Simmons v. Homatas, No. 2-08-0138.

• Court: United States Appellate Court of Illinois
• Writing for the Court: O'Malley
• Citation: 898 N.E.2d 1177
• Parties: Ryan T. SIMMONS, as Special Administrator of the Estate of April M. Simmons, Deceased, and as Special Administrator of the Estate of Addison Elizabeth Simmons, Deceased; and Gaetano Chiariello, as Special Administrator of the Estate of John Chiariello, Deceased, Plaintiffs-Appellees, v. John D. HOMATAS, Defendant (On Stage Productions, Inc., d/b/a Diamonds Gentlemens Club, Defendant-Appellant).
• Docket Number: No. 2-08-0138.
• Decision Date: 03 December 2008

898 N.E.2d 1177 Ryan T. SIMMONS, as Special Administrator of the Estate of April M. Simmons, Deceased, and as Special Administrator of the Estate of Addison Elizabeth Simmons, Deceased; and Gaetano Chiariello, as Special Administrator of the Estate of John Chiariello, Deceased, Plaintiffs-Appellees,
v.
John D. HOMATAS, Defendant (On Stage Productions, Inc., d/b/a Diamonds Gentlemens Club, Defendant-Appellant). No. 2-08-0138. Appellate Court of Illinois, Second District. December 3, 2008. Rehearing Denied January 5, 2009.

[898 N.E.2d 1178]

Matthew G. Burke, Heineke & Burke, LLC, Chicago, for On Stage Productions, Inc.

Craig S. Mielke, Foote, Meyers, Mielke & Flowers, LLC, Geneva, for Gaetano Chiariello and Estate of John A. Chiariello.

Robert L. Speers, Speers, Reuland & Cibulskis, P.C., Aurora, for Estate of Elizabeth

[898 N.E.2d 1179]

Simmons, Estate of April Simmons, and Ryan T. Simmons.

Joseph J. Wilson, Thomas P. Marnell & Associates, Chicago, for John D. Homatas.

Philip W. Domagalski, Kralovec & Marquard, Chtd., Chicago, for Deno Homatas.

Justice O'MALLEY delivered the opinion of the court:

In this appeal, we are called upon to answer questions certified by the circuit court of Kane County pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308). The questions arose after the trial court denied in part defendant's (On Stage Productions, Inc., d/b/a Diamonds Gentlemens Club (On Stage)) motions under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)) to dismiss the complaints of plaintiffs, Ryan T. Simmons (Simmons), as special administrator of the estates of his wife, April M. Simmons, and his unborn daughter, Addison Elizabeth Simmons, and Gaetano Chiariello (Chiariello), as special administrator of the estate of his son, John Chiariello (John). Plaintiffs' complaints alleged, among other things, that On Stage was negligent in requiring an obviously intoxicated defendant, John D. Homatas (not a party to this appeal), to leave its premises and to drive away in the car he arrived in, resulting in a collision that killed all of plaintiffs' decedents. The trial court determined that plaintiffs stated viable causes of action against On Stage sounding in negligence and partially denied On Stage's motions. The trial court certified questions regarding plaintiffs' negligence claims. We answer the questions affirmatively, finding viable negligence claims against On Stage on these pleadings.

The following summary is drawn from the allegations of plaintiffs' complaints. At all relevant times, On Stage operated a fully nude strip club, called Diamonds Gentlemens Club, at a location in unincorporated Du Page County. On Stage knew that most of its patrons would arrive and depart by car. Du Page County's liquor licensing is strictly regulated; adult entertainment clubs serving alcohol are prohibited from allowing fully nude dancing. Consequently, On Stage did not have a liquor license. Instead, On Stage encouraged its patrons to bring their own alcohol. Chiariello alleged that operating a "bring your own" establishment is an integral part of On Stage's business plan because the "intoxication of its patrons generates substantial direct and indirect revenue." Chiariello further alleged that (1) On Stage counted on the fact that less-inhibited patrons (due to alcohol consumption) would be more likely to tip the dancers, providing On Stage with indirect revenue; and (2) On Stage earned direct revenue by charging its patrons for the incidentals necessary to support alcohol consumption, like glasses, ice, soft drinks, soda water, tonic, and other mixers. In addition, On Stage prohibited its patrons from bringing their own mixers and from bringing lower-alcohol-content beverages, like beer and wine.

Chiariello alleged that On Stage's business plan was designed to exploit loopholes in liquor regulation, such as by avoiding otherwise required employee training about intoxication, and to avoid dramshop liability. Unlike a regulated tavern, On Stage's servers did not receive "Beverage Alcohol Sellers and Servers Education and Training." In addition, Chiariello alleged that On Stage "actually encourages its patrons to abuse the consumption of alcohol in order to increase [its] business revenue."

On January 4, 2006, at about 9 p.m., Homatas drove John to Diamonds. As required by On Stage, Homatas surrendered his car to the valet and paid a fee. The valet drove Homatas's car away. Homatas

898 N.E.2d 1180

and John knew that they were allowed to consume only hard liquor in the club; accordingly, they brought a fifth of rum and a fifth of vodka. Homatas and John were given a table and, for the next two hours, they drank vodka and rum. They purchased glasses, ice, and mixers from On Stage employees. Also during this two-hour period, Homatas and John purchased several private table dances from the dancers, in accord with On Stage's requirements.

During the two-hour period, Homatas and John drank their liquor and became visibly intoxicated. Rather than advising them to stop drinking, On Stage servers encouraged the two to pour themselves additional drinks and allowed them to purchase more ice and mixers. At about 11:10 p.m., Homatas was observed vomiting in the men's restroom. When On Stage employees discovered that Homatas was vomiting in the restroom, they ejected both Homatas and John from the club. On Stage employees directed its valet service to bring Homatas's car to the front door. On Stage employees placed Homatas in the driver's seat of the car and John in the passenger seat and directed Homatas to drive away from the premises.¹

At about 11:25 p.m., Homatas was spotted driving erratically on Route 25. His speed was estimated to be over 80 miles per hour. Homatas's car collided head-on, on the wrong side of the road, with a car driven by April Simmons, who was then 8½ months pregnant. As a result of the collision, John, April, and her unborn child were all killed. The collision occurred less than 10 miles from Diamonds.

On January 3, 2007, plaintiffs each filed a complaint. Each complaint included counts based on the Dramshop Act (235 ILCS 5/6-21 (West 2006)) and the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2006)). On May 4, 2007, On Stage filed its section 2-615 motions to dismiss the complaints. On November 8, 2007, the trial court granted On Stage's motions with respect to the Dramshop Act counts (Simmons complaint counts I, II, III, and IV; Chiariello complaint count II) but reserved ruling on the common-law negligence counts of each complaint. On December 21, 2007, the trial court ruled on the remaining counts, denying On Stage's motion to dismiss and finding that the complaints sufficiently stated claims against On Stage for negligence.

The trial court identified the issue it was considering as:

"whether a legal duty existed. Plaintiffs seek to hold [On Stage] liable for negligence under common law principles. [On Stage's section 2-615 motions to dismiss] claim[ ] that plaintiffs have failed to state a cause of action because [On Stage] owe[s] no common law duty to any of the plaintiffs. As previously decided by this [c]ourt, the Dram Shop Act [235 ILCS 5/6-21 (West 2006)] is not applicable because [On Stage] did not sell or give alcohol to Homatas. This [c]ourt recognizes that there is no common law cause of action against any provider of alcoholic beverages for injuries

898 N.E.2d 1181

arising out of the sale or gift of such beverages." (Emphasis in original.)

The court then considered the issue of duty, noting that, "`[u]nless a duty is owed, there is no negligence.' American National Bank & Trust Co. v. National Advertising Co., 149 Ill.2d 14, 26, 171 Ill. Dec. 461, 594 N.E.2d 313 (1992)." The court also noted that it must decide "whether defendant and plaintiff stand in such a relationship to one another that the law imposes on defendant an obligation of reasonable conduct for the benefit of plaintiff." In order to determine whether a duty exists, the court enumerated the factors to be considered: "the reasonable (1) foreseeability and (2) likelihood of injury, (3) the magnitude of the burden on defendant in guarding against injury and (4) the consequence of placing that burden on defendant."

Turning to the Chiariello complaint, the trial court determined that the special relationship of business invitor-invitee existed between On Stage and John. The trial court considered Osborne v. Stages Music Hall, Inc., 312 Ill.App.3d 141, 244 Ill.Dec. 753, 726 N.E.2d 728 (2000) (duty based on business invitor-invitee special relationship extended beyond the doors of the premises), Haupt v. Sharkey, 358 Ill.App.3d 212, 295 Ill.Dec. 47, 832 N.E.2d 198 (2005) (duty to protect patron against foreseeable criminal acts of third party extended beyond legal property line), and Harris v. Gower, Inc., 153 Ill.App.3d 1035, 106 Ill. Dec. 824, 506 N.E.2d 624 (1987) (tavern employees placed intoxicated-to-unconsciousness decedent in car, where he froze to death; court held that tavern had affirmative duty, apart from any issue of dramshop liability, not to place decedent in peril), and held that On Stage had a duty to John. The trial court reasoned:

"Based on the facts as plead[ed,] this duty arose to [John] as a business invitee, who was escorted by agents of [On Stage] to an automobile in [sic] which [On Stage] held the keys to and gave to an obviously intoxicated patron whose intoxication was in accordance with [On Stage's] business plan that its patrons become intoxicated in order to spend more money at its premise[s]. A reasonable finder of fact could foresee that [On Stage's] conduct could result in harm to [John]. Furthermore, based on Osborne, Haupt, and Shortall [v. Hawkeye's Bar and Grill, 283 Ill.App.3d 439, 219 Ill.Dec. 90, 670 N.E.2d 768 (1996),] such duty can go beyond [On Stage's] premises. Harris shows that it is not the fact that Homatas was intoxicated but...