delivered the opinion of the court:
In this appeal, we are called upon to answer questions certified by the circuit court of Kane County pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). The questions arose after the trial court denied in part defendant’s (On Stage Productions, Inc., d/b/a Diamonds Gentlemens Club (On Stage)) motions under section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 615 (West 2006)) to dismiss the complaints of plaintiffs, Ryan T. Simmons (Simmons), as special administrator of the estates of his wife, April M. Simmons, and his unborn daughter, Addison Elizabeth Simmons, and Gaetano Chiariello (Chiariello), as special administrator of the estate of his son, John Chiariello (John). Plaintiffs’ complaints alleged, among other things, that On Stage was negligent in requiring an obviously intoxicated defendant, John D. Homatas (not a party to this appeal), to leave its premises and to drive away in the car he arrived in, resulting in a collision that killed all of plaintiffs’ decedents. The trial court determined that plaintiffs stated viable causes of action against On Stage sounding in negligence and partially denied On Stage’s motions. The trial court certified questions regarding plaintiffs’ negligence claims. We answer the questions affirmatively, finding viable negligеnce claims against On Stage on these pleadings.
The following summary is drawn from the allegations of plaintiffs’ complaints. At all relevant times, On Stage operated a fully nude strip club, called Diamonds Gentlemens Club, at a location in unincorporated Du Page County. On Stage knew that most of its patrons would arrive and depart by car. Du Page County’s liquor licensing is strictly regulated; adult entertainment clubs serving alcohol are prohibited from allowing fully nude dancing. Consequently, On Stage did not have a liquor license. Instead, On Stage encouraged its patrons to bring their own alcohol. Chiariello alleged that operating a “bring your own” establishment is an integral part of On Stage’s business plan because the “intoxication of its patrons generates substantial direct and indirect revenue.” Chiariello further alleged that (1) On Stage counted on the fact that less-inhibited patrons (due to alcohol consumption) would be more likely to tip the dancers, providing On Stage with indirect revenue; and (2) On Stage earned direct revenue by charging its patrons for the incidentals necessary to support alcohol consumption, like glasses, ice, soft drinks, soda water, tonic, and other mixers. In addition, On Stage prohibited its patrons from bringing their own mixers and from bringing lower-alcohol-content beverages, like beer and wine.
Chiariello alleged that On Stage’s business plan was designed to exploit loopholes in liquor regulation, such as by avoiding otherwise required employee training about intoxication, and to avoid dramshop liability. Unlike a regulated tavern, On Stage’s servers did not receive “Beverage Alcohol Sellers and Servers Education and Training.” In addition, Chiariello alleged that On Stage “actually encourages its patrons to abuse the consumption of alcohol in order to increase [its] business revenue.”
On January 4, 2006, at about 9 p.m., Homatas drove John to Diamonds. As required by On Stage, Homatas surrendered his car to the valet and paid a fee. The valet drove Homatas’s car away. Homatas and John knew that they were allowed to consume only hard liquor in the club; accordingly, they brought a fifth of rum and a fifth of vodka. Homatas and John were given a table and, for the next two hours, they drank vodka and rum. They purchased glasses, ice, and mixers from On Stage employees. Also during this two-hour period, Homatas and John purchased several private table dances from the dancers, in accordance with On Stage’s requirements.
During the two-hour period, Homatas and John drank their liquor and became visibly intoxicated. Rather than advising them to stop drinking, On Stage servers encouraged the two to pour themselves additional drinks and allowed them to purchase more ice and mixers. At about 11:10 p.m., Homatas was observed vomiting in the men’s restroom. When On Stage employees discovered that Homatas was vomiting in the restroom, they ejected both Homatas and John from the club. On Stage employees directed its valet service to bring Homatas’s car to the front door. On Stage employees placed Homatas in the driver’s seat of the car and John in the passenger seat and directed Homatas to drive away from the premises. 1
At about 11:25 p.m., Homatas was spotted driving erratically on Route 25. His speed was estimated to be over 80 miles per hour. Homatas’s car collided head-on, on the wrong side of the road, with a car driven by April Simmons, who was then 8V2 months pregnant. As a result of the collision, John, April, and her unborn child were all killed. The collision occurred less than 10 miles from Diamonds.
On January 3, 2007, plaintiffs each filed a complaint. Each complaint included counts based on the Dramshop Act (235 ILCS 5/6 — 21 (West 2006)) and the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2006)). On May 4, 2007, On Stage filed its section 2 — 615 motions to dismiss the complaints. On November 8, 2007, the trial court granted On Stage’s motions with respect to the Dramshop Act counts (Simmons complaint counts I, II, III, and IV; Chiariello complaint count II) but reserved ruling on the common-law negligence counts of each complaint. On December 21, 2007, the trial court ruled on the remaining counts, denying On Stage’s motion to dismiss and finding that the complaints sufficiently stated claims against On Stage for negligence.
The trial court identified the issue it was considering as:
“whether a legal duty existed. Plaintiffs seek to hold [On Stage] liable for negligence under common law principles. [On Stage’s section 2 — 615 motions to dismiss] claim[ ] that plaintiffs have failed to state a cause of action because [On Stage] owe[s] no common law duty to any of the plaintiffs. As previously decided by this [c]ourt, the Dram Shop Act [235 ILCS 5/6 — 21 (West 2006)] is not applicable because [On Stage] did not sell or give alcohol to Homatas. This [c]ourt recognizes that there is no common law cause of action against any provider of alcoholic beverages for injuries arising out of the sale or gift of such beverages.” (Emphasis in original.)
The court then considered the issue of duty, noting that, “ ‘[u]nless a duty is owed, there is no negligence.’ American National Bank & Trust Co. v. National Advertising Co.,
Turning to the Chiariello complaint, the trial court determined that the special relationship of business invitor-invitee existed between On Stage and John. The trial court considered Osborne v. Stages Music Hall, Inc.,
“Based on the facts as plead[ed,] this duty arose to [John] as a business invitee, who was escorted by agents of [On Stage] to an automobile in [sic] which [On Stage] held the keys to and gave to an obviously intoxicated patron whose intoxication was in accordance with [On Stage’s] business plan that its patrons become intoxicated in order to spend more money at its premise [s]. A reasonable finder of fact could foresee that [On Stage’s] conduct could result in harm to [John]. Furthermore, based on Osborne, Haupt, and ShortallV,] such duty can go beyond [On Stage’s] premises. Harris shows that it is not the fact that Homatas was intoxicated but the conduct of [On Stage] putting [John] at risk.”
The trial court then turned its attention to the Simmons complaint. The trial court noted that April and Addison were not business invitees and had no special relationship with On Stage. The trial court proceeded to consider the existence of any duty under the four factors it previously identified: “foreseeability, likelihood of injury, magnitude of the burden, and consequences of placing the burden on the defendants.” The trial court further noted that the “touchstone” of its duty analysis “is to ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.”
The trial court relied on the analysis in Kohn v. Laidlaw Transit, Inc.,
“This [c]ourt finds this to be a very unique set of circumstances which distinguishes it from the cases which were cited by [On Stage]. There is no need to create a global duty exception to businesses that are not subject to Dram Shop laws whom [szc] allow patrons to bring in alcohol upon their business, nor operators of parking lots, to become responsible for intoxicated persons who use their services and subsequently operate an automobile. *** [On Stage’s] duty derives from the general duty of ordinary care which an actor owes when his affirmative conduct creates the risk.”
The trial court certified a question on the duty issue for each plaintiff for immediate permissive interlocutory appeal to this court pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). We granted On Stage leave to appeal and now consider the certified questions.
For Simmons, the trial court certified the following question:
“Whether the defendant, [On Stage], a business operator who is not subject to the Dram Shop Act, (because it does not sell or serve alcoholic beverages upon its premises), has a duty of ordinary care to the Simmons [decedents], who[,] while motoring on a public highway, were killed due to the negligent operation of a motor vehicle driven by Homatas, who within a short period of time prior to the aforesaid motor vehicle collision, was an invitee of defendant’s place of business under the following circumstances:
• where defendant’s valet service took control of Homatas’s vehicle upon his entering defendant’s place of business;
• encouraged its invitee Homatas to bring alcoholic beverages onto its premises in order to consume to the point of intoxication;
• thereafter removed its invitee Homatas from the premises because of his intoxication; then after controlling its invitee’s automobile while he was on its premises, relinquished said automobile into the hands of its invitee Homatas;
• while defendant knew or should have known that due to Homatas’s intoxication he was unable to operate a motor vehicle;
• then allowed said Homatas to drive the vehicle away from the premises onto the public highway[.]”
For Chiariello, the court certified the following question:
“Whether the defendant, [On Stage], a business operator who is not subject to the Dram Shop Act (because it does not sell or serve alcoholic beverages upon its premises), owed a duty of unreasonable risk of harm 2 to a business invitee [John], who shortly after leaving the defendant’s place of business, was killed in a motor vehicle accident on a public highway, due to the negligent operation of a motor vehicle, driven by Homatas, who within a short period of time prior to the aforesaid motor vehicle collision, was also an invitee of defendant’s place of business under the following circumstances:
• where defendant’s valet service took control of Homatas’s vehicle upon his entering defendant’s place of business;
• where defendant as part of its business plan encouraged its invitee Homatas to bring and consume alcoholic beverages to and beyond the point of intoxication upon its premises;
• thereafter removed its invitee Homatas from its premises due to his intoxication;
• ordered and assisted the invitee Homatas into the driver seat of his vehicle;
• ordered invitee [John] off of the premises and into the intoxicated Homatas’s vehicle;
• allowed said intoxicated invitee Homatas to drive the vehicle away from the premises and onto the public highway;
• where defendant was aware that its business invitee [John] was a passenger in said vehicle and that the driver invitee Homatas had a level of intoxication which was obvious enough that a reasonable person would have determined that he was unable [to] operate a motor vehicle[.]”
We note that the certified questions inexplicably present slightly different wordings. For example, Simmons’s certified question states only that On Stage relinquished Homatas’s automobile back into his custody, while Chiariello’s certified question states that On Stage ordered and assisted Homatas into the driver’s seat of his automobile. For another example, Chiariello’s question notes that On Stage, as part of its business plan, encouraged Homatas to bring and consume alcohol at its club, while Simmons’s question notes only that On Stage encouraged Homatas to bring and consume alcohol at its club. Additionally, Chiariello’s question sets forth that Homatas consumed alcohol to and beyond the point of intoxication, while Simmons’s question notes that Homatas consumed alcohol to the point of intoxication. While we point out the differences in the certified questions, our analysis will make clear that we regard them as functionally equivalent and that the differences do not materially affect our answers.
Our consideration of an appeal pursuant to Rule 308 is generally limited to the questions certified by the trial court. Johnson v. State Farm Mutual Automobile Insurance Co.,
During our review of the parties’ briefs in this matter, we discerned an unaddressed issue that was pertinent to our resolution of the certified questions. We ordered the parties “to submit supplemental briefs on the issue of whether section 876 of the Restatement (Second) of Torts (concert of action) provide[d] a basis upon which to find a duty of care owed by defendant *** to plaintiffs.” The parties complied with our order.
Section 876 of the Restatement (Second) of Torts provides:
“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).
Comment d to section 876 provides:
“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. This is true both when the act done is an intended trespass (see Illustrations 4 and 5) and when it is merely a negligent act. (See Illustration 6). The rule applies whether or not the other knows his act is tortious. (See Illustrations 7 and 8). It likewise applies to a person who knowingly gives substantial aid to another who, as he knows, intends to do a tortious act.
The assistance of or participation by the defendant may be so slight that he is not liable for the act of the other. In determining this, the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind are all considered. (See Illustration 9). Likewise, although a person who encourages another to commit a tortious act may be responsiblе for other acts by the other (see Illustration 10), ordinarily he is not liable for other acts that, although done in connection with the intended tortious act, were not foreseeable by him. (See Illustration 11). In determining liability, the factors are the same as those used in determining the existence of legal causation when there has been negligence (see §442) or recklessness. (See §501).” Restatement (Second) of Torts §876, Comment d, at 317 (1979).
To be liable under section 876, the defendant’s conduct must be more than benign. Rogers v. Reagan,
Section 876 subjects On Stage to liability for the collision that killed the decedents. Plaintiffs alleged that On Stage’s valet service took Homatas’s car when he and John arrived at the club. While at the club, Homatas drank hard liquor steadily for a period of about two hours. On Stage аctively encouraged and facilitated Homatas’s drinking, even as he became obviously intoxicated. At about 11:10 p.m., Homatas had ingested so much alcohol that he began to vomit in the bathroom of On Stage. On Stage employees noticed that Homatas was vomiting and ejected him from the club. On Stage employees retrieved Homatas’s car from its valet service, placed John in the car, and placed Homatas behind the wheel. On Stage then required Homatas to drive off of its property and onto the public roadways. Encouraging and facilitating Homatas’s drinking, ejecting him from the club, and placing him behind the wheel with the requirement that he drive his car away from On Stage and onto the public roadways constitute substantial assistance under subsection (b) of section 876. On Stage clearly knew that Homatas was intoxicated and that, if Homatas were to drive, then he would be engaging in negligent conduct, breaching his duty of ordinary care when operating a motor vehicle. Accordingly, On Stage is subject to liability for its in-concert actions of facilitating Homatas’s intoxication, ejecting Homatas when he became too intoxicated, placing him behind the wheel of his car while he was intoxicated, and requiring him to drive away from the premises and onto the public roadways.
Illinois courts have applied section 876 as a basis for liability in similar cases. In Fortae v. Holland,
Here, too, the relationship between On Stage and Homatas weighs in favor of finding that On Stage rendered substantial assistance to Homatas’s negligent operation of his vehicle while intoxicated. Homatas was at the club as On Stage’s business invitee. Encouraged by On Stage, Homatas steadily drank hard liquor for two hours. When On Stage discovered Homatas to be so intoxicated that he had begun to vomit, On Stage evicted Homatas from the club and then, despite his intoxication, On Stage placed Homatas behind the wheel of his car and required him to drive off the premises onto the public roadways. Thus, On Stage substantially assisted Homatas’s tortious conduct of driving while intoxicated.
The imposition of liability for placing a drunk driver behind the wheel of his car was foreshadowed in Umble. There, the repair shop was not liable for returning a repaired vehicle to its intoxicated driver. Umble, 294 Illl. App. 3d at 451. The court noted that there was “no allegation that any of [the] defendant’s employees actively encouraged [the drunk driver] to get back in his car and drive.” Umble,
On Stage argues that it is not liable and that the court erred in refusing to dismiss the entirety of plaintiffs’ complaints. On Stage argues that plaintiffs have failed to demonstrate proximate causation sufficient to trigger its liability. On Stage points out that comment d (On Stage erroneously identifies it as comment b) to section 876 states that, “[i]n determining liability, the factors are the same as those used in determining the existence of legal causation when there has been negligence.” Restatement (Second) of Torts §876, Comment d, at 317 (1979). On Stage argues that the consumption of alcohol by Homatas was the legal cause of the deaths of the decedents.
Proximate causation is comprised of two distinct requirements: cause in fact and legal cause. Abrams v. City of Chicago,
Applying the foregoing principles to the case at bar, we conclude that both plaintiffs have pleaded the existence of proximate causation sufficient to trigger On Stage’s liability under section 876 of the Restatement (Second) of Torts. As an initial matter, On Stage does not challenge the existence of cause in fact. Cause in fact is established because, absent On Stage’s conduct of placing an intoxicated Homatas behind the wheel of his car and requiring him to drive off On Stage’s premises and onto the public roadways, the injuries to the decedents would not have occurred. While On Stage does not raise the issue, it could be argued that, even if Homatas had voluntarily driven his vehicle, a similar accident would have occurred. However, there is nothing in the pleadings to indicate that Homatas wished to leave the club at the time that On Stage ejected him and John. While an accident may have occurred if Homatas had voluntarily left On Stage’s premises, it would not have been this accident at issue here. Thus, On Stage’s conduct is a cause in fact of the injuries complained of here.
Turning to legal causation, we hold that On Stage’s conduct was also a legal cause of the decedents’ injuries. We agree with plaintiffs that, not only was the accident foreseeable, but in this case it was nearly predictable. The complaints both allege, and the certified questions provide, that Homatas was extremely intoxicated at the point that On Stage removed him from its premises. By placing Homatas at the wheel of his vehicle, On Stage knew that Homatas would be driving while extremely intoxicated. In that situation, it was patently foreseeable that Homatas would collide with another car on a public roadway. Accordingly, we hold that the conduct of On Stage was also a legal cause of the decedents’ injuries.
On Stage resorts to the well-settled common-law rule that it is a person’s decision to consume alcohol that proximately causes an injury and not the provision of alcohol to that person. See, e.g., Howlett v. Doglio,
On Stage also points to Young v. Bryco Arms,
In Young, the supreme court noted that comment b to section 824 “pose[d] the question — Is the conduct of these defendants a legal cause of the allegеd interference with a public right?” Young,
Young further examined the issue of legal causation and the condition-versus-cause analysis applicable to a case in which the injury is caused by an intervening act of a third party. The court noted that the defendants argued that their conduct furnished a condition that made the injuries possible and did not constitute a legal cause of the injuries. Young,
Applying the supreme court’s analysis in Young to the circumstances alleged here, we conclude that On Stage’s conduct proximately caused the decedents’ injuries because it was foreseeable, if not virtually assured, that Homatas would colhde with another car as he drove along the public roadways. Thus, using the analysis called for in Young, we find legal causation here, resulting from the foreseeable occurrence that an intoxicated patron who is forced to drive his car away from a club and onto the public roadways will be involved in a collision with another car.
On Stage nevertheless seizes on Young’s tavern example, arguing that thе supreme court had “prognosticated” the fact-pattern of this case, pointing to the following passage:
“In contrast, plaintiffs’ theory of legal cause would permit the imposition of public nuisance liability upon the proprietor of a tavern not only for the unruly conduct of patrons on the premises, but also for harm caused by the illegal conduct of patrons after they leave. As long as the patrons’ consumption of alcohol were shown to be a cause in fact of injury, the serving or selling of alcohol would be deemed the legal cause, even though the patrons have committed crimes. A tavern owner could be liable for the creation of a public nuisance if it were shown that his patrons caused traffic accidents by driving under the influence, damaged property by driving on lawns or crashing into garbage cans, or committed criminal assaults while intoxicated. We reject such an expansive view of legal cause.” Young,213 Ill. 2d at 451 .
The foregoing passage illustrates a typical dramshop fact pattern. What distinguishes this case from that fact pattern and renders On Stagе’s argument inapposite is On Stage’s alleged conduct. Under the facts that plaintiffs here have alleged, and the certified questions provide, On Stage’s affirmative conduct of encouraging Homatas to drink to extreme intoxication, placing the intoxicated Homatas into his car, and requiring him to drive off of the premises and onto the public roadways was the legal cause of the injuries here. This conduct serves to differentiate this case from the typical dramshop fact pattern in which a tavern provides its patron with alcohol and otherwise does not influence the patron’s behavior. Accordingly, we do not find On Stage’s argument to be persuasive.
On Stage, relying on Young’s tavern example and its own argument, posits that a finding of liability here will open the litigation floodgates as well as allow plaintiffs to establish limitless legal cause. We disagree. It is On Stage’s substantial assistance and encouragement of Homatas’s conduct that provides the basis for liability and legal causation here. This is a sufficiently exceptional fact pattern to engender our belief that our finding will not open litigation floodgates or provide future plaintiffs unlimited opportunities to establish legal causation.
On Stage changes tack and attempts to analogize this case with Karas v. Strevell,
On Stage next points to Wakulich v. Mraz,
Next, On Stage argues that plaintiffs have not effectively placed section 876 of the Restatement into play. On Stage asserts that neither plaintiff has alleged any conduct that is inherently wrongful and neither plaintiff has made any allegations оf in-concert liability sufficient to trigger the applicability of section 876. In support of this contention, On Stage relies on Umble and Carollo v. Al Warren Oil Co.,
The authority on which On Stage relies is distinguishable. In Umble, the court found that section 876 did not apply because there were no allegations that any of the defendant’s employees actively encouraged the intoxicated third-party tortfeasor to get back in his car and drive. Umble,
Carollo is also distinguishable. First, Carollo involved the consideration of evidence from a jury trial on the merits. Carollo,
Further, our conclusion that there are allegations in both plaintiffs’ complaints that implicate in-concert liability also disposes of On Stage’s contention. While plaintiffs do not appear to have strongly pressed the in-concert liability argument before the trial court, we note that we may sustain the trial court’s judgment on any ground appеaring in the record, and in-concert liability appears on the face of plaintiffs’ complaints. Rockford Memorial Hospital v. Havrilesko,
On Stage also argues that its status as a bailee meant that it had no legal right to refuse to return Homatas’s car to him when he was leaving. In support, On Stage again relies upon Umble,
Both Umble and Knighten are distinguishable, and both for the same reason. Here, On Stage did not attempt to withhold from Homatas the keys to his car. Instead, On Stage ejected Homatas and placed him behind the wheel of his car, giving him no alternative but to drive his car off the premises and onto the public roadways. There was no demand for the return of his car by Homatas, unlike in Umble and Knighten.
In any event, Umble and Knighten explored whether a bailee has a duty to withhold a car from an intoxicated owner. Plaintiffs’ allegations depart from that question and squarely implicate in-concert liability by alleging that On Stage affirmatively placed an obviously intoxicated Homatas behind the wheel of his car and required him to drive off. Had an obviously intoxicated Homatas requested his car keys at the close of business at On Stage, then we could find Umble and Knighten to be on point; however, this case involves the question of whether a strip club, whose business model is structured to avoid dramshop liability, can avoid liability for requiring an intoxicated patron to drive onto the public roadways after ejecting him from its premises. We answer that question negatively.
On Stage argues in its supplemental reply brief that plaintiffs did not adequately address proximate causation, pointing to Kohn,
“How foreseeable and likely were these injuries to result from [the bus driver’s] conduct as alleged in [the plaintiffs] complaint? In order for [the plaintiff] to establish foreseeability for the purpose of proving the existence of a legal duty, he must show that the criminal conduct was objectively reasonable to expect.” Kohn,347 Ill. App. 3d at 755 .
Further considering proximate causation, the court noted:
“To find proximate cause, we must be able to say that [the plaintiffs] injuries are the natural and probable result of the defendants’ acts or omissions and that an ordinarily prudent person could have foreseen [the plaintiffs] injuries as likely to occur as a result of [the bus driver’s] conduct. *** As we discussed above, there is nothing natural and probable about a man being ambushed and brutally attacked by strangers while on his way to work after accidentally striking a small child departing a school bus.” (Emphasis in original.) Kohn,347 Ill. App. 3d at 756 .
In contrast to the lack of foreseeability discussed in Kohn, here, that an intoxicated Homatas would become involved in a car wreck after On Stage had placed him behind the wheel and required him to drive away is both objectively reasonable and the natural and probable result of On Stage’s conduct. Unlike Kohn, which did not find proximate causation, here, we hold that plaintiffs’ allegations establish proximate causation sufficient to support the imposition of liability under section 876 of the Restatement.
On Stage also points to Iseberg v. Gross,
On Stage last argues that it did not substantially assist or actively participate in Homatas’s tortious conduct. Relying on Rogers,
On Stage takes the holding in Rogers and extrapolates from it that a defendant must be physically involved in the tortious conduct at the time the conduct occurs. We do not read Rogers so narrowly. Instead, we believe Rogers means what it says: “To be subject to a duty under section 876 the defendant’s conduct must be ‘more than benign.’ [Citation.] The defendant must actively participate in the tortious conduct of another.” Rogers,
Continuing with this temporal/physical proximity idea, On Stage next points to Wolf v. Liberis,
The court held that the plaintiff had not “alleged or proved that [the defendant] in any way assisted or encouraged [the fiancé] in the negligent operation of his vehicle prior to the collision.” Wolf,
“Although [the defendant] had been drinking prior to the fatal accident, she committed no tortious act against [the plaintiff’s decedent] by leaving [the fiancé’s] apartment while intoxicated. Likewise, she committed no tortious act in concert with [the fiancé] merely because he followed her home in his car. The fact that he removed her car from the store window after the initial accident is not evidence that she assisted or encouraged any negligent conduct by [the fiancé] or that the two of them acted in accordance with a common plan to commit a tortious act with both of them knowing of the plan and its purpose.” Wolf,153 Ill. App. 3d at 497 .
The court concluded its analysis by observing:
“The head-on collision was not сaused by any actions of [the defendant] in leaving the scene of the accident but by independent subsequent events *** when one of [the fiancé’s] three assailants attempted to wrest control of his steering wheel away from him. In our opinion, while the assailants who interfered with [the fiancé’s] control of his vehicle were a material factor in bringing about the fatal accident, [the defendant] was not.” Wolf,153 Ill. App. 3d at 497-98 .
While it is true that the defendant was not present at the location of the fatal accident, this did not form the basis of the court’s holding. Instead, the defendant was not the proper third-party tortfeasor for purposes of section 876; rather, the fiancé’s assailant who was trying to take control of his steering wheel was the proper third-party tortfeasor for purposes of section 876. We see nothing in Wolf that requires as a condition for liability that the defendant be present at the time and place of the conduct complained of.
On Stage next points to Fugate v. Galvin,
On Stage also points to Brandjord v. Hopper,
The court held that a passenger owes no duty to a third person where the driver is intoxicated, absent some special relationship, a joint enterprise, a joint venture, or a right to control the vehicle. Brandjord, 455 Pa. Super, at 431,
On Stage completes its argument by attempting to distinguish plaintiffs’ authority supporting the imposition of in-concert liability under section 876, particularly Umble and Fortae. On Stage again points out that Umble held that the repair shop/bailee had no right to refuse to return the car to its intoxicated owner. This is a red herring under the circumstances here, because Homatas did not demand his vehicle; rather, On Stage ejected Homatas from its club and placed him behind the wheel, knowing he was intoxicated. On Stage also asserts that Fortae supports its argument, noting that the Fortae court stated that the defendant “was present in the most obvious sеnse, because he was physically involved in the traffic accident,” and that the defendant’s relationship with the other driver “placed on him the responsibility to observe [the other driver’s] driving.” Fortae,
First, as noted, nothing in section 876 suggests that there be a special relationship beyond the substantial assistance or encouragement between the defendant and the third-party tortfeasor. Second, and interestingly here, even if there were such a requirement, Homatas was a business invitee, so in addition to the assistance and encouragement rendered by On Stage in placing an intoxicated Homatas behind the wheel of his car, the special relationship of business invitor-invitee existed between them. On Stage’s proposed special relationship requirement does not preclude the imposition of liability here. Further, On Stage does not successfully distinguish the cases on which plaintiffs rely. Accordingly, we answer the certified questions in the affirmative.
Based on our resolution of the section 876 issue, we do not need to further consider On Stage’s remaining arguments. For the foregoing reasons, we find that On Stage had a duty to both plaintiffs, and we answer both certified questions affirmatively. Accordingly, we remand the cause to the circuit court of Kane County for further proceedings consistent with this opinion.
Certified questions answered; cause remanded.
JORGENSEN and SCHOSTOK, JJ., concur.
Notes
While we have paraphrased the complaints above, we here quote them verbatim.
Chiariello alleged that “employees of [On Stage] ordered the valet service to start Homatas’[s] car and bring it to the front door of the club. Employees of [On Stage] then opened the driver’s door of the car and directed Homatas and [John] to immediately drive away from the premises.”
Simmons alleged that “Homatas would likely be driving a vehicle when he left the premises of [the club]. Despite their knowledge aforesaid, said agents and employees of [On Stage] negligently and carelessly directed John D. Homatas, while he was in an intoxicated condition to leave the premises of the club.”
Despite the awkward way this certified question is phrased, we deem it to be functionally equivalent to Simmons’s certified question, asking whether On Stage owed a duty to prevent unreasonable risk of harm to John.