Parsons v. Veterans of Foreign Wars Post 6372

• Decision Date: 18 July 1980
• Docket Number: No. 79-532,79-532
• Citation: 86 Ill.App.3d 515,41 Ill.Dec. 722,408 N.E.2d 68
• Parties: , 41 Ill.Dec. 722 Margaret PARSONS, Administrator of the Estate of Edgar D. Parsons, Deceased, for the Benefit of Margaret Parsons, Plaintiff-Appellant, v. VETERANS OF FOREIGN WARS POST 6372, Paul Twardoski, William Hannigan, and "Unknown Owners," Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 68

408 N.E.2d 68

86 Ill.App.3d 515, 41 Ill.Dec. 722

Margaret PARSONS, Administrator of the Estate of Edgar D.

Parsons, Deceased, for the Benefit of Margaret

Parsons, Plaintiff-Appellant, v. VETERANS OF FOREIGN WARS POST 6372, Paul Twardoski, William

Hannigan, and "Unknown Owners," Defendants-Appellees.

No. 79-532.

Appellate Court of Illinois, Fifth District.

July 18, 1980.

Don Cary Collins, Kaucher, Collins & Ligman, Belleville, for plaintiff-appellant.

Del A. Goldenhersh, Goldenhersh & Goldenhersh, Belleville, for defendants-appellees.

SPOMER, Justice:

Plaintiff seeks to recover for loss of means of support resulting from the death of her husband under the Dram Shop Act (Ill.Rev.Stat.1977, ch. 43, par. 135). The jury rendered a verdict for defendants, judgment was entered thereon, and plaintiff's post-trial motion was denied. Plaintiff appeals, contending that the trial court committed reversible error in allowing defendants' tendered IPI Instruction No. 150.17. The sole issue is whether this instruction accurately reflects the concept of "complicity," as defined by the supreme court in Nelson v. Araiza (1977), 69 Ill.2d 534, 372 N.E.2d 637, 14 Ill.Dec. 441.

The record reveals that on July 5, 1974, Edgar Parsons and his wife Margaret were riding about St. Clair County on a motorcycle, with Edgar driving. At about 3 p. m. the Parsons stopped at Veterans of Foreign Wars Post 6372 (defendant herein), when Edgar noticed a friend was there. The Parsons sat at a table with the friend, Lloyd Goodfellow, and both Edgar and Margaret ordered bottles of beer. For the next one and one-half to two hours the three sat together, during which time Edgar drank six or seven 12-ounce beers. Margaret drank about the same amount and got all of the beer from the bar for Edgar and Goodfellow, who took turns paying. After about two hours, a number of other people joined the three.

By 5 p. m. Margaret could tell that Edgar was becoming intoxicated. She asked him to take the motorcycle home and return with the car, but he refused. At about 6 o'clock she asked him again, and again he refused. During the period from 5 to 7:30, Edgar drank eight or nine more beers, served by Margaret.

At about 7:30 Edgar, obviously drunk, decided to leave on the motorcycle. When he attempted to mount the cycle, it fell over twice, and Edgar was helped by two other patrons of the bar. They attempted to convince him to stay, but he drove off. Margaret testified that she knew at this point that Edgar "had no business" getting on the motorcycle.

A couple of miles from the VFW, some other motorcyclists saw Edgar in the ditch with his bike. They helped him up; but as he then passed them, he lost control of the motorcycle and fell. As a result of his injuries, he spent several months in a coma and died.

At the trial, Margaret Parsons sought to recover from the VFW for loss of means of support in consequence of the death of her husband, which resulted from his intoxication. The jury was given the following instruction on "complicity," which follows Illinois Pattern Instruction 150.17: ¹

"If you find that the plaintiff did any of the following things then the plaintiff cannot recover damages in this case from Veterans of Foreign Wars Post 6372:

Willingly encouraged the drinking which caused the intoxication of Edgar Parsons.

Voluntarily participated to a material and substantial extent in the drinking which led to the intoxication of Edgar Parsons. The law does not state what is participation to a material and substantial extent. This is for you to decide."

It is defendant's assertion that since Nelson v. Araiza (1977), 69 Ill.2d 534, 372 N.E.2d 637, 14 Ill.Dec. 441, IPI 150.17 no longer accurately states the law. In Nelson the plaintiff and her girlfriend saw Theodore Araiza, an acquaintance, at a bar. The women accepted a beer from Araiza and then joined other friends at a table. Plaintiff noticed Araiza drinking at the bar and behaving boisterously. At 10 p. m. Araiza insisted on giving plaintiff and her girlfriend a ride to the home of friends. Plaintiff initially declined the ride, but then accepted to avoid a "hassle."

On the way to the friend's house, Araiza bought four six-packs of beer. The three then spent several hours at the friend's house, where plaintiff had one or two cans of beer, and Araiza drank eight more beers. At 2 a. m., as plaintiff and her friend were leaving, Araiza insisted that the friend go out with him. She agreed if plaintiff would also accompany them. Plaintiff agreed, on condition that she drive the car. She then drove about twenty blocks to a restaurant, went inside to get food, and when she returned to the car, Araiza was seated in the driver's seat. He drove off with plaintiff in the back seat, and an accident occurred a few blocks away.

At the close of plaintiff's case at trial, the defendant tavern owners moved for a directed verdict based on the affirmative defense of complicity. The circuit court directed a verdict for defendants, the appellate court reversed and remanded for a new trial, and the supreme court affirmed the appellate court.

The supreme court noted that the Dram Shop Act imposes no-fault liability and that complicity, which interdicts recovery under the Act, is of judicial origin. (Nelson, 372 N.E.2d at 638, 14 Ill.Dec. at 442.) Complicity is based "on the premise that one who is guilty of complicity in the inebriate's intoxication should not be allowed to succeed." (Nelson, 372 N.E.2d at 638, 639, 14 Ill.Dec. at 442-443.) Since recovery under the Dram Shop Act is not predicated on negligence, contributory negligence is not an issue. Complicity does not relate to the plaintiff's role in causing his own injury or loss, but only to the plaintiff's role in causing the inebriate's intoxication (Nelson, 372 N.E.2d at 639, 14 Ill.Dec. at 443); and because of the confusion of many courts in applying this doctrine, a mass of inconsistent cases has been generated. Complicity cannot be based upon a variant of the inapplicable contributory negligence concept; nor upon an "assumption of risk" theory; nor upon a theory that plaintiff contributed to his injury by provoking the inebriate to attack him. (Nelson, 372 N.E.2d at 640-641, 14 Ill.Dec. at 444-445.) The only relevant issue is whether the plaintiff contributed to the inebriate's intoxication.

The court then stated the following rule of complicity: "only one who actively contributes to or procures the intoxication of the inebriate is precluded from recovery." (Nelson, 372 N.E.2d at 641, 14 Ill.Dec. at 445.) Where the evidence is insufficient to establish complicity as a matter of law, the issue is one of fact for the jury. (372 N.E.2d at 641, 14 Ill.Dec. at 445.) The Nelson court concluded that, since the plaintiff's role in contributing to Araiza's intoxication was a controverted issue, especially since plaintiff may have been an unwilling companion of Araiza, the trial court could not enter a directed verdict based on complicity, and the issue was one for the jury.

Supreme Court Rule 239(a) (Ill.Rev.Stat.1979, ch. 110A, par. 239(a)) provides that whenever Illinois Pattern Jury Instructions contains an instruction applicable in a civil case, and the jury should be instructed on the subject, the pattern instruction shall be used, unless the court determines that it does not accurately state the law. The plaintiff contends that IPI No. 150.17 does not contain an accurate statement of the law of complicity in view of the holding in Nelson, and therefore the trial court erred in allowing it. We disagree.

We do not believe that Nelson is inconsistent with this instruction. The instruction raises complicity where the plaintiff either caused the intoxication, encouraged the drinking which caused the intoxication, or participated to a material and substantial extent in the drinking which led to the intoxication of the inebriate. One may reasonably conclude that a plaintiff who does any of these acts has "contributed to or procured" the inebriate's intoxication.

The Nelson opinion does not redefine the doctrine of complicity, but reasserts the forgotten premise of the doctrine "that recovery should be denied a plaintiff responsible for the inebriate's intoxication." (372 N.E.2d at 640, 14 Ill.Dec. at 444.) Pattern Instruction 150.17 reflects this premise. First of all, the doctrine relies upon an active contribution to or procurement of the inebriate's intoxication. The plaintiff contends that complicity should apply only to plaintiffs who furnished the liquors or a part thereof that caused the inebriate's intoxication. Although plaintiff did not tender it, she argues that a complicity instruction proposed by David Alswang, author of chapter 3 of Pleadings in Dram Shop Cases in the recent edition of the Illinois Dram Shop Act Practice Book published by The Illinois Institute for Continuing Legal Education, would have been proper, rather than IPI No. 150.17. The statute provides that no party may raise on appeal the failure to give an instruction unless he shall have tendered it (Ill.Rev.Stat.1977, ch. 110A, par. 366(b)(2)(i)), and we could consider this issue waived (People v. Damen (1963), 28 Ill.2d 464, 469, 193 N.E.2d 25). However, we choose to consider the merits of plaintiff's argument. This proposed instruction defines complicity as "willingly causing the intoxication of the intoxicant by furnishing him the liquors or a part thereof that caused his intoxication." However, Nelson makes no requirement that the plaintiff physically provide liquor for the inebriate; it requires only that he contribute to the inebriate's intoxication. Thus, one who provides liquor which does not significantly contribute to intoxication may not be attributed with complicity, whereas one who has encouraged drinking or provided significant companionship in drinking which causes intoxication, may be, regardless of whether that person has actually supplied...