BRAD VOGT, Individually and as Independent Administrator of the Estate of Bret Vogt, Deceased, Plaintiff-Appellant, v. ROUND ROBIN ENTERPRISES, INC., d/b/a FIREHAUS, Defendant-Appellee.
No. 4-19-0294
Appellate Court of Illinois, Fourth District
March 4, 2020
2020 IL App (4th) 190294
Decision Under Review: Appeal from the Circuit Court of Champaign County, No. 18-L-70; the Hon. Jason Matthew Bohm, Judge, presiding. Judgment: Affirmed.
Counsel on Appeal: Rochelle A. Funderburg, of Meyer Capel, of Champaign, for appellant.
Matthew G. Burke, of Heineke & Burke, LLC, of Chicago, for appellee.
OPINION
¶ 1 Plaintiff, Brad Vogt, individually and as independent administrator of the estate of Bret Vogt, deceased, appeals the judgment of the trial court, granting defendant, Round Robin Enterprises, Inc., d/b/a Firehaus, its motion to dismiss with prejudice pursuant to
¶ 2 On appeal, plaintiff asserts the trial court erred in dismissing his amended complaint with prejudice. For the following reasons, we affirm.
I. BACKGROUND
¶ 3 On May 3, 2016, decedent, Bret Vogt, an employee of defendant, attended an employer-sponsored event at defendant‘s bar—Firehaus—in Champaign, Illinois. At the event, defendant provided free alcoholic beverages to its employees. Decedent consumed alcohol and became intoxicated. Later in the evening or in the early morning of May 4, 2016, defendant stopped serving alcohol to decedent and ejected him from the premises. Decedent walked away from the bar and later fell and suffered a traumatic brain injury, resulting in his death.
¶ 4 On April 25, 2018, plaintiff, decedent‘s father, acting individually and as independent administrator of the estate of decedent, filed a complaint alleging negligence by defendant. On August 22, 2018, defendant filed a motion to dismiss pursuant to
¶ 5 On November 21, 2018, plaintiff filed an amended complaint alleging a voluntary undertaking negligence theory. Specifically, plaintiff alleged (1) defendant owed a duty of care to decedent based on a voluntary undertaking where defendant ejected an intoxicated decedent from its premises and (2) defendant‘s conduct was a recognized proximate cause of decedent‘s injuries resulting in his death.
¶ 6 On December 14, 2018, defendant filed a demand for a bill of particulars. Defendant sought (1) the specific time and location where decedent initially was injured, (2) the exact manner in which decedent was injured, (3) the specific means by which the injury to decedent occurred, and (4) the specific time and location of decedent‘s death. On February 12, 2019, the trial court held a hearing on defendant‘s motion. After hearing recommendations from counsel, the trial court denied defendant‘s motion, stating:
“Here I don‘t—I don‘t think, Mr. Burke, that the facts are so—I, I agree with you that there are some detail that aren‘t—this isn‘t a complaint full of detail, but I don‘t think it‘s so wanting to require a bill of particulars. I do think there‘s sufficient facts regarding the duty that there was a voluntary undertaking, that there was a breach of the duty in the early—in the morning of May the 4th. [Decedent] was—left the establishment, then died of a traumatic brain injury and it—they‘ve alleged—that doesn‘t mean that it‘s going to prevail ultimately, but I think they‘ve adequately alleged a cause of action here that would at least allow it to go forward to a—some kind of answer or pleading otherwise, but I don‘t think a bill of
particulars under 2-607 is necessary for this case to take the next step, whatever that next step is by the defendant. So the order of the court would be that, after arguments are heard, the motion for a bill of particulars is denied.”
¶ 7 On March 4, 2019, defendant filed a motion to dismiss plaintiff‘s amended complaint pursuant to
¶ 8 On April 24, 2019, the trial court held a hearing on defendant‘s motion to dismiss. After hearing recommendations from counsel, the court granted defendant‘s motion to dismiss with prejudice. The court stated:
“The complaint alleges that [defendant] is liable for the death because of the voluntary undertaking of asking him to leave the tavern. The voluntary undertaking is limited to the extent of that undertaking. And here that undertaking ended when he left the bar. The act of removing him from the bar did not place him in a worse situation. Now that is not to say that he was not in a bad situation, he was in a bad situation, but he was in that bad situation because of his intoxication. And Illinois law does not place a duty on taverns like [defendant] to make sure that the intoxicated patrons that they eject get home safely. They can‘t eject them in a manner that increases the danger such as placing them in a car in frozen temperatures, but here he was asked to leave on a May night, and while the complaint doesn‘t specify how far away from the bar he was, it does say that the next day he was found deceased based on a traumatic brain injury. I don‘t believe that there [are] grounds to go beyond what the Dram Shop Act has preempted here. Illinois taverns, there is—they simply are not—or don‘t owe a duty to intoxicated patrons to make sure that they get safely home. Now we can disagree about whether or not that should be the law, but it‘s not for the court to determine that. The law is that they aren‘t—they don‘t have a duty to make sure they get home safely. I also don‘t think that there‘s a sufficient proximate cause in the complaint, so for those two reasons, I do believe that, even though it‘s difficult to say so, that the motion to dismiss should be granted and that this case should be dismissed. That will be the ruling of the court.”
¶ 9 This appeal followed.
II. ANALYSIS
¶ 10 On appeal, plaintiff asserts that the trial court erred in dismissing with prejudice his amended complaint pursuant to
A. Standard of Review
¶ 11 We first examine the standard of review on a section 2-615 motion to dismiss. The trial court‘s decision to grant a section 2-615 motion to dismiss is subject to de novo review. Luise, Inc. v. Village of Skokie, 335 Ill. App. 3d 672, 685, 781 N.E.2d 353, 364 (2002). The
¶ 12 Second, we must determine the appropriate standard of review for a dismissal with prejudice.
¶ 13 With those standards of review in mind, we turn to the merits of plaintiff‘s appeal. Before we analyze whether defendant owed a duty based on a voluntary undertaking, we note that plaintiff‘s argument that the trial court previously found plaintiff‘s amended complaint asserted a cause of action for negligence is incorrect. In denying defendant‘s demand for a bill of particulars, the trial court stated, “I think they‘ve adequately alleged a cause of action here that would at least allow it to go forward to a—some kind of answer or pleading otherwise.” We do not find the court‘s statement determined that plaintiff established a cause of action in its amended complaint but rather that plaintiff presented enough facts for the complaint to go forward without a bill of particulars. Additionally, the court‘s statement was made prior to defendant‘s section 2-615 motion to dismiss plaintiff‘s amended complaint.
¶ 14 We also note that plaintiff concedes, and we agree, that this case does not implicate the Dram Shop Law (
B. Voluntary Undertaking
¶ 15 Plaintiff argues that defendant owed a duty of care to decedent based on a voluntary undertaking theory. Defendant argues that plaintiff failed to state a cause of action because the complaint failed to state sufficient facts to establish a voluntary undertaking under Illinois law. We agree with defendant.
¶ 17 The Illinois Supreme Court has looked to section 323 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 323 (1965)) to define the parameters of liability pursuant to a voluntary undertaking theory. See Bell, 2011 IL 110724, ¶ 12. Under a voluntary undertaking theory,
“[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other‘s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other‘s reliance upon the undertaking.” Restatement (Second) of Torts § 323 (1965).
See also Wakulich v. Mraz, 203 Ill. 2d 223, 241, 785 N.E.2d 843, 854 (2003) (citing Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 239, 665 N.E.2d 1260, 1273 (1996)). “[T]he duty of care to be imposed upon a defendant is limited to the extent of the undertaking.” Bell, 2011 IL 110724, ¶ 12.
¶ 18 To determine whether defendant owed a duty to plaintiff, we must determine the extent of any voluntary undertaking. Plaintiff argues that defendant undertook a duty to look after decedent‘s care and safety where defendant invited decedent to an employer-sponsored event, provided alcohol to decedent, subsequently decided to stop serving alcohol to the intoxicated decedent, and then ejected decedent from the premises. Specifically, plaintiff argues that by ejecting decedent from the premises, defendant placed decedent in a worse situation in which decedent later fell and suffered a traumatic brain injury, resulting in his death. Defendant relies on Simmons v. Homatas, 236 Ill. 2d 459, 925 N.E.2d 1089 (2010), Wakulich, 203 Ill. 2d 223, and Harris v. Gower, Inc., 153 Ill. App. 3d 1035, 506 N.E.2d 624 (1987), in support of his argument.
¶ 19 In Simmons, 236 Ill. 2d at 478, the supreme court found common law negligence under section 876 of the Restatement (Second) of Torts (concert of action) (Restatement (Second) of Torts § 876 (1979)). Defendant—an adult entertainment club—owed a duty of care to plaintiffs where defendant removed a patron for being intoxicated, placed the patron into a vehicle, and required him to drive off, which resulted in a collision that killed plaintiffs’ decedents. Simmons, 236 Ill. 2d at 481.
¶ 20 In Wakulich, 203 Ill. 2d at 246-47, the Illinois Supreme Court found a cause of action for negligent performance of a voluntary undertaking. Liability arose where
¶ 21 In Harris, 153 Ill. App. 3d at 1036-37, the owners of a tavern took an intoxicated, unconscious patron out of the building and placed him in his car where he froze to death. The appellate court found a cause of action for common law negligence where the defendant placed decedent in a position of peril. Id. at 1038. We find Wakulich, Simmons, and Harris distinguishable.
¶ 22 Here, plaintiff does not assert a common law negligence theory under section 876 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 876 (1979)). Rather, plaintiff argues common law negligence based on a voluntary undertaking.
¶ 23 Defendant‘s action in cutting off an intoxicated decedent and ejecting decedent from the premises did not rise to the level of control exerted by the defendants in Wakulich and Harris.
¶ 24 When decedent left Firehaus, he was conscious. Defendant‘s actions of escorting decedent out of the bar did not place decedent in peril or in a worse situation. We agree with the trial court that decedent was in a bad situation because of his intoxication, not due to any action taken by defendant. Moreover, any undertaking by defendant ended when it escorted decedent off the premises. See Bell, 2011 IL 110724, ¶ 12. Defendant‘s actions in ejecting an intoxicated decedent from its premises failed to amount to a voluntary undertaking to look after decedent‘s care and safety. As no duty existed, defendant is not liable for injuries decedent sustained after decedent left Firehaus. Under these circumstances, the absence of a voluntary undertaking precludes any duty on defendant‘s behalf. Thus, we conclude that the trial court did not err by dismissing the complaint for failure to state a cause of action.
¶ 25 As to the trial court‘s decision to dismiss the complaint with prejudice, noteworthy is the fact that when asked, during oral argument, whether sufficient additional facts might be alleged to overcome the trial court‘s assessment regarding duty, plaintiff seemed to suggest that any additional facts available would not be of such character. Furthermore, following dismissal of the amended complaint, plaintiff has failed to suggest any new theory under which to impose liability. Finally, since we are reviewing the dismissal of the amended complaint, we are mindful that plaintiff did receive a prior opportunity to amend. See Loyola Academy, 146 Ill. 2d at 273. Thus, the trial court did not abuse its discretion in dismissing plaintiff‘s amended complaint with prejudice. See Crull, 388 Ill. App. 3d at 1046.
III. CONCLUSION
¶ 26 For the reasons stated, we affirm the trial court‘s judgment.
¶ 27 Affirmed.