# Petition for Writ of Certiorari — Baum v. Egan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1081

## Text

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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

i

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).

ill

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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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
EN ell SE Saar eee re

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as eh o5 55 66 Ons sb ek Wade eK as

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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
ll

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

= ee

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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———— St i at Aa oe vse

Sg Pay ee!
Ve ier 6 i eeag eis e

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=i.

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1134%3A1. Public record. Not legal advice.