March 20, 2001

NO. 4-00-0600

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE KNECHT delivered the opinion of the court:

In September 1996, plaintiff, Shannon F. Graham, was involved in anautomobile accident after the truck in which he was a passenger left the roadwayand struck two trees, causing him to suffer severe head injuries. In September1997, plaintiff filed a complaint alleging, in count I, the driver of the truck,Aaron M. Pierson, acted negligently in causing the accident and, in counts IIand III, liability under section 6-21(a) of the Liquor Control Act of 1934 (DramshopAct) (235 ILCS 5/6-21(a) (West 1996)) against two bars the parties visited thenight of the accident, United National Investors, Inc., doing business as theLake Club (Lake Club), and Capital City Brewing Company, Inc., doing business asthe Atrium (Atrium). No issues regarding the count against Pierson are thesubject of this appeal. In June 2000, after finding plaintiff acted withcomplicity in procuring the intoxication of Pierson, the trial court awardeddefendants summary judgment. Plaintiff appeals, arguing the trial court erred asa matter of law by finding plaintiff acted with complicity. We reverse.

I. BACKGROUND

On the evening of September 4, 1996, plaintiff, Pierson, and Mark Coatsembarked in Coats' truck on a "tour of taverns" encompassing threedifferent bars in the cities of Jacksonville and Springfield. While at the LakeClub bar in Springfield, Coats got into an altercation in the parking lot andwas later arrested by police. Finding they had the keys to Coats' truck, Piersonand plaintiff drove from the Lake Club only to end up a short time later in asingle-vehicle accident after the driver, Pierson, fell asleep and ran off theroad. As a result, plaintiff suffered a fractured skull and other injuries. InSeptember 1997, plaintiff filed a complaint in which he alleged, inter alia,the Atrium and the Lake Club violated Illinois' Dramshop Act by serving Piersonalcoholic beverages on the night of the accident, causing him to becomeintoxicated.

In his deposition, plaintiff testified the parties left Beardstown in Coats'truck, with Coats driving, shortly after 10 p.m. and headed for the Headquartersbar in Jacksonville. During the ride, plaintiff testified they were all drinkingbeers from a cooler located in the back of the truck. Plaintiff said Coats'truck had a sliding center window through which they could reach the cooler fromthe cab of the truck. He estimated he and Pierson drank approximately threebeers each between Beardstown and Jacksonville. The trio stopped briefly inJacksonville at a bar called the Headquarters but did not go in. Plaintifftestified they left Jacksonville and headed toward Springfield. Plaintiff andPierson each drank an additional three beers by the time the trio arrived at theAtrium bar in Springfield. At the Atrium, plaintiff testified, the trio tookturns buying rounds for each other as they "danced and drank."Plaintiff estimated he and Pierson each consumed around three shots of asubstance known as "liquid cocaine" and about three beers. Later inthe evening, the trio left the Atrium and headed for the Lake Club, also inSpringfield. Plaintiff said he and Pierson each drank an additional beer fromthe cooler during the short drive to the Lake Club and about three more beersafter they arrived.

While there, Coats became involved in an altercation with some other patrons.The confrontation escalated and a group of people, one of whom was Coats, endedup outside in the parking lot. Police were summoned and Coats was arrested forhis involvement in the scuffle. After police took Coats to jail, plaintiff andPierson discovered they had the keys to Coats' truck. They left the Lake Club,with plaintiff driving, and stopped at a nearby Huck's convenience store whereplaintiff made a few phone calls and then "got sick." Pierson tookover as driver as the pair left the gas station and headed toward Beardstown.

Coats, in his deposition, testified the parties drank no alcohol betweenBeardstown and Jacksonville, but the parties did get beer in Jacksonville,although he could not remember who bought it or from where. Coats said he drankabout two beers between Jacksonville and Springfield from the cooler in the backof the truck, retrieving the beers through a sliding window, but he could notrecall how many beers plaintiff and Pierson drank. Coats said he had about fouror five beers while at the Atrium but could not recall how many drinks plaintiffand Pierson consumed there. He surmised the trio took turns buying rounds foreach other, although he could not remember specifically. Similarly, Coats saidthe trio continued to drink after arriving at the Lake Club but did not know howmany drinks they had individually. Coats remembered getting into a fight at theLake Club with the bouncer and some other individuals. Shortly after the fighterupted, the police arrived and arrested Coats, removed his truck keys from hispants pocket, and placed him in the back of the squad car before taking him tojail. Coats did not know how plaintiff and Pierson got possession of his truckkeys.

Pierson testified the trio left Beardstown in Coats' truck and headed to theHeadquarters bar in Jacksonville, where the parties stopped but then leftwithout ordering a drink because there were "no girls" around. Becausethe group was using Coats' truck, Pierson indicated Coats was the"designated driver" and only had a "few" beers throughoutthe evening. Pierson said he noticed a cooler in the truck bed with at least sixbeers inside but did not drink any. Pierson further explained there was no wayto reach the cooler from the cab without stopping the truck and exiting the cab.In addition, Pierson said he did not drink any beer from the cooler during theride from Jacksonville to the Atrium bar in Springfield. While at the Atrium,Pierson testified he drank three or four beers and one or two shots of"liquid cocaine," as the parties took turns buying "rounds."After about two hours, the parties left and drove to the Lake Club bar. Duringthe drive to the Lake Club, Pierson said he drank part of one beer from thecooler in the truck. The parties continued to drink at the Lake Club, withPierson consuming another two or three beers. Later, an altercation ensued inthe parking lot between Coats and the Lake Club's bouncer, for which policelater arrested Coats. As the police were driving away with Coats, Pierson saidplaintiff showed up with the keys to Coats' truck. With plaintiff driving, thepair drove to a nearby Huck's convenience store, during which Pierson said hedrank part of another beer from the cooler in the truck. While at Huck's,Pierson said plaintiff "got sick," so Pierson decided to drive. Aftertraveling less than 10 miles, Pierson fell asleep behind the wheel and ran offthe road, causing the truck to hit a culvert and jettison into two nearby trees.

In March 2000, defendants moved for summary judgment, arguing plaintiff'scomplicity in procuring Pierson's intoxication barred plaintiff's recovery underthe Dramshop Act. The trial court agreed and, in June 2000, by docket entry, itawarded summary judgment to defendants, concluding the evidence"overwhelmingly established plaintiff's voluntary participation in thedrinking activities" and, thus, established the defense of complicity. Thisappeal followed.

II. ANALYSIS

Plaintiff argues the trial court erred as a matter of law by awarding summaryjudgment to defendants. We review a trial court's order granting summaryjudgment under the de novo standard. Segers v. IndustrialComm'n, 191 Ill. 2d 421, 428, 732 N.E.2d 488, 493 (2000). Specifically,plaintiff argues the evidence presented in this case does not establishplaintiff's complicity in procuring Pierson's intoxication on the night of theaccident. We agree.

When a person is injured by an intoxicated individual, the injured party hasa statutory right of action for limited damages against the dramshop thatprovided the alcohol to the intoxicant. 225 ILCS 5/6-20(a) (West 1996). TheDramshop Act's intent is to place responsibility for damages caused byintoxicants on those who profit from the sale of alcohol; its language should beliberally construed to protect the health, safety, and welfare of the peoplefrom the dangers of traffic in liquor. Walter v. Carriage House Hotels, Ltd.,164 Ill. 2d 80, 86-87, 646 N.E.2d 599, 602 (1995).

The complicity doctrine is a judicially created affirmative defense to thestatutory liability imposed by the Dramshop Act upon those businesses sellingliquor. Walter, 164 Ill. 2d at 86, 646 N.E.2d at 602. To establish thedefense, the defendant dramshop must plead and prove by a preponderance of theevidence the "plaintiff's conduct actively contributed toor procured the inebriate's intoxication." (Emphasis inoriginal.) Walter, 164 Ill. 2d at 95, 646 N.E.2d at 606. This standard isnot akin to contributory negligence, which relates to the plaintiff's role incausing his own injury; rather, complicity concerns the plaintiff's role incausing the inebriate's intoxication. Walter, 164 Ill. 2d at 89, 646N.E.2d at 603-04.

In trying to determine what constitutes "actively contributing to orprocuring" another's intoxication, some courts have erroneouslycharacterized complicity as plaintiff's "willing encouragement" of or"voluntary participation" in the drinking activities that led to theinebriate's intoxication. Walter, 164 Ill. 2d at 91, 646 N.E.2d at 605.Other courts have placed too much emphasis on such things as whether theplaintiff and the intoxicant were "bar-hopping" or whether plaintiffwas buying "rounds" of drinks. Walter, 164 Ill. 2d at 95, 646N.E.2d at 606. Such definitions blur the distinction between actively causinganother's intoxication and merely providing social companionship to theintoxicant. Walter, 164 Ill. 2d at 91, 646 N.E.2d at 604-05. Because aplaintiff's complicity depends on the specific facts of each case, the factfinder is generally the proper body to determine whether sharing an evening ofdrinking with the intoxicant rises to the level of complicity. Walter,164 Ill. 2d at 92, 646 N.E.2d at 605. While a trial court may, under appropriatecircumstances, award summary judgment, it should only do so when the materialfacts establishing plaintiff's procurement of the inebriate's intoxication areundisputed and capable of only one conclusion. Walter, 164 Ill. 2d at 95,646 N.E.2d at 606.

In the present case, the trial court erred by awarding summary judgment todefendants. While we agree plaintiff "actively participated in the drinkingactivities" on the night of the accident, this does not necessarily rise tothe level of complicity for purposes of the Dramshop Act. The evidence in thiscase establishes three friends went to three bars together, drank beer andliquor, bought "rounds" of drinks for each other, and, after becomingintoxicated, the two not arrested suffered an automobile accident while drivinghome. According to their testimony, the friends dispute (1) who purchased thecooler of beer and put it in Coats' truck, (2) to what extent they drank duringthe ride to Springfield, (3) the extent to which the parties bought drinks foreach other at the Atrium and the Lake Club, and (4) how much alcohol the partiesconsumed during the evening, individually or as a group. Because these materialfacts are in dispute and are capable of more than one interpretation, the trialcourt should have left the question of complicity to the fact finder'sinterpretation.

III. CONCLUSION

For the reasons stated, we reverse the trial court's award of summaryjudgment for defendants and remand for further proceedings.

Reversed and remanded.

McCULLOUGH and MYERSCOUGH, JJ., concur.