Petition for Writ of Certiorari — Baum v. Egan

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Ss te a ae

89-1355 i rEB 20 199

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NO. | BESEEH FE SFANIOL, JR

i CCERK

ep ile

IN THE

2 mew

Supreme Court of the United States

OCTOBER TERM, 1989

DONALD BAUM, Individually, and as Executor of the

Estate of BEVERLY BAUM, Deceased, and LESLIE

B. BUENROSTRO, and DEBORAH B. SMITH, Individually,

Petitioners,

JOHN B. EGAN and MARY EGAN,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF

ILLINOIS, FIRST JUDICIAL DISTRICT

GEORGE M. ELSENER

Counsel of Record

GEORGE M. ELSENER & ASSOCIATES

180 North LaSalle Street

Suite 1125

Chicago, Illinois 60601-2601

- (312) 726-8125

Attorneys for Petitioners

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

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QUESTION PRESENTED

Does the Illinois Dram Shop act violate the United

States and Illinois Constitutions by precluding recevery

for the loss of love, society and companionship of a spouse

whose death is caused by over-serving alcohol to a drunk

driver, where such recovery is permitted under Illinois

common law for the otherwise wrongful death of a spouse.

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PARTIES TO THE PROCEEDINGS

AND RULE 29.4(C) STATEMENT

Petitioners, who were plaintiffs and appellants in the

courts below, are DONALD BAuM, Individually, and as the

Executor of the Estate of BEVER' Y BAUM, Deceased, and

LESLIE B. BUENROSTRO, and LEBORAH B. SMITH, Indi-

Vidually.

Respondents, JOHN B. EGAN and MARY EGAN, were the

defendants in the Trial Court and appellees in the Appel-

late Court.

The Attorney General of the State of Illinois has not

appeared in these proceedings, but has been served with

this petition pursuant to 28 U.S.C. Section 2403(b) and

Rule 29.4(c).

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TABLE OF CONTENTS

QUESTION PRESENTED ...................

CECE EUGL CREA GS Secs seviccascncessens

TABLE OF AUTHORITIES .................

STATEMENT OF JURISDICTION ..........

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED .............

STATEMENT OF THE CASE ...............

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OE I nk ccc tcncscekiccusscees

ARGUMENT ........ Sees cans CCK Ie eae kt

DOES THE ILLINOIS DRAM SHOP ACT VIO-

LATE THE UNITED STATES AND ILLINOIS

CONSTITUTIONS BY PRECLUDING RECOV-

ERY FOR THE LOSS OF LOVE, SOCIETY

AND COMPANIONSHIP OF A SPOUSE

WHOSE DEATH IS CAUSED BY OVER:

SERVING ALCOHOL TO A DRUNK DRIVER,

WHERE SUCH RECOVERY IS PERMITTED

UNDER ILLINOIS COMMON LAW FOR

THE OTHERWISE WRONGFUL DEATH OF

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TABLE OF AUTHORITIES

CASES: PAGE

Akin v. J.R.’s, 158 Ul. App.3d 834, 512 N.E.2d 130

Pec UMN LGS alah neh N ssh ARASEKGRWA 16

Arneson v. Olson, 270 N.W.2d 125 (N.D. Sup. Ct.,

DE Wabvevagranbuksercussadukemaentinsss 15

Awa v. Guam Mem. Hosp., 726 F.2d 594 (9th Cir.,

SD Cave eek ae eee Mees tenineeskas wa 14

Barrio v. Magna, 692 P.2d 280 (Ariz. Sup. Ct.,

re rr ee er ee 15

Berry v. Beech Aircraft, 717 P.2d 670 (Utah Sup.

Eila von ade cae weneachspannseacann eas 14

Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va., 1986) . 14

Brown v. Merlo, 506 P.2d 212, 106 Cal. Rptr. 388,

es Ss: Se, SDs Sake nee venwianeebsn en 11

Bullard v. Barnes, 102 Il.2d 505, 468 N.E.2d 1228

NE. ect Wcne SR ENG ae RRM ER RSE RRe OA 8, 16

Carson v. Mauer, 120 N.H. 925, 424 A.2d 825

ees Se LAN Ac ade acdc aen seus 12

Cunningham v. Brown, 22 Il.2d 23, 174 N.E.2d

CEE rc iG hed eROERReNeia cee aaeys 6, 7

Darguzas v. Robinson, 162 Ill.App.3d 362, 515

ee me oe ee | ee ere 15

Demchuck v. DuPlanich, 92 Ill.2d 1, 440 N.E.2d

See OD cc cad ev euus Ciuc sxedustaneteceus 15

Elliot v. Willis, 92 Ill.2d 530, 442 N.E.2d 1638

Lo Ree reer Terr Trt rere Sere re eee 8, 16

y

Engel v. Lamplighter, 172 Ill.App.3d 59, 526 N.E.

ee en Se i ok a eka kcccheecedee

Farley v. Engle, 740 P.2d 1058 (Kan. Sup. Ct.,

DOU Aha NWOdKeARKAACKADRSAUNOUENCEAM ANON

Farmers Stand Bank & Trust Co. v. Lahey’s Lounge,

165 Ill.App.3d 473, 519 N.E.2d 121 (4th Dist.,

SE Wak waceeds Oy SR REESE RORR URES SLGMOR COS

Grace-v. Howiett, 51 Ill.2d 478, 283 N.E.2d 474

DED nclbaa tease dk eedak net eee

Hardy v. Ver Meulen, 512 N.E.2d 626 (Ohio Sup.

Gilg OD KR ASSO RGKUNeb aac eseveene eee

Harris v. Manor Health Corp., 111 Ill.2d 350, 489

PR Ge GUND. 646k 40 eek ac aeeds

Hopkins v. Powers, 136 lll.App.3d 501, 483 N.E.2d

ee Ge EAs, BD wie ceca san ne ewkncueceas

JoDelis v. Harris, 118 Ill.2d 482, 517 N.E.2d 1055

FOE bck GhcGs win Tioeeace ees eee

Kansas Malpractice Victims v. Bell, 757 P.2d 251

Ce Shy, Do oo noe Send bacaa wants

Kennedy v. Cumberland, 471 A.2d 195 (R.1.,

PET ee ere TET er eye

Longstreth v. Gensel, 423 Mich. 675, 377 N.W.2d

SO4 (lich. Sup. Ct., TRGB) 2c. ccccccccccscss

Malan v. Lewis, 693 P.2d 661 (Utah Sup. Ct., Dec.,

BU) canacnctacnsbcundecediauceeeeneeee

McGuire v. C&L Restaurant, Inc., 346 N.W.2d

Gam Cire. Be Ch, FO is cc isccacness

Moran v. Beyer, 734 F.2d 1245 (7th Cir., 1984) ..

Mulhern v. Talk of the Town, 138 ill.App.3d &29,

486 N.E.2d 383 (2nd Dist., 1985) ..........

“I

8, 16

13, 14

13

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vi

Nelson v. Araiza, 69 Ill.2d 534, 372 N.E.2d 637

CATE E4 ASK 44504-05 LORE RERERER RRR ERO ERS 15, 16

PTET Tree eT TTT eet eee

DE C4 CVE Ca 0 6.554040 Ke RS LRAT AE EKAWAUAER

SE SA CCCLV CAN SONG DONA KARR ENTER REA eS

Richardson v. Carnegie Library Restaurant, Inc.,

763 P.2d 1153 (N.M. 1988) ................

Skinner v. Anderson, 38 Ilk2d 455, 231 N.E.2d 588

Now peas Phan CRESS OL eae

Smith v. Barclay, 429 A.2d 438 (Pa. Sup. Ct.,

| PETVTTT TTT TT CT eee

Smith v. Dep. of Ins., 507 So.2d 1080 (Fl. Sup. Ct.,

PRES LAL6 Sa KEES OOS KS sea eR ae

Weiner v. Trassatti, 19 Ill.App.3d 240, 311 N.E.2d

Se CONG GIN; SOD 66.04 cdcanaedeaneneenses

White v. Montana, 661 P.2d 1272 (Mont. Sup. Ct.

5 4 444506004405 4450460e GR EROS

Wilberton v. Freddie’s Pepper Box, Inc., 148 Il.

App.3d 319, 499 N.E.2d 615 (1st Dist., 1986)... 8,

Wright v. Central DuPage Hospital Association,

63 I[ll.2d 313, 347 N.E.2d 736 (1976) .......

Zamiar v. Linderman, 132 Ill.App.3d 886, 478 N.E.

Be GRE (let Ditet., BOBB) on... scecctenweses

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CONSTITUTIONAL PROVISIONS:

U.S. Constitution, Amend. VII .........

U.S. Constitution, Amend. XIV .........

Ill. Constitution, Art. I, Sec. 2 .........

Ill. Constitution, Art. I, See. 12 ........

Ill. Constitution, Art. I, See. 138° ........

Ill. Constitution, Art. IV, See. 18 .......

New Mexico Constitution, Art. II, See. 13

STATUTES:

Ill. Rev. Stat. ch. 1, para. 1004 (1983)

Ill. Rev. Stat. ch. 43, para. 94 (1983)

Iii. Rev. Stat. ch. 48, para 131 (1983)

Ill. Rev. Stat. ch. 43, para. 135 (1983)

co. oo oe

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(sees 13

-eO48CCS Ove se HURSA SOR SERSASOESES 4, 5, 7, 9, 10, 11, 13

Ill. Rev. Stat. ch. 78, para. 21 (1983)

pages 14

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1989

DONALD BAUM, Individually, and as Executor of the

Estate of BEVERLY BAUM, Deceased, and LESLIE

B. BUENROSTRO, and DEBORAH B. SMITH, Individually,

Petitioners,

Vv.

JOHN B. EGAN and MARY EGAN,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE COURT OF

ILLINOIS, FIRST JUDICIAL DISTRICT

Now Come the Petitioners, DONALD Baum, and as Ex-

ecutor of the Estate of BEVERLY Baum, Deceased, and

LESLIE B. BUENROSTRO, and DEBORAH B. SMITH, Indi-

vidually, by their attorneys, GEORGE M. ELSENER & As.

SOCIATES, respectfully Petition for Writ of Certiorari to

the Appellate Court of Illinois, First District in this case.

STATEMENT OF JURISDICTION

The judgment of the Appellate Court of Illinois, First

Judicial District, Fourth Division was entered in favor of

Defendants-Respondents on June 22, 1989. The Supreme

=

Court of Illinois denied Plaintiffs-Petitioners’ Petition for

Leave to Appeal on October 5, 1989.

On November 21, 1989 the Supreme Court of Illinois

denied Plaintiffs-Petitioners Motion for Leave to File a

Motion for Reconsideration of the Order Denying Petition

for Leave to Appeal and granted the motion of Plaintiffs-

Petitioners to stay the mandate of the Supreme Court

of Illinois pending application for certiorari in the United

States Supreme Court.

The jurisdiction of this Court is invoked under 28 U.S.C.

Section 1254(1) and 28 U.S.C. Section 1257(a).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Constitution of the United States of America

Amendment VII

In suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by jury shall

be preserved, and no fact tried by a jury shall be other-

wise re-examined in any Court of the United States, than

according to the rules of the common law.

Amendment XIV

Section 1. All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

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Constitution of the State of Illinois

Article I, Section 2

No person shall be deprived of life, liberty or property

without due process of law nor be denied of the equal

protection of the laws.

Article 1, Section 13

The right of trial by jury as heretofore enjoyed shall

remain inviolate.

Illinois Revised Statutes

Ill. Rev. Stat. ch. 1, para. 1004 (1983)

Words importing the singular number may extend and

be applied to several persons or things, and words import-

ing the plural number may include the singular.

Ill. Rev. Stat. ch. 43, para. 94 (1983)

[The Liquor Control Act of 1934] shall be liberally con-

strued, to the end that the health, safety and welfare of

the People of the State of Illinois shall be protected and

temperance in the consumption of alcoholic liquors shall

be fostered and promoted by sound and careful control

and regulation of the manufacture, sale and distribution

of alcoholic liquors.

Ill. Rev. Stat. ch. 43, para. 131 (1983)

The sale to and possession of alcoholic liquor by persons

under 21, intoxicated persons, persons under legal disabil-

ity or in need of mental treatment—Proof of identity and

age—Gatherings where one or more persons are under

18—Violations and penalties—Renting hotel or motel

rooms.

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Ill. Rev. Stat. ch. 43, para. 135 (1983)

Actions for damages caused by intoxication—Lessor’s lia-

bility—Forfeiture of lease—Maximum recovery of a $20,000

limit to actions arising before 9-12-85, per amendment of

1-1-86; date of death here is 4-14-84—Limitations—Juris-

diction—Service.

STATEMENT OF THE CASE

Statement Of Facts

Defendants, John and Mary Egan, owned and operated

a tavern and dram shop known as “Egan’s Tap”. Daniel

Liston drank alcohol at the Defendants tavern and dram

shop on 4-14-84. Egan knew Daniel Liston. Liston’s habit

of drinking to the state of intoxication and Liston’s hos-

pitalization for alcoholism were also known to Egan.

On 4-14-84 Egan gave or sold alcohol to Liston who ob-

viously became intoxicated. As a tavern keeper, Egan has

a duty to prevent intoxicated persons from dispatching

in vehicles from his property. Egan knew of the risks of

drunk driving. Defendant Egan knew that Liston’s blood

alcohol level exceeded the legal limit and possessed the

knowledge that Liston would be driving a truck in an in-

toxicated condition which would increase harm to others

on the highway. Egan was insured for $100,000.

After leaving “‘Egan’s Tap” on 4-14-84, Daniel Liston

drove across the centerline and collided with an auto-

mobile driven by Beverly Baum. In this collision Beverly

Baum was injured and killed.

Plaintiffs’ complaint disavowed any lost wages because

Beverly Baum was a housewife not employed outside her

a

home. A probate estate was opened. Mrs. Baum left sur-

viving her husband and two married daughters, who each

claim damages for their respective loss of love, society

and companionship in the amount of $100,000.

Nature Of Action

In Petitioner’s First Amended Complaint, filed on 4-9-85,

Count V sought recovery for the loss of love, society and

companionship of BEVERLY Baum, under the Illinois

Dram Shop act, Ill. Rev. Stat. ch. 43, para. 135 (1983).

Counts VI, VII and VIII plead “‘common law dram shop

actions” which also sought recovery for the loss of love,

society and companionship of BEVERLY BAUM.

Respondents moved for summary judgment on Count

V of the First Amended Complaint, on grounds that the

Illinois Dram Shop act does not permit recovery for loss

of love, society, and companionship. Ill. Rev. Stat. ch. 43, —

para. 135 (1983). Respondents also moved to dismiss Counts

VI, VII and VIII on grounds that recovery under the IIli-

nois Dram Shop act is the exclusive remedy against

tavern operators and owners who serve persons, who by

reason of their intoxication cause injury or death to

another.

On 6-26-86, the trial court denied the motion for sum-

mary on Count V, but sustained the motion to dismiss

Counts VI, VII and VIII. Subsequently, on 3-17-88 the

trial court reversed its ruling on the summary judgment

motion as to Count V of the first amended complaint. This

order was made final and appealable on 5-6-88. The ef-

fect of the order granting summary judgment was that

all counts against the respondents were eliminated. A

timely Notice of Appeal was filed on 6-1-88. On 7-25-88

the order dismissing Counts VI, VII and VIII, on 6-26-86,

a

was made final and appealable. With respect to this order

a timely notice of appeal was filed on 8-9-88.

The judgment of the Appellate Court of Illinois, First

Judicial District, Fourth Division entered on June 22, 1989

affirmed the judgment of the trial court (Appendix p. 1a).

The Supreme Court of Illinois denied Plaintiffs-Petitioners’

Petition for Leave to Appeal on October 5, 1989 (Appendix

p. 4a).

On November 21, 1989 the Supreme Court of Illinois

denied Plaintiffs-Petitioners Motion for Leave to File a

Motion for Reconsideration of the Order Denying Peti-

tion for Leave to Appeal and granted the motion of peti-

tioners to stay the mandate of the Supreme Court of IIli-

nois pending application for certiorari in the United States

Supreme Court (Appendix pp. 8a-10a).

ARGUMENT

DOES THE ILLINOIS DRAM SHOP ACT VIOLATE THE

UNITED STATES AND ILLINOIS CONSTITUTIONS BY

PRECLUDING RECOVERY FOR THE LOSS OF LOVE,

SOCIETY AND COMPANIONSHIP OF A SPOUSE WHOSE

DEATH IS CAUSED BY OVER-SERVING ALCOHOL TO

A DRUNK DRIVER, WHERE SUCH RECOVERY IS PER-

MITTED UNDER ILLINOIS COMMON LAW FOR THE

OTHERWISE WRONGFUL DEATH OF A SPOUSE.

In 1961, the Illinois Supreme Court voluntarily refrained

from imposing liability on purveyors of alcohol to drunk

drivers. Cunningham v. Brown, 22 IIl.2d 23, 30, 174 N.E.

2d 153, “56-157 (1961).

The supreme court in Cunningham recognized that non-

liability for over-serving drunk drivers was a judicially

created doctrine. The court took the position that there

—(—

was no need to overturn the old judge made law and

recognize a “common law dram shop action’”’ because the

General Assembly, in 1961, had enacted an adequate stat-

utory remedy, which corrected the evils arising from over-

serving drunk drivers. Cunningham, supra, 174 N.E.2d at

156-157. However, the disparity between recoverable dam-

ages under common law and the remedy provided by the

Dram Shop statute has grown too wide in the 29 years

since Cunningham.

For purposes of the case at bar, the Illinois Dram Shop

act places a $20,000 cap on total damages for the death

of a human being. Ill. Rev. Stat. ch. 43, para. 135 (1983).

The erosion of the value of the $20,000 cap on damages

for the death of a human being, coupled with the pre-

clusion of other elements of damage from this statutory

remedy, make it almost meaningless. The Illinois legisla-

ture increased the $20,000 cap to $40,000 for injuries and

deaths occurring after 9-12-85. Ch. 43, para. 135, Ill. Rev.

Stat. (amend. 1-1-86). This amendment did not, however,

expand the recoverable elements of damages.

Because of inflation the value of the $20,000 cap on dam-

ages and the decisions precluding recovery for loss of love,

society, and companionship keep compensation under the

Dram Shop statute so low that it actually defeats the an-

nounced policy of deterrence which lays behind this stat-

ute. Ill. Rev. Stat. Ch. 43, para. 94 (1983). (An excellent

discussion of the impact of inflation in recent years is the

“Brief of the Chicago Bar Association Amicus Curiae in

the Federal Judicial Salary Litigation,’ Sept.-Oct. 1980,

Chicago Bar Record 60 and John J. Kennelly, “Inflation:

Admissibility of Proof. . .” 32 Trial Lawyers Guild 174

(1988)).

The problem of over-serving is, now, actually compounded

by the Illinois Dram Shop statute, because the statute as

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interpreted by Illinois courts, effectively grants immunity

to purveyors and servers of alcohol. The damages are capped

at such a low amount that they are “de minimus”, and

the damages element does not include society, which to-

day, has been recognized as the most important component

of loss in a death case. Bullard v. Barnes, 102 Tll.2d 505,

468 N.E.2d 1228 (1984).

The combination of Illinois’ strict judicial interpretation

of this statute, and the ongoing development of Illinois’

common law of damages, have now coalesced to destroy

any parity of recovery between the Dram Shop statute

and the common law.

In the case at bar, the trial court granted summary

judgment on Count V which sought recovery for loss of

love, society, and companionship under the Dram Shop

act because the trial court interpreted the Dram Shop

act to preclude compensation for these damages. The trial

court also dismissed Counts VI, VII, and VIII which plead

“common law dram shop actions” seeking recovery of

love, society and companionship. It relied on the Appellate

Court authority. Wilberton v. Freddie's Pepper Box, Inc.,

148 [ll.App.3d 319, 499 N.E.2d 615 (1st Dist., 1986);

Farmers Stand Bank & Trust Co. v. Lahey’s Lounge, 165

Ill.App.3d 473, 519 N.E.2d 121 (4th Dist., 1988). However,

the interpretation of the Appellate Courts in these two

cases is contrary to the announced public policy incor-

porated in the common law of this state, and many other

States to compensate the survivors of a decedent for their

loss of love, society and companionship. Bullard v. Barnes,

102 []].2d 505, 468 N.E.2d 1228 (1984); Elliot v. Willis,

92 Il.2d 530, 442 N.E.2d 163 (1982).

A statute should not be construed so as to make it un-

constitutional. Harris v. Manor Health Corp., 111 IIl.2d

390, 363, 489 N.E.2d 1374, 1379 (1986).

= =

Illinois statutes should be liberally interpreted.

All general provisions, terms, phrases, and expres-

sions shall be liberally construed in order that the

true intent and the meaning of the General Assembly

may be fully carried out. Ill. Rev. Stat. ch. 1, para.

1004 (1983). (Emphasis added).

When read together, the unlawful sale (ch. 43, para. 151)

and the damages (ch. 43, para. 135) provisions of the IIli-

nois Dram Shop act would seem to require the interpre-

tation that the act includes compensation for the loss of

the love, society, companionship, and affection of the de-

ceased; that would promote the announced legislative

goals of “safety” and ‘‘welfare’’ of the people of Illinois

by deterring tavern operators from negligently “distribut-

ing” alcohol to intoxicated customers, whom they know

will drive. In Weiner v. Trassatti, 19 Ill.App.3d 240, 246-

247, 311 N.E.2d 313, 319 (1st Dist. 1974) this court, follow-

ing a liberal interpretation of the Dram Shop act, said

that ‘‘consortium”’ was an element of damages under the

Dram Shop act.

However, if no common law remedy exists, and if the re-

spondents’ interpretation of Ill. Rev. Stat. ch. 43, para. 135

(1983) is followed, the Illinois and Federal Constitutional pro-

hibitions against Special Legislation, denial of Equal Pro-

tection, denial of Due Process, denial of the Right to a

Remedy, and denial of the Right to a Jury Trial will be

violated. This argument was advanced in the trial court.

The denial of Equal Protection, is involved because if

families may recover for the loss of the love, society and

companionship of their deceased loved ones as damages

against other wrongdoers, but not against alcohol distribu-

tors, the families of the victims of those who over-serve

drunk drivers are being discriminated against for no ra-

tional reason. And the tavern operators and their insurers

are benefitting from an unfair, irrational classification.

=

Ill. Rev. Stat. ch. 43, para. 135 (1983) also violates the

guarantees of Equal Protection under the Fourteenth

Amendment of the United States Constitution, and Illinois

Constitution, Art. I, sec. 2 (1970), because it unreasonably

and arbitrarily distinguishes the class of consumers and

taxpayers who are harmed by the negligence of those dis-

tributing and selling alcohol, from the class of those con-

sumers and taxpayers harmed by all other types of com-

mercial activity in Illinois. Negligence in selling or dis-

tributing manufactured goods, medical services, and elec-

tricity allows a remedy to the class of persons, or con-

sumers, injured therefrom. The class of taxpayers and con-

sumers injured by the distribution of alcohol are deprived

of such a remedy for no good or rational reason.

The Supreme Court of New Mexico clearly recognized

this inequity when it struck down the $50,000 damages

cap in that state’s Dram Shop act, on grounds that it un-

constitutionally violated the federal and state guaran-

tees of Equal Protection. Richardson v. Carnegie Library

Restaurant, Inc., 163 P.2d 1153 (N.M. 1988). The supreme

court further held that the damages cap also violated the

Right to Trial by Jury guaranteed by Article II, Section

12 of the New Mexico Constitution. Jd.

In 1972 the Illinois Supreme Court found that Art. IV,

sec. 13, Ill. Const. (1970) prohibiting Special Legislation

was violated where a cause of action for a personal injury

was destroyed by the newly enacted “no-fault legislation”.

Grace v. Howlett, 51 Ill.2d 478, 283 N.E.2d 474, 478-480

(1972). When discussing infringements of plaintiffs right

to Equal Protection, and the guarantee against Special

Legislation, the Grace Court said:

Article IV, sec. 13 has increased judicial responsibil-

ity for determining whether a general law is or can

be made applicable.”’ 283 N.E.2d 474, 479 (1972). (Em-

phasis added).

a ee

When the damages limitations of ch. 43, para. 135 are

reviewed in light of this interpretation of the 1970 consti-

tution another defect in this legislation appears. It also

creates a special class of commercial purveyors shielded

from the common law tort remedy of monetary damages

assessed by jurors. This special class is composed of com-

mercial, retail and tavern vendors. In Illinois they are the

only commercial vendors of food or beverage protected

by such legislation; and, again, without reason. The an-

nounced purpose of the Dram statute is to protect the

people not the industry. Ill. Rev. Stat. ch. 43, para. 94

(1983). As it is now interpreted it actually protects the

alcohol distribution industry. Nonuniformity of application

of a statute is a denial of Equal Protection. Brown v.

Merlo, 506 P.2d 212, 106 Cal. Rptr. 388 (Calif. Supt. Ct.,

1973); Skinner v. Anderson, 38 Ill.2d 455, 231 N.E.2d 588

(1967).

Classification based on wealth is also a sin of this act,

as interpreted by the trial court. Those whose family

members are employed are the only ones to be compen-

sated under ch. 43, para. 135 if their family member is

killed. Therefore, the husband of the working wife re-

covers, where the husband of a housewife does not. No

rationale for this distinction has been advanced.

In Moran v. Beyer, 734 F.2d 1245 (7th Cir., 1984) no

rational reason was found to justify Illinois treating

married women differently than unmarried women. There-

fore, the Seventh Circuit found that the Illinois Spousal

Immunity Statute, as interpreted by Illinois courts, vio-

lated the Equal Protection guarantees of both the Federal

and the Illinois Constitution. In the case at bar the dis-

crimination against families of non-working persons is

equally irrational.

In the case of Malan v. Lewis, 693 P.2d 661 (Utah Sup.

Ct., Dec., 1984), when the original purposes of the Idaho

Guest Act were no longer accomplished by that statute,

it was found to violate the Equal Protection clause of

that state’s constitution. No rational reason was found to

justify treating passengers differently than other persons

in that case. Similarly, in this case no rational reason

exists for discriminating against the next of kin of a de-

cedent who was not working.

The “‘heightened scrutiny test”? was used to examine a

statute of repose and a statute abolishing the collateral

source doctrine by two respected state supreme courts.

They recently struck down legislation which infringed on

the two basic fundamental state constitutional rights of

a “right to a remedy” and a “right to a jury.”” Carson

v. Mauer, 120 N.H. 925, 424 A.2d 825, (N.H. Sup. Ct.,

1984); Farley v. Engle, 740 P.2d 1058 (Kan. Sup. Ct.,

1987).

The cap on recovery created by para. 135, and the inter-

pretation of this statute to exclude the families of non-

workers killed by drunk drivers from recovering for their

loss of society are just as egregious a violation of these

two fundamental! rights as the legislation in Carson and

Farley, and therefore, a violation of the Illinois and Fed-

eral equal protection provisions. In the case at bar, there

is no rationale articulated in the statute, or in the case

law, for protecting and treating purveyors or distributors

of alcohol differently than a car dealer, who distributes

a defective Pinto; a restauranteur, who sells bad pizza;

a physician, who prescribes drugs for a patient knowing

of the ill effects on his driving ability; a bus driver, who

runs a red light; or Commonwealth Edison, which fails

to properly guard its high-powered generator. The an-

nounced purpose of the Dram Shop act is to protect the

=

people. Ill. Rev. Stat. ch. 43, para. 94. But if fair, com-

pensatory damages are not recoverable then neither of

the announced policies of deterrence, or compensation, are

fulfilled by this statute.

Furthermore, the $20,000 damages cap of this legislation

(Ill. Rev. Stat. ch. 48, para. 135) has no logical basis for

limiting total recovery for the death of a human being

to that parsimonious amount. In Wright v. Central DuPage

Hospital Association, 63 Ill.2d 313, 347 N.E.2d 736, 743

(1976) the Illinois Supreme Court found that a $500,000

cap on damages for medical malpractice victims violated

provisions regarding special legislation, Art. IV, sec. 13,

Ill. Const. (1970). The same reasoning applies here. Jn

McGuire v. C & L Restaurant, Inc., 346 N.W.2d 605 (Minn.

Sup. Ct., 1984) a statute imposing a damage cap of $250,000

on actions against intoxicating liquor vendors, but not on

actions against sellers of 3-2 beer, violated equal protec-

tion guarantees.

In addition, the “right to a remedy” is a separate right

created by the Illinois Constitution, Art. I, sec. 12, (1970).

It must be given more than lip service, if it is incorpo-

rated into a state constitution ratified as recently as 1970.

It is wrong to interpret this fundamental right as a “mere

glittering generality.”” Kansas Malpractice Victims v. Bell,

757 P.2d 251, 257 (Kan. Sup. Ct., 1988). It cannot be

blithely ignored by the courts on the pretext that is a

generalized policy statement. Other states do not interpret

their “right to a remedy” constitutional provisions light-

ly, and the “right to a remedy” is an important, viable

right that cannot be trampled by judicial interpretations

which preclude all recovery. Kansas Malpractice Victims

v. Bell, 757 P.2d 251, 259, 264 (Kan. Sup. Ct., 1988);

Hardy v. Ver Meulen, 512 N.E.2d 626, (Ohio Sup. Ct.,

1987); Kennedy v. Cumberland, 471 A.2d 195 (R.1., 1984);

= 7 ie

Berry v. Beech Aircraft, 717 P.2d 670 (Utah Sup. Ct.,

1985); Oien v. City of Siox Falls, 393 N.W.2zd 286 (S.D.,

1986); Smith v. Dept. of Ins., 507 So.2d 1080 (Fl. Sup. Ct.,

1987). The “right to a remedy” in a state constitution is a

fundamental right protected by the Equal Protection Clause

of the state constitution and the federal constitution.

White v. Montana, 661 P.2d 1272 (Mont. Sup. Ct., 1988).

In addition, the “right to a jury trial” provided and pro-

tected by the Illinois Constitution of 1970, Art. 1, see. 13,

and Illinois statutes, Ill. Rev. Stat. ch. 78, para. 21 (1983)

and the Federal Constitution, Seventh Amendment, itself

is violated by the trial court’s interpretation of this stat-

ute at the case at bar. As the Kansas Supreme Court re-

cently pointed out, infringement on the right of a jury

to set civil damages was an abridgement of the right of

the citizens of Kansas under their state constitution, par-

ticularly where no appropriate alternate remedy was pro-

vided. Kansas Malpractice Victims v. Bell, 757 P.2d 251,

259-260 (Kan. Sup. Ct., 1988).

The right to have a jury decide common law damages

is seriously limited by the legislation in the case bar be-

cause it precludes companionship and it caps damages at

such a low level as to make it an immunity; that infringes

on the State, and even the Federal right to jury trial.

This Federal Constitutional Right is protected against in-

fringement by the states, because it is incorporated into

the Bill of Rights by the 14th Amendment and is enforce-

able against the states. Boyd v. Bulala, 647 F. Supp 781

(W.D. Va., 1986); Awa v. Guam Mem. Hosp., 726 F.2d

594 (9th Cir., 1984); Smith v. Barclay, 429 A.2d 438 (Pa.

Sup. Ct., 1981).

The present Illinois Dram Shop act, as interpreted by

the defendant in the case at bar, also violates the right

_

to Due Process under the Fourteenth Amendment of the

United States Constitution, as well as Article 1, Section

2 of the Illinois Constitution. The placement of impossi-

ble conditions, and unreasonable limitations, upon a cause

of action, and removing the key element of monetary dam-

ages in a death case, society, from the jury’s province

creates a ‘‘Catch-22” situation. A remedy is ostensibly

created; and then it is so limited that it becomes worth-

less: that is a violation of the Due Process protections

of both state and federal constitutions. Nelson v. Krusen,

678 S.W.2d 918 (Texas Sup. Ct., 1984); Barrio v. Magna,

692 P.2d 280 (Ariz. Sup. Ct., 1984); Ontiveros v. Borak,

136 Ariz. 500, 667 P.2d 220 (1983); Arneson v. Olson, 270

N.W.2d 125 (N.D. Sup. Ct., 1978). Through a series of

decisions by the Illinois Courts, the Illinois Dram Shop

statute has been turned into a device which deprives IIli-

nois citizens of due process.

For example, there is a one year statute of limitations

that is so strictly construed that it bars recovery by

minors and other incapacitated plaintiffs after one year

without any showing of a rational purpose behind this

extra short time bar. Demchuck v. DuPlanich, 92 Ill.2d

1, 440 N.E.2d 112 (1982). It limits recovery to $20,000,

or $40,000, depending on the year, in contrast to no cap

for personal injury or wrongful death under {llinois com-

mon law. Mulhern v. Talk of the Town, 138 Ill.App.3d

829, 486 N.E.2d 388 (2nd Dist., 1985). Recovery under this

statute is limited to the total recovery from all defen-

dants combining for the statutory limit. Darguzas v. Robin-

son, 162 Ill.App.3d 362, 515 N.E.2d 451 (2nd Dist., 1987).

Complete defenses, which completely bar recovery, unlike

the principle of comparative fault now utilized at common

law, are provided under this statute; those defenses are

complicity and provocation. Nelson v. Araiza, 69 IIl.2d

a

534, 372 N.E.2d 637 (1977); Akin v. J.R.’s, 158 Ill.App.3d

834, 512 N.E.2d 130 (3rd Dist., 1987). There is no recov-

ery of contribution against dram shops by co-defendants.

Hopkins v. Powers, 136 Ill.App.3d 501, 483 N.E.2d 637 (3rd

Dist., 1985); JoDelis v. Harris, 118 Ill.2d 482, 517 N.E.2d

1055 (1987). The right to recover under this statute is limited

to commercial purveyor and retailers and provides absolutely

no remedy against the social or business hosts, no matter

how egregious their conduct. Zamiar v. Linderman, 132

Ill.App.3d 886, 478 N.E.2d 534 (1st Dist., 1985).

Most importantly for the case at bar, is the ruling that,

now, there is no compensation for the love, society, and

companionship for the death of a non-working loving wife,

child or parent under this statute; according to the First

Appellate District, First Division, and the Fourth Appel-

late District, and the trial court in this case. Wilberton

v. Freddie’s Pepper Box, Inc., 148 Ill.App.3d 319, 499

N.E.2d 615 (1st Dist., 1986); Farmers Stand Bank &

Trust Co. v. Lahey’s Lounge, 165 Ill.App.3d 473, 519

N.E.2d 121 (4th Dist., 1988). This is directly contrary to

the policy of the common law of this state, and many

other states in the Union, to compensate the survivors

for this element of damage. Bullard v. Barnes, 102 Ill.2d

505, 468 N.E.2d 1228 (1984); Elliot v. Willis, 92 Ill.2d 530,

442 N.E.2d 163 (1982). No recovery for emotional damage

is allowed under this statute. Engel v. Lamplighter, 172

Ill.App.3d 59, 526 N.E.2d 641 (8rd Dist., 1988). Against

this background or web of interpretations, the decision

to bar recovery for loss of companionship creates a depri-

vation of plaintiff's constitutional rights.

Another consideration is that the sections of the Dram

Shop act are dissoluble. Ch. 43, para. 193, “Partial In-

validation” Ill. Rev. Stat. (1953). Therefore, ch. 43, para.

135, can be found unconstitutional, in whole, or in part.

x |

It is particularly, and only, the limitations on the damages,

i.e., the remedy provisions of paragraph 135 that are un-

der attack in this case. Ch. 48, para. 94 and para. 131,

and the portions of para. 135 creating liability may still

be left standing thereby creating a statutory duty, a stan-

dard of care, and a legislative recognition of a causal con-

nection between over-serving and drunk driving. If the in-

terpretations and limits on fair recovery imposed in para.

135 are eliminated as uncunstitutional, then Illinois courts

may fashion an appropriate common law remedy. This is

similar to the approach utilized by the Michigan Supreme

Court to modernize its dram shop law. Longstreth v.

Gensel, 423 Mich. 675, 377 N.W.2d 804, 813 (Sup. Ct.

Mich., 1985).

CONCLUSION

According to the court below, as Illinois Law now

stands, there is no vehicle for gaining compensation for

the loss of the love, society, and companionship of a dece-

dent killed by a drunk driver against the tavern that

overserved the drunk. The damages limitation of the IIli-

nois Dram Shop act, and the restricted interpretations

given it by Illinois courts, are constitutionally repugnant

in light of the fact that Illinois Law provides for the

recovery of the loss of love, society, and companionship

for other types of wrongful death. In this context, the

Dram Shop act violates fundamental rights guaranteed in

both the Illinois and Federal Constitutions, as stated

above.

The failure of Illinois to remedy these violations, either

by legislative or judicial process, necessitates that this

ie...

Court act to protect the constitutional rights of Illinois

citizens who are injured or killed as a result of the over-

serving of alcohol. More specifically, this Court should

invalidate the limitations of remedy under the Dram Shop

statute.

A decision of this Court to strike down the limited dam-

ages provision of the Dram Shop act, as it existed in 1984,

will require that the Illinois legislature and courts enact

and enforce constitutional dram shop legislation. Such a

decision will also serve to warn tavern owners and social

providers of aleohol, foster deterrents and help to reduce

the menace of drunk driving.

For the foregoing reasons, petitioners, DONALD BAUM,

Individually, and as Executor of the Estate of BEVERLY

BauM, Deceased, and LESLIE B. BUENROSTRO, and DEB

ORAH B. SMITH, Individually, respectfully request this

Court to allow their Petition for Wnt of Certiorari so that

the judgment of the Illinois Appellate Court may be re-

viewed and reversed.

Respectfully submitted,

GEORGE M. ELSENER

Counsel of Record

GEORGE M. ELSENER & ASSOCIATES

180 North LaSalle Street

Suite 1125

Chicago, Illinois 60601-2601

(312) 726-8125

Attorneys for Petitioners

January 20, 1990

APPENDIX

te

“-

—™

CONTENTS OF APPENDIX

June 22, 1989, Appellate Court of Ilinois First

OC TI ST os ck site desedess

October 5, 1989, Supreme Court of Illinois let-

ter denying Petition for Leave to Appeal

October 26, 1989, Plaintiffs-Petitioners’ Motion

for Leave to File a Motion for Reconsideration

of the Order Denying Petition for Leave to

ern eee re Peer

November 21, 1989, State of Illinois Supreme

Court Clerk’s letter denying the Motion for

Reconsideration and allowing the mandate to

stay pending the filing of Petition for Writ of

ER aon kee kee ke vi ee eee eeeees

November 21, 1989, Supreme Court of Illinois

order denying the Motion for Reconsideration

and allowing the mandate to stay pending the

filing of Petition for Writ of Certiorari .....

PAGE

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APPENDIX 1

Nos. 1-88-1741 & 1-88-2477

(Consolidated)

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

FOURTH DIVISION

June 22, 1989

DONALD BAUM, Individually, and as Executor of the Estate

of BEVERLY BAUM, Deceased, et al.,

Plaintiffs-Appellants,

¥.

JOHN B. EGAN and MARY EGAN,

Defendants-Appellees.

Appeal from the Circuit Court of Cook County.

No. & L 8481

Honorable Willard J. Lassers, Judge Presiding.

ORDER

According to the complaint, Beverly Baum was killed

when the automobile she was driving collided with a vehi-

cle driven by Daniel Liston, who was intoxicated. The de-

fendants John B. Egan and Mary Egan owned, managed,

-_

maintained and controlled a building and tavern where

John Egan or one of his agents sold or gave Liston in-

toxicating liquor. One count of the complaint was filed

under the Illinois Dram Shop Act (Ill. Rev. Stat. 1987,

ch. 43, par. 135) for loss of love, society and companion-

ship as a “loss to means of support.” That count of the

complaint admitted that the beneficial plaintiffs, the dece-

dent’s husband and two daughters, were not dependent

on the decedent for support. The trial court entered sum-

mary judgment on that count in favor of the Egans.

Three counts of the complaint pleaded a common law

action for damages caused by the negligent sale of intox-

icating liquors. One count was based on wrongful death,

another on the Survival Act, and the third alleged wilful

and wanton conduct in connection with both the wrongful

death and Survival Act actions. The trial court dismissed

these three counts of the complaint.

First, considering the three counts based on an alleged

common law action for the negligent sale of alcoholic bev-

erages, the Illinois Supreme Court in Cummingham v.

Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153, stated un-

equivocally that the Dram Shop Act provides the only

remedy against tavern operators and owners. This court

does not have the power to overrule the supreme court

where it has spoken on the exact issue. Rickey v. Chicago

Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1.

The second issue concerns the dismissal of the Dram

Shop Act count under a theory of loss of means of sup-

port based on allegations of loss of love, society and com-

panionship. It is well settled that loss of means of sup-

port under the Dram Shop Act does not encompass these

items of recovery. (Farmers State Bank & Trust Co. v.

Lahey’s Lounge, Inc. (1988), 165 Ill. App. 3d 473, 519

—a—

N.E.2d 121; Wilberton v. Freddie’s Pepper Box, Inc.

(1986), 148 Ill. App. 3d 319, 499 N.E.2d 615.) The plain-

tiffs also allege that the statute is unconstitutional. A

similar argument was made and rejected in the case of

Mulhern v. Talk of the Town (1985), 138 Ill. App. 3d 829,

486 N.E.2d 383. We agree with the reasoning expressed

in Mulhern.

For the above reasons, the judgments of the trial court

are affirmed.

Affirmed.

JIGANTI, P.J., with JOHNSON and LINN, JJ..

concurring.

—da—

APPENDIX 2

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

October 5, 1989

Mr. George M. Elsener

George M. Elsener & Associates

180 N. LaSalle St... S#1125

Chicago, IL 60601

No. 68921—Donald Baum, Indv., ete., et al., petitioners,

v. John B. Egan, et al., respondents. Leave

to appeal, Appellate Court, First District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue on October 27,

1989.

ne

APPENDIX 3

NO. 68921

IN THE

SUPREME COURT OF ILLINOIS

DONALD BAUM, Individually, and as Executor of the Estate

of BEVERLY BAUM, Deceased, and LESLIE B. BUEN-

ROSTRO, and DEBORAH B. SMITH, Individually,

Plaintiffs- Petitioners,

¥.

JOHN B. EGAN and MARY EGAN,

Defendants-Respondents.

The Appellate Court of Illinois First District

No. 1-88-1741 & 1-88-2477 (Consolidated).

The Cireuit Court of Cook County, Illinois

No. 84 L 8481

PLAINTIFFS-PETITIONERS’ MOTION FOR

LEAVE TO FILE A MOTION FOR

RECONSIDERATION OF THE ORDER DENYING

PETITION FOR LEAVE TO APPEAL

Plaintiffs-Petitioners, DONALD BAUM, Individually,

and as Executor of the Estate of BEVERLY BAUM,

Deceased, and LESLIE B. BUENROSTRO, and DEB-

ORAH B. SMITH, Individually, by their attorneys, move

—ba—

the Court under the Supreme Court of Hlinois Rule 36&Xc)

to stay the mandate of this Court. In support, Plaintiffs-

Petitioners state:

1. On October 5, 1989, the Court denied Plaintiffs-

Petitioners’ appeal and affirmed the Appellate Court.

» Unless the time for issuance of the mandate of the

court is enlarged by order, the mandate will be issued

en October 27, 1989.

3. The case of Stevens v. Ayers, Petition for Leave to

Appeal filed in this Court on 9-5-89, pending under Su-

preme Court No. 69184, deals with the same issues as

presented by Plaintiffs-Petitioners in the case at bar.

Plaintiffs respectfully suggest that this Court stay the

mandate in Baum v. Egan because a decision has not

been rendered in Stevens v. Ayers. And, if Stevens is

granted, it would be contradictory to Baum v. Egan.

4. Plaintiffs-Petitioners’ brief to this Court raised im-

portant federal constitutional issues which merit a review

by this Court.

5. Plaintiffs-Petitioners’ counsel will file a motion for

reconsideration of the order denying his petition for leave

to appeal because of Richardson v. Carnegie Library

Restaurant, Inc.. 763 P.2d 1153 (N.M. 1988) and if it is

denied, a petition for certiorari in the United States Su-

preme Court will be filed and this is not merely a tactic

for delay.

6. Staying the mandate will conserve judicial resources

and not prejudice any party.

WHEREFORE, Pilaintiffs-Petitioners respectfully re-

guest that the Court stay the mandate pending their ap-

plication for a writ of certiorari to the United States

Supreme Court.

—_— {a—

DONALD BAUM, Individually,

and as Executor of the Estate

of BEVERLY BAUM, Deceased, and

LESLIE B. BUENROSTRO, and

DEBORAH B. SMITH, Individual!y,

By: /s/ George M. Elsener

GEORGE M. ELSENER

Plaintiffs-Petitioners attorney

STATE OF ILLINOIS

COUNTY OF COOK-—SS.

VERIFICATION

GEORGE M. ELSENER, being first duly sworn upon

his oath, deposes and states that he has read the above

and foregoing Plaintiffs-Petitioners’ Motion for Stay of

Mandate Pending Application for Certiorari by him sub-

scribed. That he knows the contents thereof and that the

Same are true.

‘s) George M. Elsener

GEORGE M. ELSENER

[Notice of Filing and Proof of Service by Delivery omitted

in printing. ]

=

APPENDIX 4

STATE OF ILLINOIS

SUPREME COURT CLERK

Supreme Court Building

Springfield 62706

JULEANN HORNYAK FIRST DISTRICT OFFICE

Room 30-129

Clerk of the Court Richard J. Daley Center

Chicago 60602

(217) 782-2035 (312) 793-1332

November 21, 1989

Mr. George M. Elsener

Attorney at Law

180 North LaSalle St., S#1125

Chicago, IL 60601-2601

THE COURT HAS TODAY ENTERED THE

FOLLOWING ORDER IN THE CASE OF:

No. 68921—Donald Baum, Indv., etc., et al., petitioners,

v. John B. Egan, et al., respondents.

The motion by petitioners for leave to file a

motion for reconsideration of the order deny-

ing petition for leave to appeal is denied. The

request for stay of mandate pending the fil-

ing and disposition of a petition for writ of

certiorari is allowed.

Standard order form enclosed.

JH/he

ec: Baal, O’Connor & Martin

Bresler, Brenner & Moltzen

=

APPENDIX 5

No. 68921

IN THE

SUPREME COURT OF ILLINOIS

Donald Baum, Indv., ete., et al.,

Petitioners,

John B. Egan, et al.,

Respondents.

Appeal from the Appellate Court

First District—AC1-88-1741

ORDER

This matter has come for consideration upon the mo-

tion of petitioners to stay the mandate of this Court pend-

ing appeal or application for certioram in the United

States Supreme Court.

IT IS ORDERED that the mandate of this Court in

the above cause is stayed pending the filing of a notice

of appeal or an application for certioram or the expira-

tion of the period within which said application or notice

may be filed. If certiorari is applied for or notice of ap-

peal filed, the mandate of this Court shall, upon proof of

such filing being made by affidavit filed with the clerk

of this Court, be further stayed pending resolution by the

—10a—

United States Supreme Court of such application or ap-

peal. If no such affidavit is filed, the mandate shall,

without further order, issue upon the expiration of the

time within which appeal or certiorari may be sought.