UIC Law Review Volume 19 Issue 1 Article 3 Fall 1985 Reconsidering the Illinois Dram Shop Act: A Plea for the Recognition of a Common Law Action in Contemporary Dram Shop Litigation, 19 J. Marshall L. Rev. 49 (1985) Peter J. Wifler Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Law Commons Recommended Citation Peter J. Wifler, Reconsidering the Illinois Dram Shop Act: A Plea for the Recognition of a Common Law Action in Contemporary Dram Shop Litigation, 19 J. Marshall L. Rev. 49 (1985) https://repository.law.uic.edu/lawreview/vol19/iss1/3 This Comments is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. COMMENTS RECONSIDERING THE ILLINOIS DRAM SHOP ACT: A PLEA FOR THE RECOGNITION OF A COMMON LAW ACTION IN CONTEMPORARY DRAM SHOP LITIGATION On June 25, 1978, having already consumed a considerable amount of liquor, Fred Gustafson drove to two Illinois taverns and purchased more alcohol.' Upon leaving the premises, employees of the two taverns physically escorted Gustafson to his car. Gustafson displayed conduct showing a reckless disregard for his safety. Inside the car, visible to those who escorted him, were five of Gustafson's children. Later that evening, an automobile accident took the life of Gustafson and four of his children.' Gustafson's wife sued the owners of the taverns for damages under the Illinois Dram Shop Act (the "DSA").3 Because of the stringent statutory limitations,* Mrs. Gustafson was entitled to re- cover a maximum award of only $35,000 from the defendants.' Be- cause the DSA relies upon the doctrine of strict liability,5 the tavern 1. Gustafson v. Mathews, 109 Ill. App. 3d 884, 886, 441 N.E.2d 388, 389 (1982). 2. Id. at 885-86, 441 N.E.2d at 389. 3. ILL. REV. STAT. ch. 43, § 135 (1983). 4. Section 135 of the Dram Shop Act limits recoverable damages for loss of property of any person to $15,000, and $20,000 for loss of means of support. Thus, assuming Mrs. Gustafson could prove $15,000 worth of property damage, and prove her means of support was damaged by $20,000, she would only receive a total of $35,000. See ILL. REV. STAT. ch. 43 § 135 (1983). In addition to property damage and loss of means of support, the DSA allows recovery for personal injury up to $15,000 for each person. Id. Thus, each surviving person, in this instance the one child, could potentially recover $15,000 individually from the tavern owners based upon a per- sonal injury claim. See also Zamiar v. Linderman, 132 Ill. App. 3d 886, 889, 478 N.E.2d 534, 536 (1985) (liability for each occurrence under the DSA for commercial suppliers of liquor is limited to $35,000). Further, the DSA places an aggregate limitation of $20,000 for the loss of means of support. Thus, if all five Gustafson children had survived the accident, the family still would have only recovered a total of $20,000 for the loss of means of support. See Steller v. Miles, 17 Ill. App. 2d 435, 150 N.E.2d 630 (1958) (held that legislative in- tent of 1955 amendment to the DSA was to establish an aggregate limitation of $20,000). 5. Plaintiff need only show that the sale or gift of intoxicating liquor caused the intoxication and not that the defendant was negligent or that he violated a liquor control law. ILL. REV. STAT. ch. 43, § 135 (1983). The pertinent section of the statute states "[elvery person who is injured in person or property by any intoxicated person, has a right of action in his or her own name, severally or jointly, against any person The John Marshall Law Review [Vol. 19:49 employees' acts of escorting Gustafson to his car and their failure to prevent him from driving, while visibly intoxicated, were of no con- sequence to the widow's cause of action. Illinois' first DSA was enacted in July of 1872. As revised, the Act establishes a strict liability standard on dram shop operators for torts committed either "by" an intoxicated patron or "in conse- quence of" the intoxication of any person.' Although originally con- sidered penal in nature,7 the DSA was established to create a cause of action for damages against retail vendors of alcoholic beverages because none existed at common law." The first Illinois Supreme Court case to interpret the Act was Cruse v. Aden,9 decided in 1889. Surprisingly, Cruse is still often cited as precedent for contemporary dram shop litigation. 0 It was not until 1961 when the Illinois Su- preme Court for the first time addressed the issue of whether a com- mon law action existed apart from the DSA against retail vendors of alcoholic beverages for injuries their intoxicated customers caused." Although the Act itself was silent regarding a common law remedy, the court refused to recognize any remedy apart from the Act. 2 Since 1961, neither the Illinois Supreme Court nor the General who by selling or giving alcoholic liquor, causes the intoxication of such person." Id. (emphasis added). 6. 1871-72 Ill. Laws 552-56. There are two types of actions under the Illinois DSA. The first, "by" or "direct" actions allow all persons who are injured, in person or in property by someone who is intoxicated, a cause of action individually against any person who by selling alcoholic liquor, causes the intoxication of the person caus- ing the injury. For example, an assault or an automobile collision where the direct act of an intoxicated person causes injury is considered a "by" cause of action. See Mul- lin,Overview of the Act/Defenses, DRAM SHOP/STRUCTURAL WORK ACT (IICLE) § 1.5 to 1.7 (1976). "In consequence" actions arise when an intoxicated person causes inju- ries to the means of the plaintiff's support. For example, a wife of an injured victim of a drunk driver has an "in consequence" action if the accident is caused by the driver's intoxication. Id. at § 1.9. See also Moran, Actions Under Illinois Dram Shop Act: Theories of Liability, U. ILL. L.F. 191 (1958) (discusses various theories advo- cated by attorneys seeking to escape the confines of the DSA). 7. See Ogilvie, History and Appraisal of the Illinois Dram Shop Act, U. ILL. L.F. 175, 181 (1958) (reviews history of DSA from enactment in 1872 until 1958) [hereinafter cited as History and Appraisal]. 8. See Cunningham v. Brown, 22 II. 2d 23, 30, 174 N.E.2d 153, 157 (1961) (lack of common law precedent motivated the legislature). 9. 127 Ill. 231, 20 N.E. 73 (1889) (held that no cause of action exists under the Act against one not engaged in the sale of intoxicating liquors). 10. Heldt v. Brei, 118 Ill. App. 3d 798, 800, 455 N.E.2d 842, 843 (1983) (common law cause of action sought against social host); Wienke v. Champaign County Grain Ass'n, 113 Ill. App. 3d 1005, 1008, 447 N.E.2d 1388, 1390 (1983) (noted that Aden recognized that no common law tort liability arises from furnishing liquor to a strong and able bodied man); Miller v. Moran, 96 Ill. App. 3d 596, 598, 421 N.E.2d 1046, 1047 (1981) (serving of alcoholic liquors to social guests does not create potential lia- bility to third parties). 11. Cunningham v. Brown, 22 Ill. 2d 23, 174 N.E.2d 153 (1961) (widow sued tavern operator who supplied liquor to husband who became despondent and took his own life). 12. Id. 1985] Illinois' Dram Shop Act Assembly have sufficiently re-examined policy considerations behind the DSA and its impact on society.' 3 Numerous plaintiffs, however, have presented meritorious claims requesting that a distinct com- mon law action be recognized apart from the DSA.' 4 In each case the appellate courts have deferred the question to the legislature or have asked the supreme court to re-evaluate the law.' 5 Contrary to the Illinois courts' conclusions, other jurisdictions have expanded both statutory and common law remedies involving dram shop lia- bility.'6 Moreover, the Seventh Circuit and one Illinois appellate de- cision have recognized a non-statutory cause of action against dram shop operators based upon interpretations of the Illinois common law." Despite the continuous evolution of the common law in other areas, the Illinois Supreme Court and General Assembly have appar- ently decided to leave the DSA in the antiquated form in which it was originally enacted.' 8 This comment will analyze the origins of 13. The supreme court has only reviewed its decision in Cunningham on two occasions. See Demchuk v. Duplancich, 92 Ill. 2d 1, 440 N.E.2d 112 (1982); Graham v. United States Grant Post, 43 Ill. 2d 1, 248 N.E.2d 657 (1969). In Demchuk, the court summarily affirmed its prior holding in Cunningham, stating that the statutory dram shop action is the exclusive remedy in Illinois against tavern operators. Demchuk, 92 I1l.2d at 10, 440 N.E.2d at 116. The Demchuk court, however, refused to review the merits of the plaintiff's case in any detail. In Graham, the court stated the plaintiff's contention was without merit because the precise issue of common law negligence for selling alcoholic beverages to an intoxicated person was definitively decided in Cun- ningham. Graham, 43 Ill.