Bell v. Hutsell , 402 Ill. App. 3d 654 ( 2010 )

No. 2-09-0577 Filed: 6-9-10
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
JANET BELL, Individually and as Special) Appeal from the Circuit Court
Administrator of the Estate of Daniel Bell,
) of Lake County.
Deceased, )
)
Plaintiff-Appellant, )
)
v. ) No. 08--L--836
)
JEFFREY HUTSELL and SARA HUTSELL, ) Honorable
) David M. Hall,
Defendants-Appellees. ) Judge, Presiding.
_______________________________________________________________________________
PRESIDING JUSTICE ZENOFF delivered the opinion of the court:
Plaintiff, Janet Bell, appeals from an order of the circuit court of Lake County dismissing her
second amended complaint with prejudice. For the reasons that follow, we affirm in part, reverse in
part, and remand for further proceedings.
BACKGROUND
This lawsuit arises out of an automobile accident that occurred on October 13, 2006, in
Deerfield, Illinois, when Daniel Bell (Daniel), age 18, crashed into a tree, killing himself and a
passenger, Ross Trace. Daniel had been drinking at a party at defendants' home that evening.
On March 31, 2009, plaintiff filed a second amended complaint, which for ease of description
we will refer to as the complaint. According to the allegations of the complaint, defendants' son
Jonathan, an 18-year-old high school student, had a party at the family's residence on the evening of
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October 13, 2006. The party was attended by numerous high school friends of Jonathan's who were
under the legal drinking age, including Daniel. Before the party, defendant Jeffrey told Jonathan that
no alcoholic beverages would be allowed at the party and that Jeffrey and Jonathan's mother,
defendant Sara, would be present to check on the partygoers. Jeffrey told Jonathan that they would
monitor and inspect the activities in the lower level of the house, the garage, and the driveway to
ensure that no one consumed alcoholic beverages anywhere inside the residence or on the property.
Nevertheless, throughout the evening, defendants were present when the partygoers consumed
alcohol, including beer, vodka, and rum, which was brought into the residence by the partygoers.
Defendants did not furnish the alcohol, having stocked the bar area in the lower level of the house
with soft drinks. At approximately 11:30 p.m., Daniel, who was impaired by alcohol he consumed
at the party, drove his car with Ross Trace1 and others as passengers and struck a tree. Daniel died
as a result of injuries he sustained in the accident.
Counts I, II, and III of the complaint alleged that defendants voluntarily undertook the duty
to monitor the party guests who were under the age of 21 and to inspect the inside and outside of the
property to ensure that the partygoers would not consume any alcoholic beverages and that they were
negligent in failing to carry out their intention to prohibit the consumption of alcoholic beverages.
Counts IV, V, and VI attempted to state a civil cause of action based upon a violation of section
6--16(a--1) of the Liquor Control Act of 1934 (Act) (235 ILCS 5/6--16(a--1) (West 2006)), which
is a criminal statute making it unlawful for any parent to permit his or her residence to be used by an
invitee of the parent's child, if the invitee is under the age of 21, in a manner that constitutes a
1
A lawsuit arising out of Ross Trace's death in the accident was filed and is pending before
a different judge in the circuit court of Lake County.
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violation of section 6--16(a--1). A violation takes place if the parent knowingly authorizes, enables,
or permits such use to occur by failing to control access either to the residence or to the alcoholic
liquor maintained in the residence. 235 ILCS 5/6--16(a--1) (West 2006). A person is guilty of a
Class A misdemeanor where he or she knowingly permits a gathering at a residence that he or she
occupies of two or more persons who are under 21 years of age and the person occupying the
residence knows that any such person under the age of 21 is in possession of or is consuming any
alcoholic beverage not otherwise permitted and the person occupying the residence knows that the
person under the age of 21 leaves the residence while intoxicated. 235 ILCS 5/6--16(c)(1), (c)(2),
(c)(3) (West 2006). Counts VII, VIII, and IX sought recovery under the Drug or Alcohol Impaired
Minor Responsibility Act (740 ILCS 58/1 et seq. (West 2006)), which provides, inter alia, that any
person at least 18 years of age who willfully supplies alcoholic liquor to a person under 18 years of
age and causes the impairment of such person is liable for death or injury to persons or property
caused by the impairment of such person.
Defendants moved to dismiss the complaint pursuant to section 2--615 of the Code of Civil
Procedure (Code) (735 ILCS 5/2--615 (West 2006)). Defendants moved to dismiss counts I, II, and
III, the voluntary-undertaking counts, on the basis that defendants owed Daniel no duty because there
is no social host liability in Illinois and the voluntary-undertaking theory was simply a way of trying
to circumvent the rule against social host liability. Defendants moved to dismiss counts IV, V, and
VI on the ground that the criminal statute does not furnish a private right of action, and they moved
to dismiss the remaining counts on the basis that the Drug or Alcohol Impaired Minor Responsibility
Act does not apply since Daniel was not under the age of 18 years. On May 26, 2009, the trial court
granted the motion to dismiss with prejudice, and plaintiff filed a timely appeal.
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DISCUSSION
Plaintiff appeals from that part of the order dismissing counts I through VI. Plaintiff does not
appeal from the dismissal of the counts relating to the Drug or Alcohol Impaired Minor Responsibility
Act. A motion to dismiss pursuant to section 2--615 attacks the legal sufficiency of the complaint,
and on review of the dismissal the court must determine whether the allegations of the complaint,
when taken in the light most favorable to the plaintiff, sufficiently set forth a cause of action on which
relief may be granted. DOD Technologies v. Mesirow Insurance Services, Inc., 381 Ill. App. 3d
1042, 1045-46 (2008). We take all well-pleaded facts as true. DOD Technologies, 381 Ill. App. 3d
at 1046. We review a dismissal pursuant to section 2--615 de novo. DOD Technologies, 381 Ill.
App. 3d at 1046.
Voluntary Undertaking
Plaintiff alleged that defendants were negligent in performing the duty they voluntarily
undertook to inspect and monitor the partygoers to ensure that no underage party guest would drink
alcoholic beverages in their residence or on their property. To state a claim for negligence, a plaintiff
must plead a duty owed by a defendant to that plaintiff, a breach of duty, and injury proximately
caused by the breach of duty. Kirwan v. Lincolnshire-Riverwoods Fire Protection District, 349 Ill.
App. 3d 150, 155 (2004). Under the voluntary-undertaking theory of liability, one who gratuitously
or for consideration renders services to another is subject to liability for bodily harm caused to the
other by one's failure to exercise due care. Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32 (1992).
In Frye, our supreme court explained the elements of a voluntary undertaking by citing section 323
of the Restatement (Second) of Torts, as follows:
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"One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other's person or things, is
subject to liability to the other for physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking."
Restatement (Second) of Torts §323 (1965).
In our case, plaintiff contends that she pleaded that defendants voluntarily undertook a duty2
to Daniel when Jeffrey told their son, Jonathan, that no drinking of alcoholic beverages would be
allowed at the party and that Jeffrey and Sara would be present to check on those coming to the party
and would monitor and inspect the partygoers to ensure that no drinking occurred. Plaintiff alleged
that, in furtherance of this undertaking, defendants were present in the house during the party and
they walked through the areas where the partygoers were gathered "to ensure that no one was
drinking alcohol anywhere inside or outside their residence on their property."
Defendants contend that the complaint fails to state a duty because there is no social host
liability in Illinois and the voluntary-undertaking theory is an attempt to circumvent the rule against
social host liability. A social host is a noncommercial supplier of liquor, one who, "in his own house
or elsewhere, gives a glass of intoxicating liquor to a friend as a mere act of courtesy and politeness."
Cruse v. Aden, 127 Ill. 231, 239 (1889).
2
For purposes of our discussion, without actually deciding, we assume the complaint pleads
a voluntary undertaking.
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"It was not a tort, at common law, either to sell or give intoxicating liquor to a 'strong and
able-bodied man.' " Cruse, 127 Ill. at 234. After the Civil War, the temperance movement's agitation
against intoxicating liquors culminated in the passage in 1872 of Illinois's first dramshop act, imposing
liability against tavern owners and operators. Cunningham v. Brown, 22 Ill. 2d 23, 27-28 (1961).
In Cunningham, our supreme court refused to recognize a concomitant common-law cause of action
and held that the Act [(235 ILCS 5/6--21 (West 2006))] provided the only remedy against tavern
owners and operators for injuries to persons or property by intoxicated persons or in consequence
of intoxication. Cunningham, 22 Ill. 2d at 30-31.
In Charles v. Seigfried, 165 Ill. 2d 482 (1995), our supreme court was asked to recognize a
cause of action against social hosts for serving alcoholic beverages to minors who were subsequently
injured. The court declined and stated:
"For over one century, this court has spoken with a single voice to the effect that no
social host liability exists in Illinois. *** [I]t has been, and continues to be, well-established
law that Illinois has no common law cause of action for injuries arising out of the sale or gift
of alcoholic beverages; that the legislature has preempted the field of alcohol-related liability;
and that any change in the law governing alcohol-related liability should be made by the
General Assembly, or not at all." Charles, 165 Ill. 2d at 486.
The court in Charles was clear that legislative preemption in the field of alcohol-related liability
"extends to social hosts who provide alcoholic beverages to another person, whether that person be
an adult, an underage person, or a minor." Charles, 165 Ill. 2d at 491. Consequently, "few rules of
law are as clear as that no liability for the sale or gift of alcoholic beverages exists in Illinois outside
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of the *** Act." Charles, 165 Ill. 2d at 490. To date, the legislature has failed to provide for liability
in the social host context with a few narrow exceptions not relevant here.
Defendants in our case urge that Charles prohibits recognition of plaintiff's voluntary-
undertaking cause of action, and plaintiff contends that our supreme court in Wakulich v. Mraz, 203
Ill. 2d 223 (2003), allowed a similar voluntary-undertaking theory to survive dismissal. In Wakulich,
the plaintiff's 16-year-old daughter, Elizabeth, was at the defendants' home where she was induced
by the defendants' goading and social pressure to consume a quart bottle of Goldschlager, after which
she lost consciousness. Wakulich, 203 Ill. 2d at 226-27. The defendants then placed Elizabeth in the
family room of their home, removed her vomit-stained blouse, and put a pillow under her head to
prevent aspiration. Wakulich, 203 Ill. 2d at 207. The defendants refused to drive her home, did not
seek medical attention for her, prevented other individuals from seeking medical attention for her, and
eventually removed her from their home, whereupon Elizabeth died. Wakulich, 203 Ill. 2d at 227.
Our supreme court upheld the trial court's section 2--615 dismissal of the counts of the plaintiff's
complaint that alleged that the defendants were negligent in providing an alcoholic beverage to
Elizabeth and in inducing her to consume a dangerous amount, based on Charles's holding that Illinois
does not recognize a cause of action for social host liability. Wakulich, 203 Ill. 2d at 227. The court
stated that "plaintiff has not provided any principled basis for this court to revisit its decision in
Charles and depart from the doctrine of stare decisis." Wakulich, 203 Ill. 2d at 237.
However, the court held that the counts of the complaint that alleged a voluntary undertaking
should not have been dismissed. The court rejected the defendants' argument that the voluntary-
undertaking theory was an attempt to circumvent the rule against social host liability, because the
defendants' liability was not contingent on their status as social hosts. Wakulich, 203 Ill. 2d at 241-
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42. "Indeed, it is irrelevant for purposes of plaintiff's voluntary undertaking counts whether
defendants were acting as social hosts *** and supplied the alcohol which Elizabeth consumed."
Wakulich, 203 Ill. 2d at 242. The court stated that the defendants' liability arose by virtue of their
voluntary assumption of a duty to care for Elizabeth after she became unconscious, "irrespective of
the circumstances leading up to that point." Wakulich, 203 Ill. 2d at 242.
Defendants in our case assert that, unlike the facts in Wakulich, which lent themselves to
separating the actions related to the administering of alcohol from those related to the voluntary
undertaking to keep Elizabeth from aspirating, the allegations of the instant complaint all relate to the
prevention of the consumption of alcohol and, thus, fall within the rule in Charles. Defendants argue
that whereas the defendants in Wakulich voluntarily undertook Elizabeth's care once she became
unconscious after consuming alcohol, defendants here are alleged to have undertaken to prevent the
consumption itself.
We reject defendants' argument that the voluntary undertaking alleged in the instant case
cannot be separated from defendant's actions as social hosts, because defendants were not social
hosts. They did not supply the alcohol that Daniel consumed to the point of impairment. They
stocked the lower bar area with soft drinks, and the alcohol that was brought onto the premises was
supplied by the invited partygoers. That defendants may have negligently failed to prevent the
consumption of alcohol on the premises does not convert them into social hosts. Therefore, the
question presented in Wakulich, whether the voluntary-undertaking theory was a way of
circumventing the rule against social host liability, is not present in our case.
Defendants contend that because plaintiff's allegations are "alcohol related," they fall within
the Charles prohibition of a cause of action. Defendants argue that it is illogical to make parents who
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attempt to ensure that underage guests do not drink at home more liable than parents who actually
furnish alcohol. This argument ignores that the first set of parents would have no liability either
except for the fact that they voluntarily assume a duty. Defendants are really contending that Charles
prohibits the assumption of any duty that relates to alcohol.
In our view, what our supreme court held in social host liability cases is that the legislature
has preempted the field of alcohol-related liability as it relates to the furnishing or providing of
alcoholic beverages. The 1872 dramshop act, in which the legislature undertook to regulate the
liquor trade, created a cause of action in favor of any person injured by an intoxicated person and
"against any person or persons who shall, by selling or giving intoxicating liquors, have caused the
intoxication, in whole or in part." (Emphasis omitted.) Cruse, 127 Ill. at 235. The dramshop act
itself filled a void in the common law, under which there was no liability for one "to either sell or
give" intoxicating liquor to a strong, able-bodied man. Cruse, 127 Ill. at 234. In Charles, our
supreme court declared that it has frequently reiterated the rule that a dramshop cause of action is sui
generis and exclusive and that, as a result, there is no liability for the sale or gift of alcoholic
beverages outside of the Act. Charles, 165 Ill. 2d at 489-90.
In Hopkins v. Powers, 113 Ill. 2d 206 (1986), the court refused to recognize a right of
contribution on the part of a tavern operator whose liability was as a dramshop (recovery under the
Act is limited to innocent third persons who are injured as a result of the sale or gift of alcoholic
beverages). In Graham v. General U.S. Grant Post No. 2665, V.F.W., 43 Ill. 2d 1 (1969), the court
reaffirmed Cunningham (there is no common-law liability for the selling of alcoholic beverages to an
intoxicated person). In Knierim v. Izzo, 22 Ill. 2d 73 (1961), the court rejected various tort theories
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brought against tavern owners and operators arising out of the sale, gift, or delivery of alcoholic
beverages.
Defendants in our case argue that Illinois courts have consistently refused to impose liability
in cases even where the defendant did not actually serve or provide the liquor. However, the cases
defendants cite do not bear out this statement. In Miller v. Moran, 96 Ill. App. 3d 596 (1981), the
plaintiff brought suit arising out of the negligent service or supervision of the service of intoxicating
liquors, alleging that the defendants served or supervised the service of intoxicating liquors to an
already inebriated person; in Coulter v. Swearingen, 113 Ill. App. 3d 650 (1983), the plaintiffs' suit
alleged the giving of liquor to a minor by another minor and the negligent storing of the liquor by the
minor's parents so as to make the liquor accessible; in Heldt v. Brei, 118 Ill. App. 3d 798, 801 (1983),
one of the defendants sold alcoholic liquor to partygoers, and the complaint charged another
defendant with continuing to give the tortfeasor alcohol even after he became intoxicated ("Illinois
has never recognized a common law cause of action in negligence for either selling or giving
intoxicating liquor to an ordinary person") (emphasis added); in Zamiar v. Linderman, 132 Ill. App.
3d 886 (1985), the complaint alleged that the defendants willfully and wantonly permitted and
allowed the plaintiff to consume alcohol in their home and become intoxicated and willfully and
wantonly failed to properly supervise the plaintiff (who tripped on a rug and was injured) after
allowing and assisting him to consume alcoholic beverages (court refused to recognize a common-law
action against social hosts who willfully and wantonly assist, permit, and allow minor guests to
become intoxicated); and in Robertson v. Okraj, 250 Ill. App. 3d 848 (1993), the complaint alleged
that in their home the defendants provided the plaintiff's decedent with alcoholic beverages, which
the decedent consumed to the point of intoxication and unconsciousness, causing him to aspirate his
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gastric contents and die. In Richardson v. Ansco, Inc., 75 Ill. App. 3d 731 (1979), the Third District
declined to recognize a common-law negligence cause of action against an employer who allowed
an employee to become intoxicated at work although the employer knew the employee would be
driving home. In the above cases, the defendants were alleged to have served the alcohol or
permitted it to be served, unlike the case at bar where defendants were alleged to have undertaken
a duty to prevent the consumption of alcoholic liquor.
In addition to the above, defendants rely on Flory v. Weaver, 196 Ill. App. 3d 149 (1990).
In Flory, the third-party complaint alleged that the third-party defendant, Ledwon, hosted an after-
graduation party at which she furnished alcoholic beverages to minors and permitted two boys to
drink to excess and leave the premises against her rules, which led to the shooting death of one of the
boys. Flory, 196 Ill. App. 3d at 150. The appellate court affirmed the trial court's dismissal of the
third-party complaint on the basis that Ledwon was a social host and there is no social host liability
in Illinois. Flory, 196 Ill. App. 3d at 152. The appellate court rejected the third-party plaintiff's
argument that Ledwon had voluntarily assumed a duty to keep those consuming alcohol at her
residence and negligently performed the duty to enforce the rule, because (1) Ledwon was vested
with no legal authority to prevent the boys from leaving, and (2) Ledwon was a social host and the
voluntary-undertaking theory was a means of circumventing the rule against social host liability.
Flory, 196 Ill. App. 3d at 152. Flory is distinguishable from our case. Here, defendants were not
legally prevented from undertaking the duty to stop underage persons from bringing in or consuming
alcohol at their home; nor were they the suppliers of the alcohol.
The instant complaint alleged something different from the direct or indirect giving, selling,
or delivery of alcohol. It alleged that defendants voluntarily undertook the duty to prevent the
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consumption of alcohol on their premises and that they negligently performed that duty. Because
defendants did not supply the alcohol, store the alcohol, or affirmatively permit its consumption, they
were not social hosts. Defendants repeat the rationale for the rule against social host liability, that
it is "the drinking of the intoxicant, not the furnishing of it, [that] is the proximate cause of the
intoxication and the resulting injury." Charles, 165 Ill. 2d at 486. Defendants did not furnish the
alcohol, and we offer no opinion on whether the complaint adequately pleaded all of the elements of
a voluntary undertaking. Accordingly, the trial court erred in dismissing counts I, II, and III of the
complaint.
Private Right of Action Under Section 6--16(a--1) of the Liquor Control Act
Plaintiff contends that the trial court erred in dismissing counts IV, V, and VI of the
complaint, which she asserts stated a private cause of action under section 6--16(a--1) of the Act.
The complaint set forth the provision of section 6--16(a--1), as follows:
"It is unlawful for any parent or guardian to permit his or her residence to be used by an
invitee of the parent's child or the guardian's ward, if the invitee is under the age of 21, in a
manner that constitutes a violation of this Section. A parent or guardian is deemed to have
permitted his or her residence to be used in violation of this Section if he or she knowingly
authorizes, enables, or permits such use to occur by failing to control access to either the
residence or the alcoholic liquor maintained in the residence ***."
Plaintiff alleged that defendants violated the statute when they "knowingly authorized, enabled and
permitted their son Jonathan's underage guests to unlawfully possess, distribute to other underage
guests and consume alcoholic beverages" by failing to control access to their residence and failing to
control the alcoholic beverages brought into the residence and maintained there by the underage
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guests. Plaintiff further alleged that, as a proximate result of defendants' statutory violation, Daniel
sustained serious injuries that resulted in his death.
Plaintiff predicates her private right of action on the above-quoted portion of the statute and
also on section 6--16(a)(iii), which provides that no person, after purchasing or otherwise obtaining
alcoholic liquor, shall sell, give, or deliver such liquor to another person under the age of 21 years
except in the performance of a religious ceremony or service (see 235 ILCS 5/6--16(a)(iii) (West
2006)). Plaintiff argues that under People v. Christopherson, 231 Ill. 2d 449 (2008), it was unlawful
for the minors at the party to give other minors alcohol, and it was unlawful for defendants to allow
their residence to be used in a manner that violated the Act. Plaintiff maintains that allowing a private
right of action is consistent with the legislature's purpose in enacting section 6--16(a--1), which was
to keep alcohol out of the hands of underage persons. Plaintiff contends that this case is
indistinguishable from Bybee v. O'Hagen, 243 Ill. App. 3d 49 (1993), which allowed a private right
of action for violation of a statute regulating residential smoke detectors, and Quinn v. Sigma Rho
Chapter of Beta Theta Pi Fraternity, 155 Ill. App. 3d 231 (1987), which allowed a private right of
action for violation of a statute against hazing. Defendants contend that there can be no private right
of action under our facts because the legislature has preempted the field of alcohol liability as stated
in Wakulich and Charles.
In Charles, our supreme court declined to create a civil cause of action where the social host
violated section 6--16(c) of the Act, which provided that it is a petty offense for any person to
knowingly permit a gathering of two or more persons at a residence that he or she occupies when he
or she knows that one of the persons is under age 18 and is in possession of alcohol or is consuming
alcohol or knows that the person under age 18 leaves the residence in an intoxicated condition.
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Charles, 165 Ill. 2d at 485-86. The court stated that, given the legislature's refusal to impose social
host liability upon adults who provide alcoholic beverages to underage persons, the court would not
graft social host liability onto a criminal statute. Charles, 165 Ill. 2d at 486. In Wakulich, the court
observed that, with exceptions contained in the Act making two groups of defendants civilly liable
for alcohol-related injuries, the legislature has chosen to treat the possession and consumption of
alcohol by underage persons as a criminal matter. Wakulich, 203 Ill. 2d at 236. We are bound to
follow Charles and Wakulich.
Although we held that the allegations of counts I, II, and III of the complaint did not
encompass social host liability, the same is not true for the allegations of counts IV, V, and VI, which
attempted to plead a cause of action specifically based upon the giving or furnishing of alcohol with
the permission and knowledge of defendants. Plaintiff alleged that defendants knowingly authorized,
enabled, and permitted the underage partygoers to distribute alcoholic beverages to one another.
These allegations bring counts IV, V, and VI squarely within the field that the legislature has
preempted. Quinn is inapposite, as it involved a fraternity that required its pledges to drink to
intoxication in order to become members, and the fraternity's conduct violated a hazing statute.
Quinn is limited to its facts, and its continued viability was questioned by Wakulich. Wakulich, 203
Ill. 2d at 240. Accordingly, we conclude that the trial court did not err in dismissing with prejudice
counts IV, V, and VI.
CONCLUSION
For the foregoing reasons, we affirm the dismissal of counts IV, V, and VI of the second
amended complaint, reverse the dismissal of counts I, II, and III, and remand this cause to the circuit
court of Lake County for further proceedings.
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Affirmed in part and reversed in part; cause remanded.
HUTCHINSON and HUDSON, JJ., concur.
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