Reynolds v. Cb Sports Bar Inc.

• Decision Date: 22 October 2010
• Docket Number: No. 09-3753.,09-3753.
• Citation: 623 F.3d 1143
• Parties: Loretta REYNOLDS, Plaintiff-Appellant, v. CB SPORTS BAR, INC. and Casey J. Carson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

623 F.3d 1143

Loretta REYNOLDS, Plaintiff-Appellant,

v.CB SPORTS BAR, INC. and Casey J. Carson, Defendants-Appellees.

No. 09-3753.

United States Court of Appeals,Seventh Circuit.

Argued April 14, 2010.

Decided Oct. 22, 2010.

Thomas J. Steece (argued), Oklahoma Legal Services, PLLC, Oklahoma City, OK, for Plaintiff-Appellant.

John P. Cunningham, Daniel G. Hasenstab (argued), Brown & James, P.C., Belleville, IL, Brenda L. Russell, Federal Correctional Institution, Waseca, MN, for Defendants-Appellees.

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Loretta Reynolds alleges that Brenda Russell and Casey Carson induced her to become intoxicated in a bar owned by CB Sports Bar, Inc., and attempted to take her back to their apartment “for sexual exploitation.” Reynolds managed to escape, but was injured when she was struck by a car. Reynolds sued Russell, Carson, and CB Sports for negligence and punitive damages. She alleged in her second amended complaint that CB Sports (through its bartenders) knew of Russell and Carson's plans but negligently failed to protect her from the attack. The district court dismissed the negligence count against CB Sports for failing to state a claim. Because we conclude that Reynolds's complaint is broad enough to encompass a viable theory of negligence against CB Sports, we reverse and remand.

I. Background

In her second amended complaint, Reynolds alleged that in October 2005 she went to Jerzey's Sports Bar in O'Fallon, Illinois. Jerzey's is owned by Appellee CB Sports Bar, Inc. After two beers, Reynolds left the bar to go back to her hotel, but discovered that her car would not start. She went back into the bar and asked the bartender for a phone book so that she could call for a taxi. The bartender told her that no taxis were available and that she would have to get a ride back to her hotel from someone in the bar.

Brenda Russell and Casey Carson approached Reynolds and offered to give her a ride to her hotel. Before they left the bar, however, Russell and Carson bought Reynolds several drinks “in an attempt to cause plaintiff to comply with their design to lure her to their apartment for sexual exploitation.” (R. at 16, p. 2.) Reynolds also alleged that Russell and Carson may have slipped some kind of drug into her drinks. Reynolds, Russell, and Carson left the bar together, and they all got into Russell and Carson's car. Reynolds realized at some point during the car ride that they were not driving toward her hotel and that Russell and Carson intended to rape her. Reynolds escaped from the car when Russell and Carson stopped to buy cigarettes. She attempted to walk back to her hotel, but because she was still extremely intoxicated, she wandered onto a nearby highway on-ramp and was struck by a car, suffering serious injuries.

As it relates to this appeal, the operative paragraph of her complaint is paragraph 19:

That Defendant Jerzey's at least knew or should have known that Defendants Russell and Carson were getting Plaintiff Loretta Reynolds intoxicated for the purpose of sexual exploitation. At worst, Defendant Jerzey's and its employ/agent bartender was an active accomplice in the attempt to ensnare Plaintiff Loretta Reynolds into an unsavory and unwelcome sexual situation.

( Id., p. 5.) She also alleged that CB Sports knew or should have known that she would have tried to escape and that CB Sports “had a duty to protect the welfare of its customers, including Plaintiff Loretta Reynolds from situations such as that being plotted by Defendants Russell and Carson.” ( Id.)

CB Sports moved to dismiss her negligence claim against it for failure to state a claim. The district court granted the motion, finding that CB Sports's duty to protect its business invitees did not extend “to such distances or circumstances as are involved in this case,” and that “there is no reason CB Sports could have reasonably foreseen that there was a danger that one of their patrons would be hit by a vehicle while escaping from criminal activity by another Jerzey's patron after leaving the bar-or any other harm of that general nature.” Reynolds v. CB Sports Bar, Inc., No. 07-cv-754, 2008 WL 4792704, at *5 (S.D.Ill. Oct.30, 2008).

While Reynolds's appeal of the district court's decision was pending in this court, she continued to press her claims against Russell and Carson. Reynolds eventually moved to dismiss Russell from the case. The district court later held an evidentiary hearing in October 2009 in which Reynolds provided a more detailed account of the events in question. Reynolds said that there were two bartenders, one male and one female, and that both refused to give her a phone book, telling her that there were no taxis available. She also said that she asked the bartenders about Russell and Carson. The bartenders allegedly told her that “they were fine. That they [the bartenders] knew them. That they were regulars and that they would be okay.” (R. at 65, p. 11.) She eventually obtained a default judgment against Carson for $1.5 million. In this appeal we address only the district court's granting of CB Sports's motion to dismiss.

II. Analysis

A. Standard of Review

We review the grant of a motion to dismiss for failure to state a claim de novo. Reger Dev. LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir.), cert. denied, --- U.S. ----, 130 S.Ct. 3507, 177 L.Ed.2d 1092 (2010). “[E]valuating the sufficiency of the complaint, we construe it in the light most favorable to the nonmoving party, accept well-pleaded facts as true, and draw all inferences in her favor.” Id. To survive a motion to dismiss, the plaintiff must do more than simply recite elements of a claim; the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ( quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The plaintiff need not, however, plead “detailed factual allegations.” Id.

B. Dramshop Act

At the outset, we note that CB Sports cannot be held liable for Reynolds's injuries based on it having provided her with alcohol. The Illinois Dramshop Act is the exclusive remedy for injuries resulting from a bar's provision of alcohol, 235 ILCS 5/6-21; Simmons v. Homatas, 236 Ill.2d 459, 338 Ill.Dec. 883, 925 N.E.2d 1089, 1095 (2010), and the Act does not provide a cause of action for injuries sustained by the intoxicated person himself, 235 ILCS 5/6-21. That being said, Reynolds failed to bring any action under the Dramshop Act within one year of being injured, so any claim she might have had under the Act is time-barred. See id.

The Dramshop Act, however, does not give a bar complete immunity from being sued for tortious conduct; the Act only preempts actions based on the provision of alcohol. A plaintiff may still bring a cause of action against a bar for acts that are independent of serving alcohol. Simmons, 338 Ill.Dec. 883, 925 N.E.2d at 1097-98; Harris v. Gower, Inc., 153 Ill.App.3d 1035, 106 Ill.Dec. 824, 506 N.E.2d 624, 626 (1987). Therefore, although CB Sports's liability here cannot be premised on its having served Reynolds (or any other patron) alcohol, it may still be liable if Reynolds has adequately stated a claim against CB Sports for some other negligent conduct.

C. Supplemental Facts

The first issue that we must resolve is whether Reynolds may supplement her complaint on appeal with facts that she did not include in her complaint. Of note is her testimony at the evidentiary hearing held after the district court had already dismissed her complaint against CB Sports, in which she testified that the bartenders vouched for Russell and Carson. For the reasons discussed in more detail below, this question is crucial to the outcome of her appeal.

Prior to Iqbal and Twombly, it was clear that “a plaintiff [was] free on appeal to give us an unsubstantiated version of the events, provided it is consistent with the complaint, to show that the complaint should not have been dismissed.” Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir.1992) (internal quotation marks and alteration omitted). The question now is whether Iqbal and Twombly narrowed the pleading standard such that this after- the-fact hypothesis of facts is no longer permissible.

We conclude that the Supreme Court's recent decisions, while raising the bar for what must be included in the complaint in the first instance, did not eliminate the plaintiff's opportunity to suggest facts outside the pleading, including on appeal, showing that a complaint should not be dismissed. See Twombly, 550 U.S. at 563, 127 S.Ct. 1955 (“[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.”); McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 n. 4 (Fed.Cir.2007). Therefore, although the plaintiff is required to plead more than bare legal conclusions to survive a motion to dismiss, once the plaintiff pleads sufficient factual material to state a plausible claim-that is, sufficient to put the defendant on notice of a plausible claim against it-nothing in Iqbal or Twombly precludes the plaintiff from later suggesting to the court a set of facts, consistent with the well-pleaded complaint, that shows that the complaint should not be dismissed.

With this background in mind, we turn to Reynolds's complaint. In relevant part, Reynolds alleged in her second amended complaint that the bartender refused to help her get a taxicab and told her she would have to get a ride back to her hotel from another patron. She also alleged that the bartender assisted Russell and Carson in getting Reynolds intoxicated knowing their ill intentions. In Count 2 of her second amended complaint, Reynolds alleges that CB Sports “at least knew or should have known that D...