Wilk v. 1951 W. Dickens, Ltd.

Second Division
June 9, 1998

No. 1-97-0303

KENNETH J. WILK, Special ) Appeal from the
Adm'r of the Estate ) Circuit Court of
of Brian K. Wilk, Deceased, ) Cook County.
)
Plaintiff-Appellant, )
)
v. ) No. 96 L 4286
)
1951 W. DICKENS, LTD, d/b/a )
Danny's Tavern, a corporation, )
TERRANCE ALEXANDER and JOHN DOE, )
an UNKNOWN OWNER or OWNERS, ) Honorable
) Kathy M. Flanagan,
Defendant-Appellees. ) Judge Presiding.

JUSTICE RAKOWSKI delivered the opinion of the court:
Approximately an hour after leaving Danny's Tavern, 20 year-
old Brian Wilk, plaintiff's decedent (decedent), was found beaten
and unconscious. Decedent ultimately died from his injuries.
Finding that defendants, 1951 W. Dickens, Ltd. and Terrance
Alexander (Alexander), owed no duty to ensure decedent's safety
away from the tavern's premises, the trial court granted
defendants' motion to dismiss and denied plaintiff leave to file
a proposed amended complaint. We affirm.
I. FACTS
The material facts are not in dispute. On the evening of
April 27, 1994, decedent and several companions were at
defendants' establishment, commonly known as Danny's Tavern,
located at 1951 W. Dickens, in Chicago. At about 11:30 p.m., a
verbal exchange occurred between decedent's party and another
party. Although the confrontation did not become physical,
Alexander, president and shareholder of 1951 W. Dickens Ltd.,
instructed decedent's party to stay at the tavern and instructed
the other group to leave. Sometime later, decedent and his
companions left the tavern.
Approximately an hour and a half after the first party left
the tavern, a customer came into the tavern and informed
Alexander that a street fight was occurring a block away at 2110
N. Winchester. When Alexander arrived, he found decedent lying
on the ground unconscious.
Plaintiff's original complaint and proposed amended
complaint essentially allege that defendants owed decedent a
"higher duty" that required them to ensure decedent's safety
after he left the tavern's property. Plaintiff anchors this
theory on the allegation that defendants kept a "disorderly
house" by operating an enterprise that served alcohol to underage
persons. Plaintiff claims that this activity creates
unreasonably dangerous conditions for minors from which
defendants could reasonably foresee that decedent would be harmed
away from the tavern's property. Plaintiff alleges that
defendants breached their "higher duty" by failing to detain
those who threatened decedent while giving decedent time to leave
the vicinity and avoid a violent confrontation outside.
Plaintiff also alleges that defendants breached their duty by
failing to call the police to arrest those involved in the verbal
altercation including decedent and by failing to ensure that
decedent arrived home safely.
Defendants filed a motion to dismiss pursuant to section 2-
619(a)(9) of the Illinois Code of Civil Procedure. 735 ILCS 5/2-
619(a)(9) (West 1994). Defendants included an affidavit by
Alexander and other supporting materials with their motion to
dismiss. These materials show that decedent was injured a block
away and around the corner from the tavern approximately an hour
after decedent left defendants' establishment. As such,
defendants argued that plaintiff failed to allege a cause of
action because, under these facts, they were not under a legal
duty to ensure decedent's safety after decedent left the tavern.
Plaintiff did not object to or controvert this evidence.
The trial court granted defendants' motion to dismiss and
subsequently denied plaintiff's motion for leave to file its
amended complaint. This court has jurisdiction pursuant to
Supreme Court Rule 301, allowing appeals from final orders. 134
Ill. 2d R. 301.
II. DISCUSSION
Section 2-619 of the Illinois Code of Civil Procedure was
designed to provide an efficient means to dispose of issues of
law or easily proved issues of fact. Longfellow v. Corey, 286
Ill. App. 3d 366, 368 (1997). The court reviews de novo the
trial court's ruling of defendants' section 2-619 motion.
Longfellow, 286 Ill. App. 3d at 368. This court considers as
true all well-pleaded facts in plaintiff's complaint and all
reasonable inferences drawn from those facts. Griffin v.
Universal Casualty Co., 274 Ill. App. 3d 1056, 1063 (1995).
Section 2-619(a)(9) permits a defendant to move for
involuntary dismissal of plaintiff's complaint where plaintiff's
claim is "barred by other affirmative matter avoiding the legal
effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West
1994). Once the defendant satisfies his initial burden of going
forward on a section 2-619(a)(9) motion, plaintiff must
controvert the affirmative matter by asserting that it is
unfounded or requires the resolution of an essential element of
material fact. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997). If plaintiff fails to meet its burden, the
court may dismiss the complaint. Epstein, 178 Ill. 2d at 383.
Thus, as can be seen, a motion pursuant to section 2-619(a)(9) is
similar to a motion for summary judgment, especially in the case
where a determination of fact is involved. Cunningham v.
Huffman, 223 Ill. App. 3d 878, 886 (1992).
A. Defendants' Liability
Business owners, such as tavern operators, owe a duty to
exercise reasonable care to protect their invitees from
reasonably foreseeable criminal acts of third parties while the
invitees remain on their premises. Lucht v. Stage 2, Inc., 239
Ill. App. 3d 679, 684-85 (1992); Lewis v. Razzberries, Inc., 222
Ill. App. 3d 843, 849 (1991); Badillo v. De Vivo, 161 Ill. App.
3d 596, 598 (1987); Yangas v. Charlie Club Inc., 113 Ill. App. 3d
398, 401 (1983) (duty to protect invitee in tavern parking lot
would be imposed if harmful act was reasonably foreseeable); see
Restatement (Second) of Torts 344 (1965).
However, where the injury occurs away from the premises, as
in the instant case, Illinois courts have repeatedly refused to
impose liability upon the business operator, reasoning that
requiring business operators to protect their patrons from
injuries occurring away from the premises would place an
unjustifiable burden on the operator. Fitzpatrick v. Carde
Lounge, Ltd., 234 Ill. App. 3d 875, 879 (1992); Lewis, 222 Ill.
App. 3d at 852; Badillo, 161 Ill. App. 3d at 598-99. See also
Restatement (Second) of Torts 314A, Comment c, at 119 (1965) (a
possessor of land is not under a duty to an invitee while the
invitee is away from the premises). But see Shortall v.
Hawkeye's Bar & Grill, 283 Ill. App. 3d 439, 444-45 (1996) (where
"dispute began in the bar, a challenge was extended to 'take it
outside,' and a brawl developed just outside the front door and
continued for 15 minutes while [tavern owner] or his employees
watched out the window, [tavern owner] was under the same duty as
if the fight had occurred inside the bar").
Conceding that defendant is not liable for decedent's death
under the above case law, plaintiff urges this court to find the
above law inapplicable because it addresses the liability of
tavern operators who run lawful businesses. Instead, plaintiff
submits that this court should create a "higher duty" and impose
it upon defendants because they operated an alleged "disorderly
house" by serving alcohol to minors. Plaintiff contends that
defendants' enterprise of serving alcohol to underage persons
creates unreasonably dangerous conditions for minors and that, as
a consequence, defendants could reasonably foresee that decedent
would be harmed away from the premises. As such, plaintiff urges
that defendants breached this higher duty by not ensuring that
decedent was not harmed.
However, the case law relied on by plaintiff fails to
support or even allude to such a proposition. See Launtz v.
Vogt, 133 Ill. App. 255, 260-61 (1907) (appellee was not entitled
to specific performance of a lease because appellee violated
agreement not to use the premises in a manner that discredited
the premises or neighborhood and that serving alcohol to minors
did just that); City of Chicago v. Clark, 359 Ill. 374, 376
(1935) (city has police power to regulate "disorderly houses");
City of Chicago v. Shaynin, 258 Ill. 69, 71-72 (1913) (defining
public nuisance); City of Sterling v. Speroni, 336 Ill. App. 590,
598-99 (1949) (if a crime is also a public nuisance, a court of
equity may abate such nuisance so as to effect a permanent remedy
for the community); Bogden v. Laswell, 331 Ill. App. 395, 400
(1947) (selling liquor to minors violated lease provision against
noxious or offensive uses).
Moreover, although underage drinking is against Illinois law
and public policy, case law addressing this issue provides that
it does not constitute notice of danger as a matter of law.
Davis v. Allhands, 268 Ill App. 3d 143, 152 (1995), citing Mealey
v. Pittman, 202 Ill. App. 3d 771, 776 (1990). In Mealey, the
court rejected an argument very similar to the one plaintiff
advances and refused to find the tavern owner liable even though
plaintiff's injury occurred on defendants' premises. Mealey, 202
Ill. App. 3d at 776-77. There, plaintiff, a minor, was attacked
in the tavern's parking lot by another patron who was also a
minor. Plaintiff alleged that minors were drinking alcohol at
the tavern on the night he was attacked and that the tavern had
an ongoing problem with patronage by minors. Plaintiff argued
that such activity created a "condition conducive to trouble" and
that, as a result, the tavern owner owed a duty to ensure
plaintiff was not harmed in the tavern's parking lot. Mealey,
202 Ill. App. 3d at 776. The court found that it was not
reasonably foreseeable that plaintiff would be attacked in the
parking lot merely because the tavern illegally served alcohol to
minors. Mealey, 202 Ill. App. 3d at 777. Consequently, the
court found that defendant was under no duty to ensure
plaintiff's safety while he was in the tavern's parking lot.
Considering the holding in Mealey and the facts in the
instant case, we reject plaintiff's argument that defendants owed
decedent a duty to ensure his safety after he left the tavern.
Initially we note that plaintiff advances a basis for finding
foreseeability akin to the one proposed and rebuffed by the court
in Mealey, but, unlike the plaintiff in Mealey, plaintiff here
applies this reasoning to support the imposition of liability for
harm occurring beyond a tavern's boundaries--liability this court
has repeatedly refused to impose. More importantly, however,
plaintiff neither alleges facts that show the attack was
foreseeable nor alleges facts that establish a causal connection
between underage drinking and decedent's injury. Plaintiff does
not claim that decedent or decedent's attackers were intoxicated
or otherwise appeared to be violent. Rather, the facts show that
there was a verbal exchange between decedent's party and another
party at the tavern and that Alexander instructed decedent's
group to stay at the bar while requiring the other party to
leave. Approximately an hour and a half after the first party
left the tavern, a customer came into the tavern and informed
Alexander that a fight was occurring a block away. Under these
facts we conclude that defendants could not have reasonably
foreseen that underage drinking at the tavern would result in
decedent's injury.
We further observe that imposing plaintiff's proposed duty
would place "an unjustifiable burden on the operator and on the
police force." Fitzpatrick v. Carde Lounge, Ltd., 234 Ill. App.
3d 875, 879 (1992); Lewis, 222 Ill. App. 3d at 852; Badillo, 161
Ill. App. 3d at 599. Plaintiff's suggestion that the adults
should have been held at the tavern to give decedent time to flee
is particularly burdensome. "[I]t would require establishment
owners to determine which party was the aggressor in an
altercation and to detain that potentially dangerous person on
the premises until the victim could flee." Badillo, 161 Ill.
App. 3d at 599. Likewise, to find that defendants and business
operators in general are required to call the police when a
verbal altercation occurs or to chaperon a patron home is even
more burdensome and beyond the demands of public policy. See
Fitzpatrick, 234 Ill. App. 3d at 879; Lewis, 222 Ill. App. 3d at
852; Badillo, 161 Ill. App. 3d at 598-99. See also Restatement
(Second) of Torts 314A, Comment c, at 119 (1965) (a possessor of
land is not under a duty to an invitee while the invitee is away
from the premises).
For similar reasons, plaintiff also fails to allege a cause
of action in strict liability. Even though plaintiff insists
that defendants' alleged "disorderly house" constitutes an
ultrahazardous activity triggering strict liability, plaintiff's
authority fails to support this proposition. See Miller, 272
Ill. App. 3d at 270 (determined that discharge of firearms is not
an ultrahazardous activity and noted that strict liability is
"ordinarily reserved for abnormally dangerous activities for
which no degree of care can truly provide safety"). Moreover,
considering that, as a matter of law, patronage of underage
persons at a tavern does not constitute notice of a dangerous
condition, it follows that it cannot be an ultrahazardous or
abnormally dangerous activity requiring imposition of strict
liability upon tavern operators.
B. Dismissal Pursuant to Section 2-619(a)(9) Without a Full
Pe riod of Discovery

Plaintiff also argues that the trial court should not have
granted defendants' motion to dismiss until full discovery
occurred. Plaintiff correctly asserts the proposition that "a
trial court should not refuse a discovery request and grant a
motion to dismiss where it reasonably appears discovery might
assist the party resisting the motion." Yuretich v. Sole, 259
Ill. App. 3d 311, 317 (1994). Nonetheless, a trial court
properly quashes a discovery request where it has before it
sufficient information upon which to decide the motion to
dismiss. Yuretich, 259 Ill. App. 3d at 317; Tudor v. Jewel Food
Stores, Inc., 288 Ill. App. 3d 207, 212 (1997). In the instant
case, plaintiff does not claim that there could be facts that
would entitle plaintiff to recover under existing law; rather,
plaintiff proposes an exception to existing law. Under these
circumstances and in light of defendants' uncontroverted
submissions all of which show that decedent was injured away from
Danny's premises, we find that the trial court had sufficient
information to grant defendants' motion to dismiss without
further discovery.
C. Denial of Leave to File Amended Complaint

Plaintiff also argues that the trial court erred by refusing
to allow plaintiff to file its amended complaint. Although
plaintiff correctly asserts that courts should freely and
liberally allow parties to amend their pleadings, a party's right
to amend is not absolute and unlimited. Bidani v. Lewis, 285
Ill. App. 3d 545, 554 (1996). The trial court has the sound
discretion to allow the filing of an amended complaint and such a
determination will not be reversed absent a manifest abuse of
discretion. Weisblatt v. Chicago Bar Ass'n, 292 Ill. App. 3d 48,
51 (1997). To determine whether the trial court abused its
discretion, the court considers four factors: (1) whether the
proposed amendment would cure the defective pleading; (2) whether
other parties would be prejudiced or surprised by virtue of the
proposed amendment; (3) whether the proposed amendment is filed
timely; and (4) whether there were previous opportunities to
amend the pleading. Weisblatt, 292 Ill. App. 3d at 51; Bidani,
285 Ill. App. 3d at 554. In the instant case, the first factor
is dispositive; plaintiff's amended complaint allegations do not
establish a cognizable claim. Thus, the trial court did not
abuse its discretion by not allowing plaintiff to file its
amended complaint.
Based on the above, we affirm the circuit court's dismissal
of plaintiff's complaint and denial of plaintiff's motion for
leave to file an amended complaint.
Affirmed.
McNULTY, P.J. and TULLY, J. concur.