Wilberton v. Freddie's Pepper Box, Inc.
| Citation | 499 N.E.2d 615,148 Ill.App.3d 319,102 Ill.Dec. 58 |
| Decision Date | 10 October 1986 |
| Docket Number | No. 85-2606,85-2606 |
| Parties | , 102 Ill.Dec. 58 Jacqueline WILBERTON, as administrator of the estate of Alonda Bell, deceased, Plaintiff-Appellant, v. FREDDIE'S PEPPER BOX, INC., a corporation chartered by the State of Illinois, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Andrew A. Schneiderman, Sternberg and Associates, P.C., Chicago, for plaintiff-appellant.
James K. Joyce, Heineke, Burke & Healy, Chicago, for defendant-appellee.
Plaintiff, Jacqueline Wilberton, appeals from an order of the circuit court of Cook County granting summary judgment to defendant, Freddie's Pepper Box, Inc., as to plaintiff's dram shop claim in count I of her first amended complaint. For the reasons set forth below, we affirm.
The incident giving rise to plaintiff's action involved the fatal stabbing of her daughter, Alonda Bell, by her boyfriend, Jessie Hall. Hall had been served alcohol in the defendant tavern, became intoxicated and subsequently attacked and killed Bell. Plaintiff is the legal guardian of Bell's four minor children. At the time of Bell's death, she was unemployed and receiving public aid in the amount of $560 per month for herself and her children. This amount was reduced to $140 per month after Bell's death. At a hearing on defendant's motion for summary judgment as to plaintiff's dram shop claim in count I of her first amended complaint, the trial court determined that no genuine issue of material fact existed and granted defendant's motion.
We first observe that summary judgment is appropriate "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill.Rev.Stat.1985, ch. 110, par. 2-1005(c).) In determining whether a genuine issue of material fact exists, the court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. (Baier v. State Farm Insurance Co. (1975), 28 Ill.App.3d 917, 329 N.E.2d 543, aff'd (1977), 66 Ill.2d 119, 5 Ill.Dec. 572, 361 N.E.2d 1100.) Where the facts admit of more than one conclusion, such facts cannot support a motion for summary judgment. Martin v. American Legion Post # 784 (1978), 66 Ill.App.3d 116, 22 Ill.Dec. 864, 383 N.E.2d 672.
Plaintiff's dram shop claim is based upon section 14 of the Liquor Control Act, commonly referred to as the Dram Shop Act (the Act) (Ill.Rev.Stat.1979, ch. 43, par. 135), which provides, in pertinent part, that "[a]n action shall lie for injuries to means of support caused by an intoxicated person." (Emphasis added.) She contends that as a result of her daughter's death she and her grandchildren suffered a loss of means of support. Specifically, she alleges that Bell's "services and support" to her minor children consisted of preparing their meals, washing their clothes, shopping for their food and clothes, providing transportation to them, tutoring them with their school work, training and rearing them in their growth and development and providing them with parental supervision. She further alleges that her daughter provided valuable services to her on a regular basis by preparing her meals, cleaning her apartment, nursing her when sick, providing transportation for shopping, paying bills and medical services, and performing valuable and essential repairs and maintenance to her apartment and property.
Plaintiff argues that the above services were of an occupational nature and therefore fall within the definition of a loss of means of support recoverable under section 14 of the Act. She further contends that since her daughter's death she has been compelled to provide the same "services and support" for the children, including their "ordinary nutritional, education, housing and general needs," and, as a result of the reduced public aid benefits to them, she has had to contribute a large percentage of her income to meet these responsibilities. She also alleges that she has had to replace the services and support to herself which she was accustomed to receiving from her daughter, or to do without them.
On the other hand, defendant contends that neither the services and support provided by decedent, nor the reduction in public aid benefits, are a loss of means of support as that term is used in the Act. Defendant argues that "means of support" relates to a party's wage earning ability--not to a party's performance of maternal duties and domestic chores. We agree.
In Stevens v. B & L Package Liquors, Inc. (1978), 66 Ill.App.3d 120, 22 Ill.Dec. 868, 383 N.E.2d 676, the plaintiff sought damages under the Act for the loss of domestic chores and services rendered by his 12-year-old daughter who was killed in an automobile accident caused by an intoxicated driver. In rejecting the plaintiff's claim, this court stated that the support referred to in the Act "is measured in such tangibles as the loss of wages and inability to continue earning a living, and not routine domestic chores and services." (66 Ill.App.3d 120, 123, 22 Ill.Dec. 868, 383 N.E.2d 676.) We further noted that this interpretation was consistent with Illinois Pattern Jury Instruction 150.14 which defines "means of support" as follows:
(Emphasis in original.)
Similarly, in Martin v. American Legion Post # 784 (1978), 66 Ill.App.3d 116, 22 Ill.Dec. 864, 383 N.E.2d 672, this court rejected the plaintiffs' claims for loss of means of support from their minor children who also were killed as a result of an automobile accident caused by an intoxicated driver. There, we noted that it is well established that under the Act "means of support" has been construed as requiring that the person injured did in fact render support. Admittedly, none of the children had ever provided funds for the support of their parents.
Plaintiff argues that the above cases are distinguishable from the present situation because those cases involved parents seeking injuries to their means of support as a result of the death of a dependent child who had in fact been a recipient of support from the family, rather than, as here, where claims for the "services" of an adult to a child or to another adult are being sought. Plaintiff also contends that "means of support" includes contribution of services as a resource from which the necessities and comforts of life are or may be supplied. She relies on Weiner v. Trasatti (1974), 19 Ill.App.3d 240, 311 N.E.2d 313. There, the plaintiff's decedent wife, although employed, also worked with her husband in the family's delicatessen. In holding that the plaintiff suffered a loss to means of support as a result of his wife's death, the court stated that "[t]he capacity for providing means of support may be shown by proof of earnings and contribution of services and income." (Emphasis added.) (19 Ill.App.3d 240, 246, 311 N.E.2d 313.) Finally, plaintiff characterizes her daughter's services and support as occupational in nature for which a ready...
To continue reading
Request your trial