The body of the amicus brief written by William Lazarus and submitted to the Illinois Supreme Court by ITLA follows:
On Stage Productions, Inc. banks on its own lawlessness in arguing that its wanton behavior is immune from the rule of law. While suggesting that plaintiffs may sue the store that sold the bottles of Captain Morgan rum and Grey Goose vodka that John D. Homatas and John D. Chiariello brought into its Diamonds Gentlemen’s Club on January 4, 2006 (Br. 16), On Stage asserts that because it did not have a license to sell liquor, it cannot be held responsible for encouraging Homatas and Chiariello to drink beyond drunkenness, its ensuing ejection of the men from the club, and its direction that Homatas drive away with his friend sitting beside him. Homatas became persona non grata after he became so sick from drink that he vomited in the club’s bathroom. Rather than deal with more unpleasantness or even take the time to order a taxi, On Stage opted to require Homatas to break the law and drive away drunk, to the grave endangerment of the driving public, and resulting in the deaths of Chiariello, April Simmons and her 8.5-month old daughter in utero, Addison Elizabeth.
Challenging the appellate court’s determination that it may be held liable for its in-concert activity under principles set forth in §876 of the Restatement (Second) of Torts, On Stage bluntly asserts, “The allegations that On Stage brought Homatas’s car to him, opened said door, and directed him to leave cannot be deemed ‘substantial assistance’.” (Br. 46) Plaintiffs’ complaints, however, do not state or suggest that Homatas wanted to leave the club or would have been able to find or even get into his car without the assistance of the club’s valet. Homatas’ illegal drive, and the ensuing tragedy, would not have occurred without the club’s encouragement, under the facts of the complaints viewed in the light most favorable to the plaintiffs. Even if On Stage’s actions were not deemed to constitute substantial assistance or encouragement under Restatement §876(b), the club would still be liable under §876(a) for its tortious act done in-concert with Homatas. The club ordered Homatas to leave the club and drive away in violation of the law, and Homatas obeyed. The resulting loss of life was utterly foreseeable, which is why drunk driving is a crime.
On Stage seeks to avoid responsibility for its actions with a sweeping argument that would elevate dicta into inexorable and unchallengeable legal principle and warp the concept of probable cause beyond the bounds of precedent, reason and common sense. It also seeks to avoid responsibility by predicting a parade of horribles if this Court upholds the trial and appellate court decisions below. However, under the narrow facts and extraordinarily egregious circumstances of this case, declining defendant’s motion to dismiss will not lead to sweeping and unpredictable changes contrary to prior holdings of this Court. This case does not involve a licensed purveyor of liquor. Nor does it involve a social host. Licensed taverns will continue to enjoy the protections, along with shouldering the burdens, imposed by the Dramshop Act. Social hosts will continue to be afforded the same immunities they have enjoyed thus far.
On Stage allegedly operated its striptease club without a liquor license as a premeditated way of avoiding responsibility and maximizing profits to the grave expense of the traveling public. On Stage then ordered (the Chiariello complaint) or effectively required (the Simmons complaint) its extremely intoxicated customer to break the law and drive away. At this stage, all the plaintiffs’ allegations must be taken as true and considered in the light most favorable to them. Jarvis v. S. Oak Dodge, 201 Ill. 2d 81, 86 (Ill. 2002). Allowing On Stage to be held accountable for its wrongful actions does not result in any departure, much less a radical departure, from the rule of law. To the contrary, it enables application of well established common law principles to restrain lawless behavior that threatened life and led to death.
The factual allegations of both the Homatas and the Simmons complaints amount to allegations of substantial assistance or encouragement sufficient to support liability under the principles stated in the Restatement (Second) of Torts §876(b). They also support allowing a jury to find liability under §876(a) since On Stage directed Homatas to commit a crime in ordering him to leave the club and drive away when he was intoxicated. In ordering violation of the law against driving while intoxicated, On Stage became a participant in the crime. The excuse, “I was only following orders” does not justify commission of a crime and insulate the actor from liability for the resulting injury. The assertion, “I was only giving the orders” cannot excuse the person who directs the crime. See Lambert v. Lake Forest, 186 Ill. App. 3d 937, 944 (2nd Dist. 1989) Thus, under the explicit allegations of the Chiariello complaint, On Stage may be held liable for its in-concert action under §876(a) of the Restatement as well as under §876(b). So, too, with the Simmons complaint. In addition to detailing substantial assistance or encouragement, the Simmons allegations that On Stage required Homatas and Chiariello to leave the club, brought around Homatas’ vehicle, and allowed Homatas to drive away are tantamount to a requirement that he commit the crime of drunk driving, given the totality of the circumstances viewed in the light most favorable to plaintiffs.
The appellate court aptly details the allegations of the plaintiffs. Simmons v. On Stage Productions, Inc., 386 Ill.App.3d 998, 999-1001 (2d Dist. 2008). The Illinois Trial Lawyers Association adopts those allegations, including the court’s conclusion that On Stage allegedly required that Homatas drive away while he was extremely intoxicated.
I. On Stage overstates preemption.
On Stage quotes no language in the Illinois Dram Shop Act, Liquor Control Act or any other law to show any legislative intent to preempt the plaintiffs’ common law action against it. Rather, it argues that Illinois courts long have “consistently ruled that the field of alcohol related liability is preempted by legislation and have consistently refused to recognize any cause of action for alcohol related liability beyond those explicitly provided for by the General Assembly.” (Br. at 4.) While On Stage invokes dicta in Wakulich v. Mraz 203 Ill.2d 223 (2003), and other cases to support its claim, the holding in Wakulich itself shows the sweeping dicta does not reflect the reality, but is restricted to cases involving taverns and social hosts selling or giving away alcohol, and even then the dicta is overbroad. In this case, On Stage neither sold nor gave away alcohol, so its claim of absolute preemption is not well founded. Most importantly, On Stage’s liability independently arises under the common law as a result of its in-concert acts in assisting, encouraging, and directing Homatas’ drunk driving.
On Stage correctly comments that this case is alcohol related. So was Wakulich, where plaintiffs alleged that defendants had induced Elizabeth Wakulich to drink herself into a coma, and then voluntarily undertook to care for her in a negligent fashion, resulting in her death. While the Court held to social host preemption, finding that the defendants could not be liable as a result their provision of alcohol to Elizabeth, it allowed plaintiffs to proceed under their common law claim of negligent care.
In this case, as On Stage points out, it would be “specious” to argue that plaintiffs’ complaints in this action are not related to alcohol. (Br. at 12) The same would be true as to Wakulich. Yet, the Court allowed the possibility of recovery under a common law theory separate from the question of the gift or sale of alcohol. Other courts have similarly allowed actions to proceed on independent common law grounds despite facts showing that the cases were alcohol related. See e.g. Harris v. Gower, Inc., 153 Ill. App. 3d 1035 (5th Dist. 1987) (complaint against tavern allowed based on its negligent care of plaintiff’s deceased after he lost consciousness from drink); Shortall v. Hawkeye’s Bar and Grill, 283 Ill. App.3d 439 (1st Dist. 1996) (summary judgment reversed as to tavern accused of exposing patrons to a third-party criminal attack in the form of a brawl outside its door); Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity, 155 Ill. App. 3d 231 (4th Dist., 1987) (action allowed for injury resulting from alcohol related hazing incident); Haben v. Anderson, 232 Ill.App.3d 260 (3d Dist. 1992) (action allowed for death resulting from alcohol related hazing incident). This Court discussed Haben and Quinn in depth, without finding the decisions need to be overturned. Wakulich, 223 Ill.2d 239.
In Quinn, the appellate court found that an 18-year-old plaintiff, who was required to drink to the point of extreme intoxication and neurological damage in order to enter a fraternity, was entitled to sue the fraternity. Despite acknowledging the recognized rule of preemption as to social hosts and dram shops, the court allowed the action to proceed, and stated:
We agree with the case authorities holding that the furnishing of intoxicating beverages to underage persons, such as plaintiff, does not create a legal duty. We feel, however, that we are faced with a situation which consists of more than the mere furnishing of alcohol. The facts, as alleged in plaintiff’s amended complaint, describe a fraternity function where plaintiff was required to drink to intoxication in order to become a member of the fraternity. Even worse, according to the complaint, the alcohol content in plaintiff’s body was “at or near fatal levels.” We cannot close our eyes to the fact that the abuse illustrated in the present case could have resulted in the termination of life and that plaintiff was coerced into being his own executioner. Therefore, we hold that a legal duty was created and the complaint states a cause of action in negligence.
Id. at 237. (emphasis added)
In this case, while Homatas was not required to drink to the point of extreme intoxication, he was encouraged to do so, and then he was required to leave the club and drive away, and, thus, was coerced into being his friend’s executioner, as well as that of April and Addison Elizabeth Simmons. The court distinguished Quinn from social host and tavern cases preempting common law liability by noting the combination of the alleged requirement of extreme drinking along with the violation of an anti-hazing statute designed to protect human life. Here, the alleged facts show On Stage as part of its business plan encouraged extreme drinking beyond drunkenness, and then required violation of drunk driving laws designed to protect the lives of all motorists and their passengers.
In Haben, a hazing case involving death from acute intoxication, the court found that allegation of a “de facto” requirement for drinking was sufficient to satisfy the Quinn standard since “[i]f both the candidate for initiation and the persons performing the initiation believe that drinking is required, it makes little difference whether the requirement is informal or de facto.” Id. at 659. Here, under the allegations of the Simmons complaint, the club required Homatas and Chiariello to leave and brought Homatas’ car around. Interpreted in a manner most favorable to plaintiffs, these allegations show the club created the conditions under which a normal highly intoxicated person (or for that matter even a sober person) would believe he was required to drive away. Thus, the Simmons complaint alleges an improper requirement in violation of a public safety law at least as strongly as the allegation of a “de facto” requirement of extreme drinking in violation of anti-hazing law in Haben.
Unlike here, defendants in Wimmer v. Koenigseder, 108 Ill.2d 425 (1985), were taverns – a class of defendant to which Illinois courts have consistently applied preemption in cases alleging injury caused by drunken driving. More importantly, the plaintiff in Wimmer made no allegation that either of the two taverns directed the drunken driver responsible for the crash that killed plaintiff’s deceased to leave and drive away. On Stage frets that any tavern that tells its customers to leave at closing time will be subject to liability if this case goes forward. But that’s not the same as a striptease club ejecting a customer who is sick drunk, bringing around his car, helping him get in, and requiring him to drive away.
In Wienke v. Campaign County Grain Association, 113 Ill.App.3d 1005 (4th Dist. 1983), the employer played the role of social host in holding an event for its employees. Thus, the case falls under the preemption rule broadly mandated by this Court as to social hosts. Unlike in this case, no allegation was made in Wienke that the employer ordered or required the drunken driver to leave the function and drive away. To the extent that this Court, in retrospect, might determine that the “substantial assistance or encouragement” section of Restatement (Second) of Torts §876(b) would have or should have applied in Wienke or in Wimmer, ITLA respectfully requests the Court provide guidance on the matter. But even without §876(b), On Stage could properly be found liable by a jury under §876(a).
II. On Stage acted in concert with Homatas.
The Restatement of Torts provides as follows as to in-concert liability:
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.”
Restatement (Second) of Torts §876, at 315 (1979). (emphasis added)
As to clause (a), the Restatement comments:
Parties are acting in concert when they act in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. The agreement need not be expressed in words and may be implied and understood to exist from the conduct itself. Whenever two or more persons commit tortious acts in concert, each becomes subject to liability for the acts of the others, as well as for his own acts. The theory of the early common law was that there was a mutual agency of each to act for the others, which made all liable for the tortious acts of any one.
Id. at Comment (a). (emphasis added)
A. On Stage may be held liable under §876(a) of the Restatement.
Here, the agreement was shown by action. On Stage directed Homatas to leave the club and drive away, and Homatas complied. Its direction and his obedience were both tortious as well as criminal acts since drunk driving is a crime under 625 ILCS 5/11-501, as well as being extremely dangerous. With the action prong of §876(a) fulfilled, no premeditated “common design” is necessary since that phrase follows the disjunctive word “or”. Of course, neither On Stage nor Homatas specifically intended to kill anybody. But intent to kill, maim or otherwise harm is not a requirement. In Scott v. Aldi, 301 Ill.App.3d 459 (1st Dist. 1998), the court allowed plaintiff’s conspiracy claim to proceed against a supermarket whose employee escorted the plaintiff from the store to an unlicensed taxi. The plaintiff, who suffered injury when the taxi crashed, alleged that Aldi, through its agents, entered into a conspiracy to operate an unlawful vehicle-for-hire. The court of appeals reversed the trial court’s dismissal of the conspiracy count, finding that the operation not only was illegal but was tortious conduct, given the public safety purpose of the statute requiring cabs to be licensed. Id. at 529. In Scott, the plaintiff, of course, made no allegation that defendants intended that she be injured. Such intent is rare. Even in the case of Woods v. Cole, 181 Ill.2d 512 (Ill. 1998), the defendant was only accused of negligently loading a firearm and encouraging another to pull the trigger for the purpose of scaring plaintiff’s deceased, not for the purpose of killing him. If intent to maim or kill were a requirement, few, if any, of the §876(a) cases allowed to go to trial would have survived a motion to dismiss.
Here, similar to Scott, plaintiffs allege that On Stage engaged in a tortious course of conduct by requiring Homatas to leave the club and drive away from the club drunk. As in Scott, the law that On Stage and Homatas violated as to Homatas’ drunk driving was a public safety statute. As in Scott, their alleged, in-concert violation of the statute is actionable. Requiring someone to commit a crime is itself actionable. See Lambert v. Lake Forest, 186 Ill. App. 3d 937, 944 (2d Dist. 1989).
B. On Stage may be held liable under §876(b) of the Restatement.
On Stage also substantially encouraged Homatas’ tortious behavior in accord with its premeditated business plan to encourage customer drinking to the point of extreme intoxication and sickness. Under the allegations, On Stage opted to be a full nudity club for the purpose of avoiding the requirements imposed by the Dramshop Act. That way its servers would not have to undergo the training that would help them spot and curb excessive drinking. That way, the alcohol would flow freely – only hard liquor allowed – and customers would tip the dancers more and buy more mixers, all to the profit of the club. On Stage’s plan to substantially encourage excessive drinking, and the inevitable illegal driving that followed, was carried out during Homatas’ and Chiariello’s two-hour stint of drinking and ordering dancers to come to their table. Under the allegations of the Simmons complaint, its substantial encouragement continued after the club ejected Homatas and his friend, brought Homatas’ vehicle, opened the door and allowed him to drive away. In doing this, the club was not operating as a licensed tavern. Nor was it playing the role of social host. Rather, On Stage was engaging in its for-profit business in a manner that reflected its wanton disregard of human life.
In its comment regarding in-concert conduct as substantial assistance or encouragement, the Restatement states:
Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance. If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act.
Comment b, Restatement (Second) Torts §876(b). Under plaintiffs’ allegations, the club knew that Homatas was extremely intoxicated, and should not be driving. The drive itself was a tortious act. The drive itself foreseeably led to the tragedy that followed. Whether the club ordered Homatas to drive away or simply ordered him out, brought his car around, opened the door and allowed him to leave, the club substantially encouraged Homatas’ tortious conduct, and, thus, can be held liable under part (b) of the Restatement (Second) of Torts §876. Because the club was neither giving away nor selling liquor, the preemption cases on which On Stage relies simply do not apply.
Nor does it matter that the club itself was not present at the scene when the predictable crash occurred. In Clausen v. Carroll, 291 Ill.App.3d 530 (2d Dist. 1997), the court determined that the substantial encouragement given by the defendant, a participant in drag racing, made the defendant Ryan Chapman subject to liability under §876. The drag race itself was the tortious conduct. It did not matter that Chapman was not involved in the subsequent crash. The court explained:
We believe that a drag race is a joint venture where all participants have encouraged one another to engage in reckless conduct. …
A review of the record in the instant case demonstrates the existence of facts from which a jury could reasonably conclude that, at the time of the collision, Chapman and Carroll were engaged in a joint concerted tortious activity. …
Furthermore, even if the collision did not occur while Chapman and Carroll were actually engaged in the alleged race, there is evidence from which a jury could conclude that the collision was a natural or foreseeable result of the alleged race.
Id. at 539-540.
The court in Clausen noted that its decision was a logical extension of Sanke v. Bechina, 216 Ill.App.3d 962 (2nd Dist. 1991), where a passenger in the car through comments and gestures had substantially encouraged the driver’s reckless driving. In Sanke, the court stated that
a person other than the driver is not held liable for damages caused by negligent acts of the driver unless that person is the owner of the vehicle or has the right to control that vehicle … However, plaintiffs in this case are not asserting Bechina had a duty to control Schwartz in order to prevent him from driving in a reckless manner. Instead they assert Bechina himself is a contributing tort-feasor.
Id. at 963-964. The court agreed, finding that plaintiffs had stated a viable claim with respect to the passenger’s own alleged wrongful acts, and that “[t]he determination of whether Bechina’s conduct constituted ‘substantial encouragement’ is a question of fact for the jury.” Id. at 972. Here, too, plaintiffs state a viable claim in alleging the club’s wrongful and substantial encouragement of drunken driving, and the question of whether the club’s conduct constituted such substantial encouragement or otherwise constituted participation in the tortious crime of drunk driving is one for the jury.
The situation here is readily distinguishable from that of Umble v. McKie and Sons, 294 Ill.App.3d 449 (2nd Dist. 1998). In that case, the repair shop simply fixed the driver’s car and returned the keys to him as it was required to do or face the possibility of a conversion action. Unlike here, the repair shop did not substantially encourage the driver to drink any alcohol, much less to drink to the point of extreme intoxication and sickness. Nor did the repair shop require the driver to leave and to drive away. As the court noted, “The complaint contains no allegation that any of defendant’s employees actively encouraged Butzen to get back in his car and drive. We do not equate failing to prevent certain conduct from actively encouraging that conduct.” Id. at 451-452. In contrast, here, under both the Chiariello and Simmon complaints, On Stage actively and substantially encouraged Homatas to drink to extreme excess and to drive away drunk. Under the allegations, On Stage did not have to undertake any “problematic” determination to figure out whether Homatas was drunk. After all, On Stage ejected him because he was so sick from intoxication that he vomited in its bathroom. On Stage acted in an attempt to rid itself of the problem posed by a drunken customer – a problem it played a significant and premeditated role in creating. The alleged participatory acts of On Stage were inherently wanton and wrongful; not so with the alleged acts of the repair shop in the Umble case. That makes all the difference.
- III. On Stage’s actions proximately caused the deaths at issue.
In Claussen, 291 Ill.App.3d at 540, the court found that the crash that injured the plaintiff was “was a natural or foreseeable result of the alleged race” and, thus, that Chapman’s involvement in the prior drag race was a proximate cause of plaintiff’s injuries, even though Chapman was not driving a vehicle involved in the crash. His substantial encouragement of the tortious activity was enough to find legal causation.
The same is true here. As the appellate court noted, On Stage doesn’t challenge the existence of the cause-in-fact prong of proximate cause that ‘but for’ its actions the crash would not have occurred. Nothing in the pleadings indicates that Homatas wished to leave the club or would have been able to get into his car without assistance at the time that On Stage ejected him and his friend Chiariello, and helped Homatas get behind the wheel. As to legal cause, as a matter of common sense, the appellate court was right in concluding that “not only was the action foreseeable, but in this case it was nearly predictable.” Simmons, supra, 368 Ill.App.3d at 1009. It was the club’s substantial assistance in encouraging Homatas to become drunk to the point of sickness and then in requiring him to leave and drive away – and not the provision of alcohol – that served as a proximate cause of the crash. Id.
In fact, On Stage itself didn’t even provide the hard liquor that Homatas and his friend drank, so the preemption-based cases cited by defendant that ascribe proximate cause solely to the person who imbibes and not to the bar that sells or the host who gives away alcohol cannot determine the issue. While it might normally seem, aside from the preemption rule, that the provider of alcohol would, if anything, be arguably more responsible for proximately causing a drunken driving crash, On Stage’s business plan was predicated on an ironic paradox: because it could not serve liquor, it could encourage excessive drinking with abandon. But its plan turns on a wooden adherence to preemption, and disregard of common law, contrary to the teachings of Wakulich. Under the allegations in this case, the club encouraged and required Homatas to commit the tortious crime of drunk driving, and, thus, the club must share in the blame for proximately causing the ensuing, predictable crash.
Defendant’s argument that it can’t be held liable because Homata’s criminal act of driving drunk broke the chain of causation makes no sense given that the club directed that criminal act. After all, even a defendant’s mere negligence enabling the commission of a criminal act by a third party may suffice to support a finding of proximate cause and liability. Thus a taxi company whose driver left his cab running with the key in its ignition contrary to statute could be sued despite defendant’s objection that a thief’s act of stealing the cab before crashing it broke the chain of causation. The question of proximate cause was for the jury to decide. Ney v. Yellow Cab, 2 Ill.2d 74, 84 (1954). In this case, the issue of causation is simpler since On Stage required Homatas to violate the law and drive while he was extremely intoxicated. The cabbie in Ney enabled the thief, while On Stage both enabled and ordered Homatas’ violation of the law.
- IV. Simmons’ lack of a “special relationship” with On Stage makes no difference.
Only section (c) of §876 requires breach of duty to a third person. By implication, no such breach of a direct duty owed by the in-concert tortfeasor need be established to adequately allege the tortfeasor’s liability under (a) and (b) which, as discussed above, apply here.
Brewster v. Rush-Presbyterian-St. Luke’s Med. Ctr., 361 Ill.App.3d 32 (1st Dist. 2005), does not meet the criteria of §876(a) because the hospital was not acting tortiously in concert with anyone in simply requiring its resident to work a 36-hour shift. On Stage’s claim that the case would have been no different had the hospital known the resident was driving and told her to go home and get some rest is mere speculation since no such facts were alleged. Nor does Brewster meet the criteria of §876(b) because no evidence indicated that the resident’s staying up to work long hours constituted a breach of any duty. In fact, the case did not address in-concert liability at all. Brewster did find that there was no private right of action under the duty hour requirements for residents under the Hospital Licensing Act because the act was enacted to protect hospital patients, not the public in general. Here, in contrast, the law against drunk driving is designed to protect the traveling public – a class that included both Chiariello and the Simmonses.
Defendant also relies upon Iseberg v. Gross,227 Ill.2d 78 (2007), for its no-special-duty argument. In that case, two business partners of the claimant learned of threats by a former business partner to harm him. After he was shot and wounded, Mitchell Iseberg sued the two partners for not warning him or informing the police of the threats. The Court concluded that the defendants had no duty to do so without a special relationship with Iseberg that would have required such a warning. In so holding, the Court distinguished Iseberg from cases where, as here, the defendant was alleged to have engaged in some “negligent affirmative conduct”. Id. at 97. In Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414 (2004), for instance, the Court allowed a wrongful death action by the estate of an individual who was murdered by the beneficiary of a life insurance policy who took out the policy, unknown to the insured, in the insured’s name. Under the alleged facts, the insurer’s agent was affirmatively negligent in falsely representing on the policy application that he had witnessed the signature of the proposed insured.
Under the alleged facts of this case, On Stage was affirmatively negligent in first encouraging Homatas to drink liquor to the point of extreme intoxication, and then in encouraging and requiring him to drive away drunk. In these circumstances, as in Bajwa, On Stage itself was affirmatively negligent, so no special relationship need be established between it and the Simmonses for them to have a viable claim against the striptease club.
On Stage separately relies on social host cases in arguing that a special relationship must be established. But those cases are readily distinguishable since, as discussed, preemption applied, making causation a moot issue. The same distinction applies to the tavern and social host cases defendant cites in claiming that Illinois courts have held that imputing a duty under the circumstances presented here is improper. (Br. at 30, et seq.) Under the extraordinary facts alleged by plaintiffs, the finding of duty is appropriate. Not only were the resulting deaths entirely foreseeable, indeed predictable, but considerations of public policy favor imposing a duty. On Stage allegedly followed a clever business plan where the booze flowed freely at the encouragement of its servers, where the dance girls got big tips, and where the club shared in the substantial profits. Under its plan, On Stage created the wild, wild Midwest in West Chicago. It encouraged its customers to live it up – live it up at the expense of the deaths John Chiariello, April and Addison Elizabeth Simmons, and untold others who were killed or maimed as a result. Considerations of public policy and fairness, as well as common law principles set forth in the Restatement (Second) of Torts §876, cry out for imposing the rule of law to rein in this defendant.
WHEREFORE, the Illinois Trial Lawyers Association asks that the Court affirm the trial court’s and appellate court’s denial of defendant’s motion to dismiss as to all plaintiffs, without regard to plaintiff John A. Chiariello’s status as a customer of On Stage’s striptease club.
Illinois Trial Lawyers Association
By: William Lazarus
Certificate of Compliance
I, William Lazarus, an attorney, certify that this brief conforms to the requirements of Supreme Court Rules 341(a) and (b). The length of this brief, excluding the Rule 341(h)(1) statement of points and authorities, this Rule 341(c) certificate of compliance, and the certificate of service is 19 pages.
Certificate of Service
I, William Lazarus, an attorney, certify that I caused copies of the foregoing amicus brief to be served upon the persons listed below by mailing, first class postage prepaid, by placing a copy of the brief in a U.S. Postal Service mail receptacle located at the post office at 1921 Ridge Road in Homewood, Illinois 60430 before 4 p.m. on October 5, 2009.
Matthew G. Burke
Heineke & Burke, LLC
2 North LaSalle Street
Chicago, Illinois 60602
Craig S. Mielke
Foote, Meyers, Mielke & Flowers, LLC
28 N. First Street, Suite 2
Geneva, Illinois 60134
Robert L. Speers
Timothy J. Reuland
Julie L. Cibulskis
Speers, Reuland & Cibulskis, p.c.
54 West Downer Place
Aurora, Illinois 60506
 Without citing anything in the record in this case, because no such record exists, On Stage claims that Homatas was driving under the influence of cocaine as well as alcohol. (Br. 47) Defendant does not state whether one of its agents or someone else supplied the illicit drug to Homatas before it directed him to drive away. In any event, alleged facts outside the record are not appropriately before this Court.