Reynolds v. CB Sports Bar, Inc.

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3753

L ORETTA R EYNOLDS,

Plaintiff-Appellant,

v.

CB S PORTS B AR, INC. and C ASEY J. C ARSON,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:07-cv-00754—J. Phil Gilbert, Judge.

A RGUED A PRIL 14, 2010—D ECIDED O CTOBER 22, 2010

Before P OSNER, R IPPLE, and K ANNE, Circuit Judges.

K ANNE, Circuit Judge. Loretta Reynolds alleges that

Brenda Russell and Casey Carson induced her to become

intoxicated in a bar owned by CB Sports Bar, Inc., and

attempted to take her back to their apartment “for sexual

exploitation.” Reynolds managed to escape, but was

injured when she was struck by a car. Reynolds sued

Russell, Carson, and CB Sports for negligence and

punitive damages. She alleged in her second amended

2 No. 09-3753

complaint that CB Sports (through its bartenders) knew

of Russell and Carson’s plans but negligently failed

to protect her from the attack. The district court dis-

missed the negligence count against CB Sports for

failing to state a claim. Because we conclude that

Reynolds’s complaint is broad enough to encompass a

viable theory of negligence against CB Sports, we reverse

and remand.

I. B ACKGROUND

In her second amended complaint, Reynolds alleged that

in October 2005 she went to Jerzey’s Sports Bar in O’Fallon,

Illinois. Jerzey’s is owned by Appellee CB Sports Bar, Inc.

After two beers, Reynolds left the bar to go back to her

hotel, but discovered that her car would not start. She went

back into the bar and asked the bartender for a phone book

so that she could call for a taxi. The bartender told her that

no taxis were available and that she would have to get a

ride back to her hotel from someone in the bar.

Brenda Russell and Casey Carson approached Reynolds

and offered to give her a ride to her hotel. Before

they left the bar, however, Russell and Carson bought

Reynolds several drinks “in an attempt to cause plain-

tiff to comply with their design to lure her to their apart-

ment for sexual exploitation.” (R. at 16, p. 2.) Reynolds

also alleged that Russell and Carson may have slipped

some kind of drug into her drinks. Reynolds, Russell,

and Carson left the bar together, and they all got into

Russell and Carson’s car. Reynolds realized at some

point during the car ride that they were not driving

No. 09-3753 3

toward her hotel and that Russell and Carson intended

to rape her. Reynolds escaped from the car when

Russell and Carson stopped to buy cigarettes. She at-

tempted to walk back to her hotel, but because she was

still extremely intoxicated, she wandered onto a nearby

highway on-ramp and was struck by a car, suffering

serious injuries.

As it relates to this appeal, the operative paragraph

of her complaint is paragraph 19:

That Defendant Jerzey’s at least knew or should

have known that Defendants Russell and

Carson were getting Plaintiff Loretta Reynolds

intoxicated for the purpose of sexual exploitation.

At worst, Defendant Jerzey’s and its employ/

agent bartender was an active accomplice in the

attempt to ensnare Plaintiff Loretta Reynolds

into an unsavory and unwelcome sexual situation.

(Id., p. 5.) She also alleged that CB Sports knew or

should have known that she would have tried to escape

and that CB Sports “had a duty to protect the welfare of

its customers, including Plaintiff Loretta Reynolds from

situations such as that being plotted by Defendants

Russell and Carson.” (Id.)

CB Sports moved to dismiss her negligence claim

against it for failure to state a claim. The district court

granted the motion, finding that CB Sports’s duty to

protect its business invitees did not extend “to such

distances or circumstances as are involved in this

case,” and that “there is no reason CB Sports could

have reasonably foreseen that there was a danger that

4 No. 09-3753

one of their patrons would be hit by a vehicle while

escaping from criminal activity by another Jerzey’s

patron after leaving the bar—or any other harm of that

general nature.” Reynolds v. CB Sports Bar, Inc., No. 07-cv-

754, 2008 WL 4792704, at *5 (S.D. Ill. Oct. 30, 2008).

While Reynolds’s appeal of the district court’s decision

was pending in this court, she continued to press her

claims against Russell and Carson. Reynolds eventually

moved to dismiss Russell from the case. The district

court later held an evidentiary hearing in October 2009

in which Reynolds provided a more detailed account of

the events in question. Reynolds said that there were

two bartenders, one male and one female, and that both

refused to give her a phone book, telling her that there

were no taxis available. She also said that she asked the

bartenders about Russell and Carson. The bartenders

allegedly told her that “they were fine. That they [the

bartenders] knew them. That they were regulars

and that they would be okay.” (R. at 65, p. 11.) She even-

tually obtained a default judgment against Carson for

$1.5 million. In this appeal we address only the district

court’s granting of CB Sports’s motion to dismiss.

II. A NALYSIS

A. Standard of Review

We review the grant of a motion to dismiss for failure

to state a claim de novo. Reger Dev. LLC v. Nat’l City Bank,

592 F.3d 759, 763 (7th Cir.), cert. denied, ___ S. Ct. ___ (2010).

“[E]valuating the sufficiency of the complaint, we construe

No. 09-3753 5

it in the light most favorable to the nonmoving party,

accept well-pleaded facts as true, and draw all inferences

in her favor.” Id. To survive a motion to dismiss, the

plaintiff must do more than simply recite elements of a

claim; the “complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007)). The plaintiff need not, however, plead “de-

tailed factual allegations.” Id.

B. Dramshop Act

At the outset, we note that CB Sports cannot be held

liable for Reynolds’s injuries based on it having provided

her with alcohol. The Illinois Dramshop Act is the exclu-

sive remedy for injuries resulting from a bar’s provision

of alcohol, 235 ILCS 5/6-21; Simmons v. Homatas, 925

N.E.2d 1089, 1095 (Ill. 2010), and the Act does not

provide a cause of action for injuries sustained by the

intoxicated person himself, 235 ILCS 5/6-21. That being

said, Reynolds failed to bring any action under the

Dramshop Act within one year of being injured, so any

claim she might have had under the Act is time-barred.

See id.

The Dramshop Act, however, does not give a bar com-

plete immunity from being sued for tortious conduct; the

Act only preempts actions based on the provision of

alcohol. A plaintiff may still bring a cause of action

against a bar for acts that are independent of serving

6 No. 09-3753

alcohol. Simmons, 925 N.E.2d at 1097-98; Harris v. Gower,

Inc., 506 N.E.2d 624, 626 (Ill. App. Ct. 1987). Therefore,

although CB Sports’s liability here cannot be premised

on its having served Reynolds (or any other patron)

alcohol, it may still be liable if Reynolds has adequately

stated a claim against CB Sports for some other

negligent conduct.

C. Supplemental Facts

The first issue that we must resolve is whether

Reynolds may supplement her complaint on appeal with

facts that she did not include in her complaint. Of note

is her testimony at the evidentiary hearing held after

the district court had already dismissed her complaint

against CB Sports, in which she testified that the bar-

tenders vouched for Russell and Carson. For the reasons

discussed in more detail below, this question is crucial

to the outcome of her appeal.

Prior to Iqbal and Twombly, it was clear that “a plaintiff

[was] free on appeal to give us an unsubstantiated

version of the events, provided it is consistent with the

complaint, to show that the complaint should not have

been dismissed.” Dawson v. General Motors Corp., 977

F.2d 369, 372 (7th Cir. 1992) (internal quotation marks

and alteration omitted). The question now is whether

Iqbal and Twombly narrowed the pleading standard such

that this after-the-fact hypothesis of facts is no longer

permissible.

No. 09-3753 7

We conclude that the Supreme Court’s recent decisions,

while raising the bar for what must be included in the

complaint in the first instance, did not eliminate

the plaintiff’s opportunity to suggest facts outside the

pleading, including on appeal, showing that a complaint

should not be dismissed. See Twombly, 550 U.S. at 563

(“[O]nce a claim has been stated adequately, it may be

supported by showing any set of facts consistent with

the allegations in the complaint.”); McZeal v. Sprint

Nextel Corp., 501 F.3d 1354, 1356 n.4 (Fed. Cir. 2007).

Therefore, although the plaintiff is required to plead

more than bare legal conclusions to survive a motion to

dismiss, once the plaintiff pleads sufficient factual

material to state a plausible claim—that is, sufficient to

put the defendant on notice of a plausible claim

against it—nothing in Iqbal or Twombly precludes the

plaintiff from later suggesting to the court a set of facts,

consistent with the well-pleaded complaint, that shows

that the complaint should not be dismissed.

With this background in mind, we turn to Reynolds’s

complaint. In relevant part, Reynolds alleged in her

second amended complaint that the bartender refused

to help her get a taxicab and told her she would have to

get a ride back to her hotel from another patron. She

also alleged that the bartender assisted Russell and

Carson in getting Reynolds intoxicated knowing their ill

intentions. In Count 2 of her second amended complaint,

Reynolds alleges that CB Sports “at least knew or should

have known that Defendants Russell and Carson were

getting Plaintiff Loretta Reynolds intoxicated for

the purpose of sexual exploitation,” and “[t]hat Defendant

8 No. 09-3753

[CB Sports] had a duty to protect the welfare of its cus-

tomers . . . from situations such as that being plotted

by Defendants Russell and Carson.” (Complaint at 19, 21.)

Taken together, we find these allegations sufficient to

raise a plausible claim of negligence against CB Sports.

Although Reynolds could have included more factual

material in her complaint, she has done enough to

nudge her claim of negligence against CB Sports over

the line to plausible, and the complaint on its face is

sufficient to put CB Sports on notice of her claim against

it. Based on a fair reading of the second amended com-

plaint, CB Sports would have known that Reynolds

was suing it for breaching its purported duty to protect

her from Russell and Carson. Having made a sufficient

showing in the first instance, Reynolds is free on appeal

to suggest additional facts that would demonstrate to

us why her complaint should not be dismissed for

failing to state a claim. We will therefore consider the

additional factual allegations that Reynolds has raised

on appeal, including the allegation that the bartenders

told her that it would be safe for her to ride home

with Russell and Carson.

D. Negligence

We first note that the second half of paragraph 19

attempts to state a cause of action for an intentional tort

and not for negligence. (See Complaint at 19 (“At worst,

Defendant Jerzey’s and its employ/agent bartender was

an active accomplice in the attempt ensnare Plaintiff

Loretta Reynolds into an unsavory and unwelcome

No. 09-3753 9

sexual situation.”).) Subject to some inapplicable excep-

tions, CB Sports is not liable for its agents’ intentional

torts, so it cannot be liable for the bartender’s actions if

he was an active accomplice of the tortious attack against

Reynolds. Accordingly, we now discuss whether the

first sentence of paragraph 19 states a claim of negligence.

1. Duty

Because federal jurisdiction in this case is based on

diversity of citizenship, we apply Illinois substantive

law. See Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 531 (7th

Cir. 1985). “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.” Bell v. Hutsell, 931 N.E.2d 299, 302 (Ill. App. Ct.

2010). There is normally no duty to protect someone from

criminal attacks by third parties. Hills v. Bridgeview Little

League Ass’n, 745 N.E.2d 1166, 1185-86 (Ill. 2000). However,

a landowner will have a duty to protect lawful entrants

against criminal attacks on the premises if the parties

stand in a special relationship—such as between a

business invitor and invitee, see Rowe v. State Bank of

Lombard, 531 N.E.2d 1358, 1364 (Ill. 1988)—and the

criminal attack was reasonably foreseeable, Hills, 745

N.E.2d at 1186-87; Osborne v. Stages Music Hall, Inc., 726

N.E.2d 728, 733 (Ill. App. Ct. 2000) (emphasizing that

the criminal act must be not only foreseeable, but rea-

sonably foreseeable); see also Mitchell v. Archibald &

Kendall, Inc., 573 F.2d 429, 433 (7th Cir. 1978) (“[A]n owner

10 No. 09-3753

or occupier of land in Illinois owes a duty to invitees on

his premises reasonably to guard against criminal acts of

third parties when knowledge of previous incidents or

circumstances charges him with knowledge of this dan-

ger.”). “A criminal attack by a third person is rea-

sonably foreseeable when the circumstances are such as

to put a reasonably prudent person on notice of the

probability of an attack or when a serious physical alter-

cation has already begun.” Shortall v. Hawkeye’s Bar &

Grill, 670 N.E.2d 768, 770 (Ill. App. Ct. 1996).

Even if there is a special relationship and the criminal

attack is foreseeable, courts must still decide whether

to impute a duty to protect against the attack. See Burks v.

Madyun, 435 N.E.2d 185, 189 (Ill. App. Ct. 1982). Courts

will consider a number of factors in deciding whether

to impose a duty on someone to protect another, in-

cluding “(1) the reasonable foreseeability of the injury;

(2) the likelihood of the injury; (3) the magnitude of

the burden of guarding against the injury; and (4) the

consequences of placing that burden on the defendant.”

Marshall v. Burger King Corp., 856 N.E.2d 1048, 1057

(Ill. 2006).

Had Reynolds been attacked or harmed while on the

bar premises, our task would be substantially easier;

business invitor liability for foreseeable criminal attacks

on the premises is well established. See, e.g., Lewis v.

Razzberries, Inc., 584 N.E.2d 437, 441 (Ill. App. Ct. 1991)

(citing Restatement (Second) of Torts § 344). Here, how-

ever, Reynolds was injured more than one mile from

the bar, and guidance from Illinois courts on this issue

No. 09-3753 11

is decidedly less clear. See Mitchell, 573 F.2d at 433

(noting that where “there are no Illinois cases ‘on all

fours’ with the present case, we must decide the case

as we believe the Illinois courts would”).

The general rule is that a business invitee ceases to be

an invitee, and the business invitor’s liability is

therefore extinguished, as soon as the invitee leaves

the premises owned by the invitor. See Lewis, 584 N.E.2d

at 442 (“[T]his court has refused to extend liability to

protect against assaults or altercations occurring after

a patron leaves the owner’s premises.”); Badillo v. DeVivo,

515 N.E.2d 681, 684 (Ill. App. Ct. 1987) (“This court

has repeatedly held that requiring a business operator

to protect its patrons from injuries that occur after the

patron leaves the premises places an unjustifiable

burden on the operator and on the police force.”).

In Badillo, the plaintiff was attacked by another patron

of the defendant bar inside the bar. The bar stopped the

fight and kicked both patrons out. The original aggressor

attacked the plaintiff again as she was getting into her

car a half block away from the bar, this time using a

police baton. 515 N.E.2d at 682. The Illinois Appellate

Court held that the bar was not liable for the injuries

sustained in the attack that occurred outside the bar,

because imposing a duty on the bar to ensure the safety

of its patrons off premises, even if an attack is fore-

seeable, would impose too heavy of a burden on a bar.

Id. at 683-84; see also Lewis, 845 N.E.2d at 441 (finding

that a tavern was not liable for a criminal attack on one

of its patrons that occurred 23 feet off premises because

12 No. 09-3753

“[f]rom the time plaintiff’s decedent left defendant’s

legal boundaries, she was no longer owed a duty of care

as a business invitee”).

Applying Illinois law, this court has also found that a

business was not liable for a criminal attack by a third

party against a truck driver that occurred off the

business’s premises, even though the business’s em-

ployees directed the truck driver to park on a road near

the business on which the employees knew criminal

attacks had previously occurred. Mitchell, 573 F.2d at 437.

There are, however, exceptions to the general rule. In

Shortall, the Illinois Appellate Court found that a bar

could be liable for injuries that occurred during a fight

that occurred just outside the bar. 670 N.E.2d at 772.

The dispute that eventually led to the fight had occurred

in the bar, the fight lasted for fifteen minutes, the bar

escalated the fight by ushering some patrons outside

into the fight, and the bar’s bouncers were watching the

fight through a window but did nothing. Id. at 769-70.

Under those circumstances, the court concluded that

the bar “was under the same duty as if the fight had

occurred inside the bar.” Id. at 772. More generally, the

court held that “tavern owners may not avoid applica-

tion of the duty to act to protect invitees from criminal

attack by third parties simply because the disturbance

giving rise to the duty occurs just out the front door,

especially where the owner contributes to the alterca-

tion by sending patrons out into it.” Id.

Similarly, in Osborne, 726 N.E.2d at 734, the court

found that the defendant nightclub could be liable for a

No. 09-3753 13

criminal attack against one of its patrons that occurred

on the sidewalk in front of the nightclub. Earlier that

evening, the nightclub had used barricades to help form

the line going into the club. At some point that evening,

the nightclub’s bouncers ejected two drunk men and

shut the doors behind them. The men pounded on the

doors and yelled profanities at the bouncers. The

plaintiff and a friend walked out of the club onto the

sidewalk in front of the club. One of the men outside

slapped the plaintiff’s friend, and as the plaintiff ap-

proached her friend one of the men spun and kicked her

in the face. Id. at 729-31. The court said that the rea-

sonable foreseeability of the attack, and not whether the

attack occurred on or off premises, was the dispositive

factor for liability. Id. at 733. Significantly, it found

ample evidence to find that the attack against the

plaintiff was reasonably foreseeable: the bouncers knew

that the men outside were drunk and angry, that they

had already been involved in a fight inside the club,

and that they had not cooled off after being evicted. The

bouncers did not remove the men from the sidewalk or

otherwise police the area even though the club had con-

trolled the sidewalk area earlier that evening. Based on

the bouncers’ knowledge and their inaction, the court

concluded that “it was reasonably foreseeable that a

patron would be attacked upon exiting the club and,

therefore, it was incumbent on the club to guard

against such an occurrence.” Id. at 734.

Most recently, in Haupt v. Sharkey, 832 N.E.2d 198, 202-03

(Ill. App. Ct. 2005), the Illinois Appellate Court found

that a bar could be liable for a criminal attack against one

14 No. 09-3753

of its patrons that occurred just off the bar’s premises.

After discussing Shortall and Badillo, the court con-

cluded that “there is no bright line rule that a tavern

owner’s duty to protect its patrons from criminal acts

of third parties absolutely ends at the precise property

line of the tavern.” Id. at 203. The court held that a bar’s

duty “to provide a reasonably safe means of ingress and

egress to patrons,” coupled with the foreseeability of the

criminal attack that occurred as the patron was evicted

from the bar, served to preclude granting summary

judgment in the bar’s favor. Id. at 204-05.

Against this backdrop, Reynolds asks us to find that

CB Sports owed a duty to protect her against Russell

and Carson’s criminal attack that was to occur off the

physical premises owned by CB Sports. To find in

Reynolds’s favor would require us to wade into somewhat

uncharted territory because no Illinois court of which we

are aware has ever extended business invitor liability so

far off premises. However, the fact that Reynolds’s

injuries were sustained more than one mile away from CB

Sports’s bar does not necessarily preclude finding a duty

here. See id. at 203-04.

There is no question in this case that Reynolds was

a business invitee of CB Sports while she was inside

the bar. Therefore, CB Sports clearly had a duty to

protect her from foreseeable criminal attacks by third

parties while she was inside the bar. The dispositive

question, though, is when CB Sports’s duty to protect

Reynolds ended the night she was injured. As noted

previously, the general rule is that she ceased to be an

No. 09-3753 15

invitee when she left the physical premises owned by

CB Sports. Unless the exception to the general rule dis-

cussed above applies, CB Sports cannot be liable for

her injuries because it was under no duty to protect her

at the time she was injured. Our remaining task, then, is

to determine what the scope of the exception to the gen-

eral rule is and whether Reynolds fits within that excep-

tion.

No duty can exist unless the crime was reasonably

foreseeable—that is, that a reasonable person under the

circumstances would have known that an attack would

occur. Id at 204. One clear example of circumstances

that should put a bar on notice of a probable criminal

attack is when a physical altercation has already oc-

curred. Id. The focus of foreseeability is what the defen-

dant knew at the time. Lewis, 584 N.E.2d at 442. Thus, the

criminal attack in Shortall was reasonably foreseeable

to the bar because the bartender had observed the scuffle

that happened inside the bar prior to the fight erupting

outside, and a bouncer watched the fight through a

window as it escalated. Shortall, 670 N.E.2d at 771. In

Osborne, the attack was reasonably foreseeable because

the bouncers had previously fought with the attackers

while they were in the club, the bouncers heard the

men yelling angrily and pounding against the club’s

doors, and the bouncers knew that the men were drunk

and looking for a fight. Osborne, 726 N.E.2d at 734. The

court concluded that the club had a duty to protect

its patrons against a criminal attack by the men outside

the club “[b]ecause of what the bouncers knew about

the two men.” Id. Finally, the attack in Haupt was foresee-

able because the bar owner knew through prior personal

16 No. 09-3753

experience that the attacker had a propensity for fighting,

on the night of the attack he had observed the plaintiff and

the attacker fighting in the bar, and he kicked the men out

of the bar at the same time. Haupt, 832 N.E.2d at 200, 204-

05.

Here, Reynolds has alleged, and we are obliged to

accept as true, that CB Sports “at least knew or should

have known that Defendants Russell and Carson were

getting Plaintiff Loretta Reynolds intoxicated for the

purpose of sexual exploitation.” She does not say

how she knows that the bartender knew, but that is

what discovery is designed to unearth. Assuming as

true that the bartender knew of Russell and Carson’s

criminal purposes, we must conclude that the subse-

quent unrealized criminal attack on Reynolds was rea-

sonably foreseeable to CB Sports.

Of course, just because a criminal attack is reasonably

foreseeable does not necessarily mean that a bar has a

duty to protect against it. See Gustafson v. Mathews, 441

N.E.2d 388, 390 (Ill. App. Ct. 1982) (“Foreseeability is

a necessary but not a sufficient condition for imposing

a duty.”). We must also consider the likelihood of

injury, the burden on the defendant of guarding

against that injury, and any consequences of placing the

burden to protect on the bar. Osborne, 726 N.E.2d at 732.

The likelihood of injury under these circumstances

was very high. This was not a fight that may or may

not have broken out in the bar parking lot, but a pur-

poseful scheme to attack Reynolds with serious conse-

quences sure to result. Therefore, this factor weighs in

favor of finding a duty.

No. 09-3753 17

We do not think it overly burdensome to require a bar

to protect against criminal attacks of the kind in this

case if it knows they will be perpetrated. CB Sports

argues that finding liability here would require all bars

to ensure that their patrons do not leave with shady

characters and that they all make it safely home. To be

sure, we would be inclined to agree with CB Sports

that such a broad duty would violate Illinois public

policy. But we note two limiting principles, drawn from

Illinois courts’ decisions, that make imposing a more

limited duty on CB Sports consistent with established

Illinois law.

First, CB Sports was under no duty to investigate the

plans or intentions of its patrons. To require a bartender

to investigate each patron’s purposes in purchasing

drinks for themselves or someone else would place an

unjustified burden on the bar. This limitation stems

logically from the Illinois courts’ holding that a bar is

under no duty to determine how intoxicated its patrons

are before they drive away from the bar. See Simmons,

925 N.E.2d at 1099; Holtz v. Amax Zinc Co., 519 N.E.2d

54, 58 (Ill. App. Ct. 1988) (“[W]e do not believe that such

an employer can be liable where its agents have simply

failed to take steps to prevent an intoxicated employee

from driving home.”); Gustafson, 441 N.E.2d at 390-91

(describing as “an unjustifiably burdensome responsi-

bility” a duty that “would require [businesses] to

evaluate the behavior of their customers to determine

whether they have the capacity to drive safely”).

The second limiting principle follows naturally from

the first. Under the specific facts of this case, CB Sports

18 No. 09-3753

had a duty to protect against only those criminal

attacks occurring far from its physical premises that it

knew would occur. Because CB Sports had no duty to

investigate the motives of its patrons, it can be liable

only for criminal designs of which it was actually aware.

After all, the criminal attack must not only be foresee-

able, but reasonably foreseeable. And when an attack is

to occur far from the physical premises of a bar, it is

unreasonable to require a bar to foresee all the hidden,

nefarious plans of its patrons. However, it is not overly

burdensome to require a bar to protect its invitees if it

knows that one patron is intending to attack another

patron, even if the attack is to occur far from the bar.

In Simmons, the Illinois Supreme Court found that the

rule that taverns are not required to determine the

driving capacity of their patrons was no defense to the

club in that case. Although it was under no duty to do

so, the club had taken on “the burden of determining

whether [the defendant drunk driver] was dangerously

intoxicated” and had therefore “acquired a duty not to

encourage and assist [the defendant] in the tortious

conduct of driving while intoxicated.” 925 N.E.2d at

1099. Likewise, although CB Sports was not obligated to

investigate Russell and Carson’s motives behind buying

Reynolds drinks or driving her home, once it allegedly

learned of their ill motives it acquired the duty to protect

Reynolds from the attack. See also Badillo, 515 N.E.2d at

683 (finding no liability for an off-premises criminal

attack, and distinguishing Yashar v. Yakovac, 48 N.Y.S.2d

128 (N.Y. City Ct. 1944), because in that case, which

No. 09-3753 19

found a duty, the defendant bar knew that the attackers

were waiting for the plaintiff outside the bar).

We conclude that Reynolds has sufficiently pled that

CB Sports owed her a duty to protect her against the

criminal attack by Russell and Carson if it actually knew

of their alleged plan to sexually exploit her off premises.

She has also sufficiently pled the remaining elements of

her negligence claim. Thus, we need not (and should

not) decide at this stage of litigation what CB Sports

could have done to discharge its duty, nor whether CB

Sports’s inaction (such as failing to warn her or give her

a phone book) or action (such as telling her to get a

ride home from someone at the bar or vouching for

Russell and Carson) breached that duty.

2. Causation

CB Sports asks us to conclude as a matter of law that

even if it breached its duty, its breach was not the proxi-

mate cause of Reynolds’s injuries. We decline to so find.

“[P]roximate cause is preeminently an issue of fact to be

decided by the jury,” Rivera v. Garcia, 927 N.E.2d 1235,

1242 (Ill. App. Ct. 2010), and the lack of proximate cause

should only be determined by the court “where the

facts alleged do not sufficiently demonstrate both cause

in fact and legal cause,” Young v. Bryco Arms, 821 N.E.2d

1078, 1086 (Ill. 2004).

As with most accidents, there are several factors that

may have contributed to Reynolds’s injuries, including

the bartender vouching for Russell and Carson and per-

20 No. 09-3753

haps Reynolds’s own negligence. At this stage of litiga-

tion, we cannot say as a matter of law that CB Sports’s

actions were not the proximate cause of Reynolds’s in-

juries. And in fact, Reynolds has pled as much. It does not

matter that Reynolds’s injuries resulted from being hit

by a car while escaping a future attack, rather than

from the attack itself. Proximate cause does not require

that the defendant foresee the exact way in which an

injury will occur. Hooper v. County of Cook, 851 N.E.2d

663, 669 (Ill. App. Ct. 2006). If CB Sports knew that

Reynolds would be attacked, it was reasonably fore-

seeable that she would try to escape and perhaps be

injured. CB Sports will have another opportunity after

discovery to raise the proximate cause issue in a motion

for summary judgment—should it be so inclined—at

which point Reynolds will have to do more than

simply allege proximate cause. Until then, she has

done enough to survive a motion to dismiss.

There is one final item with which we may dispense

quickly. Reynolds also argues that CB Sports voluntarily

assumed the duty to ensure that she make it back to her

hotel safely by refusing to give her a telephone book

and telling her that no taxis were available. “Gen-

erally, pursuant to the voluntary undertaking theory of

liability, one who undertakes, gratuitously or for con-

sideration, to render services to another is subject to

liability for bodily harm caused to the other by one’s

failure to exercise due care in the performance of the

undertaking.” Wakulich v. Mraz, 785 N.E.2d 843, 854 (Ill.

2003) (internal quotation marks omitted). In general,

taverns are not required to ensure their patrons’ safe

No. 09-3753 21

passage to their cars or homes. Badillo, 515 N.E.2d at 684.

To voluntarily assume such a duty requires more than

just not helping patrons safely to their cars. See Lewis,

584 N.E.2d at 441-42. We do not think that simply not

giving Reynolds a phone book or telling her to get a

ride home with someone else in the bar is enough to

say that CB Sports voluntarily assumed a duty to

ensure her safe arrival at her hotel. Reynolds therefore

has failed to state a claim under a voluntary under-

taking theory of liability.

III. C ONCLUSION

We R EVERSE the district court’s judgment of dismissal

of CB Sports Bar, Inc., and R EMAND for further pro-

ceedings consistent with this opinion.

R IPPLE, Circuit Judge, dissenting. This case requires

that we undertake the familiar task of discerning the

content of state law and of applying it as we believe

the Supreme Court of Illinois would apply it if this case

were before it today. As my colleagues correctly point out,

the Supreme Court of Illinois has expanded business

invitor liability over recent years. Nevertheless, we must

be very careful that we do not reach beyond the

22 No. 09-3753

boundaries currently drawn by the state court; any such

expansion would require the reconciliation of important

policy considerations, the prerogative of the Illinois

courts. It is not our place to extend legal liability

beyond the boundaries set by the state. See Todd v. Societe

Bic, S.A., 21 F.3d 1402, 1412 (7th Cir. 1994) (en banc).

On the facts before us, Ms. Reynolds essentially

attempts to make out a case against CB Sports grounded

not in negligence but in intentional tort. I cannot accept

the view that, given the facts before us, current Illinois

law imposes a duty upon CB Sports to protect

Ms. Reynolds from the bartender’s complicity in the

criminal attack of Russell and Carson. Such a holding

would expand drastically Illinois state law with respect

to business invitor liability, and, therefore, exceed our

interpretative authority under the Erie Doctrine.

Illinois courts have expanded liability, in some

instances, for third party attacks that occurred beyond

the business premises because the attacks were “reason-

ably foreseeable.” See Osborne v. Stages Music Hall, Inc., 726

N.E.2d 728, 733 (Ill. App. Ct. 2000). However, a close

examination of the allegations made by Ms. Reynolds

reveals several key distinctions between the factual

circumstances alleged in this case and those addressed

in the Illinois cases relied upon by the court. The

Supreme Court of Illinois has employed a “forseeability

analysis” to expand business invitor liability when

the surrounding circumstances were such that the busi-

ness’s employees had notice of a potential altercation

and negligently facilitated the occurrence. It is one thing

No. 09-3753 23

to suggest that “the circumstances [were] such as to put

a reasonably prudent person on notice of the probability

of an attack,” Shortall v. Hawkeye’s Bar & Grill, 670

N.E.2d 768, 770 (Ill. App. Ct. 1996), and quite another to

make the assertion, as Ms. Reynolds does, that an em-

ployee actually “knew” of the planned attack and took

conscious steps to aid the third party in carrying out

the planned attack. If we accept, as we must, the facts

stated by Ms. Reynolds to be true—that the bartender

indeed knew of the defendants’ plans, refused to

provide her with a phone book, told her she would have

to catch a ride to her hotel with someone in the bar,

reassured her that she would be safe with Russell and

Carson, and then continued to serve her “excessive

amounts of alcohol” purchased by the defendants—the

traditional foreseeability analysis of negligence law

hardly seems relevant in this case. Rather, fairly read,

her allegations allege an intentional tort on the part of

the bartender, not the negligent performance of his

duties. The authorities relied upon by the court today

deal with negligence situations. The Illinois courts were

addressing whether to expand business invitor liability

when the facts were such that the business employees

knew only that an attack could take place, and negligently

did nothing to stop it. By contrast, in this case,

Ms. Reynolds is asserting that the bartender knew that

an attack would take place and actually cooperated with

the assailants in their plot to carry out the attack. Given

these factual allegations, it is difficult to understand

how the bartender could be simply negligent; he knew

of the defendants’ plans for Ms. Reynolds, yet dis-

24 No. 09-3753

couraged other possibilities to her and even told her that

these individuals were safe and served her additional

drinks at the defendants’ request. I do not believe that

Illinois negligence law permits the extension of business

invitor liability to situations in which an employee has

actual knowledge of a planned attack on a patron and

takes affirmative steps to enable the plan to be executed

by the third party.

The Supreme Court of Illinois’s recent decision in

Simmons v. Homatas, 925 N.E.2d 1089 (Ill. 2010), makes

this distinction clear. In that case, the complaint alleged

that the business establishment “knew or should have

known” that one of their patrons was intoxicated and

leaving the premises by driving a vehicle in that

inebriated state. Id. at 1101. The plaintiffs brought a

claim for negligence under Restatement (Second) Torts

§ 876, asserting that the defendant club had given “sub-

stantial assistance or encouragement” to a patron in

committing a breach of duty by driving intoxicated. Id.

In Simmons, the court held the club liable for negligence,

which resulted in a fatal car accident that occurred

fifteen minutes after the patron left the club’s premises.

Simmons, 925 N.E.2d at 1092. The bouncers at the bar

were aware of the patron’s drastically impaired state,

and facilitated his leaving the bar behind the wheel of

his car. See id. The custodial nature of the bouncers’

relationship to the patron in the moments before the

patron drove away from the club permitted the court to

extend business invitor liability beyond the immediate

vicinity of the club. Id. at 1102-03.

No. 09-3753 25

There is a meaningful distinction between extending

liability for the negligent actions of employees that facili-

tate the later tortious conduct of a third person and

extending liability when a plaintiff alleges that the bar-

tender knew that a third person was going to commit

a tortious act, consciously cooperated by steering the

plaintiff toward the third party and assisted the third

party in making the plaintiff more pliable to their

plans. The claim as stated by Ms. Reynolds in the first

sentence of paragraph 19 makes out a claim for an inten-

tional tort. Because CB Sports is not liable for its agents’

intentional torts, it cannot be liable for the bartender’s

actions if he consciously cooperated with the plans of

the defendants, as Ms. Reynolds asserts.

As my colleagues note, Ms. Reynolds’s alternate al-

legation that the bartender “should have known” of the

defendants’ plans for Ms. Reynolds also fails under

Illinois law. Foreseeability alone does not create a duty

on the part of a bar to protect its patrons from the crim-

inal attack of a third party. See Gustafson v. Mathews, 441

N.E.2d 388, 390 (Ill. App. Ct. 1982). Also relevant is

the burden on the bar in protecting against these kinds

of attacks. See Osborne, 726 N.E.2d at 732. As the

majority noted, CB Sports did not have a duty to investi-

gate the plans or intentions of its patrons. See Op. at 17.

A bartender is not charged with the responsibility of

knowing the motivations of everyone he serves and,

given what goes on in bars today, it would impose a

significant burden on these individuals and their em-

ployers to expose them to liability for not having ascer-

tained those motivations. There are no facts in the com-

26 No. 09-3753

plaint or the briefs to support Ms. Reynolds’s conten-

tion that the bartender “should have known” of the de-

fendants’ plans based upon the defendants’ prior

actions or the bartender’s knowledge of the defendants.

To extend the liability of the bar to situations where

the bartender “should have known” of the breach of

duty of another patron would significantly extend the

responsibility, and liability, of individuals in those sit-

uations. To say otherwise would create a remedy that

is quite beyond where the courts of Illinois have gone.

For the reasons stated above, I respectfully dissent.

10-22-10