Olle v. C House Corp.

• Decision Date: 23 March 2012
• Docket Number: No. 1–11–0427.,1–11–0427.
• Citation: 359 Ill.Dec. 856,2012 IL App (1st) 110427,967 N.E.2d 886
• Parties: James D. OLLE, Plaintiff–Appellant, v. C HOUSE CORPORATION, d/b/a Coach House, an Illinois Corporation, Defendant–Appellee (Tony Odisho and Michael Susara, Defendants.).
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 110427

967 N.E.2d 886

359 Ill.Dec. 856

James D. OLLE, Plaintiff–Appellant,

v.C HOUSE CORPORATION, d/b/a Coach House, an Illinois Corporation, Defendant–Appellee (Tony Odisho and Michael Susara, Defendants.).

No. 1–11–0427.

Appellate Court of Illinois, First District, Sixth Division.

March 23, 2012.

Riffner Barber LLC, Schaumburg (Scott Barber, of counsel), for Appellant.

Lindsay, Rappaport & Postel, LLC, Waukegan, (Stuart N. Rappaport, Matthew A. Cohen, of counsel), for Appellee.

OPINION

Justice LAMPKIN delivered the judgment of the court, with opinion.

[359 Ill.Dec. 857]¶ 1 Plaintiff, James Olle, appeals the trial court's order granting summary judgment in favor of defendant, C House Corporation, d/b/a Coach House, finding the inherent risk doctrine precluded plaintiff's claim under the statute known as the Dramshop Act (Act) (235 ILCS 5/6–21 et seq. (West 2008)). Based on the following, we reverse and remand for further proceedings.

¶ 2 FACTS

¶ 3 Plaintiff is a Cook County sheriff's police officer. On June 3, 2008, plaintiff was off duty and was injured while breaking up an altercation at defendant bar. During his deposition, plaintiff testified that, prior to the date in question, he had been to defendant bar on 100 occasions over the course of three years. Plaintiff added that, while on duty, he had responded to approximately 12 calls to defendant bar over the course of two years.

¶ 4 Plaintiff arrived at defendant bar around midnight as a patron while on a date. Plaintiff proceeded to consume several beers. At approximately 3:45 a.m., Joel Schnell, the bar owner, was informed by his security bouncer that an unknown male had choked a female while on the dance floor. Shortly thereafter, Schnell learned that there was “a big scene about the incident” occurring outside of the bar. The bar lacked security guards that evening, so Schnell approached plaintiff, whom he knew to be a sheriff's police officer, to assist in removing the unruly patrons from the premises. Plaintiff agreed. According to plaintiff's deposition testimony, he had consumed approximately four or five beers at that point, but was not intoxicated “at all.”

[359 Ill.Dec. 858]¶ 5 Plaintiff walked with Schnell to the front of the bar and proceeded outside where a group of four or five people were engaged in an argument. Plaintiff told the group that the owner requested they leave the area. When one of the individuals asked plaintiff, “Who the f* * * are you?,” plaintiff identified himself as an off-duty police officer. In response, the individual, whom plaintiff later identified as Tony Odisho, “got closer * * * and started yelling f* * * you, I don't give a f* * * who you are.” Plaintiff repeated the instruction to leave the premises, at which point Odisho grabbed plaintiff's arms, pulled him down, and “head-butted” plaintiff in the mouth. Another individual from the group, whom plaintiff identified as Michael Susara, grabbed plaintiff from behind and threw him to the ground. While on the ground, plaintiff was kicked and “hit everywhere.” Plaintiff testified that he “must have been out for a while because when [he] lifted his head up” Odisho was straddling him and punching him while Susara was kicking plaintiff in the side of the head. According to plaintiff's deposition testimony, he “went out again” and woke up with Odisho still straddling him. At that point, Susara was being held by Schnell and his security bouncer. Plaintiff pushed Odisho and stood up. Odisho instructed Susara to flee and the pair began to walk through the parking lot. Plaintiff followed and said “oh no, you're not going anywhere, you're under arrest now.” By the time plaintiff walked to the corner, the police had arrived. Plaintiff was unaware who called the police. Plaintiff suffered injuries as a result of the fight.

¶ 6 According to plaintiff, he was not in uniform and did not have his service weapon during the incident. Plaintiff added that, although he had his badge in his pocket, plaintiff never flashed it. Plaintiff testified that he would have followed the same procedures if he had been called to the bar while on duty to break up the altercation. Plaintiff stated that he is “police 24 hours a day and that's state law.”

¶ 7 Schnell testified at his deposition that he knew plaintiff was a sheriff and asked him to “watch his back” while he attended to the altercation outside. Schnell never asked plaintiff to get involved in the scuffle; however, plaintiff positioned himself between the unruly patrons. Plaintiff then attempted to grab the arms of one of the individuals, who responded by head-butting plaintiff. Plaintiff and the individual fought and, when they separated, Schnell heard plaintiff identify himself as a sheriff's police officer. According to Schnell, when plaintiff became involved in the altercation, Schnell assumed there would not be any problems because plaintiff was a sheriff's police officer.

¶ 8 Edward Russ Williams testified at his deposition that he was the security bouncer working at defendant bar at the time in question. Williams knew plaintiff was a sheriff's police officer. Williams was attempting to diffuse the situation between the patrons when plaintiff approached and said “I have this.” Williams stepped out of the way and assumed plaintiff would handle the situation because he was a sheriff's police officer. According to Williams, plaintiff stepped in Odisho's face and taunted him physically and verbally. Odisho then head-butted plaintiff. Williams provided assistance by keeping Susara away from plaintiff. After the altercation ended, Williams heard plaintiff identify himself as a sheriff's police officer.

¶ 9 On June 1, 2009, plaintiff filed a four-count complaint, raising a dramshop action against defendant bar (count I), a premises liability action against defendant bar (count II), battery against Odisho (count III), and battery against Susara (count IV). Defendant filed an answer denying the allegations in counts I and II, and asserted the affirmative defenses of provocation as to count I and comparative negligence as to count II. Defendant also filed a motion for summary judgment as to count II, arguing that plaintiff's claim was barred by the inherent risk doctrine. On August 27, 2010, the trial court granted summary judgment on count II, finding defendant did not owe plaintiff a duty of care where plaintiff faced the risks inherent in his job and those risks were not unreasonable. Defendant then filed a motion for summary judgment as to count I, arguing that the inherent risk doctrine applies to the Dramshop Act and barred plaintiff's recovery in this case. On January 24, 2011, the trial court granted summary judgment in favor of defendant, reasoning:

“The basis of liability under the Dram Shop Act is not a breach of a duty of care which proximately causes damages, but rather, the provision of liquor resulting in intoxication which proximately causes injuries to a third person. However, there is no doubt that a police officer must risk facing intoxicated persons who turn violent when attempting to quell a disturbance or make an arrest. There is no difference in a bar or on a street. While [the] inherent risk rule speaks of not owing [a] duty of care, it can also be viewed like the defense of assumption of risk is viewed vis-a-vis a strict liability claim. In that way, it can be applied to a claim under a statute such as the Dram Shop Act, as well as[ ] negligence. There have been no cases in Illinois specifically applying the inherent risk rule to Dram Shop Act claims, and, in fact, no cases involving police officers seeking recovery under the Act. However, it makes sense to apply the rule equally to Dram Shop Act claims.”

Plaintiff appeals the trial court's January 24, 2011, order.

¶ 10 DECISION

¶ 11 Plaintiff contends the trial court erred in granting summary judgment where the Dramshop Act imposes strict liability, which trumps application of the inherent risk doctrine. Defendant contends the inherent risk doctrine precluded plaintiff's ability to raise a dramshop action. Both parties maintain that the applicability of the inherent risk doctrine to the Dramshop Act is an issue of first impression.

¶ 12 Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2–1005 (West 2008). When reviewing a motion for summary judgment, a court must consider all of the evidence strictly against the movant and in a light most favorable to the nonmoving party. General Casualty Insurance Co. v. Lacey, 199 Ill.2d 281, 284, 263 Ill.Dec. 816, 769 N.E.2d 18 (2002). We review de novo a trial court's decision granting summary judgment. McNamee v. State, 173 Ill.2d 433, 438, 220 Ill.Dec. 147, 672 N.E.2d 1159 (1996).

¶ 13 A dramshop action is not based on negligence. Charles v. Seigfried, 165 Ill.2d 482, 487, 209 Ill.Dec. 226, 651 N.E.2d 154 (1995); Osinger v. Christian, 43 Ill.App.2d 480, 482, 193 N.E.2d 872 (1963). Rather, the Dramshop Act provides limited no-fault liability ( Charles, 165 Ill.2d at 487, 209 Ill.Dec. 226, 651 N.E.2d 154) where a plaintiff can demonstrate that a patron was intoxicated as a result of liquor provided by a bar and the plaintiff suffered resulting injuries because of the patron's intoxication ( Bass v. Rothschild Liquor Stores, Inc., 88 Ill.App.2d 411, 414, 232 N.E.2d 19 (1967)). “The legislative intent of the Dramshop Act is to place responsibility for damages caused by the intoxication from the consumption of alcohol on those who profit from its sale.” Walter v. Carriage House Hotels, Ltd., 164 Ill.2d 80, 86–87, 207 Ill.Dec. 33, 646 N.E.2d 599 (1995). Courts have expanded on the explicit terms of the statute by creating the defenses of complicity ( Walter, 164 Ill.2d at 86, 207 Ill.Dec. 33, 646 N.E.2d 599) and provocation ( Werner v. Nebal, 377 Ill.App.3d 447, 456, 316 Ill.Dec. 89, 878 N.E.2d...