finding a proper claim for common-law negligence existed where a tavern employee escorted a *258 patron to his car, left the patron in the car, and the patron froze to death while unconscious
How later courts described this case
- finding a proper claim for common-law negligence existed where a tavern employee escorted a *258 patron to his car, left the patron in the car, and the patron froze to death while unconscious
- finding a proper claim for common-law negligence existed where a tavern employee escorted a patron to his car, left the patron in the car, and the patron froze to death while unconscious
- tavern employees placed intoxicated-to-unconsciousness decedent in car, where he froze to death; court held that tavern had affirmative duty, apart from any issue of dramshop liability, not to place decedent in peril
Written by the judges who cited it.
Distinguished
Distinguished by Holtz v. Amax Zinc Co., 165 Ill. App. 3d 578 (1988)
Plaintiffs seek to justify their position based on our recent decision in Harris v. Gower, Inc. (1987), 153 Ill. App. 3d 1035, 506 N.E.2d 624, but that case is distinguishable on its facts and was premised on notions of premises liability.
The opinion
PRESIDING JUSTICE KARNS, dissenting:
I disagree with the majority’s conclusion that plaintiff’s complaint states a cause of action for common law negligence. Plaintiff’s complaint alleges that “plaintiff’s decedent was a customer and patron of defendants’ establishment,” that “plaintiff’s decedent consumed drinks and became intoxicated and unconscious,” and that “while intoxicated and unconscious” decedent was removed from the tavern by defendants’ agents and employees. In so pleading, plaintiff went beyond alleging a breach of duty stemming from defendants’ status as a possessor of land. In Lessner v. Hurtt (1977), 55 Ill. App. 3d 195, 197 , 371 N.E.2d 125, 126 , the court examined the pleadings and emphasized that “plaintiff’s amended complaint made no reference or allegation regarding whether defendant Hurtt purchased liquor at Ramada or became intoxicated by reason thereof.” In concluding that Lessner is distinguishable on this basis, I do not believe that form has been elevated over substance. See Zeh v. Wheeler (1986), 111 Ill. 2d 266, 278 , 489 N.E.2d 1342, 1348 .
Examination of the pleadings leads to the inescapable conclusion that plaintiff’s action is predicated on the sale or supply of liquor. It is well established that the Dramshop Act (Ill. Rev. Stat. 1983, ch. 43, par. 135) is the exclusive remedy against tavern owners and operators for injuries caused by an intoxicated person or in consequence of the intoxication of any person (Wimmer v. Koenigseder (1985), 108 Ill. 2d 435 , 484 N.E.2d 1088 ), and it was undisputed at oral argument that plaintiff had indeed recovered a settlement pursuant to the Dramshop Act. The supreme court has taken an expansive view of the Dramshop Act and has failed to recognize common law liability for the negligent sale or supply of liquor, concluding that the Act is plaintiff’s exclusive remedy where the sale or supply of liquor leads to injury. (See Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 442 , 484 N.E.2d 1088, 1092 ; Cunningham v. Brown (1961), 22 Ill. 2d 73, 77 , 174 N.E.2d 157, 160 .) The trial court correctly granted defendants’ motion for judgment on the pleadings. Cardinal Glass Co. v. Board of Education (1983), 113 Ill. App. 3d 442, 444 , 447 N.E.2d 546, 547 .