The Dramshop Act

By Ronald E. Neroda

Kopon Airdo, LLC

In 1872, the Illinois legislature passed what is now referred to as the Dramshop Act. The current language of the Act provides in part:

Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person.

235 ILCS 5/6-21(a)). The Act, thus, imposes “no-fault” liability upon parties other than the party responsible for directly causing the plaintiff’s injury. Morales v. Fail Safe, Inc., 311 Ill.App.3d at 177.

At the time the Illinois legislature passed the Dramshop Act, the temperance movement in America was the driving force behind the passage of laws designed to “provide against the evils resulting from the sale of intoxicating liquors in the State of Illinois.” Cunningham v. Brown, 22 Ill.2d 23, 27 (Ill. 1961). The passage of the Dramshop Act created a, sui generis, purely statutory cause of action, not recognized at common law, against parties who sold or gave alcohol to persons who later injured third parties as a result of being intoxicated. Charles v. Seigfried, 165 Ill.2d 482, 487 (Ill. 1995).

Since its passage, the reach of the Dramshop Act has been limited by the courts. In 1889, the Illinois Supreme Court held that the Act created a cause of action only against those engaged in the liquor trade. Cruse v. Aden, 127 Ill. 231, 239 (Ill. 1889). The Act, therefore, would not extend liability to a “social host,” who provided, “intoxicating liquor to a friend as a mere act of courtesy and politeness.” Cruse, 127 Ill. at 239, 20 N.E. 73. Moreover, Illinois courts have reaffirmed on a number of occasions, that the Dramshop Act is the exclusive remedy for holding providers of alcohol liable for the actions of an intoxicated person. Cunningham v. Brown, 22 Ill.2d 23, 29 (1961); Cruse, 127 Ill. at 234.

Recently, the Illinois Supreme Court examined the history and purpose of the Illinois Dram Shop Act in deciding whether the Act preempts negligence claims for alcohol related liability. Simmons v. Homatas, 236 Ill.2d 459 (Ill. 2010). In Simmons, the special administrators of the estates of two individuals fatally injured in a motor vehicle accident filed claims against the operator of a strip club. On the night of the accident, John D. Homatas and John Chiariello had visited a fully nude strip club operated by the defendant, On Stage Productions. Because the county in which the club was located prohibited clubs, which have fully nude dancers, from serving alcohol, the club did not serve alcohol to its patrons. The club did, however, permit its patrons to bring their own alcohol into the club, and provided glasses, ice, and drink mixers available for purchase by club patrons.

Approximately two hours after Homatas and Chiariello arrived at the club, Homatas was found by club employees intoxicated and vomiting in the club’s restroom. It was alleged that the club’s employees then removed Homatas and Chiariello from the club, had the club valet bring Homatas his vehicle, opened the driver-side front door, and ordered Homatas to leave the premises. Shortly after Homatas drove his vehicle away from the club premises, with Chiariello as his passenger, he collided with a vehicle driven by April Simmons. The collision caused the deaths of Simmons and her unborn daughter, and Chiariello.

The representatives of the decedents’ estates filed claims against the club operator alleging negligence and liability pursuant to the Illinois Dramshop Act. The club operator filed a motion to dismiss pursuant to 735 ILCS 5/2-615, arguing that the Dramshop Act preempted any recovery based on alcohol-related liability, and that the defendant could not be liable under the Dramshop Act because it did not sell or serve alcohol at its club. Simmons, 236 Ill.2d at 463.

The circuit court granted the club operator’s motion to dismiss in part, holding there was no cause of action under the Dramshop Act, because the club did not sell or give alcohol to its patrons. The court, however, permitted the common law negligence claims to stand, stating that the club operator owed a duty to the decedents, Chiariello and Simmons. The court found that a duty was owed to Chiariello as a result of the business invitor-invitee relationship. As to Simmons, the court recognized that a duty may exist where a defendant’s affirmative conduct created or contributed to a risk of harm. Simmons, 236 Ill.2d at 463-64.

As part of its order on the club operator’s motion to dismiss, the circuit court certified for interlocutory appeal, the following questions, based on the facts alleged in the plaintiffs’ complaints:

Whether a business operator who is not subject to the Dram Shop Act because it does not sell or serve alcoholic beverages upon its premises, owed a duty of unreasonable risk of harm to a business invitee, who shortly after leaving the defendant’s place of business, was killed in a motor vehicle accident on a public highway, due to the negligent operation of a motor vehicle, the driver of which, who within a short period of time prior to the aforesaid motor vehicle collision, was also an invitee of defendant's place of business; and

Whether the defendant, Diamonds, a business operator who is not subject to the Dram Shop Act because it does not sell or serve alcoholic beverages upon its premises, has a duty of ordinary care to the decedents, who while motoring on a public highway, were killed due to the negligent operation of a motor vehicle driven by the intoxicated patron of the club operator, who within a short period of time prior to the aforesaid motor vehicle collision, was an invitee of club operator’s place of business.

Simmons, 236 Ill.2d at 464-65.

On appeal, the Second District answered the certified questions in the affirmative, holding that the club operator owed a duty to the decedents pursuant to Section 876 of the Restatement (Second) of Torts. Section 876 provides a basis of liability for harm resulting to a third person from the substantial assistance or encouragement of the tortious conduct of another. Simmons, 386 Ill.App.3d at 466. The Supreme Court then granted the club operator leave to appeal the appellate court’s decision pursuant to Supreme Court Rule 315.

In its decision, the Supreme Court first held that the Dramshop Act did not apply to the club operator. The Court relied on the well established rule that under common law, no liability is imposed against those who give or provide alcohol to a person who harms a third person while intoxicated. The court also referred to the limitation that the Dramshop Act imposes liability only on those “officially engaged in the business of selling liquor in the State of Illinois.” Simmons, 236 Ill.2d at 468-69. Because the club was not in the business of selling alcohol and did not provide alcohol to Homatas, there was no claim under the Dramshop Act. Simmons, 236 Ill.2d at 469.

After disposing of the plaintiffs’ claims brought under the Dramshop Act, the Court next had to decide whether any claim for liability against the club operator arising from the injuries caused by Homatas’ intoxication would be preempted by the Dramshop Act. Deciding that the Act did not preempt the plaintiffs common law claims, the Court distinguished those situations where a tavern or social host provides alcohol to a patron or guest, with the intoxicated patron or guest then causing an injury to a third party, from the case at bar, which involved a situation where liability was claimed for injuries arising not from the provision of alcohol, but from “the encouragement of, or assistance in, tortuous conduct.” Simmons, 236 Ill.2d at 470. The Court recognized the important distinction, where a dramshop defendant’s actions, outside of providing alcohol, are alleged to have caused an injury. Simmons, 236 Ill.2d at 469.

On that issue, the Court examined those cases in Illinois, where injuries were caused by so called, “alcohol related,” conduct, and liability was asserted for reasons separate from the provision of alcohol. The Court noted that the use of the phrases “alcohol-related liability” and “alcohol-induced injuries,” in prior decisions addressed only claims which arose from a defendant’s provision of alcohol. Simmons, 236 Ill.2d at 470, citing Charles, 165 Ill.2d at 490. The Court distinguished those cases, as they generally did not consider whether the actions of a defendant, apart from the mere provision of alcohol, led to a third party’s injuries. By contrast, the Court discussed appellate court decisions, which involved claims for so-called “alcohol related injuries,” not preempted by the Dram Shop Act. In such cases, claims under the common law which alleged tortuous conduct, not involving the sale or giving of alcohol, were not preempted by the Dramshop Act.

The Court cited Wakulich v. Mraz, 203 Ill.2d 223, 246-47 (Ill. 2003), where it had previously found that liability arose based on a voluntary assumption of a duty. In that case, it was alleged that a pair of brothers had provided alcohol to the plaintiff’s minor daughter, causing her to become intoxicated and rendering her unconscious. When the girl began vomiting, the brothers placed a pillow under head, but did not take her home and prevented other individuals present from calling for medical care. The girl died the following day.

In that case, the plaintiff alleged that the brothers were negligent in providing alcohol to the decedent and negligent in failing to act reasonably to protect her after voluntarily undertaking to care for her after she became unconscious. Wakulich, 203 Ill.2d at 227. In affirming dismissal of the negligence claim relating to the provision of alcohol, the Supreme Court reiterated that the law does not recognize social host liability for the provision of alcohol. Regarding the plaintiff’s voluntary undertaking claim, however, the Court stated that the fact that the brothers served as social hosts was irrelevant to the common law claim. In that case, liability arose “by virtue of their voluntary assumption of a duty to care…irrespective of the circumstances leading up to that point.” Wakulich, 203 Ill.2d at 242.

The Court in Simmons then discussed the appellate court decisions where liability against a dramshop defendant arose not from the provision of alcohol to a patron, but from the actions of the defendant after a patron had become intoxicated. For example, liability was asserted where a dramshop failed to protect a patron from an attack by an intoxicated and belligerent patron, or where a tavern employee placed an intoxicated patron in his vehicle, where the patron froze to death overnight. Lessner v. Hurtt, 55 Ill.App.3d 195, 197 (2d Dist. 1977); Harris v. Gower, Inc., 153 Ill.App.3d 1035, 1037 (5th 1987). In both such cases, liability arose not from the provision of alcohol, but from the independent negligence of the defendant taverns which placed the injured party in danger. Simmons, 236 Ill.2d at 472. In those cases, despite the fact that the injury suffered was “alcohol related,” the common law claims of negligence based on premises liability, not related to the provision of alcohol, were not preempted by the Dramshop Act.

Consistent with those decisions, the Court in Simmons, held that the club operator’s duty did not arise from the provision of alcohol to Homatas (it was undisputed that the club did not provide any alcohol at all) but instead from a, “series of actions taken by club employees in response to discovering Homatas vomiting in the club’s restroom,” including ejecting Homatas from the club, ordering the valet to bring Homatas his vehicle, assisting Homatas into the vehicle, and then directing him to leave the premises. Simmons, 236 Ill.2d at 473.

The Simmons decision shows that Illinois courts deciding claims brought pursuant to the Dramshop Act, will be expected to strictly apply the Act only to those persons “licensed…to sell alcoholic liquor, who, by selling or giving alcoholic liquor,” cause the intoxication of a third person. 235 ILCS 5/6-21. In Simmons, even though the club operator did not actually sell alcohol, it not only permitted alcohol consumption in the club, but also took steps to facilitate such consumption through the sale of drink mixers, ice, and glasses to patrons. Nevertheless, the club operator was not a provider of alcohol within purview of the Dramshop Act. The club was not licensed to sell alcohol, and did not sell or otherwise give alcohol to Homatas, and, therefore, no claim could be brought under the Dramshop Act.

The Simmons decision also demonstrates the limited application of preemption by the Dramshop Act concerning “alcohol related injuries.” The decision makes it clear that a potential dramshop defendant is not free from the threat of any liability in cases concerning “alcohol related injuries.” Where the circumstances of a plaintiff’s claim may potentially involve some conduct on the part of the employees or agents of a dramshop defendant, beyond merely providing alcohol to an intoxicated patron, the dramshop must determine whether its employees or agents undertook any affirmative conduct, which could expose the dramshop to liability under a common law claim, not otherwise preempted by the Dramshop Act. Thus, while the limitations of the Dramshop Act imputed by the courts and legislature since the Act’s passage have served to limit the Act’s reach, plaintiffs can nevertheless be expected to look beyond the Act to assert a negligence claim against a dram shop.