2019 IL App (1st) 181123
Ill. App. Ct.2019Background:
- Megan Elam died after being ejected from a car driven by an intoxicated friend, Sarah Lavko, following a Live Nation concert; crash occurred about one mile from the venue. Lavko’s BAC was .197 and she was driving ~83 mph in a 50 mph zone.
- Plaintiffs (Megan’s parents) retained O’Connor & Nakos to pursue wrongful-death claims; plaintiffs settled with Lavko/insurer and Aramark, then accepted a $10,000 settlement from Live Nation.
- Plaintiffs later sued their attorneys for legal malpractice, alleging the lawyers negligently failed to plead viable theories against Live Nation (business premises liability and voluntary undertaking/security), which forced an inadequate settlement.
- Live Nation’s record showed parking-lot and concert security, a tailgating/alcohol ban, and that local police controlled traffic leaving the venue; security personnel did not observe or confront Lavko.
- The trial court granted summary judgment for the attorneys, concluding Lavko’s independent, intoxicated, high‑speed driving broke the causal link between any Live Nation negligence and Megan’s death; the appellate court affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs proved proximate causation in their malpractice claim (case-within-a-case) | But for attorneys’ failure to plead premises/voluntary-undertaking claims, plaintiffs would have recovered more from Live Nation | Lavko’s intervening, reckless intoxicated driving broke causation; Live Nation had no viable liability | Held for defendants: plaintiffs cannot show they would have prevailed against Live Nation, so no proximate cause in malpractice claim |
| Viability of business‑premises liability against Live Nation under Restatement §344 | Live Nation should have foreseen parking‑lot/alcohol/tailgating risks and had duty to protect invitees even after exit | Collision occurred off-premises (~1 mile away); duty does not extend to all harms after voluntary exit | Held: plaintiffs could not prevail as matter of law—the accident was off premises and §344 does not impose duty here |
| Viability of voluntary‑undertaking/security theory (Restatement §§323, 324A) | Live Nation voluntarily provided security and thereby assumed duty to monitor/intervene for intoxicated patrons; failure increased risk and caused harm | Security did not assert control over Lavko, did not perform affirmative acts like ejecting/escorting her; no evidence Live Nation knew she was intoxicated | Held: plaintiffs failed to show an affirmative undertaking or actions that increased risk or induced reliance; no liability under voluntary‑undertaking theory |
| Appropriateness of summary judgment | Factual disputes (e.g., foreseeability, proximate cause) should preclude summary judgment | Undisputed facts show Lavko’s independent conduct was sole proximate cause and no viable Live Nation claim existed | Held: summary judgment proper; reasonable persons could not find Live Nation liable under the asserted theories |
Key Cases Cited
- Tri–G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218 (2006) (malpractice based on prior litigation requires a case‑within‑a‑case and proof that attorney negligence proximately caused client’s loss)
- Bell v. Hutsell, 2011 IL 110724 (2011) (under §§323/324A, mere monitoring without affirmative acts is not a substantial voluntary undertaking)
- Wakulich v. Mraz, 203 Ill. 2d 223 (2003) (affirmative control over an intoxicated person can create liability under voluntary‑undertaking principles)
- Simmons v. Homatas, 236 Ill. 2d 459 (2010) (defendant’s affirmative conduct increasing risk to intoxicated patron supported liability)
- Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006) (landowner’s special relationship can impose duty to protect invitees from foreseeable third‑party acts in certain circumstances)
- First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252 (1999) (proximate cause requires both cause in fact and legal foreseeability)