Stevens v. Lou's Lemon Tree, Ltd., Nos. 1-88-0963

CourtUnited States Appellate Court of Illinois
Writing for the CourtHARTMAN
Citation135 Ill.Dec. 58,187 Ill.App.3d 458,543 N.E.2d 293
Parties, 135 Ill.Dec. 58 Joseph STEVENS, Administrator of the Estate of Ingrid Stefanski, deceased, and Alexander Stefanski, Individually, Plaintiffs-Appellants, v. LOU'S LEMON TREE, LTD., a corporation, and Daniel Delich, an individual, Defendants-Appellees, and Vernell Ayers, Jr., an individual, Defendant.
Decision Date15 August 1989
Docket NumberNos. 1-88-0963,1-88-2206

Page 293

543 N.E.2d 293
187 Ill.App.3d 458, 135 Ill.Dec. 58
Joseph STEVENS, Administrator of the Estate of Ingrid
Stefanski, deceased, and Alexander Stefanski,
Individually, Plaintiffs-Appellants,
v.
LOU'S LEMON TREE, LTD., a corporation, and Daniel Delich, an
individual, Defendants-Appellees,
and
Vernell Ayers, Jr., an individual, Defendant.
Nos. 1-88-0963, 1-88-2206.
Appellate Court of Illinois,
First District, Second Division.
Aug. 15, 1989.

Page 295

[187 Ill.App.3d 460] [135 Ill.Dec. 60] George M. Elsener & Associates, Chicago (George M. Elsener and James N. Karahalios, of counsel), for plaintiffs-appellants.

Law Offices of Sherwin Greenberg, Chicago (Michael F. Burns, of counsel), for defendants-appellees.

Justice HARTMAN delivered the opinion of the court:

Upon two successive defense motions, the circuit court dismissed counts IV and V of plaintiffs' second amended complaint, and counts II and III of plaintiffs' third amended complaint, for failure to state causes of action. By these consolidated appeals, plaintiffs seek recognition of a common law dram-shop action and, alternatively, a finding that the Liquor Control Act of 1934 (Ill.Rev.Stat.1987, ch. 43, pars. 94, 135) (Act) is unconstitutional insofar as it denies recovery for loss of consortium damages, and places a cap upon the amount of damages [187 Ill.App.3d 461] recoverable.

On February 7, 1986, plaintiffs Joseph Stevens, as administrator of the estate of Ingrid Stefanski (Ingrid) and Alexander Stefanski (Alexander), individually, filed a complaint against Vernell Ayers, Jr. (Ayers). In count I, plaintiffs alleged that on January 1, 1986, Ayers negligently struck and killed Ingrid with an automobile as she crossed Burley Street in Chicago. Plaintiffs' second amended complaint named as defendants: Ayers; Lou's Lemon Tree, Limited (Lou's), a corporation; and Daniel Delich (Delich) (sometimes collectively defendants). Count I was repeated and count II asserted that Lou's owned, operated and managed a tavern and licensed dram-shop, known as the Lemon Tree Inn on Muskegon Street in Chicago. Delich allegedly owned the Lemon Tree Inn building and premises and permitted the giving or selling of alcoholic liquors on those premises. On January 1, 1986, Delich and Lou's, acting through Lou's agents or servants, allegedly sold or gave to Ayers alcoholic liquor which he consumed, causing his intoxication, which was "at least one cause" of the accident. As a result of this occurrence, Ingrid suffered personal injury and permanent damage, and both Ingrid and Alexander incurred damage to their property, in the nature of hospital, medical and funeral expenses. Citing the Act (Ill.Rev.Stat.1987, ch. 43, pars. 93.9, 135), plaintiffs sought judgment against Lou's and Delich for the property damage delineated above.

In count III, plaintiffs again sought recovery pursuant to the Act, contending that as a result of defendants' negligence and Ingrid's death, Alexander suffered injury to his means of support, suitable comforts which might have been expected from Ingrid and deprivation of Ingrid's companionship, society, love and affection.

Counts IV and V alleged common law negligence, otherwise tracking the preceding allegations.

Lou's section 2-615 motion to dismiss plaintiffs' second amended complaint (Ill.Rev.Stat.1987, ch. 110, par. 2-615), joined in by Delich, resulted in an order entered

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[135 Ill.Dec. 61] February 29, 1988, which: dismissed counts IV and V of the second amended complaint with prejudice; struck counts II and III with leave to refile; and found no just reason to delay appeal of the order. (124 Ill.2d R. 304(a).) On March 23, 1988, plaintiffs filed a notice of appeal (Docket No. 1-88-0963).

In their third amended complaint, filed March 25, 1988, plaintiffs asserted second and third counts virtually identical to those alleged in the second amended complaint, which were again dismissed, on June 28, 1988. By notice filed July 11, 1988, plaintiffs appealed this order (Docket No. 1-88-2206). The appeals were consolidated. Ayers is not [187 Ill.App.3d 462] a party to these appeals.

I.

Plaintiffs first assign error to the circuit court's refusal to recognize a common law, dram-shop cause of action, permitting recovery against Lou's and Delich for damages allegedly incurred by Alexander as a result of Ingrid's death 1. Admitting all well pleaded facts and any reasonable inferences they permit, this court must determine whether those facts, viewed most favorably to plaintiffs, are sufficient to set forth causes of action upon which relief may be granted. Farmers State Bank and Trust Co. v. Lahey's Lounge, Inc. (1988), 165 Ill.App.3d 473, 479, 116 Ill.Dec. 531, 519 N.E.2d 121.

The right of recovery by virtue of negligence caused by intoxication was unknown at common law. (Howlett v. Doglio (1949), 402 Ill. 311, 318, 83 N.E.2d 708; Thompson v. Capasso (1959), 21 Ill.App.2d 1, 4, 157 N.E.2d 75.) The legislature has recognized such an action in the Act (Ill.Rev.Stat.1987, ch. 43, par. 135) and has the power to set the terms of recovery and liability therefor, without interference from the courts. (Howlett v. Doglio, 402 Ill. at 320-21, 83 N.E.2d 708; Zamiar v. Linderman (1985), 132 Ill.App.3d 886, 889, 88 Ill.Dec. 219, 478 N.E.2d 534; Thompson v. Capasso, 21 Ill.App.2d at 8, 157 N.E.2d 75.) As many Illinois authorities have held, the Act provides the only remedy against tavern operators and owners of tavern premises for injuries to person, property or means of support by an intoxicated person. Cunningham v. Brown (1961), 22 Ill.2d 23, 30-31, 174 N.E.2d 153; Puckett v. Mr. Lucky's Ltd. (1988), 175 Ill.App.3d 355, 357, 125 Ill.Dec. 93, 529 N.E.2d 1169 (collecting authorities); see also Hopkins v. Powers (1986), 113 Ill.2d 206, 210, 100 Ill.Dec. 579, 497 N.E.2d 757; Demchuk v. Duplancich (1982), 92 Ill.2d 1, 5, 64 Ill.Dec. 560, 440 N.E.2d 112; Ruth v. Benvenutti (1983), 114 Ill.App.3d 404, 406, 70 Ill.Dec. 335, 449 N.E.2d 209.

Claiming that the $40,000 ceiling on damages now available under the Act is almost worthless by virtue of inflationary erosion and the unrealistic limitation articulated in the Act on the types of damages offered (Ill.Rev.Stat.1987, ch. 43, par. 135), plaintiffs contend that the deterrent intent underpinning the statute (see Ill.Rev.Stat.1987, ch. 43, par. 94) has dissipated. In effect, tavern owners and operators are immunized from the exponentially larger amounts commonly awarded today as damages in simple negligence claims. Plaintiffs well [187 Ill.App.3d 463] recognize legislative prerogatives and limitative precedent; nevertheless, they press for a change in the law which has created the present state of injustice. They point to recent cases in which reviewing courts explicitly have called for legislative relief to no avail (Zamiar v. Linderman, 132 Ill.App.3d at 890, 88 Ill.Dec. 219, 478 N.E.2d 534; Ruth v. Benvenutti, 114 Ill.App.3d at 406, 70 Ill.Dec. 335, 449 N.E.2d 209), and inferentially urge that we follow the cogent and erudite dissent written by Justice Knecht in Puckett v. Mr. Lucky's Ltd., 175 Ill.App.3d at 358-366, 125 Ill.Dec. 93, 529 N.E.2d 1169, if parity is to be established for recovery in dram-shop cases and common law recoveries. Parenthetically, we note that our supreme court recently denied leave to appeal in Puckett.

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[135 Ill.Dec. 62] (124 Ill.2d 561, 129 Ill.Dec. 155, 535 N.E.2d 920.) Plaintiffs earnestly importune this court to act where the legislature will not and recognize a common law cause of action for recovery against dram shop operators without a monetary cap and impose liability on liquor sellers and purveyors for the loss of society, love, comfort and affection incurred by the spouse of an individual killed by an intoxicated motorist.

As examples of judicial action taken where the legislature has not acted, plaintiffs cite Alvis v. Ribar (1981), 85 Ill.2d 1, 21, 52 Ill.Dec. 23, 421 N.E.2d 886, where our supreme court abandoned the concept of contributory...

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13 practice notes
  • Cravens v. Inman, No. 1-90-1124
    • United States
    • United States Appellate Court of Illinois
    • December 19, 1991
    ...preempts common law negligence liability for dram shop sale of alcohol to adult); see also Stevens v. Lou's Lemon Tree, Ltd. (1989), 187 Ill.App.3d 458, 135 Ill.Dec. 58, 543 N.E.2d 293 (Dram Shop [223 Ill.App.3d 1068] Act is exclusive remedy for injuries resulting from tavern owner's sale o......
  • Eddy v. Casey's General Store, Inc., No. 90-1661
    • United States
    • United States State Supreme Court of Iowa
    • May 13, 1992
    ...liquor to his or her child preempted the field of civil liability and actions for negligence per se); Stevens v. Lou's Lemon Tree, Ltd, 187 Ill.App.3d 458, 135 Ill.Dec. 58, 543 N.E.2d 293 (1989) (liquor control act provides the only remedy against tavern operators and owners); Plamondon v. ......
  • Baessler v. Freier, No. S–10–0212.
    • United States
    • United States State Supreme Court of Wyoming
    • August 26, 2011
    ...against vendors is a legislative creation, subject to legitimate limitations placed thereon. Stevens v. Lou's Lemon Tree, Ltd., 187 Ill.App.3d 458, 465, 135 Ill.Dec. 58, 543 N.E.2d 293, 298 (Ill.App.Ct.1989), appeal denied, 128 Ill.2d 672, 139 Ill.Dec. 522, 548 N.E.2d 1078 (Ill.1989). [¶ 19......
  • Baessler v. Freier
    • United States
    • United States State Supreme Court of Wyoming
    • April 30, 2011
    ...against vendors is a legislative creation, subject to legitimate limitations placed thereon. Stevens v. Lou's Lemon Tree, Ltd., 187 Ill. App. 3d 458, 465, 543 N.E.2d 293, 298 (Ill. App. Ct. 1989), appeal denied, 128 Ill. 2d 672, 548 N.E.2d 1078 (Ill. 1989). [¶19] Not every immunity granted ......
  • Request a trial to view additional results
13 cases
  • Cravens v. Inman, No. 1-90-1124
    • United States
    • United States Appellate Court of Illinois
    • December 19, 1991
    ...preempts common law negligence liability for dram shop sale of alcohol to adult); see also Stevens v. Lou's Lemon Tree, Ltd. (1989), 187 Ill.App.3d 458, 135 Ill.Dec. 58, 543 N.E.2d 293 (Dram Shop [223 Ill.App.3d 1068] Act is exclusive remedy for injuries resulting from tavern owner's sale o......
  • Eddy v. Casey's General Store, Inc., No. 90-1661
    • United States
    • United States State Supreme Court of Iowa
    • May 13, 1992
    ...liquor to his or her child preempted the field of civil liability and actions for negligence per se); Stevens v. Lou's Lemon Tree, Ltd, 187 Ill.App.3d 458, 135 Ill.Dec. 58, 543 N.E.2d 293 (1989) (liquor control act provides the only remedy against tavern operators and owners); Plamondon v. ......
  • Baessler v. Freier, No. S–10–0212.
    • United States
    • United States State Supreme Court of Wyoming
    • August 26, 2011
    ...against vendors is a legislative creation, subject to legitimate limitations placed thereon. Stevens v. Lou's Lemon Tree, Ltd., 187 Ill.App.3d 458, 465, 135 Ill.Dec. 58, 543 N.E.2d 293, 298 (Ill.App.Ct.1989), appeal denied, 128 Ill.2d 672, 139 Ill.Dec. 522, 548 N.E.2d 1078 (Ill.1989). [¶ 19......
  • Baessler v. Freier
    • United States
    • United States State Supreme Court of Wyoming
    • April 30, 2011
    ...against vendors is a legislative creation, subject to legitimate limitations placed thereon. Stevens v. Lou's Lemon Tree, Ltd., 187 Ill. App. 3d 458, 465, 543 N.E.2d 293, 298 (Ill. App. Ct. 1989), appeal denied, 128 Ill. 2d 672, 548 N.E.2d 1078 (Ill. 1989). [¶19] Not every immunity granted ......
  • Request a trial to view additional results

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