Martin v. Palazzolo Produce Co., Inc.

• Decision Date: 09 September 1986
• Docket Number: No. 5-85-0669,5-85-0669
• Citation: 100 Ill.Dec. 703,146 Ill.App.3d 1084,497 N.E.2d 881
• Parties: , 100 Ill.Dec. 703 Ronald J. MARTIN and Donald Martin, Plaintiffs-Appellants, v. PALAZZOLO PRODUCE COMPANY, INC., d/b/a Palazzolo Food Distributing Company and Francis X. Palazzolo a/k/a Frank Palazzolo, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 881

497 N.E.2d 881

146 Ill.App.3d 1084, 100 Ill.Dec. 703

Ronald J. MARTIN and Donald Martin, Plaintiffs-Appellants, v. PALAZZOLO PRODUCE COMPANY, INC., d/b/a Palazzolo Food Distributing Company and Francis X. Palazzolo a/k/a Frank Palazzolo, Defendants-Appellees.

No. 5-85-0669.

Appellate Court of Illinois Fifth District.

Sept. 9, 1986.

Pfaff, Garner & Terlizzi, Salem, for plaintiffs-appellants.

Jerome E. McDonald, Terry R. Black, Campbell, Furnall, Moore & Jacobsen, P.C., Mt. Vernon, for defendants-appellees.

Justice WELCH delivered the opinion of the court:

The plaintiffs Ronald and Donald Martin appeal from an order of the circuit court of Marion County dismissing their first amended complaint with prejudice. On appeal, the plaintiffs raise the issue of whether the trial court erred in dismissing their first amended complaint for failure to state a cause of action. We affirm.

The record reveals the following facts. The plaintiff was employed by the defendant Palazzolo Produce Company. On June 7, 1985, the plaintiff Ronald Martin arrived at work to begin the 9 p.m. to 9:30 a.m. shift. After he completed the shift, the defendant Frank Palazzolo, owner of Palazzolo Produce Company, Inc., invited Ronald to drink beer with him on the premises. When Ronald finished drinking beer, he drove his car home. However, he did not make it home without an accident. At approximately 11:50 a.m. Ronald lost control of his car, crossed the center line and hit a concrete truck. Ronald sustained severe and permanent injuries as well as severe disabilities and disfigurement. As a result of the incident, the plaintiffs instituted this lawsuit.

In the first amended complaint filed on August 12, 1985, the plaintiffs sued the defendants on the theory of negligence. The plaintiffs alleged that a "person who supplies a deleterious substance to a minor who lacks the maturity to refrain from ingesting the same is responsible for foreseeable injury to the minor." Subsequently, the defendant filed its second motion to dismiss the plaintiff's first amended complaint. On September 10, 1985, the trial court dismissed the plaintiff's complaint with prejudice. From this order the plaintiff appeals.

In deciding a motion to dismiss, the court must view all the factual allegations as true and only consider the question of law presented by the pleadings. (Zamiar v. Linderman (1985), 132 Ill.App.3d 886, 887-88, 88 Ill.Dec. 219, 220, 478 N.E.2d 534, 535; Maras v. Bertholdt (1984), 126 Ill.App.3d 876, 889, 81 Ill.Dec. 728, 738, 467 N.E.2d 599, 609.) The question of law in this case is whether a noncommercial, "social host" and employer who was the supplier of intoxicating liquor to the minor plaintiff who becomes intoxicated and injures himself can be held liable for failure "to supervise the intoxicated minor."

It is well established in Illinois courts that there is no common law cause of action against a noncommercial supplier of intoxicating liquor. (Heldt v. Brei (1983), 118 Ill.App.3d 798, 800-01, 74 Ill.Dec. 413, 415, 455 N.E.2d 842, 844.) The only remedy for such action is that provided under the Liquor Control Act of 1935, hereinafter referred to as the Dram Shop Act. (Ill.Rev.Stat.1985, ch. 43, par. 93.9 et seq.; Heldt v. Brei.) The Dram Shop Act does not apply to persons who are not, either directly, indirectly, or in any way or to any extent engaged in the liquor traffic. (Ill.Rev.Stat.1985, ch. 43, par. 135; Camille v. Berry Fertilizers, Inc. (1975), 30 Ill.App.3d 1050, 1052, 334 N.E.2d 205, 207.) The Dram Shop Act is designed to regulate those in the business of selling liquor and not the social drinker or the social drinking of a group. (Camille v. Berry Fertilizers, Inc.) Any enlargement of the scope of the liability in the Dram Shop Act is the prerogative of the legislature and not the judiciary. (Heldt v. Brei.) Throughout history, the Illinois courts have repeatedly refused to enlarge the scope of the Dram Shop Act where a person gives a glass of intoxicating liquor to a friend as a mere act of courtesy and politeness, and without any purpose or expectation of pecuniary gain or profit. (Cruse v. Aden (1889), 127 Ill. 231, 239, 20 N.E. 73, 75; Camille v. Berry Fertilizers, Inc. (1975), 30 Ill.App.3d 1050, 1052, 334 N.E.2d 205, 206; see also Richardson v. Ansco, Inc. (1979), 75 Ill.App.3d 731, 31 Ill.Dec. 599, 394 N.E.2d 801; Miller v. Moran (1981), 96 Ill.App.3d 596, 52 Ill.Dec. 183, 421 N.E.2d 1046.) In addition, the court has not extended liability even if the person served the intoxicating liquor is a minor (Zamiar v. Linderman; Lowe v. Rubin (1981), 98 Ill.App.3d 496, 53 Ill.Dec. 919, 424 N.E.2d 710) or even if the person serving or providing the intoxicating liquor is an employer. (Richardson v. Ansco, Inc.; Thompson v. Trickle (1983), 114 Ill.App.3d 930, 70 Ill.Dec. 563, 449 N.E.2d 910.) The Illinois courts...