Safety Devolution: Bike law and Illinois roadways

By William Lazarus
(President of Folks on Spokes bike club for Chicago’s south suburbs)

The date: March 23, 1905. The place: Chicago. Fifteen-year-old Alfred Molway was riding his bike north on Wells street, approaching the intersection with Ontario. It was remarkable that the youth was riding a bike at all. Years before, Al lost his left leg. It was amputated three inches below his knee.  Al was a determined guy. He got an artificial leg, and became proficient in using it. He played baseball and other sports. He rode his bike.

Rain had poured down earlier that day. It was still drizzling out when Al was riding. Water was puddled along Wells street. Puddled is an understatement. As Al rode toward Ontario Street, he could not see a hole in the street that was filled with water. The hole itself was  ten to 15 inches deep, a foot or more wide and about two feet long. Al ran into it and was thrown from his bike, dislocating and permanently injuring his left hip. He would never walk the same again.

Molway sued the city of Chicago, and the jury found in his favor. It determined that the city had not kept the street in a reasonably safe condition. The city appealed to the Supreme Court of Illinois. It asserted that it should not be required to make the streets safe for bicycles. Streets were meant for wagons. Streets were meant for horses. Streets were even meant for that new fangled invention, the motor car. But bicycles? No way. Bicycles would be vulnerable to all kinds of road conditions that would not pose a danger to wagons and other four wheeled vehicles. It would be unreasonable to expect the city to make the streets safe for bicycles. The city asked the court to find that ordinary travel did not include riding a bike along a street.

On April 23, 909, the Illinois Supreme Court rejected that argument, finding that bicycles had been for years in common use on the streets of Chicago and that riding a bike on a street is “an ordinary mode of travel.” Molway v. City of Chicago, 239 Ill. 486, 494 (1909).  In some ways, the court suggested, bicycles were safer than horse-drawn wagons, being able to maneuver more readily. The court found that when highways are not restricted by their dedication or statute to some particular mode of use they are open to all suitable methods of travel.

“A street is made for the passage of persons and property, and the law cannot define what exclusive means of transportation and passage shall be used.…” [Citation omitted to 1859 decision.] To hold that the standard of safety required of public authorities as to streets and highways for all methods of travel should be the safety required for a horse-drawn carriage, or of any other particular vehicle, would not accord with wise public policy.” Id. at 490-491.

As the old cigarette advertisement goes, Baby, We’ve Come a Long Way.

Eighty nine years after it decided Molway, the state’s supreme court revisited the matter of keeping streets safe for bicycles. In a narrowly split decision, marked by a sharply critical dissent, the court decided in Boub v. Township of Wayne, 183 Ill.2d 520 (1998) that municipalities are only responsible for keeping streets and roads reasonably safe for their “intended and permitted” users.  In the advent of the automobile as the dominant form of transportation and in the wake of a municipal tort immunity statute,[1] bicyclists no longer had the right to expect reasonably safe roads, at least not unless the roads were marked specifically for bike use.

Jon Boub was riding his bike on the morning of September 8, 1992 on St. Charles Road in DuPage County when he approached a one-lane bridge that was under renovation. Asphalt patching between the bridge’s wood planks had been removed in preparation for a new deck.  Gaps existed between the planks. No sign warned bicyclists of the danger. Jon’s front tire dropped between two planks. His back wheel sprang into the air, and Jon was thrown off his bike and onto the bridge’s steel railing. He was severely injured.

Boub sued, and lost on a summary judgment motion before the trial court. That decision was affirmed by the supreme court, which focused upon the Tort Immunity Act’s language providing that reasonable care must be exercised by local governments for “intended and permitted” users. Jon Boub, the court found, was permitted to use the bridge. But he wasn’t intended to do so. “In the present case, there is nothing in the roadway or bridge that would suggest that it was intended for use by bicycles,” the court found.

Boub’s attorneys asserted that section 11-1502 of the state’s Vehicle Code provides that “[e]very person riding a bicycle upon a highway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this Code…” 625 ILCS 5/11-1502 (West 1996). The high court, however, stated that the provision

“seems designed to ensure that  bicyclists, for their own safety and the safety of others, obey traffic laws while they are on public streets and highways. In fact, the legislature gave that section the title, ‘Traffic laws apply to persons riding bicycles.’ The provision cited by the plaintiff is entirely consistent with the conclusion that bicyclists are permitted, but not intended, users of the roads, in the absence of specific markings, signage, or further manifestation of the local entity’s intent that would speak otherwise.”

Boub, 183 Ill.2d at 529-530. Thus the high court drummed the duties and ignored the rights of bicyclists.

The League of Illinois Bicyclists, the Chicago Bicycle Federation and the Indiana Trial Lawyers Association weighed in as “amici” or friends-of-the-court, and observed that St. Charles Road itself had been designated “a through street generally suitable for bicycling” by the Du Page County board in 1983. No matter. “Such a designation, however, is consistent with our conclusion that bicyclists are only permitted users of the road in question” the court found, without addressing how the designation of “suitable” did not reflect intent.

The supreme court then noted that “the present case does not involve a street or road with specially marked lanes for bicycle use or the opposite situation of signs prohibiting the presence of bicyclists.” Id. at 532. In other words, the case might be different if Boub had been riding in a designated bike lane.

It stated that a range of conditions, including potholes and speed bumps” not hazardous to automobiles might be hazardous to bicycles, and that it should be up to the legislature to decide whether to impose the expense on municipalities of addressing these conditions.

Justice Heiple authored the dissent, calling the court’s decision “absurd and dangerous” and asserting, “The majority’s conclusion that bicyclists are not intended users of roads defies common sense, contravenes statutory authority, and frustrates public policy.”  Id. at 543-544.

“Even schoolchildren,” Heiple added, “are taught to ride their bikes on the right side of the road, to obey all traffic laws, and to use appropriate signals to communicate with motorists. The majority’s assertion that bicyclists are not  intended users of roadways therefore contradicts the experience, understanding and training of reasonable people.” Id. Just because far more cars use the road than bicycles, he added, does not make bicyclists unintended users.

Heiple called the decision “both irrational and dangerous as a principle of public policy. The accident which befell plaintiff in this case could just as easily have befallen a motorcyclist, but under the majority’s standard, the latter could recover while the former cannot. There is no rational basis for this distinction.” He added that even if the road condition were hazardous to an automobile, a bicyclist could not recover under the majority’s holding in Boub.

Four members of the court backed the majority opinion. Three members, including Heiple, joined the dissent. None of the seven justices on the court then remain on it now.

Boub has remained intact, though one case the following year nibbled at its edges, addressing in one context the inequity stressed by the dissent.

In Brooks v. City of Peoria, 305 Ill.App.3d 806 (3rd Dist. 1999), the appellate court overturned a trial court’s summary judgment ruling. It found that the father of a seven-year-old boy could sue the city for failing to maintain a sidewalk. Upon crossing the allegedly deteriorated sidewalk, Blake Brooks lost control of his bike and fell into an adjacent concrete drainage ditch.

The city persuaded the trial court judge that Blake was not an intended user of the sidewalk. It pointed to the city’s classification of the adjacent street as a Class III bikeway, requiring cyclists to share the street with cars.

On appeal, the court found Boub to be different. It noted that sidewalks are intended for pedestrians, but added, “Common sense would indicate, however, that the nature of a sidewalk includes use by children in strollers, motorized wheelchairs, tricycles, training bicycles, junior bikes, roller blades and roller skates.” Id. at 809. It also found that “historical and customary use” are relevant, though not, under Boub, alone sufficient to establish a particular use of public property as intended.

The city’s designation of the adjacent street, it found, did not establish lack of intended use. “We do not believe that the city, in its designation of bicycle routes, intended for infant bicyclists to share busy city streets with motor vehicles,” the court found. Id. at 810.

The court also noted a lack of public policy concerns as to expense. “An infant bicyclist is proportionately in the same danger as a pedestrian when encountering a defect in the sidewalk. The concerns expressed in Boub are not present here because the city would not have to expend additional amounts of resources to upgrade sidewalk conditions for the use of bicyclists.”

An extension of the reasoning of Boub would suggest that where a local government would be liable to a motorcycle, it would also be liable to bicyclists.

Boub, as Justice Heiple predicted, has discouraged many municipalities from creating bike lanes, according to an analysis by Ed Barsotti, executive director of the League of Illinois Bicyclists. In a year 2007 article, however, Barsotti suggested that the concerns of those local governments are exaggerated.

Under the tort immunity act pertaining to public streets and highways, a local government would have to have had actual or constructive knowledge of the hazard that caused injury and not done anything about it in a reasonable time. Under the immunity statute relating to public recreational property the governmental entity would have to have been willfully and wantonly negligent in disregarding dangers. Dinelli v. County of Lake, 294 Ill. App.3d 876 (2nd Dist. 1998).

Barsotti noted that Illinois’ two largest insurers of local government agencies, IPARKS and St. Paul-Travelers, had reported that there would be no increase in premiums caused by addition of a 10-mile off-road bike path, 10 miles of on-road bike lanes and 10 miles of signed road bike routes, assuming they were consulted to insure proper road design standards ere met. Meanwhile, he reported, in the 10 years following Boub, at least 28 Illinois communities added marked bike lanes or signed bike routes. The City of Chicago now plans to expand its bikeways network, the vast majority of which went in after Boub, from 315 miles in 2005 to 500 miles by 2015.

The experience of municipalities in rarely being exposed to liability as to as to marked bike paths and highway lane set-asides suggests that to the extent that it was influenced by worry about the economic liability of local governments, the Illinois Supreme Court overreacted in Boub. Speculative concern about public expense does not justify a pass for local governments to ignore safety of bicyclists on public streets and highways. Streets and roads should be made reasonably safe for all citizens who ordinarily and predictably use them.

[1] Illinois’ governmental Tort Immunity Act, 745 ILCS 10/3-102(a), codifies the common law duty of a local government “to exercise ordinary care to maintain its property in a reasonably safe condition” and provides, in part, that this duty extends to people who “the entity intended and permitted to use the property”. It requires the users to exercise ordinary care and provides the governmental entity is not liable unless it has actual or constructivce notice of a danger.

In the Event of a Severe Bike Crash

1)     Tend to yourself first. Use caution before moving. If you are seriously injured, seek immediate medical help. Call an ambulance if necessary.

2)     Record all the facts as soon as possible, or have a friend do so. Take photos, make a sketch and keep notes. What was the weather? Were there any obstructions, skid marks, road/path signs and markings in the area? Estimate distances. Watch for road or path hazards.

3)     Determine police and/or other governmental entity has jurisdiction over the place. Call the appropriate agency. Get a written report.

4)     Exchange contact and insurance information with other parties involved. Do not admit fault or offer payment. If your injury is significant, notify your insurance company.

5)     Record names and contact information of witnesses. If you are not in condition to do this yourself, have someone else do it.

6)     Preserve the evidence. Take pictures and/or video of the site of the crash as well as of yourself and your bike. Keep the wrecked bike. Keep the tires, keep the parts if you think you may want to pursue a claim.

7)     Make notes about what happened. Maintain a personal diary about your condition and pain you may be experiencing as well as any problems at work or in daily living activities as a result of your injury.

8)     If serious medical problems persist, obtain ongoing care. Provide your doctor with detailed information about your physical pain and work limitations resulting from your injury, and make sure he or she makes accurate notes. Don’t exaggerate your symptoms and don’t talk about a possible lawsuit with the physician. That’s not his job.

9)     Contact an attorney for an evaluation. If you retain the lawyer for filing a possible personal injury lawsuit, make sure he or she evaluates the matter with dispatch. You’ll likely have a year or two years from the date of the crash to file your claim. But the opportunity to dig out key facts may be gone by then.

High court rejects immunity claim


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.
Respectfully submitted,

Illinois Trial Lawyers Association

By: William Lazarus

High court to decide pathological gambling claim

Taking up Caesars Riverboat Casino’s offer of a free hotel room, drinks and meals, Genevieve M. Kephart went to the casino and lost $125,000 in a single evening. Kephart did not have that kind of cash on her, so Caesar’s provided her with six counter checks that she could write on her own account. When the checks bounced, Caesars sued Kephart, seeking treble damages and attorney fees, as allowed by Indiana law. Kephart countersued, alleging that Caesars knew she is a pathological gambler and took advantage of her to enrich itself. Now, the Indiana Supreme Court will decide whether Kephart can pursue her counterclaim.

The Harrison County Circuit Court allowed Kephart’s claim to proceed, but that decision was reversed by the Indiana Court of Appeal.  Assuming Kephart’s claims to be true and finding Caesar’s alleged actions to be “extremely concerning” the Court still concluded that “Kephart has a responsibility to protect herself from her own proclivities and not rely on a casino to bear sole responsibility for her actions.” Caesars v. Kephart, 903 N.E.2d 117, 127 (Ind.Ct.App. 2009). The court also commented, “For gamblers, compulsive or otherwise, just as for shoppers, compulsive or otherwise, marketing by a vendor is not reckless conduct.” Id. at 125.

In dissent, Judge Crone wrote, “Caesars was aware of Kephart’s gambling addiction, lured her into its casino with complimentary transportation, lodging, food, and drinks, let her gamble away $ 125,000 in borrowed funds without investigating her creditworthiness, and then sought to triple its take by suing her for treble damages plus attorney’s fees. I would conclude that the unsavory circumstances surrounding this relationship support the imposition of a duty in this case.”

In granting transfer, the Indiana Supreme Court automatically vacated the appellate court’s decision and will itself decide whether Kephart’s claim can proceed. Oral arguments were heard on November 14, 2009.

Uninsured motorist claim reinstated

More than two years after suing his insurance company for underinsured motorist benefits, Ezra Bradshaw amended his complaint to add a claim for uninsured motorist benefits.  The trial court granted the insurer’s summary judgment motion, and the Court of Appeals affirmed, holding that neither the discovery rule nor Trial Rule 15(C) rendered Bradshaw’s amended complaint timely. On October 30, 2009, the Indiana Supreme Court reversed the trial court’s grant of summary judgment, noting, “We see requiring insured plaintiffs with similar policy provisions to assert both underinsured and uninsured claims against their insurers as likely adding paperwork of little value to litigation of this sort.”

SJ denial under review in parking lot assault case

Lu Ann B. Plonski sued Kroger Co. after she was assaulted in the parking lot of an Indianapolis Kroger store where she often did her grocery shopping. Kroger filed for summary judgment, arguing that based on affidavit evidence showing a lack of criminal activity in the area, it had no duty to protect Plonski from an attack by a party believed to not be a customer of the store. Kroger also argued the general safety of the area precluded a finding of proximate cause or breach of duty.

On appeal, the court upheld the trial court’s denial of summary judgment, finding that even Kroger’s own evidence showed a carjacking occurred in the parking lot a year before the assault. Kroger v. Plonski, 905 N.E.2d 448, 456 (Ind. Ct. App. 2009). The court noted in Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048 (Ind. 2003), another parking lot assault case, duty “was ‘sufficiently established merely by evidence that Bartolini, a customer of the Pub, was beaten in the Pub parking lot as he was leaving,’” Plonski, 905 N.E.2d at 454, quoting Bartolini, 799 N.E.2d at 454.

The Supreme Court granted transfer, vacating the appellate court’s decision.  Oral arguments were heard in mid October.

High court to review sentence in plea bargain conundrum

Julie Gardiner  no longer faces the prospect of spending the next 20 years in prison instead of likely being free on a suspended sentence due to a standard, but inadequate plea bargain and a rigid sentencing scheme. In a case-of-first-impression decision issued on April 30, 2010, the Indiana Supreme Court determined that due to its subsequent modification, Gardiner no longer has a prior unrelated felony conviction mandating imposition of the lengthy prison sentence.

Gardiner’s problem was this: On March 2, 2007, she plead guilty to manufacturing methamphetamine [ the actual charge was "possession  of chemical precursors with intent to manufacture controlled substances"] in Hamilton County, a Class D felony. By agreement, the felony charge was converted to a misdemeanor in February 2008 after she successfully completed a year of probation. But at the time of the plea, Gardiner’s lawyer failed to adequately consider the effect of another pending felony charge against her in Marion County for selling methamphetamine  within 1,000 feet of a school.

Gardiner was convicted of the second charge prior to the conversion of her initial plea to a misdemeanor. As a result, she was found to be convicted of two felonies, resulting in the minimum 20 year sentence. Her sentence was affirmed on appeal, even though both the trial and the appellate court judges noted her good behavior and expressed dismay over the sentence. In its opinion, the appellate court stated that “had the Hamilton County court immediately reduced Gardiner’s prior Class D felony to a Class A misdemeanor, then the [Marion County] trial court would have had the discretion to order a suspended sentence” in the second case. Gardiner v. State, 903 N.E.2d 552, 555 (Ind. Ct. App. 2009). Furthermore, the appellate court expressed its frustration in a “sentencing scheme that so illogically limits the sentencing judge’s discretion” to reward a defendant’s good behavior. Id. at 556. The Indiana Supreme Court granted transfer and heard oral argument early in October.

In its April 30 decision, the high court found that “the entry of judgment of conviction upon the misdemeanor constitutes a new and different judgment effectively vacating the prior judgment.”  It concluded that as a matter of statutory construction “Gardiner no longer has a prior unrelated felony conviction” and remanded the case to the trial court for further consideration.

Weather and a slip and fall at school

Roach Walker sued the Gary schools  over her slip and fall on school property. At trial, the Lake Superior Court rejected the school corporation’s motion for a directed verdict on grounds that it was entitled to immunity under the Indiana Tort Claims Act because the fall was caused by a temporary condition on a public thoroughfare resulting from weather. The Court of Appeals affirmed the verdict in favor of the plaintiff – a decision that’s been vacated by the Supreme Court’s grant of transfer. Vacated ruling below: Gary Cmty. Sch. Corp. v. Roach-Walker, No. 45A05-0805-CV-275 (Ind. Ct. App. Dec. 31, 2008).

Induced confession / incest

Anderson Police Detective Cole gave Larry L. McGhee some misleading advice as he was investigating a criminal incest allegation. McGhee first denied having sex with his 25-year-old niece, and then the following exchange took place:

Cole: What I do know is, that we’re starting, me and you, man to man talking about this, I’m telling you right now, if you had sex with her and she wanted it and it’s embarrassing sometimes for an uncle to have sex with his niece, but it’s not against the law if she wanted it.

McGhee: Right.

Cole: That’s why I’m asking you now, I want you to clear your name.

McGhee: Right.

McGhee v. State, 899 N.E.2d 35, 37 (Ind. Ct. App. 2008)

McGhee proceeded to confess, and that confession was used by prosecutors in obtaining a conviction against him. On appeal, the conviction was overturned based on the police investigator’s misrepresentation that sex between an uncle and his niece was not a crime. While the appellate court recognized the detective’s assertion that he did not know at the time that sex between an uncle and a niece would be illegal, the court still found that McGhee’s resulting confession should not have been admitted into evidence at trial.

The court noted the state relied upon Clark v. State, 808 N.E.2d 1183, 1191-92 (Ind. 2004), where the high court held that “if the police have a good faith basis for a statement, even if technically false, it does not rise to the level of deception.”

But even without any showing falsity, the appellate court rejected the state’s argument. “We would set a dangerous precedent if we were to hold that a lack of knowledge of the law amounts to a good faith basis for a material misstatement. Such a holding would give police officers an incentive to not know the law,” the appellate court held, concluding that McGhee’s confession was involuntary. McGhee, 899 N.E.2d at 37.

In a 3-2 decision, with Justices Shepard and Sullivan in the minority, the Indiana Supreme Court declined to accept the case on transfer, leaving the appeals court’s decision intact.

For McGhee, however, the victory was less than complete. The appellate court remanded the case, finding that given the strength of the evidence against him, re-trial would not violate the constitutional bar on double jeopardy.

Termination of parental rights disputed

A mother who gave up her parental rights could not obtain guaranteed visiting privileges as part of the arrangement, the Indiana Supreme Court held. But it found that the parent who made such an arrangement had the right to a hearing before  visitation was then cut off. Visitation would be determined based on the best interests of the child.  In re M.B. & S. v. Ind. Dep’t of Child Servs., 921 N.E.2d 494 (Ind. 2009)

During an involuntary termination of parental rights proceeding filed by the Howard County Department of Child Services, the mother agreed to voluntarily give up her  parental rights, with a written addendum providing for visitation after adoption of the child. The circuit court informed the mother she was giving up all her rights to the child, though the adoptive parents were not informed of that. The visitations began, but were later cut off after social worker reports the children were experience emotional problems following the visits. The court  subsequently denied the mother’s Trial Rule 60(B) motion to set aside the order for the voluntary termination of  parental rights.  The Court of Appeals affirmed, concluding:

A partial termination of parental rights does not exist under Indiana law. See Ind. Code § 31-35-6-4. Either the parent-child relationship survives, or it does not. Given the plain and unambiguous language of Indiana Code Section 31-35-6-4(a)(1), coupled with Indiana’s strong public policy to protect the emotional well-being of children whose parents have been either unable or unwilling to provide for their basic needs over a prolonged period of time, we conclude that Mother’s addendums to the voluntary consent forms are void ab initio and thus unenforceable as a matter of law. Black v. Howard County Dep’t of Child Servs. (In re M.B.), 896 N.E.2d 1, 15 (Ind. Ct. App. 2008).

While the Indiana Supreme Court vacated that ruling upon granting transfer, in its opinion, it affirmed the substance of the decision, while providing for a hearing for the mother on the visitation issue.

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