Tilschner v. Spangler

• Decision Date: 06 May 2011
• Docket Number: No. 2–10–0111.,2–10–0111.
• Citation: 949 N.E.2d 688,350 Ill.Dec. 896,409 Ill.App.3d 988
• Parties: Patricia TILSCHNER, Plaintiff–Appellant,v.Lowell SPANGLER and Ralph M. Ruppel, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

409 Ill.App.3d 988
949 N.E.2d 688
350 Ill.Dec. 896

Patricia TILSCHNER, Plaintiff–Appellant,
v.
Lowell SPANGLER and Ralph M. Ruppel, Defendants–Appellees.

No. 2–10–0111.

Appellate Court of Illinois, Second District.

May 6, 2011.

[949 N.E.2d 689]

Mark J. Vogg, Hans A. Mast, Thomas J. Popovich, Law Offices of Thomas J. Popovich, P.C., McHenry, for Patricia Tilschner.Joel M. Huotari, James P. Devine, WilliamsMcCarthy LLP, Rockford, for Lowell Spangler.J. Kevin McBride, Short & McBride, Johnsburg, for Ralph M. Ruppel.

[949 N.E.2d 690 , 409 Ill.App.3d 989]

OPINION

Justice McLAREN delivered the judgment of the court, with opinion.

[350 Ill.Dec. 898] Plaintiff, Patricia Tilschner, appeals from the trial court's orders dismissing count II of her third-amended complaint and denying her motion to reconsider. Patricia claims on appeal that the trial court erred in concluding that this State has not adopted section 318 of the Restatement (Second) of Torts (1965).¹ We affirm.

Patricia was injured during a party at the home of defendant Lowell Spangler when defendant Ralph Ruppel ignited fireworks. Patricia's third amended complaint contained three counts. Count I alleged common-law negligence against Spangler. Count II alleged negligence against Spangler pursuant to section 318 of the Restatement (Second) of Torts. Count III alleged common-law negligence against Ruppel. Spangler moved to dismiss count II, pursuant to section 2–615 of the Code of Civil Procedure (735 ILCS 5/2–615 (West 2008)). The trial court granted the motion to dismiss with prejudice and denied Patricia's subsequent motion to reconsider. Patricia filed an application for leave to appeal to this court pursuant to Illinois Supreme Court Rule 308 (eff.Feb.26, 2010), which was denied. Patricia was also denied leave to file a fourth amended complaint. She then voluntarily dismissed count I of the third amended complaint, and the trial court [409 Ill.App.3d 990] found no just reason to delay enforcement or appeal, pursuant to Illinois Supreme Court Rule 304(a) (eff.Feb.26, 2010). This appeal followed.

Patricia now contends that the trial court erred in dismissing count II of her third amended complaint. When a defendant challenges the legal sufficiency of a complaint with a section 2–615 motion to dismiss, all well-pleaded facts alleged in the complaint are taken as true. King v. Senior Services Associates, Inc., 341 Ill.App.3d 264, 266, 275 Ill.Dec. 181, 792 N.E.2d 412 (2003). On review of a dismissal pursuant to section 2–615, this court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted. King, 341 Ill.App.3d at 266, 275 Ill.Dec. 181, 792 N.E.2d 412. The motion should be granted only if the plaintiff can prove no set of facts to support her cause of action. King, 341 Ill.App.3d at 266, 275 Ill.Dec. 181, 792 N.E.2d 412. As this process does not require the trial court to weigh findings of fact or determine credibility, this court is not required to defer to the trial court's judgment, and we will review the matter de novo. King, 341 Ill.App.3d at 266, 275 Ill.Dec. 181, 792 N.E.2d 412.

To state a cause of action in negligence, a plaintiff must allege facts that establish a duty, a breach of that duty, and proximate causation. Ryan v. Yarbrough, 355 Ill.App.3d 342, 345, 291 Ill.Dec. 249, 823 N.E.2d 259 (2005). Patricia alleged that Spangler:

“[o]wed a duty to the Plaintiff and his other invited guests to keep control and care over his property and to protect them against any unreasonable risks of harm known due to acts of a third person under his control, including the Defendant, RALPH RUPPEL, pursuant to the Restatement (Second) of Torts, § 318.”

Section 318 of the Restatement (Second) of Torts provides:

[949 N.E.2d 691 , 350 Ill.Dec. 899]

“If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor

(a) knows or has reason to know that he has the ability to control the third person, and,

(b) knows or should know of the necessity and opportunity for exercising such control.” Restatement (Second) of Torts § 318 (1965).

A restatement is not binding on Illinois courts unless it is adopted by our supreme court. Eckburg v. Presbytery of Blackhawk of the Presbyterian Church (USA), 396 Ill.App.3d 164, 169, 335 Ill.Dec. 371, 918 N.E.2d 1184 (2009); In re Estate of Lieberman, 391 Ill.App.3d 882, 890, 330 Ill.Dec. 893, 909 N.E.2d 915 (2009). Thus, we must determine whether our supreme court has adopted section 318 of the [409 Ill.App.3d 991] Restatement (Second) of Torts; if it has not, Spangler owed no duty to Patricia.

Citing a line of both supreme court and appellate court cases, Patricia argues that section 318 has “unquestionably” been adopted in Illinois. However, this is not the first time that this court has examined this question and concluded to the contrary. In Zimring v. Wendrow, 137 Ill.App.3d 847, 850, 92 Ill.Dec. 667, 485 N.E.2d 478 (1985), this court specifically found that “[n]o Illinois case has adopted section 318 of the Restatement (Second) of Torts, upon which plaintiff relies.” Ultimately, we concluded that we “need not consider” the sufficiency of the complaint in relation to section 318. Zimring, 137 Ill.App.3d at 853, 92 Ill.Dec. 667, 485 N.E.2d 478. In Elizondo v. Ramirez, 324 Ill.App.3d 67, 73, 257 Ill.Dec. 497, 753 N.E.2d 1123 (2001), the plaintiff asserted that section 318 “has been adopted in Illinois and cite[d] two cases in support.” After analyzing those cases— Cravens v. Inman, 223 Ill.App.3d 1059, 166 Ill.Dec. 409, 586 N.E.2d 367 (1991), and Teter v. Clemens, 112 Ill.2d 252, 97 Ill.Dec. 467, 492 N.E.2d 1340 (1986)—we concluded that “it is unclear whether these cases represent the law in Illinois” ( Elizondo, 324 Ill.App.3d at 73–74, 257 Ill.Dec. 497, 753 N.E.2d 1123), and we declined to “express an opinion on whether section 318 represents the law in Illinois” ( Elizondo, 324 Ill.App.3d at 74, 257 Ill.Dec. 497, 753 N.E.2d 1123). We note with interest that Patricia cites to Elizondo but fails to mention, let alone address, this court's refusal to find that section 318 had, indeed, been adopted in this state. Patricia now argues, despite our analysis in Elizondo, that our supreme court adopted section 318 in Teter. We disagree, and we will not revisit our prior analysis and determination in Elizondo that there was no clear adoption of section 318 by our supreme court in Teter.

While Patricia does not cite to Cravens, its ultimate disposition is instructive. In Cravens, the First District of the Illinois Appellate Court found a duty and, thus, a claim for negligence, pursuant to section 318 and to Teter, in the factual scenario of adults providing alcohol to minor guests who subsequently left in an automobile and were involved in a fatal accident. However, our supreme court in Charles v. Seigfried, 165 Ill.2d 482, 501–02, 209 Ill.Dec. 226, 651 N.E.2d 154 (1995), concluded that it did “not agree that the views set forth in Cravens should be adopted through judicial decision.” This court noted the supreme court's refusal, in an admittedly different context, to impose liability pursuant to section...