I finally had a chance to read the Illinois Supreme Court’s decision in Simmons v Homatas, a case I have been following since I read the appeals court decision over a year ago. (go here, here and here).
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 liquor, 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 drink heavily. When one of them got sick in the bathroom, employees of the establishment 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 defendant argued that the plaintiffs did not have the right to a cause of action because Illinois does not recognize social host liability and, since it was not authorized to sell alcohol, it could not be held liable under the Illinois Dramshop Act either. Based on this argument, the issue for the court was essentially whether a business with no dramshop liability could be found liable for the injuries caused by a patron that the business encouraged to consume alcohol.
Given that the answer to that question would probably have to be NO unless the Court created a new view of the doctrine regarding the possible liability of someone who provides alcohol under circumstances where the Dramshop Act does not apply, the Supreme Court approached the case from a different perspective. In the process, however, it may have opened the door to stronger attacks on the doctrine that protects social hosts from liability.
The Court first reaffirmed its position that Illinois does not recognize a cause of action against a person who provides or sells alcohol to another who later harms a third party while intoxicated unless the claim is recognized under the Dramshop Act. For this reason, the defendant was correct in arguing it should not be liable for its conduct of providing alcohol to the driver. The defendant was not subject to dramshop liability because it was not a licensed seller of alcohol and it was not subject to social host liability because Illinois does not recognize that basis of liability.
If the Court was going to recognize a cause of action in this case, thus, it had to find a different way to justify it. And it did so by approaching the facts of the case from a different perspective. It held that the relevant conduct upon which the claim was based was not providing alcohol but encouraging or assisting another in tortious conduct. In fact, for this approach, the conduct of providing alcohol is irrelevant. It is the conduct of getting the car for the driver, placing the driver in the car and encouraging him to drive away that matters.
The defendant, however, had a good argument against this view too. It cited a number of cases that hold that helping someone get into his or her car and “allowing” him or her to drive away intoxicated is not enough to impose liability. In response, the Court distinguished those cases suggesting a distinction between cases where the defendant “allows” an intoxicated person to drive – in which case there is no liability - and cases where the defendant “assists” an intoxicated person – in which case there could be liability.
To support this distinction, the Court cites section 876 of the Restatement (Second) of Torts which requires that the defendant give “substantial assistance or encouragement” in committing the tort. But the Court holds that merely failing to prevent another’s tortious conduct is not enough to show “substantial assistance or encouragement.”
The Court then concludes that the allegations that the defendant directed the driver to leave the club, brought his car to him, opened the door for him and directed him to leave were enough to support a claim. I think there are serious problems with the Court’s decision in this case.
First of all, the conclusion that the case is distinguishable from the other cases discussed in the opinion is simply not persuasive. The conduct involved in this case is not any different than that of the defendants in the other cases in which the Court had failed to impose liability. (Interestingly, the Court does not mention the fact that part of the defendant's business operation depended on encouraging heavy drinking. I think this would have helped the Court's position, but it chose not to take it into account.)
Second, given the similarities in the facts of these cases, the distinction between “allowing someone to drive drunk” and “assisting someone to drive drunk” is tenuous at best. Is there really that much of a difference between helping an intoxicated person drive by taking him to his car and letting him get behind the wheel and bringing the car to him and telling him to get in it?
Finally, and most importantly, these deficiencies open the door to claims against a social host. Although the Court was clear that “social host liability” is not recognized, it was also clear that this refers only to the conduct related to providing alcohol. Assume a social host (a private person hosting a party in his home) notices a friend is drunk and disruptive and asks him to leave. Instead of arranging for transportation, the host helps the friend out to his car and encourages him to go home. Wouldn’t that satisfy the requirements set out by the court in Simmons?
I think Justice Freeman would agree with me. In a separate opinion, he essentially argued that the Court needed to clarify the distinction between “allowing” and “substantially assisting or encouraging” tortious conduct. He argued that the Court should have found that there can be liability for "assisting" but that the allegations in this case were insufficient to support it. I think the Court here felt it would be unjust to find that the plaintiff had no remedy and simply tried to find a way to justify recognizing some kind of liability. Unfortunately, in doing it, it actually may have weakened the doctrine that protects social hosts from liability.
2 comments:
I think there is a bit of a distinction between walking a person to their car and driving the car to the person. It is slight, but when you walk a person to their car, it is the drunk person who puts the keys in the ignition. When a person drives the car to another drunk person, they are the ones who put the keys in the ignition.
When you walk a drunk person to their car, they may get in, but not have the ability to put the key in the ignition based on their drunkenness. They might just fall asleep eventually. When you drive the car to a drunk person, the car is already started, so all they have to do is put their foot on the gas pedal and off they go.
When you walk a drunk person to their car, it is basically like saying, "You don't have to go home, but you can't stay here." When you drive the car to a drunk person, it is a little more forceful, as if you're saying, "I want you to leave."
Maybe I am playing devil's advocate but however slight, I do believe there is a distinction here, and one that seems to fall on the level of control over the other person's actions.
I do agree that the court needs to find a middle ground between the social host and the license alcohol provider. The court may point out the difference should be financial. Judge Garibaldi's dissent in Kelly v. Gwinnell was that the social host may not have sufficient insurance to cover the limitless liability. The venue encouraging people to drink needs to be able to cover a large part of the remedy if not fully. After all if this place does not make enough money, it will be a waist of time for the plaintiff to sue for damages.
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