Bell v. Hutsell

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Bell v. Hutsell

State: Illinois

Court: 2nd District Appellate

Docket No: 2-09-0577 Rel

Case Date: 06/09/2010

Preview:No. 2-09-0577 Filed: 6-9-10 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ JANET BELL, Individually and as Special Administrator of the Estate of Daniel Bell, Deceased, ) Appeal from the Circuit Court ) of Lake County. ) ) Plaintiff-Appellant, ) ) v. ) No. 08--L--836 ) JEFFREY HUTSELL and SARA HUTSELL, ) Honorable ) David M. Hall, Defendants-Appellees. ) Judge, Presiding. _______________________________________________________________________________ PRESIDING JUSTICE ZENOFF delivered the opinion of the court: Plaintiff, Janet Bell, appeals from an order of the circuit court of Lake County dismissing her second amended complaint with prejudice. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings. BACKGROUND This lawsuit arises out of an automobile accident that occurred on October 13, 2006, in Deerfield, Illinois, when Daniel Bell (Daniel), age 18, crashed into a tree, killing himself and a passenger, Ross Trace. Daniel had been drinking at a party at defendants' home that evening. On March 31, 2009, plaintiff filed a second amended complaint, which for ease of description we will refer to as the complaint. According to the allegations of the complaint, defendants' son Jonathan, an 18-year-old high school student, had a party at the family's residence on the evening of

No. 2--09--0577 October 13, 2006. The party was attended by numerous high school friends of Jonathan's who were under the legal drinking age, including Daniel. Before the party, defendant Jeffrey told Jonathan that no alcoholic beverages would be allowed at the party and that Jeffrey and Jonathan's mother, defendant Sara, would be present to check on the partygoers. Jeffrey told Jonathan that they would monitor and inspect the activities in the lower level of the house, the garage, and the driveway to ensure that no one consumed alcoholic beverages anywhere inside the residence or on the property. Nevertheless, throughout the evening, defendants were present when the partygoers consumed alcohol, including beer, vodka, and rum, which was brought into the residence by the partygoers. Defendants did not furnish the alcohol, having stocked the bar area in the lower level of the house with soft drinks. At approximately 11:30 p.m., Daniel, who was impaired by alcohol he consumed at the party, drove his car with Ross Trace1 and others as passengers and struck a tree. Daniel died as a result of injuries he sustained in the accident. Counts I, II, and III of the complaint alleged that defendants voluntarily undertook the duty to monitor the party guests who were under the age of 21 and to inspect the inside and outside of the property to ensure that the partygoers would not consume any alcoholic beverages and that they were negligent in failing to carry out their intention to prohibit the consumption of alcoholic beverages. Counts IV, V, and VI attempted to state a civil cause of action based upon a violation of section 6--16(a--1) of the Liquor Control Act of 1934 (Act) (235 ILCS 5/6--16(a--1) (West 2006)), which is a criminal statute making it unlawful for any parent to permit his or her residence to be used by an invitee of the parent's child, if the invitee is under the age of 21, in a manner that constitutes a

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A lawsuit arising out of Ross Trace's death in the accident was filed and is pending before

a different judge in the circuit court of Lake County. -2-

No. 2--09--0577 violation of section 6--16(a--1). A violation takes place if the parent knowingly authorizes, enables, or permits such use to occur by failing to control access either to the residence or to the alcoholic liquor maintained in the residence. 235 ILCS 5/6--16(a--1) (West 2006). A person is guilty of a Class A misdemeanor where he or she knowingly permits a gathering at a residence that he or she occupies of two or more persons who are under 21 years of age and the person occupying the residence knows that any such person under the age of 21 is in possession of or is consuming any alcoholic beverage not otherwise permitted and the person occupying the residence knows that the person under the age of 21 leaves the residence while intoxicated. 235 ILCS 5/6--16(c)(1), (c)(2), (c)(3) (West 2006). Counts VII, VIII, and IX sought recovery under the Drug or Alcohol Impaired Minor Responsibility Act (740 ILCS 58/1 et seq. (West 2006)), which provides, inter alia, that any person at least 18 years of age who willfully supplies alcoholic liquor to a person under 18 years of age and causes the impairment of such person is liable for death or injury to persons or property caused by the impairment of such person. Defendants moved to dismiss the complaint pursuant to section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 2006)). Defendants moved to dismiss counts I, II, and III, the voluntary-undertaking counts, on the basis that defendants owed Daniel no duty because there is no social host liability in Illinois and the voluntary-undertaking theory was simply a way of trying to circumvent the rule against social host liability. Defendants moved to dismiss counts IV, V, and VI on the ground that the criminal statute does not furnish a private right of action, and they moved to dismiss the remaining counts on the basis that the Drug or Alcohol Impaired Minor Responsibility Act does not apply since Daniel was not under the age of 18 years. On May 26, 2009, the trial court granted the motion to dismiss with prejudice, and plaintiff filed a timely appeal.

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No. 2--09--0577 DISCUSSION Plaintiff appeals from that part of the order dismissing counts I through VI. Plaintiff does not appeal from the dismissal of the counts relating to the Drug or Alcohol Impaired Minor Responsibility Act. A motion to dismiss pursuant to section 2--615 attacks the legal sufficiency of the complaint, and on review of the dismissal the court must determine whether the allegations of the complaint, when taken in the light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted. DOD Technologies v. Mesirow Insurance Services, Inc., 381 Ill. App. 3d 1042, 1045-46 (2008). We take all well-pleaded facts as true. DOD Technologies, 381 Ill. App. 3d at 1046. We review a dismissal pursuant to section 2--615 de novo. DOD Technologies, 381 Ill. App. 3d at 1046. Voluntary Undertaking Plaintiff alleged that defendants were negligent in performing the duty they voluntarily undertook to inspect and monitor the partygoers to ensure that no underage party guest would drink alcoholic beverages in their residence or on their property. To state a claim for negligence, a plaintiff must plead a duty owed by a defendant to that plaintiff, a breach of duty, and injury proximately caused by the breach of duty. Kirwan v. Lincolnshire-Riverwoods Fire Protection District, 349 Ill. App. 3d 150, 155 (2004). Under the voluntary-undertaking theory of liability, one who gratuitously or for consideration renders services to another is subject to liability for bodily harm caused to the other by one's failure to exercise due care. Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32 (1992). In Frye, our supreme court explained the elements of a voluntary undertaking by citing section 323 of the Restatement (Second) of Torts, as follows:

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No. 2--09--0577 "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking." Restatement (Second) of Torts

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