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 (3^rd 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 (2^nd 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.

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.

1.  Consider whether the appeal makes sense. Why are you likely to beat the odds that the trial court will be affirmed? Do you have an issue particularly worthy of challenge? If so, is your case a good vehicle for raising that issue? If you’ve won below, what are the weak points in your position? Should you consider settling? Brainstorm these questions with someone who has an independent perspective.

2.  Narrow the issues you take up on appeal. A scattershot approach imparts a message: you don’t have a weighty issue, so you throw in the kitchen sink. Worse, arguing the implausible will detract from your good arguments. Your goal is to win, not to make the most points. To do that

, you need to build your credibility. Senseless argument, and an unfocused approach undermine credibility. If you start off weak, a busy judge may quickly decide you have little merit to all of your argument. If you finish weak, your strong points may get lost in the mix. Go with your strengths.

3.  Build the record right while litigating the case in the trial court. File exhibits with a title page complete with a case caption and identification of the underlying pleading, and make sure that page is file stamped, so that the exhibits become part of the common law record. Know that record, and prepare your appendix early. Having the documents together will help you organize your thoughts and size up key points of your argument and will reduce the time you spend finding and putting in citations to the record.

4.  Quickly sketch out a rough draft, getting your thoughts down. Then write, rewrite and rewrite. Focus, organize, cut repetition.

5.  Use an introduction to set out the heart of your argument. Consider placing points up high that will be raised in substantial detail later in the brief. Give the judges a roadmap to what’s coming.

6.  Consider adopting your opponent’s organization, point by point. This will make it easier for the judges to follow your brief. Also consider the downsides. It may, for instance, not make sense to start off on your weak foot. But look again. Sometimes your opponent’s ostensible strengths turn out to be his weaknesses. Find the weak chink and the armor can be penetrated. And what appears to be a weak point for you  often turns out to have a hidden strength. Your opponent is likely to play his strong arguments first. If you can deflect your opponent’s key argument at the outset, you will quickly establish credibility, and will be in an excellent position to proceed with your strong points.

7.  Address the standard of review for each of your arguments. Don’t fudge, but do think about alternative perspectives. If you are the appellant, consider whether a way exists to turn deferential review into de novo review. For instance, review of the grant of summary judgment is usually deferential. But perhaps the summary judgment turned on the interpretation of a statute. You can argue that statutory interpretation calls for de novo review.

8.  Set forth the facts dispassionately. Show, don’t tell. Let the facts speak for themselves. Juxtapose facts that raise doubts about your opponent’s credibility. Don’t say, “Appellant falsely claims it was pitch dark when he ran over the pedestrian.” Say: “While Appellant asserts it was pitch dark outside when he struck the pedestrian at midnight, National Weather Service data confirm the recollection of bystander John Campbell that the night was clear, and the moon full.”

9.   Watch the words. Strike clearly from your vocabulary. Remember, it signals the opposite. Cut conclusory and weighted adverbs, like amazingly, incredibly, outrageously, etc. They undermine credibility. Watch for the passive tense. “There are” few reasons to ever use that phrase. Employ strong verbs. Avoid absolutes. Pare down verbiage, and clutter. Consider citing only to the Illinois official reporter, as allowed by Supreme Court Rule 6.

10.  Forgo personal attacks. Be an advocate, but be fair. That’s more likely to win the hearts and minds of your readers on the bench.

Overview

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[1] 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 (2^nd 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.

ARGUMENT

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 (5^th 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 (1^st 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 (4^th 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 (4^th 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 (1^st 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 (2^nd 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 (2^nd 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.

1. 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.

1. 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 (1^st 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.

CONCLUSION

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

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.

___________________________________

William Lazarus

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.

___________________________________

William Lazarus

Matthew G. Burke

Heineke & Burke, LLC

2 North LaSalle Street

Suite 1110

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

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.

ARGUMENT
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.

CONCLUSION

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

The trail was resurfaced, leading to steep drop-offs, three inches or more deep at many points. On November 11, 2009, Lazarus wrote County Forest Preserve District Supt. Steven M. Bylina, Jr. about the danger, noting it could cause bicyclists forced off the trail to crash.

Joe Mollica, an assistant engineer in the planning and development division of the District, responded in an email three months later, promising to address the problem when the weather breaks. That happened in April, when the District, after taking bids, put in fill along edges of the trail.

While not as safe as tapered asphalt, the loose fill represents a substantial improvement over the steep drop-off.

Beyond the shock, the bill presents a puzzle. We were out of town for 10 days in late December and set the thermostat at 50 degrees. So, why should our supposed gas usage have more than doubled from 176 therms in the month ending December 21, 2009 to 370 therms in the month ending January 22, 2010?

The bill itself hints at the explanation. It shows that the reading on January 22, 2010 was an actual reading. In other words, someone from Nicor read the meter. In contrast, the reading on December 22, 2009 was an “estimated” reading. No one read the meter, but Nicor guessed the gas usage.

What happened is that Nicor’s prior estimate and estimates before that were low. The result was that the huge supposed increase in gas usage was attributed entirely to the January 2010 bill, not to prior bills.

So what? There’s a big so what.

In January, Nicor was charging 68 cents per therm, or 36 percent more than the 50 cents per therm it charged in December. In other words, Nicor caught up on its gas reading at a time when it could reap considerably more money for the gas it sold.

A call to Nicor confirmed the windfall to the company, and the problem for our household. On February 12, 2010, Nicor’s operator “Claudine” or Operator 174, patiently explained that our last actual meter reading accepted by Nicor’s computer was on March 1, 2008, and that the whopping increase in supposed gas usage shown in the January 2010 bill reflected catch-up with prior underestimates during the course of the 22-month interim.

Claudine looked again, and noticed that our meter had actually been read on in July of 2009. But she explained that Nicor’s computer system dismissed the reading as making no sense since it indicated such a huge increase in the midst of summer. As a result, instead of being billed for nearly 269 therms in July, we were billed for nearly 49 therms.

That was terrific for reducing our payment in July, when Nicor charged 46 cents per therm. The trouble for us is that Nicor played catch up in the current bill, when it charged 68 cents per therm. That’s 48 percent more than it would have charged for the gas back in July.

Nicor had to wait some time for its money. But a 48 percent boost for waiting six months certainly beats investing in treasuries.

Claudine spotted the dismissed July reading, and said that Nicor will adjust its billing to reflect the higher gas usage in July and other prior months. The adjustment from July alone should amount to about $48, and Claudine suggested it may be higher.

Nicor deserves credit for having such an astute and candid customer service representative.

But questions remain. Why did the company’s computer dismiss the July meter reading for being out of line but accept the January reading which also was hugely out of line. Couldn’t the company’s computer see that the July reading followed many estimated readings?

For that matter, why does Nicor limit its meter readings to Monday through Friday, 7:30 a.m. to 3:30 p.m., when a great many people are not at home?

Why has it not implemented technology that would enable it to read meters without going inside homes?

And why won’t it allow customers to provide their own gas meter reading to the company on any day rather than on just a few specified days, so that it will have more accurate information when it makes estimated usage assessments?

My guess is that all this has something to do with Nicor’s own best interests rather than our best interests.

Surprised by your gas bill this month? Feel free to contact Nicor, or me.

The appellate court erred in disregarding the context of Kristen Kaufmann’s claim. The court focused on the moment of the January 2006 sexual battery by Roger A. Schroeder, M.D., rather than his treatment of her since 2004. It ignored the totality of Kaufmann’s care, including her stay at Jersey Hospital as well as Dr. Schroeder’s treatment. “We are all born mad. Some remain so,” the playwright Samuel Beckett wrote in Waiting for Godot. A newborn cannot make sense out of the world. It takes a realization of associations, and understanding of context, for the babe to become a rationale human being. Similarly, Kaufmann’s actions cannot be understood without considering her involvement as a patient obtaining medical care. In being blind to the totality of the situation under which Plaintiff was sedated while being treated by Dr. Schroeder at the hospital, the court’s decision conflicts with this Court’s decisions in Brucker v. Mercola, 227 Ill. 2d 502 (2007) and Orlak v. Loyola University Health System, 228 Ill. 2d 1 (2007) as well as decisions by lower Illinois appellate courts.

ARGUMENT

1. I. It is appropriate to consider 735 ILCS 5/13-212 in interpreting the Tort Immunity Act amendment.

At issue is the meaning of the June 4, 2003 amendment to the Tort Immunity Act extending the statute of limitations to two years in actions for damages for injury or death against any local public entity or public employee, “whether based upon tort, or breach of contract, or otherwise, arising out of patient care…” 745 ILCS 10/8-101(b). Given that no cases have interpreted this statute, the parties and the court below appropriately looked to Brucker, Orlak, and other cases interpreting parallel language in 735 ILCS 5/13-212, which sets forth a statute of limitations and statute of repose for tort, breach of contract or other actions against any physician, dentist, registered nurse or licensed hospital.

1. II. Illinois courts have repeatedly interpreted section 3-212 to apply to claims not involving medical malpractice.

In interpreting section 3-212, this Court and other Illinois courts have interpreted “the  arising out of patient care” language” to apply to claims that did not simply allege medical malpractice. In Brucker, a receptionist assistant to Dr. Joseph Mercola mistakenly put selenium into a bottle sold as L-Glutamine that was sold to Dr. Mercola’s patient, Anna Marie Bruckner. The accompanying directions called for mixing a teaspoon of powder with a glass of water, which was an amount more than 20,000 times the safe dosage of selenium. Anna Brucker was pregnant at the time. She and her husband sued Dr. Mercola, alleging that their son was poisoned in utero when Anna ingested the selenium powder.

This Court rejected arguments that the statute of repose limit imposed by section 13-212 was not applicable, whether Dr. Mercola’s acts were deemed to be medical malpractice by a physician or ordinary negligence by a retail vendor of supplements. It noted that the legislature passed 735 ILCS 5/2-622(a) (West 2006) and thus knows to address medical malpractice when it wishes to do so. The court then stated,

Because the legislature instead made section 13-212 applicable when the plaintiff seeks damages for injury or death, whether in tort, breach or contract, or otherwise, arising out of patient care, we must presume that the legislature did not intend “patient care” to be synonymous  with “medical malpractice.” Perhaps the easiest way to state the point is that all medical malpractice claims involve injuries arising out of patient care, but not all injures arising out of patient care were by reason of medical malpractice.

Brucker, 227 Ill.2d at 532. Whether the claim was for ordinary negligence or medical malpractice, the court found, “[b]oth actions are covered by section 13-212(b) if the injury arose out of patient care.” Id. at 533. Thus, the negligent packaging of the wrong chemical in a bottle meant for another medication fell under section 13-212. It made no difference that the negligent act itself could hardly be deemed “patient care”.

The Supreme Court further stated that “[s]ection 3-212(b) is broader than section 2-622(a) [relating to medical malpractice claims], and it is clear that there are some situations in which a plaintiff would have to file within the time limits prescribed by section 13-212(b), but would not have to attach an attorney’s affidavit or a health professional’s report.” Id. at 517.

In Orlak, the Court reached the same conclusions, finding that the statute of repose provision of section13-212(a) applied to bar an action alleging a hospital’s failure over the course of 11 years to notify the plaintiff that a transfusion should be tested for viral hepatitis. The plaintiff sought to characterize the matter as an administrative failure that was independent of the care she received years earlier. This Court rejected that argument, finding,

It is clear that the legislature intended the statute of repose to operate in a very broad manner and it has been interpreted in that manner by courts addressing the issue. The question is not whether the plaintiff has alleged medical negligence or ordinary negligence. Rather, the sole issue is whether the plaintiff’s claim arose from patient care. The word “arise” is defined in Black’s Law Dictionary as “[t]o originate; to stem (from),” or “to result (from).” Black’s Law Dictionary 115 (8th ed. 2004). “Arise” is also defined elsewhere as “to originate from a source.” Merriam-Webster’s Collegiate Dictionary 66 (11th ed. 2006).

Orlak, supra, 228 Ill.2d at 14-15. Given this broad meaning of the word “arise”, the Court found, as it found in Brucker, that the statute simply required

“a causal connection between the patient’s medical care and the injury. While the phrase does not need to be construed so broadly as to encompass ‘but for’ causation, it clearly covers any injuries that have their origin in, or are incidental to, a patient’s medical care and treatment.” Brucker, 227 Ill. 2d at 523-24, 2007 Ill. LEXIS 1838, at *31.

Orlak, 228 Ill. 2d at 15.

III.        Kaufmann’s injuries arose out of her patient care.

Here, Plaintiff’s injuries had their origin in and were incidental to her medical care and treatment at Jersey Community Hospital for a urinary tract infection. Had she not been in treatment, Dr. Schroeder would not have had the opportunity to commit his sexually deviant act. His act arose out of her treatment; it was not a mere happenstance. Dr. Schroeder did not, by chance, fall out of a cabinet, hitting Kaufmann on the head and knocking her out. As her doctor, he sedated her. He was able to sedate Kaufmann and then perform his deviant sexual act because of his presence as her physician at the hospital.

Orlak discusses several cases in which lower appellate courts gave the same interpretation to the parallel “arising out of patient care” language of section 13-212(a) years before the Illinois Legislature revised the Tort Immunity Statute by adding section 8-101(b) with language parallel to section 13-212(a). Had the legislature wished to narrow the scope of section 8-101(b) to only address medical malpractice situations rather than a gamut  of circumstances arising out of patient care, it could have, and would have, dropped the broad “arising out of” language. The legislature also could have restricted the statute’s application to medical malpractice tort claims, rather than claims based upon “tort, or breach of contract, or otherwise”. But it chose not to do so.

IV.       Legislative intent is clear as to the amendment of the Tort Immunity Act, given prior court decisions on section 13-212(a).

As this Court has explained, the “cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. …That intent is best gleaned from the words of the statute itself, and where the statutory language is clear and unambiguous, it must be given effect. …A court should interpret a statute, where possible, according to the plain and ordinary meaning of the language used.” Orlak, supra, at 228 Ill.2d at 8. (Citations omitted.)

The plain meaning of section 8-101(b) is the same meaning of section 13-212(a), given the parallel construction. This Court is well familiar with the broad interpretation of the “arising out of patient care” language made by appellate courts prior to 2003; it discussed the precedents in depth in both Orlak and Bruckner.

Time and again, plaintiffs seeking to avoid the statute of limitations or the statute of repose contained in section 13-212 have argued, as Jersey Community Hospital argues here, that their case did not involve patient care, and, therefore, should not fall under the statute. Time and again, Illinois courts have rejected that assertion, finding that the phase “arising out of” has significance.

In 1989 in Miller v. Tobin, 186 Ill App.3d 175 (2d Dist. 1989), plaintiff alleged that the defendant, a psychiatrist, revealed confidential information to the patient’s wife, who also was seeing the defendant for marriage counseling. Plaintiff alleged breach of contract and violation of the Mental Health Developmental Disabilities and Confidentiality Act. Though the trial court concluded that plaintiff’s complaint was not a malpractice action, it granted defendant’s motion to dismiss, ruling that the limitations set forth in section 13-212 did apply because his injury arose out of treatment by the defendant. The appellate court affirmed, finding that “the pertinent issue is not whether plaintiff’s suit alleges malpractice, but whether plaintiff’s injuries arose out of patient care.” Id. at 174. That an illegal breach of confidence could hardly be deemed to be “patient care” made no difference since the plaintiff and his wife were under treatment and therefore the alleged breach arose out of patient care.

Here, defendant alleges that Dr. Schroeder’s deviant acts were not patient care. No matter. They arose within the context of treatment. They arose out of patient care and therefore are encompassed by 8-101(b).

Similarly, in Walsh v. Barry-Harlem Corp., 272 Ill.App.3d 418 (1^st Dist. 1995), the appellate court upheld the dismissal of a complaint that alleged that doctors fraudulently performed unnecessary eye surgery, resulting in economic loss. The court noted, citing Hayes v. Mercy Hospital & Medical Center, 136 Ill.2d 450, 459 (Ill. 1990) that the words in section 13-212 “or otherwise” were meant to be “all inclusive. Walsh, supra, 272 Ill.App.3d at 422. Further, the court cited the broad meaning of the plain language covering “injury … arising out of patient care” and found it would apply even though no physical injury was alleged in the complaint. Thus, plaintiff’s economic fraud complaint came under section 13-212, even though purposefully performing unnecessary surgery bears more similarity to an intentional battery than to patient care. But the surgery arose out of the medical care rendered to plaintiff, and that made the statute apply however the care was characterized. Similarly, here Dr. Schroeder’s unnecessary administration of sedation and ensuing deviant sexual battery on Plaintiff arose out of her medical care, no matter how the sedation and battery themselves are characterized.

The Seventh Circuit also has given broad reach to section 13-212. In Stiffler v. Lutheran Hospital, 965 F.2d 137 (7th Cir. 1992), plaintiff suffered injury when a prosthetic device implanted in her chest broke off and became entangled in her intestines. She filed a products liability action, but the court found that section 13-212 barred the claim since it arose out of patient care; the court noted that medical materials are so “inextricably linked” with treatment that their use “almost per se arises ‘out of patient care.’” Id. at 140-141. Here, Dr. Schroeder’s sedation of Kaufmann was inextricably linked both to his provision of medical care and his subsequent battery.

Defendant argues that Dr. Schroeder’s use of drugs and ensuing deviant sexual act could have happened anywhere. But it cannot and does not deny that it happened at the hospital where Kaufmann was undergoing care for a urinary tract infection. One can always speculate that anything can happen anywhere. But such speculation does not erase the fact that the wrongful acts alleged here arose out of the care that Kaufmann was receiving at the hospital. Her exposure to Dr. Schroeder was not a happenstance occurrence, but part of her care in the hospital and her continuing care by the physician. Dr. Schroeder had access to her because of the hospital’s trust and her trust, a trust that was reinforced by the hospital environment.

1. V. Defendant’s out-of-state cases addressed medical malpractice and are thus irrelevant as well as lacking precedential authority in Illinois.

Defendant, as did the appellate court, cited two out-of-state cases – Doe v. Cherwitz, 894 F. Supp 344 (S.D. Iowa 1995) and Burke v. Snyder, 899 So.2d 336 (Fla App. 2005), in an effort to support the claim that the alleged wrongful acts by Dr. Schroeder did not arise from patient care. In addition to not being precedent in Illinois courts, the cases themselves fail to bolster defendant’s argument. In Burke, the court concluded that “the claim of sexual misconduct in this case is not a claim arising out of negligent medical treatment.” Id. at 341. But, as discussed, in Illinois, neither section 13-212(b) nor section 9-101(b) are restricted to claims arising out of negligent treatment, i.e. medical malpractice. Rather, they may sound in “tort, breach of contract, or otherwise” and need only arise out of patient care, not negligent patient care. Cherwitz is similarly distinguishable since the case addressed Iowa Code § 614.1(9) addressing “Malpractice. … arising out of patient care.” Cherwitz, 894 F. Supp. at 345. As this Court has found, allegations of malpractice are not requisite to a section 13-212(b) action. Neither should they be requisite in an action based on section 9-101(b), given its parallel wording.

This Court and Illinois appellate courts have consistently found section 13-212(b) to be unambiguous. The same lack of ambiguity exists in the parallel plain and ordinary wording of section 8-101(b). It is thus not appropriate to speculate based on a legislator’s brief and vague oral comment cited by Defendant as to the meaning of the section intended by the entire legislature. Rather, the language of the statute must control.

Dr. Schroeder’s deviant battery upon Kaufmann occurred at Defendant’s hospital and arose out of her treatment at the facility. No matter how that battery and accompanying sedation are characterized – as negligence, an intentional tort, breach of contract, or otherwise – the wrongful acts fall under section 9-101(b) of the Tort Immunity Act. This Court and Illinois appellate courts have set forth the standards for applying the parallel language embodied in section 13-212. Those standards are based upon principles of statutory interpretation, not on an inequitable and illogical notion that the statute of limitation and repose should only apply to deny plaintiffs the right to sue, and never to allow it.

CONCLUSION

WHEREFORE, the Illinois Trial Lawyers Association, as amicus curiae, requests that this Court reverse the Appellate Court’s decision and remand the case for further proceedings.

Respectfully submitted,

Illinois Trial Lawyers Association

By:       __________________________

William Lazarus

William Lazarus, ARDC #6187706

18400 Maple Creek Dr., Suite 500

Tinley Park, IL 60477

(708) 444-0220

(708) 249-3034 (fax)

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.

Trial lawyers are masters at pounding the facts and persuading the jury.  Oral advocacy dominates the trial. A skillful advocate builds the evidence, raising the drama as the trial develops. The resulting emotional impact, as well as the evidence itself, drives the verdict.

Appeals are a different creature. The brief is the thing. Oral argument is commonly not part of the picture. Even when such arguments are allowed, the brief’s dispassionate arguments focused on application of legal principles to the facts will, in all likelihood, decide the case.

“Cases are not won at oral argument; they are only lost,” writes Senior United States Circuit Judge Ruggero J. Aldisert in his book, Winning on Appeal. Having read the briefs, appellate judges will commonly seek to flesh out particular issues in which they take interest. Attorneys are frequently left with little time to address the issues as they prefer. Trial lawyers long persuaded of the merits of their case and determined to emphasize particular points rather than discuss issues of precedent and factual matters troubling the judges may transform a winning case into a loser. Dialogue and a willingness to explore subtle points of judicial inquiry are the ticket to winning the judges over. A closing argument to the jury will not work with the appeals court.

Preparing the oral argument, however, will bring focus, or, hopefully, a renewed focus on critical points that may not have received adequate emphasis in the brief. Since oral arguments are short, attorneys are forced to distill the key points of their arguments. But the focus and distillation may be lost as questions are posed by the judges sitting on the bench. So, do not depend upon oral argument to bring clarity and organization to your argument. Your brief must do that. Before writing, consider the main point to emphasize, and, as a rule, address that point first, unless you have a particular reason to move the argument down. Before giving relatively low play to a key argument, discuss the reasons you wish to do so with a colleague to help ensure you are not making a mistake.

It might be best to drop peripheral arguments altogether, says Cook County Judge Martin Moltz, who spent many years an appellate attorney before taking the bench himself. Moltz recalls a burglary case he handled when he was an appellate prosecutor. The defense had a “dead bang winner” on an evidentiary point. But “counsel didn’t know any better,” Moltz says. “He buried it as issue four in an eight-issue brief” and lost the appeal. “That was a classic example where somebody was trying to throw in everything. …If you’ve got one good winning point, go with it,” Judge Moltz says. “There’s nothing wrong with a one issue brief.” Or, perhaps three issues make sense, but not six, says Judge Aldisert:

“When faced with a brief that raises no more than three points, I breathe a sigh of satisfaction and conclude that the brief writer really may have something to say. I probably react in the same manner, or perhaps to a slightly lesser degree, when four or five points are presented. Beyond this point, I must confess, a small beast bearing the name of intolerance begins to nibble at my habitually disinterested judgment.”[1]

Jurisdictional complexities

Before writing a focused brief, and before an oral argument is even a possibility, a long road must be travelled. The first step on that road is to determine whether jurisdiction exists for an appeal. While a final judgment, or the final judgment upon rehearing, will start the 30-day clock ticking on an appeal in Illinois courts, the question of whether the judgment is, in fact, final or whether jurisdiction otherwise exists takes analysis. The rules are many, and the rules themselves are subject to change. They need to be reviewed when a brief is undertaken.

Remember that finality of judgment as to particular issues or to a party in a multi-party case is not enough to create jurisdiction on appeal, unless the trial court adds the language that there is no just reason for delay.[2] An order not citing the rule and only noting it was “final and appealable” did not create jurisdiction for an appeal.^[3] Without the “no just reason for delay” language, it is wise to count all the issues — including counterclaims — and the parties to ensure that each has been decided by the trial court.

Even without a final judgment, cases may still be appealed under certain other circumstances. Supreme Court Rule 306 details five types of orders which can be appealed on petition, including, for instance, an order in the administration of a receivership, an order granting a new trial, and an order granting or denying transfer on grounds of forum non conveniens.

Some interlocutory appeals are allowed as a matter of right, including orders granting, modifying or dissolving an injunction and orders appointing a receiver.[4] These appeals must be noticed within 30 days, except in cases of ex parte orders, which require first going to the trial court for vacation of the order, and temporary restraining orders, which must be appealed, along with any supporting petition, within two days of the entry of the order. The appellant’s docketing statement in interlocutory appeals as of right under SCR 307(a) are to be filed within seven days of filing the notice of appeal; As to other appeals filed as a matter of right, the appellant has 14 days to file the docketing statement following the notice, along with any unpaid filing fee.[5]

Certain interlocutory appeals can be allowed by permission, with a trial court finding that its order involves “a question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from the order may materially advance the ultimate termination of the litigation…”[6] In such cases, the appellate court will decide whether it will permit the appeal, after reviewing the application and the answer opposing it. The docketing statement is due upon submission of the application.

Also, the forum itself must be kept in mind. While parties have 30 days to file post-trial motions that toll the notice of appeal deadline in Illinois state courts, wait that long to seek a new trial in federal court and you’ll be 20 days too late.[7]

A seemingly simple, sometimes treacherous rule

Jurisdiction is conferred upon the appellate court only through the timely filing of a notice of appeal. Illinois Supreme Court Rule 301 appears simple, but it can be treacherous. The motion must be filed “within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, …within 30 days after the entry of the order disposing of the last pending post-judgment motion.” SRC 303(a) (emphasis added) If the portion of a post trial motion “directed against the judgment” is dismissed, the remaining portion will not continue to toll the due date for the notice of appeal.^[8]

A judge has no authority to extend the 30-day jurisdictional time limit for filing a notice of appeal, and attorneys are not excused from following filing requirements merely by a judge’s recommendation of a procedure beyond his authority.^[9] An agreement between attorneys to allow a second extension of time to seek rehearing was deemed inadequate to secure jurisdiction where the resulting faxed extension request did not comply with the rules.^[10]

Post jury trial motions limit the appeal

After a trial, the first step in an appeal commonly comes in post-trial motions, before the appeal itself. In the case of a jury trial, Illinois Supreme Court Rule 366(b)(2)(iii) provides,  “A party may not urge as error on review of the ruling on the party’s post-trial motion any point, ground, or relief not specified in the motion.” Thus, the post-trial motion will frame, and limit, a subsequent appeal. (The rule is different with a non-jury trial.  SRC 366(b)(3)(ii) provides, “Neither the filing of nor the failure to file a post-judgment motion limits the scope of review.”)

The point is to not tarry. If you are going to appeal the jury’s verdict, do the planning immediately in its wake. If you wait until after your post trial motion to give full consideration to all the points you wish to appeal, you likely will find yourself unnecessarily limited in the points you can raise. Also remember that you will be limited by the record. The jury instructions and the evidentiary objections raised prior to and during trial will frame the appeal. Consider discussing these matters with someone who concentrates on appeals.  Another perspective, with an eye to the likely appeal in a big case, may make all the difference down the line.

Approaching the appeal

Where summary judgment has been granted, the record likely will be straightforward. The briefs and evidence presented to the trial court judge and the statements of uncontested facts, and the answers disputing those statements, will frame the issues. The situation becomes far more complex after trial.

A review of all the orders of the court, in conjunction with pre-trial and post-trial motions, should be undertaken early. This, including the jury instructions conference, and court rulings on any contested instructions, will provide an initial grounding as to likely issues for an appeal.

The record should be reviewed in its entirety, with detailed notes taken in an electronically searchable document. A searchable, digital transcript of the proceedings can be of immense help in scouting issues before and after review of the record.

First spot the issues, then narrow the scope

An intense examination of the record will enable the appellate attorney to develop a firm grasp of the case and the issues that should be considered. After the entire record is reviewed, it is time to brainstorm. But identification of possible issues for the appeal is just that. An appeal devoted to addressing every conceivable issue in a case is an appeal in trouble.

After the potential issues have been identified comes the critical work of narrowing the issues. Weak arguments are likely to bore the Court, and will tend to pull down the strong arguments. The everything-but-the-kitchen sink approach likely will lead skeptical judges to conclude that none of the arguments are worthy.

A second set of eyes can be immensely helpful in the work of framing the issues. Trial counsel played the gladiator in presenting the issues with passion and persuasion to jurors. But appellate judges don’t think like most jurors. The approach must differ, and an outside opinion can lend perspective necessary to making the approach on appeal work.

Dealing simply with complexity

The brief itself should be written in a straightforward fashion, communicating complex matters in an easy to understand format. Judge Aldisert in Winning on Appeal, discusses the “avalanche of appeals” and notes, with realistic humor, the “brief-reading environment” where distractions at the office, and at home, often vie for the attention of judges who commonly face reading well over 1,000 briefs each year.

The point is that the briefs must grab the judges’ attention and hold it. Good writing is key to achieving that. To keep the judge’s attention, the brief must be concise and clear. It also must be logical and accurate. Needless repetition, obscure constructions, circuitous and rudderless arguments, an overload of issues, irrelevant facts, convoluted syntax, lack of focus and disorganization serve to spur the judge to put the brief down for another day — a day which likely will never come. Worse still, misrepresented facts and case law will undermine counsel’s credibility, causing the judge to cease paying attention, or pay attention with a jaundiced view of the arguments. While even in these circumstances the attorney’s position may still prevail — even a great brief will not ensure that a bad case is won and vice-versa — the brief that lacks credibility and that makes claims contrary to the facts and the law will only serve to undermine the client’s case.

Set aside time

Preparation of an appellate brief takes time to review the full record, time to think about that record, time to organize, time to pare the argument to the essentials, and time to put present the argument cogently and to rewrite. Preparation takes painstaking research, and a willingness to address subtle legal distinctions. It takes time to focus, without continuous distractions from pending cases. While some trial lawyers are up to the task, many would far prefer to tackle the next trial than wade through the shoals of the appeal.

[2] SCR 304(a).

^[3]Coryell v. LaGrange, 245 Ill.App.3rd 1, 7 (1st Dist. 1993)

[4] SCR 307.

[5] SCR 312.

[6] SCR 308(a).

[7] Fed.R.Civ.P. 59(b)

^[8] Berg v. Allied Sec., 193 Ill. 2d 186, 189 (Ill. 2000)

^[9] Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150 (Ill. 1994)

^[10] Lowenthal v. McDonald, 367 Ill. App. 3d 919, 923 (Ill. App. Ct. 2d Dist. 2006)