aforesaid motor vehicle collision, was an invitee of defendant's place of business under the following circumstances:

• where defendant's valet service took control of Homatas's vehicle upon his entering defendant's place of business;

• encouraged its invitee Homatas to bring alcoholic beverages onto its premises in order [to] consume to the point of intoxication;

• thereafter removed its invitee Homatas from the premises because of his intoxication;

•

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