Simmons v. John D. Homatas (on Stage Prod.S Inc

Citation925 N.E.2d 1089,236 Ill.2d 459,338 Ill.Dec. 883
Decision Date18 March 2010
Docket NumberNo. 108108.,108108.
PartiesRyan T. SIMMONS et al., Appellees,v.John D. HOMATAS et al. (On Stage Productions, Inc., Appellant).
CourtSupreme Court of Illinois

236 Ill.2d 459
925 N.E.2d 1089
338 Ill.Dec.
883

Ryan T. SIMMONS et al., Appellees,
v.
John D. HOMATAS et al. (On Stage Productions, Inc., Appellant).

No. 108108.

Supreme Court of Illinois.

March 18, 2010.


925 N.E.2d 1090

COPYRIGHT MATERIAL OMITTED

925 N.E.2d 1091
Matthew G. Burke, Christian Chenoweth and James J. Koptik, of Heineke & Burke, LLC, Chicago, for appellant.

Robert L. Speers, Timothy J. Reuland and Julie L. Cibulskis, of Speers, Reuland & Cibulskis, P.C., Aurora, for appellee Ryan T. Simmons.

Ted A. Meyers and Craig S. Mielke, of Foote, Meyers, Mielke & Flowers, LLC, St. Charles, for appellee Gaetano Chiariello.
OPINION
Justice GARMAN delivered the judgment of the court, with opinion.

The separate plaintiffs in this case are special administrators of the estates of the decedents, who were fatally injured in an automobile collision. Plaintiffs allege that defendant, On Stage Productions, Inc., operator of a strip club, negligently encouraged a patron to consume alcoholic beverages until he became intoxicated and then required him to drive off the premises, which resulted in the collision that killed plaintiffs' decedents. Defendant On Stage filed a motion to dismiss all claims, which was denied by the circuit court of Kane County. The circuit court did, however, certify two questions for interlocutory appeal. The court sought guidance as to

925 N.E.2d 1092
whether defendant owed a duty of care to each plaintiff. The appellate court answered both questions in the affirmative. 386 Ill.App.3d 998, 325 Ill.Dec. 898, 898 N.E.2d 1177. Defendant On Stage then appealed to this court. We are asked now to determine whether On Stage owed a duty to the decedents based on its actions the night of the collision.
BACKGROUND

No factual findings have been made in the circuit court in this case, as it arises from questions certified on denial of a motion to dismiss. Therefore, the following summary of facts is drawn from the allegations contained within plaintiffs' complaints.

Around 9 p.m. on January 4, 2006, John Homatas and John Chiariello arrived at Diamonds Gentlemens Club (Diamonds or the club), which is operated by defendant On Stage Productions, Inc. On Stage operates Diamonds as a fully nude strip club. The club is located in Du Page County, which prohibits clubs featuring nude dancing from receiving a license to serve alcohol. As a result, Diamonds does not serve alcohol to its patrons. However, it does allow patrons to bring their own alcohol. Diamonds also sells glasses, ice, soft drinks and other mixers for making alcoholic drinks.

When Homatas and Chiariello arrived at the club, Homatas had been driving. Homatas left his vehicle with the club's valet service, as the club requires. Homatas and Chiariello then went inside. The two men had brought with them a fifth of rum and a fifth of vodka. Over the course of the next two hours, the two men poured several drinks. They purchased mixers, glasses and ice from the club. Homatas became visibly intoxicated and around 11 p.m. was found by Diamonds' employees to be vomiting in the restroom. The employees immediately ejected Homatas and Chiariello from the club. They also instructed the valet service to start Homatas's car and bring it to the front door. When the car arrived, employees opened the driver-side front door and directed Homatas to leave the premises.

Approximately 15 minutes later, Homatas collided with a vehicle driven by April Simmons. The collision resulted in the deaths of Chiariello, Simmons, and Simmons' unborn daughter, Addison Elizabeth Simmons. Homatas was injured, but has since recovered from those injuries.

Representatives of the decedents' estates then brought suit, alleging both common law negligence and liability under the Dramshop Act (235 ILCS 5/ 6-21 (West 2008)). Chiariello's estate is represented by his father, plaintiff Gaetano Chiariello. April's and Addison's estates are represented by April's husband and Addison's father, plaintiff Ryan Simmons.

The Simmons complaint contains six counts. Counts I through IV allege statutory liability under the Dramshop Act for property damage and loss of society for each of Simmons's decedents. Counts IV and V allege common law claims for wrongful death of April and Addison. The Chiariello complaint contains two counts. It alleges common law wrongful death in count I and alleges a statutory Dramshop Act claim for property damage and loss of society in count II.

On Stage moved to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2008)), asserting that both plaintiffs' complaints fail to state a cause of action upon which relief can be granted. First, On Stage argued that the Dramshop Act is the sole remedy for actions involving liability from alcohol-related injuries, thereby precluding plaintiffs' common law claims. Second, On Stage

925 N.E.2d 1093
argued that because the Dramshop Act applies only to businesses engaged in the sale or gift of alcohol, the Dramshop Act does not extend liability to On Stage as a result of its policy of not selling or serving alcohol to its patrons.

The circuit court granted, in part, On Stage's motion to dismiss. The court concluded that the Dramshop Act did not apply to the club because it did not sell or give alcohol to its patrons. It also recognized that there is no common law cause of action against a provider of alcoholic beverages for injuries arising out of the sale or gift of such beverages. However, the court allowed plaintiffs' remaining common law counts to proceed after considering whether On Stage nonetheless otherwise owed a duty to plaintiffs. Regarding the Chiariello plaintiff, the court found that a duty existed as a result of a business invitor-invitee relationship between On Stage and Chiariello. Regarding the Simmons plaintiff, the court concluded that although there was no special relationship between Homatas and Simmons, a duty may exist when the defendant's affirmative conduct creates or contributes to the risk of harm. After considering the foreseeability and likelihood of injury, and the magnitude and consequences of imposing a burden guarding against the risk, the circuit court concluded that On Stage also owed a duty to Simmons.

As part of its order denying On Stage's motion to dismiss plaintiffs' common law claims, the circuit court identified this issue as a question of law suitable for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308(a)). After receiving suggested questions of law from the parties, the circuit court entered an order certifying two questions. First, as to Chiariello:

“Whether the defendant, Diamonds, a business operator who is not subject to the Dram Shop Act [ sic] (because it does not sell or serve alcoholic beverages upon its premises), owed a duty of unreasonable risk of harm to a business invitee Chiariello, who shortly after leaving the defendant's place of business, was killed in a motor vehicle accident on a public highway, due to the negligent operation of a motor vehicle, driven by Homatas, who within a short period of time prior to the aforesaid motor vehicle collision, was also an invitee of defendant's place of business under the following circumstances:
• where defendant's valet service took control of Homatas's vehicle upon his entering defendant's place of business;
• where defendant as part of its business plan encouraged its invitee Homatas to bring and consume alcoholic beverages to and beyond the point of intoxication upon its premises;
• thereafter removed its invitee Homatas from its premises due to his intoxication;
• ordered and assisted the invitee Homatas into the driver seat of his vehicle;
ordered invitee Chiariello off the premises and into the intoxicated Homatas's vehicle;
• allowed said intoxicated invitee Homatas to drive the vehicle away from the premises and onto the public highway;
• where defendant was aware that its business invitee Chiariello was a passenger in said vehicle and the driver invitee Homatas had a level of intoxication which was obvious enough that a reasonable person would have determined that he was unable to operate a motor vehicle[.]”

Then, as to Simmons:

925 N.E.2d 1094
“Whether the defendant, Diamonds, a business operator who is not subject to the Dram Shop Act [ sic] (because it does not sell or serve alcoholic beverages upon its premises), has a duty of ordinary care to the Simmons Plaintiffs, who while motoring on a public highway, were killed due to the negligent operation of a motor vehicle driven by Homatas, who within a short period of time prior to the aforesaid motor vehicle collision, was an invitee of defendant's place of business under the following circumstances:
• where defendant's valet service took control of Homatas's vehicle upon his entering defendant's place of business;
• encouraged its invitee Homatas to bring alcoholic beverages onto its premises in order consume to the point of intoxication;
• thereafter removed its invitee Homatas from the premises because of his intoxication;
• ordered and assisted the invitee Homatas into the driver seat of his vehicle;
• then after controlling its invitee's automobile while he was on its premises, relinquished said automobile into the hands of its invitee Homatas
• while defendant knew or should have known that due to Homatas's intoxication he was unable to operate a motor vehicle;
• then allowed said Homatas to drive the vehicle away from the premises onto the public highway[.]”

On Stage appealed the order certifying the above questions. The appellate court allowed the appeal. In reviewing the case, the court asked the parties to file supplemental briefs on whether section 876 of the Restatement (Second) of Torts provides a basis upon which it could find a duty existed. Section 876 addresses the liability of a defendant for harm resulting to a third person from the tortious conduct of another. In its published decision, the court concluded...

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