Illinois Supreme Court to announce important case on Thursday; maybe?

On December 2008, I reported on what I thought was one of the most interesting cases of that year - a case called Simmons v Homatas. In that case, the Illinois Court of Appeals considered the possible liability of a third party for damages caused by a drunk driver. Typically, cases that present that issue fall into one of two categories: cases where the defendant is a commercial establishment whose liability is covered by a Dram Shop Act or cases where the defendant is a social host - a private individual who provides alcohol to someone else at home and whose conduct is evaluated under general principles of negligence. Usually, liability is imposed in the first type of case and not recognized in the second. What was interesting about Simmons was that it involved a commercial establishment that encouraged its patrons to drink alcohol while not actually selling it to them. I am writing this little note to remind you of this case today because I just heard that the Illinois Supreme Court is expected to issue its decision on the appeal on Thursday. I am very curious to see how the Court will deal with the issue. Now to refresh your memory.... In this case, two individuals (John H. and John C.) went to an establishment that does not have a liquor license but that encourages its patrons not only to bring their own hard liquor (no beer allowed), but to consume it in large quantities. To make a long story a bit shorter, the two individuals drove to the place and proceeded to get very drunk. When one of them got sick in the bathroom, management escorted them out, got their car (which they had parked for them in the first place), put them in the car and told them to leave. John H. was driving. A few miles down the road, he left his lane and collided head on with another car killing that car's driver (an 8 1/2 month pregnant woman) and his passenger, John C. The issue in the case is essentially whether a business with no dram shop liability (because it is not licensed to provide alcohol and in fact did not provide it) can be found liable for the injuries caused by a patron that the business encouraged to consume alcohol. The Court of Appeals said yes. The opinion is available here. The court decided the case based on a relatively straighforward analysis of the elements of the cause of action. In the end, the question was whether the injury was a foreseeable consequence of the risk created by the negligent conduct. The negligent conduct was facilitating the consumption of alcohol and then encouraging someone who was known to be intoxicated to drive. Once argued this way, it was easy to conclude that the injuries are a foreseeable consequence. In its petition for review before the Illinois Supreme Court, the defendant argued that "...the Appellate Court failed to recognize the need for judicial restraint when considering liability as a result of alcohol-related injuries'' and that ''[p]roviding the plaintiffs with a new remedy for alcohol-related injury when the legislature has declined to do so … puts the law into a state of flux because it forces courts to resolve these issues in a confusing and haphazard case-by-case manner.'' In other words, the defendant apparently argued that because the plaintiffs' claims are alcohol-related, any cause of action must emanate from the legislature or not at all. To this I replied on this blog by asking: "Why should the courts exercise restraint when considering alcohol related injuries? . . . There is nothing unusual about courts recognizing possible liability for damages caused by conduct related to the use of alcohol. The defendant in this case seems to be arguing that the Legislature preempted the claims by enacting the Dram Shop Act, while at the same time arguing they are not covered by the Act because, in fact, they did not serve the alcohol in question in the case. You can't have it both ways." I think the decision in this case is going to be very interesting regardless of what it decides. The Court is faced with an argument that asks for the Court to exercise judicial restraint when judicial action is not only common but a good idea. Yet, recognizing the cause of action without distinguishing the facts of the case from those typically found in a social host type case could have unintended consequences for a whole different category of possible defendants. I think the court should recognize the claim by recognizing a new category of defendants - neither a commercial host nor a social host, but something in between. Stay tuned....