Lowe v. Rubin

• Decision Date: 17 July 1981
• Docket Number: No. 80-991,80-991
• Citation: 98 Ill.App.3d 496,53 Ill.Dec. 919,424 N.E.2d 710
• Parties: , 53 Ill.Dec. 919 Leonard LOWE, Plaintiff-Appellant, v. Julie RUBIN and Glen Begouin, Defendants, and Julie Rubin, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 710

424 N.E.2d 710

98 Ill.App.3d 496, 53 Ill.Dec. 919

Leonard LOWE, Plaintiff-Appellant, v. Julie RUBIN and Glen Begouin, Defendants and Julie Rubin, Defendant-Appellee.

No. 80-991.

Appellate Court of Illinois, First District, Fifth Division July 17, 1981.

Harvey P. Muslin, Howard B. Pitrack and Carl F. Schroeder, Chicago, for plaintiff-appellant; David A. Novoselsky, Chicago, of counsel.

Leo M. Tarpey, Jr., Pretzel, Stouffer, Nolan & Rooney Chartered, Chicago, for defendant-appellee; Robert Marc Chemers and Joseph B. Lederleitner, Chicago, of counsel.

SULLIVAN, Presiding Justice:

This appeal presents the question as to whether Illinois recognizes a common law negligence action against a non-commercial supplier of alcoholic liquor.

In Count II of plaintiff's third amended complaint, it is alleged in substance that defendant served alcoholic liquor to the guests at a party in her home including defendant Glen Begouin, a minor, who became intoxicated and struck plaintiff; causing the loss of his sight in one eye. Additionally, this count alleged that Rubin knew when she served Begouin that "he was an individual of violent propensities likely to injure others when intoxicated."

Rubin moved to dismiss Count II, asserting that it failed to state a cause of action, ¹ and in its order granting the motion the trial court also denied a request of plaintiff to further amend his complaint on the basis that no facts could be asserted to state a cause of action for dispensing liquor by a private individual. This appeal followed.

OPINION

In the consideration of a motion to dismiss, the allegations of fact in the complaint are taken as true (Skinner v. Reed-Prentice Division Package Machinery Co. (1978), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, cert. denied (1978), 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787) and, in determining the propriety of such a dismissal, we are concerned only with the questions of law presented by the pleadings (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538).

The question of law presented by the parties here is whether a non-commercial supplier (as opposed to a dramshop) can be held liable under common law negligence for the service of alcoholic liquor to an intoxicated minor who subsequently injures a third party.

Historically, our supreme court has recognized that the common law gave no cause of action in negligence for the mere sale or gift of intoxicating liquor to the ordinary man. (Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708.) To the same effect are Schulte v. Schleeper (1904), 210 Ill. 357, 71 N.E. 325 and Meidel v. Anthis (1874), 71 Ill. 241, wherein the court stated that the Dramshop Act conferred remedies unknown to the common law against persons who may have caused the intoxication. As stated in Cruse v. Aden (1889), 127 Ill. 231, 234, 20 N.E. 73, 74:

"It was not a tort, at common law, to either sell or give intoxicating liquor to 'a strong and able-bodied man,' and it can be said safely, that it is not anywhere laid down in the books that such act was ever held, at common law, to be culpable negligence, that would impose legal liability for damages upon the vendor or donor of such liquor."

More recently, in Miller v. Moran (1981), --- Ill.App.3d ---, 52 Ill.Dec. 183, 421 N.E.2d 1046, this court held a social host should not be held liable in negligence to a third party injured when the automobile she was driving was struck by one driven by an intoxicated person who had been served liquor by the host. The court stated:

"(I)f any such liability is to be established it should be done by the legislature. That position is in accord with the position Illinois courts have taken in the expansion of the Dramshop Act (Cunningham (v. Brown (1961), 22 Ill.2d 23, 174 N.E.2d 153); Graham v. General U. S. Grant Post No. 2665, V.F.W., (1969), 43 Ill.2d 1, 248 N.E.2d 657) and on expansion of the common law (Richardson (v. Ansco. Inc. (1979), 75 Ill.App.3d 731 (31 Ill.Dec. 599), 394 N.E.2d 801)). * * * (W)e agree with the court's statement in Olsen (v. Copeland ):

'A change in the law which has the power to so deeply affect social and business relationships should only be made after a thorough analysis of all the relevant considerations. * * * The type of analysis required is best conducted by the legislature using all of the methods it has available to it to invite public participation.' 90 Wis.2d 483, 491, 280 N.W.2d 178, 181.

Another factor which compels us to exercise judicial restraint is that any common law liability we create would be unlimited. Dramshops are subject to civil liability for each occurrence which cannot exceed $35,000. (Ill.Rev.Stat.1979, ch. 43, par. 135.) Thus, we would be exposing persons who make no profit from their service of alcohol to much greater liability than the legislature has seen fit to expose dramshops.

Further, as we have noted above, the problem is not one of adequate remedies for an injured plaintiff, as an injured plaintiff can sue the intoxicated driver. We believe that whether to provide additional remedies is a legislative rather than judicial question. " --- Ill.App.3d at ---, 52 Ill.Dec. at 186, 421 N.E.2d at 1049.

Plaintiff, however, refers us to several cases in support of his position, first pointing to Colligan v. Cousar (1963), 38 Ill.App.2d 392, 187 N.E.2d 292, where it was held that injury resulting from acts such as those of Rubin in the case before us was foreseeable and thus actionable negligence. In Colligan, it was alleged that defendants, Illinois tavern owners, allegedly sold liquor to intoxicated persons who then drove to Indiana where they were involved in a collision with plaintiff's car. The court, after recognizing the holding in Cunningham v. Brown (1961), 22 Ill.2d 23, 174 N.E.2d 153, that the Dramshop Act provides the only remedy against tavern operators and owners where a person is injured by an intoxicated person or in consequence of intoxication, concluded that the acts of the defendant would have given rise to a common law action if there had been no Dramshop Act in existence.

The Colligan court, however, in reaching this conclusion, made no reference to the contrary statements of our supreme court in Howlett v. Doglio; Schulte v. Schleeper; Cruse v. Aden ; and Meidel v. Anthis. We note also that subsequent to Colligan, in Graham v. General U. S. Post No. 2665, V.F.W., which involved the sale of liquor in an Illinois tavern to one Schlicker, who allegedly became intoxicated and was later involved in a Wisconsin automobile accident in which plaintiff, an Illinois resident, was injured, it was held that there was no common law action against the tavern operator and owners of the tavern premises. Moreover, the defendants in Colligan were commercial vendors; whereas, in the instant case, Rubin was a social host, and concerning this distinction it has been written:

"The historic rationale of the dram shop acts was, theoretically, to shift the cost of damage or injury to the commercial vendor who was considered to have a greater capacity to absorb the cost. The vendor may be required by statute to post bond or carry insurance against the damage. The social host, on the other hand, receives no pecuniary gain for providing alcoholic beverages to his guest and will have to personally absorb the cost of insurance or other security." DeMoulin & Whitcomb, Social Host's Liability in Furnishing Alcoholic Beverages, 27 Fed'n Ins. Counsel Q. 347, 357 (1977).

Plaintiff also relies upon two California cases, Coulter v. Superior Court of San Mateo County (1978), 21 Cal.3d 144, 577 P.2d 669, 145 Cal.Rptr. 534, and Walters v. Sloan (1975), 49 Cal.App.3d 643, 122 Cal.Rptr. 623. Those cases held that a cause of action existed in California against a social host for furnishing alcoholic liquor to an intoxicated person. Subsequent to those decisions, however, the California legislature by statutory amendments barred any such action, and the amendments were found to be constitutional in Cory v. Schierloh (1981), --- Cal.3d ---, 174 Cal.Rptr. 500, 629 P.2d 8, which was an action against a host by a minor for injuries he had received after becoming intoxicated at a party when he...