2022 IL App (2d) 210297
Ill. App. Ct.2022Background
- On June 30, 2017, an allegedly intoxicated driver, Jacob Kaminski, collided with Alexis Danley; Alexis and her viable unborn fetus (Baby Danley) died.
- Vonta Perry was appointed special administrator of Baby Danley’s estate and filed amended complaint adding dramshop defendants Bedrocks and Skooter’s, alleging violations of the Dramshop Act and incorporating wrongful-death allegations.
- The amended complaint pleaded dramshop counts but repeatedly prayed for damages as provided by the Wrongful Death Act (including loss of society for an unborn fetus).
- Bedrocks moved to dismiss under section 2-615 arguing (among other things) an unborn fetus cannot recover under the Dramshop Act; Skooter’s moved for judgment on the pleadings raising similar grounds.
- The trial court dismissed Bedrocks (2-615) and granted judgment on the pleadings for Skooter’s; Herndon (successor special administrator) appealed.
- The appellate court affirmed, holding the Dramshop Act does not provide a cause of action for an unborn fetus and the court may not judicially expand dramshop liability by importing wrongful-death remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unborn fetus can be the injured person under the Dramshop Act | Herndon: loss of society language and wrongful-death amendments show legislature intended to cover unborn fetuses | Defendants: Dramshop Act is a distinct statutory, no-fault remedy that does not include unborn fetuses; no legislative amendment extends it | Held: No — Dramshop Act does not provide a cause of action for an unborn fetus; courts cannot judicially expand the Act |
| Whether the Wrongful Death Act may be superimposed on Dramshop claims to recover wrongful-death damages for a fetus | Herndon: pleading for damages under Wrongful Death Act is proper because loss-of-society concept was added to Dramshop Act; wrongful death remedies cover fetuses | Defendants: The two statutes are separate; Wrongful Death Act remedies cannot alter or enlarge dramshop liability | Held: No — wrongful-death remedies cannot be grafted onto the Dramshop Act; dramshop recovery is limited to damages and claimants defined by that Act |
| Whether the estate (special administrator) is the proper plaintiff for the dramshop counts | Herndon: special administrator filed and pursued claims; amended complaint brought dramshop claims against defendants | Bedrocks: estate is not the proper plaintiff for dramshop claims because dramshop plaintiffs are defined differently; Perry appointed only for wrongful-death claim | Held: Dismissal was proper as pleaded — the complaint mixed remedies and failed to state a proper dramshop claim by an appropriate plaintiff |
| Whether trial court erred in dismissing/granting judgment on the pleadings | Herndon: dismissal/judgment was wrongful because pleadings, properly read, sought only dramshop relief | Defendants: Pleadings explicitly sought wrongful-death damages and thus attempted to expand dramshop liability beyond the statute | Held: No error — on de novo review the pleadings failed to state a dramshop cause of action for an unborn fetus and improperly sought wrongful-death relief |
Key Cases Cited
- Charles v. Seigfried, 165 Ill. 2d 482 (1995) (Dramshop Act preempts common-law alcohol-related liability and is the exclusive remedy)
- Jodelis v. Harris, 118 Ill. 2d 482 (1987) (liability for serving alcohol arises exclusively from the Dramshop Act, not tort)
- Howlett v. Doglio, 402 Ill. 311 (1949) (Wrongful Death Act and Dramshop Act are separate and have different purposes)
- Demchuk v. Duplancich, 92 Ill. 2d 1 (1982) (dramshop cause of action is sui generis and statutory)
- Walter v. Carriage House Hotels, Ltd., 164 Ill. 2d 80 (1995) (limits on dramshop damages and recognition that dramshop liability is non-tort and no-fault)
- Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469 (1994) (section 2-615 dismissal standard: attack on legal sufficiency of complaint)
- Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381 (2005) (judgment on the pleadings reviewed de novo)