Lessner v. Hurtt

• Decision Date: 14 December 1977
• Docket Number: No. 75-89,75-89
• Citation: 13 Ill.Dec. 430,371 N.E.2d 125,55 Ill.App.3d 195
• Parties: , 13 Ill.Dec. 430 Vernon LESSNER, Plaintiff-Appellant, v. Frank HURTT and Ramada Inn of Aurora, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 125

371 N.E.2d 125

55 Ill.App.3d 195, 13 Ill.Dec. 430

Vernon LESSNER, Plaintiff-Appellant, v. Frank HURTT and Ramada Inn of Aurora, Defendants-Appellees.

No. 75-89.

Appellate Court of Illinois, Second District.

Dec. 14, 1977.

Marco & Mannina, Anthony F. Mannina, Downers Grove, for plaintiff-appellant.

Gates W. Clancy, James S. Mills, Geneva, for defendants-appellees.

WOODWARD, Justice.

This is an appeal from an order granting the motion for summary judgment of the defendant Ramada Inn of Aurora. On April 5, 1973, plaintiff Lessner was injured in a fight with defendant Hurtt in Ramada's cocktail lounge. Plaintiff's complaint was filed on April 26, 1974. The trial court dismissed the complaint because the statute of limitations on Dram Shop actions had run, but allowed plaintiff to amend the complaint, which he did. The amended complaint alleged that Ramada was negligent in that it, through its employees, knew that Hurtt was intoxicated, knew that he threatened plaintiff with physical harm, did not remove Hurtt when plaintiff was endangered, and refused to aid plaintiff by calling the police or a security guard when the threat of physical harm became imminent. Ramada admitted these allegations in its answer to the amended complaint; it also made a motion for summary judgment, contending that plaintiff's exclusive remedy is through the Dram Shop Act, which remedy was unavailable due to the running of the statute of limitations. In discovery depositions filed in support of the motion for summary judgment, both plaintiff and Hurtt admit purchasing alcoholic liquor from Ramada, and each states that the other was intoxicated. The court granted the motion for summary judgment and plaintiff appeals.

We are familiar with the language of the supreme court that the Dram Shop Act is the only remedy against tavern owners and operators for injuries caused by an intoxicated person or in consequence of intoxication. (Graham v. General U. S. Grant Post No. 2665, V.F.W. (1969), 43 Ill.2d 1, 248 N.E.2d 657; Cunningham v. Brown (1961), 22 Ill.2d 23, 174 N.E.2d 153.) However, we believe the situation in the cause before us may be distinguished from these cases. In Graham, the count of the complaint which alleged the common law negligence of defendants was predicated on the sale or giving of liquor to an intoxicated person. In Cunningham, the common law action was again based on the sale or supplying of liquor to an intoxicated person. As indicated, the supreme court concluded that the Dram Shop Act was the exclusive remedy in these situations. We believe, however, that the broad language of the supreme court must be limited by the facts of the cases it decided, with the result that there is no action in common law negligence where the owner or operator of a dram shop is charged with negligence in providing liquor which causes or contributes to the intoxication of a person who later injures another.

In the cause before us, plaintiff's amended complaint made no reference or allegation regarding whether defendant Hurtt purchased liquor at Ramada or became intoxicated by reason thereof. The complaint does...