Ruth v. Benvenutti

• Decision Date: 06 May 1983
• Docket Number: No. 82-696,82-696
• Citation: 70 Ill.Dec. 335,449 N.E.2d 209,114 Ill.App.3d 404
• Parties: , 70 Ill.Dec. 335 Ricky RUTH, Plaintiff-Appellant, v. Dario BENVENUTTI, Individually and d/b/a Rusty Rail, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 209

449 N.E.2d 209

114 Ill.App.3d 404, 70 Ill.Dec. 335

Ricky RUTH, Plaintiff-Appellant, v. Dario BENVENUTTI, Individually and d/b/a Rusty Rail,

Defendant-Appellee.

No. 82-696.

Appellate Court of Illinois,

Third District.

May 6, 1983.

Curt N. Rodin, Anesi, Ozmon, Lewin & Associates, Ltd., Chicago, John A. Grivetti, Jr., Spring Valley, for plaintiff-appellant.

Dunn & Hayes, Bradley W. Hayes, Morris, for defendant-appellee.

ALLOY, Justice:

The plaintiff Ricky Ruth appeals from the dismissal of complaint, seeking compensatory damages for the defendant Dario Benvenutti's alleged willful, wanton, and intentional misconduct in serving him alcoholic beverages. The trial court dismissed Ruth's complaint, finding it insufficient at law to state a cause of action. Plaintiff Ruth's action was premised upon a common law action for willful and wanton misconduct, and not upon the Dram Shop Act. (Ill.Rev.Stat.1981, ch. 43, par. 94, et seq.) The question on appeal is whether in Illinois there is a common law cause of action for the willful, wanton and intentional misconduct of a tavern owner who sells intoxicating liquors to a minor, knowing him to be a minor and to be particularly susceptible to the effects of alcohol.

The facts are taken from the complaint, which, for purposes of the motion to dismiss, are to be taken as true. Near the end of August, 1981, Susan Wallace, mother of the plaintiff, went to the defendant's tavern, the Rusty Rail, and specifically requested that the defendant not serve any alcoholic liquors to her son, Ricky Ruth. Mrs. Wallace informed the defendant that her son was underage and that he had previously injured himself after being served drinks by the defendant. Several weeks later, on or about September 11, 1981, Ricky Ruth went to the Rusty Rail and the defendant served, sold or gave him alcoholic liquors. The complaint states that the defendant, at the time he served the plaintiff, knew him to be a minor, not of legal drinking age. It is also alleged that the defendant's actions in serving Ricky Ruth were in knowing disregard of his mother's request, and with the knowledge that Ricky was dangerous and unable to control himself when intoxicated. After being served at the Rusty Rail, an intoxicated Ricky Ruth severely injured himself in an auto accident when he lost control of his auto. His suit, premised upon a common law willful and wanton misconduct theory, was later filed. The trial court dismissed the complaint, finding it insufficient to state a cause of action.

On appeal, the plaintiff urges that a cause of action premised upon the willful and wanton misconduct of a tavern owner in serving liquor to a minor should be adopted in Illinois. This contention acknowledges that no such cause of action existed at common law (Cunningham v. Brown (1961), 22 Ill.2d 23, 28-29, 174 N.E.2d 153), nor has it been adopted by any Illinois court. In fact, it has been repeatedly held that the Dram Shop Act's imposition of liability on tavern owners and tavern keepers is the exclusive remedy against such defendants for injuries to person, property or means of support by an intoxicated person or in consequence of intoxication. (22 Ill.2d 23, 30-31, 174 N.E.2d 153; Knierim v. Izza (1961), 22 Ill.2d 73, 76-77, 174 N.E.2d 157; Shepherd v. Marsaglia (2d Dist.1961), 31 Ill.App.2d 379, 176 N.E.2d 473; Richardson v. Ansco (3d Dist.1979), 75 Ill.App.3d 731, 732, 31 Ill.Dec. 599, 394 N.E.2d 801; Miller v. Moran (4th Dist.1981), 96 Ill.App.3d 596, 598, 52 Ill.Dec. 183, 421 N.E.2d 1046.) In Knierim, relying upon Cunningham, the court found there was no common law action against a tavernkeeper for supplying intoxicating liquor to a person the supplier knows has no volition with regard to consuming the intoxicant. (22 Ill.2d 73, 77, 174 N.E.2d 157.) In Shepherd v. Marsaglia the plaintiff alleged in his complaint that the tavernowner negligently, willfully, wantonly and intentionally served him alcoholic beverages at a time when he was a minor and intoxicated, when the owner knew or should have known of his minority and his intoxicated state. Thus, the question there, as here, was whether a common law cause of action, premised upon a tavernkeepers willful and wanton misconduct, existed. The court concluded, based upon Cunningham, that no common law action of that kind was available to the plaintiff, and the dismissal of those counts of the complaint was affirmed. (31 Ill.App.2d 379, 382, 176 N.E.2d 473.) Shepherd is clear and controlling precedent for the trial court's dismissal of plaintiff's complaint in the instant case. In ...