Puckett v. Mr. Lucky's Ltd.

• Decision Date: 13 October 1988
• Docket Number: No. 4-87-0806,4-87-0806
• Citation: 125 Ill.Dec. 93,175 Ill.App.3d 355,529 N.E.2d 1169
• Parties: , 125 Ill.Dec. 93 Dianna Lynn PUCKETT, Guardian of the Estate of Charles T. Puckett, a Disabled Person, Plaintiff-Appellant, v. MR. LUCKY'S LTD., A Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1169

529 N.E.2d 1169

175 Ill.App.3d 355, 125 Ill.Dec. 93

Dianna Lynn PUCKETT, Guardian of the Estate of Charles T Puckett, a Disabled Person, Plaintiff-Appellant, v. MR. LUCKY'S LTD., A Corporation, Defendant-Appellee.

No. 4-87-0806.

Appellate Court of Illinois Fourth District.

Oct. 13, 1988.

Burger, Fombelle, Baxter, Zachry & Rathbun, P.C., Decatur, James E. Zachry, for plaintiff-appellant.

Heyl, Royster, Voelker & Allen, Springfield, for defendant-appellee.

Justice LUND delivered the opinion of the court:

The plaintiff guardian brought an action in the circuit court of Macon County against the defendant tavern alleging defendant negligently hired an unfit person to sell liquor. Defendant's employee sold liquor to a minor who then operated an automobile while intoxicated and injured plaintiff's ward. The trial court granted defendant's motion to dismiss plaintiff's complaint for failure to state a cause of action. Plaintiff appeals. We affirm.

Plaintiff Dianna Lynn Puckett is guardian of the estate of Charles T. Puckett (Charles, Jr.), a minor and disabled person. On April 14, 1987, plaintiff filed a complaint against defendant, Mr. Lucky's Ltd., alleging defendant negligently hired Charles William Puckett (Charles, Sr.) to sell liquor at defendant's tavern-liquor store. The complaint contained the following allegations:

Charles, Sr., is the father of Charles, Jr. Charles, Sr., formerly operated a package liquor store known as the Library Lounge and had on many occasions been known to sell, and had been convicted of selling, alcoholic beverages to minors.

On April 17, 1987, in the City of Decatur, Illinois, Charles, Jr., was a passenger in an automobile also occupied by Timothy Banks and driven by Bryon Martin. Charles, Sr., while acting as defendant's agent, sold or gave beer to the three minors. The trio consumed beer and Martin, while intoxicated, drove the automobile at a speed of 85 [175 Ill.App.3d 357] to 100 miles per hour and hit a tree. Charles, Jr., was injured.

Defendant filed a motion to dismiss plaintiff's complaint for failure to state a cause of action. Defendant argued there is no common law right to recover against a tavern for giving away or selling intoxicating liquor. The sole remedy is in the Illinois Dramshop Act (Act) (Ill.Rev.Stat., 1986 Supp., ch. 43, par. 135).

Plaintiff filed a motion requesting the court to take judicial notice of State records containing the statistics on alcohol-related fatal accidents and the consequences of raising the legal minimum drinking age in Illinois.

The trial court refused to take notice of the State records, granted defendant's motion, and dismissed plaintiff's complaint with prejudice.

On appeal, plaintiff concedes Illinois does not recognize actions grounded in common law negligence against liquor providers and the Act provides the sole remedy to third persons injured by intoxicated persons. However, plaintiff argues the lack of common law precedent for dramshop liability has needlessly paralyzed the Illinois courts. Plaintiff urges this court to carve out an exception to the common law rule of nonliability so that a dramshop is potentially liable if it sells liquor to a minor who, as a result of his intoxication, causes injury to a third party.

We recognize that there may well be validity to the position of the plaintiff. It may be that statistics justify making all those who furnish alcoholic beverages to minors financially responsible for the injuries resulting from the alcohol use. However, we feel bound by the decisions of our supreme court which have long limited liability relating to furnishing alcohol to the coverage of the Illinois Dramshop Act. Cunningham v. Brown (1961), 22 Ill.2d 23, 28-29, 174 N.E.2d 153, 157; see also Hopkins v. Powers (1986), 113 Ill.2d 206, 100 Ill.Dec. 579, 497 N.E.2d 757; Wimmer v. Koenigseder (1985), 108 Ill.2d 435, 92 Ill.Dec. 233, 484 N.E.2d 1088; Demchuk v. Duplancich (1982), 92 Ill.2d 1, 64 Ill.Dec. 560, 440 N.E.2d 112; Graham v. General U.S. Grant Post (1969), 43 Ill.2d 1, 248 N.E.2d 657; Ruth v. Benvenutti (1983), 114 Ill.App.3d 404, 70 Ill.Dec. 335, 449 N.E.2d 209; Gora v. 7-11 Food Stores (1982), 109 Ill.App.3d 109, 64 Ill.Dec. 727, 440 N.E.2d 279.

In Miller v. Moran (1981), 96 Ill.App.3d 596, 598, 52 Ill.Dec. 183, 186, 421 N.E.2d 1046, 1049, our court refused to create a common law cause of action against a social host who wilfully and wantonly served liquor to a guest, holding the Dramshop Act was the exclusive source of liability.

We are requested to change the law, but we find that such a decision is best left to the supreme court or the legislature. A supreme court decision would be binding upon all of the State, not just the 30 counties of the Fourth Judicial District. Needless to say, the possible conflicts among the appellate districts on this particular subject could lead to a certain amount of economic and social havoc. The decision of the circuit court of Macon County is affirmed.

AFFIRMED.

GREEN, P.J., concurs.

KNECHT, J., dissents.

Justice KNECHT, dissenting:

The majority believes the change requested by plaintiff should be left to the supreme court or the legislature. Their respect for precedent and the role of an intermediate court of review is understandable, but I respectfully disagree with their conclusion.

The landmark Illinois Supreme Court decision of Cunningham v. Brown (1961), 22 Ill.2d 23, 174 N.E.2d 153, followed the common law precedent which declared the seller of alcohol exempt from liability for damages to a third party caused by intoxication. The Cunningham court refused to recognize a common law remedy when the legislature had already provided a statutory remedy grounded in strict liability. (Ill.Rev.Stat.1957, ch. 43, par. 135.) Thus, since Cunningham was decided in 1961, the dramshop act has been the exclusive remedy under the Liquor Control Act of 1934 (Liquor Control Act) (Ill.Rev.Stat.1987, ch. 43, par. 93.9 et seq.) available to victims of drunk drivers. Hopkins v. Powers (1986), 113 Ill.2d 206, 100 Ill.Dec. 579, 497 N.E.2d 757; Wimmer v. Koenigseder (1985), 108 Ill.2d 435, 92 Ill.Dec. 233, 484 N.E.2d 1088; Demchuk v. Duplancich (1982), 92 Ill.2d 1, 64 Ill.Dec. 560, 440 N.E.2d 112; Graham v. General U.S. Grant Post (1969), 43 Ill.2d 1, 248 N.E.2d 657; Ruth v. Benvenutti (1983), 114 Ill.App.3d 404, 70 Ill.Dec. 335, 449 N.E.2d 209; Gora v. 7-11 Food Stores (1982), 109 Ill.App.3d 109, 64 Ill.Dec. 727, 440 N.E.2d 279.

None of the supreme court decisions, including Cunningham, have considered the possibility of carving out a limited exception to the common law rule when a third party is injured because alcohol was sold to a minor. Plaintiff's petition alleged her ward was injured in an automobile accident because defendant negligently hired an employee who sold liquor to a minor. Whether the petition was properly dismissed for failure to state a cause of action depends on whether we recognize the limited exception.

The Illinois Supreme Court initiated the evolution of the common law when it recognized contribution among joint tortfeasors (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, cert. denied sub nom. Hinckley Plastic, Inc. v. Reed-Prentice Division Package Machinery Co. (1978), 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787) and when it replaced the doctrine of contributory negligence with that of pure comparative negligence. (Alvis v. Ribar (1981), 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886.) In Alvis the court held:

"We believe that the proper relationship between the legislature and the court is one of cooperation and assistance in examining and changing the common law to conform with the ever-changing demands of the community. There are, however, times when there exists a mutual state of inaction in which the court awaits action by the legislature and the legislature awaits guidance from the court. Such a stalemate is a manifest injustice to the public. When such a stalemate exists and the legislature has, for whatever reason, failed to act to remedy a gap in the common law that results in injustice, it is the imperative duty of the court to repair that injustice and reform the law to be responsive to the demands of society." Alvis, 85 Ill.2d at 23, 52 Ill.Dec. at 33, 421 N.E.2d at 896.

Illinois courts should declare that dramshop owners are potentially liable for common law negligence if they breach their duty of care to the public. Illinois should follow the national trend and abolish the common law rule which protects liquor vendors who illegally sell intoxicants to minors.

We should adopt the holding of the Wisconsin Supreme Court in Sorensen v. Jarvis (1984), 119 Wis.2d 627, 350 N.W.2d 108. Wisconsin, although lacking a dramshop statute, has recently abrogated the common law rule of nonliability of liquor vendors when the purchaser is a minor. Sorensen held:

"[A] vendor who negligently supplies intoxicating beverages to a minor and the intoxicants so furnished cause the minor to be intoxicated or cause the minor's driving ability to be impaired shall be liable to third persons in the proportion that the negligence in selling the beverage was a substantial factor in causing the accident or injuries as determined under the rules of comparative negligence." (Sorensen, 119 Wis.2d at 646, 350 N.W.2d at 118.)

To establish a prima facie case of negligence, however, the plaintiff's allegations must establish (1) the existence of a duty of care owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) injury to plaintiff (4) proximately resulting from the breach. Curtis v. County of Cook (1983), 98 Ill.2d 158, 74 Ill.Dec. 614, 456 N.E.2d 116.

The existence of a duty is a question of law to be determined by the court. (Curtis, 98 Ill.2d 158, 74 Ill.Dec. 614, 456 N.E.2d 116.) There should be a duty of care owed by a liquor vendor to minors and...