Kennedy v. Bobbie & Clyde's, Inc., 1-90-1294

• Decision Date: 27 March 1992
• Docket Number: No. 1-90-1294,1-90-1294
• Citation: 227 Ill.App.3d 856,169 Ill.Dec. 870,592 N.E.2d 357
• Parties: , 169 Ill.Dec. 870 James KENNEDY and Marin Moreno, Plaintiffs-Appellants, v. BOBBIE & CLYDE'S, INC., Defendant-Appellee. First District, Fifth Division
• Court: United States Appellate Court of Illinois

Page 357

592 N.E.2d 357

227 Ill.App.3d 856, 169 Ill.Dec. 870

James KENNEDY and Marin Moreno, Plaintiffs-Appellants, v. BOBBIE & CLYDE'S, INC., Defendant-Appellee.

No. 1-90-1294.

Appellate Court of Illinois,

First District, Fifth Division.

March 27, 1992.

[227 Ill.App.3d 857] Sherwin Greenberg, Chicago, (Ronda M. Cooper, of counsel), for defendant-appellee.

Ronald H. Balson, Chicago, for plaintiff-appellant Marin Moreno.

Justice GORDON delivered the opinion of the court:

Plaintiff Marin Moreno ¹ appeals from an order entering summary judgment in favor of defendant Bobbie & Clyde's, Inc., in this dramshop action. On appeal, plaintiff contends that genuine issues of material fact remain regarding the question of plaintiff's complicity which would bar his recovery under the Illinois Dramshop Act (Ill.Rev.Stat.1989, ch. 43, par. 135).

The complaint alleges that on August 24, 1983, plaintiff suffered personal injuries resulting from an automobile accident where he and Kenneth Raspberry were passengers in a car driven by their friend, James Kennedy, who was allegedly intoxicated as a result of the defendant tavern's having served him liquor prior to the accident.

On October 23, 1986, defendant filed an affirmative defense alleging that "plaintiff voluntarily participated to a material and substantial extent in the drinking which led to such intoxication in that plaintiff was drinking with JAMES KENNEDY for a period of several hours immediately prior to the incident alleged in the complaint."

On January 10, 1990, defendant filed a motion for summary judgment based on the affirmative defense of complicity. Both parties relied on the deposition testimony of plaintiff, Kennedy and Raspberry.

Plaintiff testified at his deposition that on August 23, 1983, at about 7 p.m., Kennedy came to his home. The three men went out and bought some beer at a liquor store. They "all pitched in" to buy the beer. Plaintiff did not recall how much beer they bought. They "drank a few beers and then we went to the bar." Plaintiff did not know how much he or the other two men drank, but it was more than two beers each. Within an hour, they drove to defendant's tavern, where they arrived at about 9 p.m. or 10 p.m. They remained there "[a]t least two or three" hours. It could have been more than four hours.

Plaintiff testified further that the three men were together "on and off." There was probably 100 people in the tavern, and they socialized with other people. Plaintiff "was talking with some girl there and she was shooting a little pool." At one point, plaintiff ran out of money and the girl bought him drinks. All together, plaintiff spent around $20 or $25.

Plaintiff had no idea how much he drank. He was "drinking mixed drinks." He did not know what the other two men were drinking. "I couldn't tell you." Plaintiff paid for "some of them." Sometimes he and Kennedy and Raspberry ordered drinks in rounds of three. Sometimes they took turns paying for rounds. He could not estimate how many rounds they drank, but it was at least five. "I couldn't tell you, but it was at least five [rounds] that I drank with them."

Plaintiff testified that he, Kennedy and Raspberry became intoxicated. At some point on the way home they stopped and Kennedy and Raspberry argued. Plaintiff believed Kennedy was "driving fine." Kennedy was "usually * * * very careful about that because he knew he had been drinking and the police out there are pretty strict." Plaintiff "passed out" while they were driving in the car.

Kennedy testified at his deposition that on August 23, 1983, at 11:30 p.m., he drove to plaintiff's home and picked up plaintiff and Raspberry. They agreed to go drinking at defendant's tavern because it was quarter beer night. They did not stop to pick up any alcohol on the way to the tavern. They arrived at the tavern at about midnight, and remained there until closing time, at 4 a.m. During that time, plaintiff and Kennedy each drank five or six beers. Plaintiff did not buy beer for Kennedy. "No. We just had our money on the bar." Kennedy put $4 on the bar when he arrived. When he left, he still had about $2.

Kennedy testified that the three men were not together the entire time they were in the tavern. "Raspberry went to the other side. There is a disco on one side Kennedy testified further that when he left the tavern, he was not intoxicated. While they were driving home, Kennedy and Raspberry began to argue. Kennedy stopped the car, he and Raspberry got out of the car and Raspberry punched Kennedy in the face four times. Plaintiff intervened, and the three men then continued to drive home. Shortly thereafter, they were in a car accident.

[169 Ill.Dec. 872] and pool tables on the other side. Me and [Moreno] were on the pool side."

Raspberry testified at his deposition that on August 23, 1983, Kennedy picked up Raspberry and Mareno at 10 p.m. They did not stop at a liquor store that night. They arrived at the tavern at about 10:15 p.m., staying until 4 a.m. All three men drank about ten beers each during their time at the tavern. Raspberry testified further:

"Q Were you in Mr. Kennedy's company the entire time you were at Bobbie & Clyde's?

A Yes."

They sat on stools together at the bar. They might have separated "just to play a pool game." Raspberry did not believe that plaintiff or Kennedy played pool. Plaintiff and Kennedy did, however, get off the bar stools at some point during the six hours.

"Q Did you buy any drinks for Mr. Kennedy while you were there?

A Yes.

Q Do you know how many you bought him?

A A few. We all took turns.

Q Did Kennedy buy any drinks for you?

A Yes.

Q Do you know how many he bought you?

A About the same amount I bought him, say three apiece or something.

Q What about Mr. Mareno, did he buy drinks for Mr. Kennedy?

A Yes.

Q So both of you bought Kennedy drinks?

A Yes."

Raspberry testified further that Kennedy did not appear intoxicated when he left the tavern, or on the way home when he started a fight with Raspberry. Raspberry himself was "pretty much" sober. Kennedy and plaintiff were sober. Neither he nor plaintiff suggested to Kennedy that he should not drive.

Raspberry stated that he spent about $4 or $5 on drinks. Each time they bought drinks, the bartender served all three men beers at the same time. They all had their money on the bar.

After they left the tavern, Kennedy was talking about going to another bar. At one point, they got out of the car to fight. Raspberry struck Kennedy a few times. Plaintiff immediately broke up the fight. Raspberry fell asleep, but woke up just before the accident and noticed that Kennedy's eyes were closed and he "was nodding back as if he was sleeping."

On April 9, 1990, the trial court entered summary judgment in favor of defendant.

OPINION

Plaintiff contends that summary judgment was not appropriate because genuine issues of material fact remain concerning plaintiff's alleged complicity. Defendant maintains, and the trial court found, that plaintiff was guilty of complicity as a matter of law, thus barring plaintiff's recovery for his personal injuries.

Summary judgment is proper where the pleadings, affidavits, depositions and admissions on file establish that no genuine issue of material fact remains and that the moving party is entitled to judgment as a matter of law. (Ill.Rev.Stat.1989, ch. 110, par. 2-1005.) In considering these documents, the court must construe them strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill.2d 229, 95 Ill.Dec. 305, 489 N.E.2d 867.) The grant of summary judgment preempts the right of trial and thus the law imposes a strict burden on the movant, and his right to summary judgment must be clear and free from doubt. Yusuf v. Village of Villa Park (1983), 120 Ill.App.3d 533, 76 Ill.Dec. 175, 458 N.E.2d 575.

On a motion for summary judgment, the movant has the burden of persuasion. (Purtill v. Hess, 111 Ill.2d at 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) If reasonable people could draw more than one conclusion or inference from the facts, a triable issue remains and the motion for summary judgment should be denied. Practical Offset, Inc. v. Davis (1980), 83 Ill.App.3d 566, 570, 39 Ill.Dec. 132, 404 N.E.2d 516.

Where the movant is a defendant, the materials relied upon must establish defendant's factual position on the essential elements of either plaintiff's cause of action or defendant's affirmative defense. (Abel v. General Motors Corp. (1987), 155 Ill.App.3d 208, 108 Ill.Dec. 28, 507 N.E.2d 1369; Becovic v. Harris Trust & Savings Bank (1984), 128 Ill.App.3d 107, 83 Ill.Dec. 233, 469 N.E.2d 1379.) Plaintiff, in turn, need not disprove facts produced by the movant/defendant, but merely has to establish that there is factual evidence showing another version of the relevant events, thus creating a genuine issue as to which version is true. (Beals v. Huffman (1986), 146 Ill.App.3d 30, 99 Ill.Dec. 706, 496 N.E.2d 281.) We find that plaintiff has successfully met that burden here, and has established factual issues sufficient to withstand a motion for summary judgment.

Section 6-21 of the Dramshop Act provides that any individual who is "injured * * * by any intoxicated person has a right of action * * * against any person, licensed under the laws of this State * * * to sell alcoholic liquor, who, by selling or giving alcoholic liquor * * * causes the intoxication of such person." (Ill.Rev.Stat.1989, ch. 43, par. 135(a).) The Act "provides no statutory defenses." Nelson v. Araiza (1978), 69 Ill.2d 534, 538, 14 Ill.Dec. 441, 372 N.E.2d 637.

Illinois law bars such recovery, however, if the injured person is not free from complicity. (Davis v. SSS Development, Inc. (1991), 213 Ill.App.3d 905, 157 Ill.Dec. 327, 572 N.E.2d 396.) This bar to recovery "has its genesis not in the statute but in judicial decisions," and is an "outgrowth of the 'innocent suitor' concept."...