Docket No. 108108.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

RYAN T. SIMMONS et al. , Appellee s, v. JOHN D. HOMATAS et

al . (On Stage Productions, Inc ., Appellant).

Opinion filed March 18, 2010.

J USTI CE GARMAN delivered the judgment of the court, wit h opinion. Chief Justic e Fit

zg era ld and Justices Thomas, Kilbride, and Karmeier concurred in the judg ment and opinion. Jus tice Freema

n concur red in pa rt and dis sented in

part, wit h opinion, joined by Justice Burke.

OPINION

The separate plaintiffs in this case are special a dministrators of the estate s of the decedents, who were fatally injured in an automobile

collision. Plaintiffs allege that defe n dant, On St age Productions, Inc., operator of a strip club, ne gligent ly encoura ged a patr on to consume alcoholic beverages until he bec ame intoxica te d and then required him to drive off the premises, which resulted in the collision that killed plaintiffs’ decedents. Defendant On Stage filed

a motion to dis miss all claims, which was denied by the circuit court of Kane County. The c ircuit court did, however, certify two questions fo rin terlocutory a

ppeal. The court sought guidance as to whether-2- defendant owed a duty of c are to each plaintiff. The appellate c ourt answered both questions in the affirm ative. 386 Ill. App. 3d 998. Defendant

On Stage then appe aled to th

is cour t. Weare ask

ed now to determine wheth er On S tage owed a du ty to the decedents based on its actions the night of the collision.

BACKGROUND No fac tual findi

ngs hav e been ma

de in the c ircuit co

urt in this case, as it arise s from que stions ce rtified on denial o f a motion t o dismiss. Therefore, the follow ing summa

ry of fact s is drawn from the allega tions cont ained wit hin plainti ffs’ co mplaints. Around 9 p.m. on January 4, 2006, John Homatas and John Chiariel lo arrived at Diamonds Gentlemens Club (Di amonds or the club)
, which is operated by defendant On Stage Productions, I nc. On Stage operate s Diamonds as a fully

nude str ip club. The club is located in Du Pa ge Co un ty, whic h prohibits clubs featuring nude dancingfrom recei v ing a lic ense to se rve alc ohol. As a

result, Diamon ds does not serve alcohol to its patrons. However, it does allow patrons t

o bring their own alcohol. Diamonds also sells glasse s, ice, sof t drinks a nd other m

ixers for making a

lcoholic drinks. When Homatas and Chiariello arrived at the club, Ho matas had been driving . Homatas

left h i s vehicle with the club’s valet service,

as the club requires. H oma tas and Chiariello then went inside. The two men h ad brought

with them a fifth of rum and a fifth of vodka. Over the cour se of the next two hours, the two men poured several drinks. They pu

rchased mixers, glasses and ice from the club. Homatas be ca me vi si bl y i ntoxi cated and around 11 p.m. was found by Diamonds’ employee s to be vomiting in the restroom . The emp lo yees

immediately ejecte d Homatas and Chiariello from the club. They

also instructed the valet

service to start Homatas’s car and bring it to the front door. When the car arrived, employ ees opened the driver- side fro nt door an

d direct ed Homatas to leave

the prem ises. Approximat

ely 15 minutes later, Homatas collided with a vehicle driven by A pril Simmo ns. The c ollision resulted in the deaths of Chiariello, Simmons, and Si mmons’ unborn daughter, Addison Elizabeth Simmons. Homatas was injured, b ut has since recovered from those

injuries.-3- Representatives of the decedents’ estat es then br ought su it, alleging bo th c ommon law negligence and liability under the Dramshop Act

(235 I LCS 5/6 –21 (West 2 008)). Ch

iariello ’s estate

is represented

by his father, plaintiff G aetano Chiariello. April’s and Addison’s estates are represented by April’s husband and Addison’s father , plaintif

f Ryan Simmons. The Simmons complaint con tai ns s ix cou nt s. C oun ts I thr oug h IV allege statutory

liability under the Dramshop Ac t for prope rty damage and loss of society for

each of Simmons’s decedents. Counts IV a nd V allege common law claims for w rongful death of April and Addison. The Chia

riell o complaint contains two counts. It allege s
common law wron

gful de ath in cou

nt I a nd alleges a statutory Dramshop Act claim for

property da

mage and loss of society in count II. OnStage moved to dismiss under section 2–615 of the Code of Civil Procedure (735 IL

CS 5/2–615 (West 2008)), assertin g that bo th plaintiff s’ complain

ts fail to s tate a cause of action upon which relief

can be granted. First, On

Stage a rgued that the D ramshop A ct is the sole re me dy f

or actions involving liability from alcohol-r elated injuries, thereby

preclud ing plai ntiffs’ commonlaw claims. Second, OnStage argued that beca u se t he Dramshop Act a pplies onl

y to businesses engaged in the sal e or gift of alcohol, the Dramshop Act does no t extend liability to On Stage as a re sult of its policy of not selling or servi ng alcohol to its pa

trons. The circuit court granted, in part, On Stage’s motion to dis miss. The court concluded that the Dramshop Act did not apply to the club because it did not sell or

give al cohol to its

patrons. It al so recognized th at there is no common law cause of action ag ainst a p rovider o f alcoholi c beverages for injuries arising out of the sale or gift of suc h bevera ges. However, the court allowed plaintiffs’ remaining common law counts to proceed af

ter conside ring wh ether On Stage nonethele ss otherwis e owed a d

uty to plaintiffs. Regarding the Chiariello plaintiff, the court found that

a d ut y existed as a result of a business invitorinvitee relationship between On Stage and Chiariello. Reg arding the Simmons plaintiff, the court conclud ed th at although there was no special relation ship between Homatas and Simmons, a d

uty may exist when the defendant’s affirmative conduct cr eates or contributes to the risk of harm. After c onsideri ng th e fore seeability and likelihood of-4- in ju ry, and the ma

gnitude and cons equenc es of impo si ng a burden gua rding agains t the r isk, the ci rcuit court concl uded t hat On Stage also owe d a duty

to Simmons. As part of it s order d

eny ing On Sta

ge’s mo tion to dismi ss plaintiff s’ common law claims, the circuit court identified this issue

as a question of law suitable for i nterl ocutory appeal p ursuant t o Supreme Court Rule 308 (155 Il l. 2d R. 308(a)). After receiving suggested questions of

law from the parties, the circuit court entered an order certify

ing two questions. First, as to Chiariello: “Whether the defendant, Diamonds, a business operator

who is notsubject to

the Dram Shop Act

[ sic ] (because it does not

se ll or serve alcoholic beverag es upon its premises), owed a du ty of unreasonable risk of harm to a business invi te e Chiariello, who shortly after leaving the defendant’s place of bu siness, was killed in a motor vehicle accident on a publi c high wa y, due to the negligent operation of a motor ve hicle, driven by Homatas, who within a short per iod of time prior

to the afores aid motor v ehicle c olli sion, wa s also an invitee of defenda nt’ s place of business under the following circumst ances:

• where d

efenda nt’ s valet service took control of Homatas’s vehicle upon his entering defendant’s place of business;

• where d

efenda nt as par

t of its b usines s plan encouraged its invitee H omatas to bring an d consume alcoholi c beverages to and bey ond the point of intoxication upon its pr

emises;

• thereaf te r remove d its invite e Homata s from its premises due to his intoxication;

• ordere d and assi sted the in vitee Homatas in

to th e driver seat of his vehicle;

• ordered invitee Chiariello off the prem ises and i nto the intoxicated Homatas’s vehicle;

• a ll owed said intoxicated invitee Homatas to drive the vehicle away

from the premises and o nto the public hi gh wa y;-5- • where defendant

was aware that

its business invitee Chiariel lo was a

passenger in said vehicle and the driver invitee Homatas had a level of intoxication which was obvious enough that a reasonable person would ha v e determined

that he was unable to operate a m ot or vehi cle[. ]” Then, as to Simmons: “Whether the defendant, Diamonds, a business operator who is not subject to the Dram Shop Act [ sic ] (because it does not sell or s erve al coholic b everag es upon its premises ), has a duty of o rdinary

care to the Simmons P laintiff

s, who whil e motoring on a public highway , were killed d ue to the negligent operation of a

mo tor vehic le drive

n by Homatas, who within a short period of time prior to the aforesaid motor vehicle collision, was an in

vite e of defendant’s place of business u

nder the following

circumst ances:

• where d

efenda nt’s vale t service to o k control of Homatas’s vehicle

upon his entering defendant’s place of business;

• encoura ged its i nvitee Homatas to br

ing alc oholic beverages onto its pre

mises in order consume to the point of intoxication;

• there aft er removed its invitee Homatas from the premises because of his intoxication;

• ordered and as sisted the invitee Homatas into the driver seat of his vehicle;

• thenafter c ontrolling

its invitee ’s automo

bile while he was on its premises, relinquished said auto mobile into the hands of its invitee Homatas

• while defendant knew or should have known th at due to Homata s’s intoxica tion he wa s unable

to operate a motor vehicle;

• then allowed said Homatas to drive the vehicle away from the p remi ses o nto th e pub lic hi ghw ay [.]” OnStage appealed theorder certify ing the above questions. The appella te court allowed the app eal. In reviewing the case, the court-6- asked the parties to file supplemental briefs on whether section 876 of the Restatement

(Second ) of Tort s provide s a

basis upon

which it could fi nd a d ut y exi sted. Section 876 addresses the liability of a defendant for har m resultin

g to a thi

rd person from the tort ious conduct of another. In its published decision, the court concluded that section876 do es provid

e the bas is of a dut

y O n Stage

owed to bo th plaintiff s. Thus, the court answered both cert i fied questions in the affirma tive and r emanded for fur ther pro ceeding s. OnStage p etitioned

for lea ve to appe al the ap

pell ate co urt’s decision, which we

allowed p

ursuant t o Supreme

Court Rule 315 (210 Ill. 2d R. 315). For the r ea sons that follow, we hold that On Stage owed a duty of c are to bo th plainti ffs, answer both certified questions in the affirmative, and rem and the cause for further procee dings.

ANA LYSIS Our review of the appellate court’s ruling on certified questions is gov erned b y Rule 308. Certified questions, by definition, are qu estions o f law that we review de novo. We generally limit our review to the certified questions, but in the interests of judicial economy and the ne ed to rea

ch an eq uitable r esult we may

also consid er the propr iety of the ci rcuit co urt orde r giving rise to the se procee dings. Vision Point of Sale, Inc. v. Haas , 226 Ill. 2d 334, 354 (2007). Inanswering the certified questions, we first note, as did the appella te court , that t he que stio ns di ffer sl ightl y as to the ir wor ding. Both wording s, however, reflect the same concern with determining whether On Stage ow ed a dut y to each pla intiff. Therefor

e, we wil l consider both of these similar questions together, condu cting a single analy sis. OnStage first contends that the legislature ha s preemp ted all alcohol-related

liability with passage of

the Dramshop Act. On

Stage
re lies primarily on Charles v. Seigfried , 165 Ill. 2d 482 ( 1995), t o argue that the D ramshop Act alter ed the common law r

ule tha t no liability existed on the part of a

seller of alcohol, but that it

extended liability only to those licensed by the state to sell alcohol, a nd precluded liability for all other

alcohol-related injuries. On Stage a lso-7- cites cases discussed in Charles and those which i n turn have since followed Charles . There fore, w e next summa rize this bo dy o f case law. Charles was no t the first case in Illinois to consider whether a

common law acti on exists in addition to liability under theDramshop Act, or in ca se s w he re th e D ra ms ho p A ct do es no t a pp ly. How ever, C ha rles explained

in detail t

he histor y of liability associa ted with furnishing alcoholi c beverages. As On Stage notes, this history

began with the co urt recognizing that there is no common law cause of actionfor inju

ries a rising o ut of the s ale or gift of alc oholic bevera ges. Charles , 165 Ill. 2d at 486. The basis for this common law rule is that the

drinking of an into xicant is t

he prox imate cause of suchinjuries, and the furnishing of the beverage is too remote to be considered the pr oximate cause of any injuries. Charles , 165 Ill. 2d at 486. In1872, the

legisla ture cha nged th is rule, to a limited exte

nt, with passa ge of

legislation that is now referred to asthe Dramshop Act. At that time, foll owing th e Civi l War, the temperance movement took advan tage of wha t this court called a “great wave ” of reform, and sought to enact laws that would “ ‘provide against the evils resulting fromthe sale

of intoxica

ting liqu ors in the

St ate of Illinois.’ ” Cunningham v. Brown , 22 Ill. 2d 23, 27 (1961), quoting 4 E. Bogart & C. Thompson, A Centennial History of Il linois 42-44 (1920). The Dramshop Act

extended liability to persons who sold or gave alcohol to persons w

ho later injured th

ir d par ties as a result of being intoxicated. Charles , 165 Ill. 2d at 487. In1889, this court clarified that the Dramshop Act create d a cause of action only ag ainst those engaged i n the li quor trade. Cruse v. Aden , 127 I ll. 231, 239(1889). T he legi slature did not intend to extendliability

to a socia l host “who , in his own house, or elsewhere, gives a glass

of in tox icating liquor to a friend as a mere ac t of courtes y an d politeness.” Cruse , 127 I ll. at 239. The cour t again emphasized

that under the common

law rule , no liabili

ty a ttached to
one who furnished alcohol to another person. Cruse , 127 I ll. at 234. More recently, this cour

t reaffirmed that the Dramshop Act is the exclusive re me dy f

or h olding providers of alcohol liable for the actions of an

intoxicated person. In Cunninghamv. Brown , 22 Ill. 2d 23 (1961), a wife sued tavern operators for prov iding al cohol to her-8- husband, who become intoxicated and despondent, and took his own life. The wife sought

a remedy under what was then section 12 of the Dramshop Act, which did not provide an e xpress re medy . She also

so ug ht to re co ve r u nd er a c om mo n l aw th eo ry o f l ia bi li ty. The court concluded that neither cause of ac tion was appropriate. A particular

remedy wa s provided elsewhere within the statute. The plaintiff’s interest s were in tended to be protected by that remedy alone. Cunningham , 22 I ll. 2d at 29. T hus, no co mm on la w r em ed y, and no indepe

ndent sta tutory remedy , was avail able to the wife as agains tthe tavern

operator who had provided alcohol to her husband. Cunningham , 22 Ill. 2d at 30-31. Since Cunningham , this cour t has rep eatedly

reaff irmed the se conclusi ons. Thus, it is well established thatunder the common law,

no li abil ity i s imposed on a person who giv es or sel ls alcoho l to another person w

ho later harms a th

ird party while intoxicated. Hopkins v . Power

s , 113 I ll. 2d 206, 2 11 (1986) ; Demchuk v. Duplancich , 92 Ill . 2d 1, 5 (1 982); Knierim v. Izzo , 22 Ill. 2d 73, 77 (1961). It is also established that the DramshopAct imposes lia

bility only on th ose pers ons officially eng aged in the business of selling liquor in the State of Illinois. Wakulich v. Mraz , 203 Ill. 2d 223, 237 (2003) (rejecting soc ial host lia bility ); Charl es , 165 Ill. 2d at 491 (same). Under these long-standing pri nciples it is evident that On Stage is not subjec t to li abili ty under t he Dram shop A ct. On Stage neither is in the busine ss of selli

ng liquor in Ill inois nor is

it providing alcohol as a

“soci al hos t.” Al thou gh the club provided glasses, ice and mixers to its patr

ons, the c lub did not provide a lcohol to eithe r Homatas or Chiar iello. The circ uit court was, ther

efore, correct in

co nc lu di ng th at th e D ra ms ho p A ct do es no t a pp ly. OnStage’ s primary

argume nt, howev er, is that

the Dramshop Act further acts to pr

eempt an y ot her liab ilit

y resulting from Homatas’s intoxica ti on. On Stage relies on a statement in Charles that the r ule inIllinois is “firmly

established” that the General Assembly “has preempted

the entir e field o f alcoho l-relat

ed liabili ty th rough it s passa ge and continua l amendment of the Dramshop Act.” Charles , 165 Ill. 2d at 491. For the rea sons below, however, we conclude that reliance on this stat

ement is misplaced. Although this statement from Charles applies broadly to those who provide alcohol to another-9- person, it does not extend so fa

r as to pr eempt a common la

w cause of action un der the c ircumsta

nces posi ted by the cer tified que stions. The body of law cited by

OnStage a

nd discuss ed above

primaril y focuses on the lia

bility of those persons providing alcoholto a patron
or guest wh o u lt im at el y ca us e i nj ur ie s t o a th ir d p ar ty. Both Cruse and Charles asked whether socialhosts wer e subjec t to liability under the Act. In Cun ningham the defe ndants we

re tave rn opera tors. The se cases de monstrate that the Dramshop Act

provides a framework for determining whether

a provide r of alc oh ol wi ll be ex po se d t o l ia bi li ty. If the provi der is a busines s that sell s alcohol , liability may attach, but only under the Dramshop Act, not under thec ommon law. If the provider is merely a socia

l host, liability will not attach, either under the statute or under the common law. What the abo ve cases do not discuss is liability for injuries that arise not as a re sult of the provision of alcohol, but as a r esult of the encouragement of, or a ssistance in, tortious c onduct. The preempt

ion stated in Charles was limite d in exactly this wa y. Inthat case, this court concluded “few rules of law are as c lear as that

no liability for the sale or gift of alcoholic beverages exists in Illinois outside of the Dramshop Act.” (Emphasis added.) Although the Charles court used the phrases “alcohol-relat e d liability” ( Charles , 165 Ill. 2d at 490) and “al c ohol-induced injuries” ( Charles , 165 I ll. 2d at 489), t he court ’s analy

sis addre ssed only

claims arising from the defendant’s provision of alcohol. The court did not need to consider whether actions of the defendant, independent of providing

alcohol, led to the third party’s injuries. This distinction is relevant to the present case. We have previously r

ecognized this distinctionin the more recent
caseof Wakulich v . Mraz , 203 Ill. 2d 223 (2003). I n that case, the plaintiff alleged that

a pair of brother s, social hosts, provided alcohol to the plaintiff’s minor daughter. The daughter became intoxicated

as
a result and became unconscious. She began “vomiting profusely and making gurgling sounds.” Wak ulic h , 203 I ll. 2d at 22 7. The hos ts removed her soiled blouse and provided a pillow under he r head to prevent aspiration, but did notdrive her home or c ontact he

r paren ts, and prevented others at

the home from calling 911 or seeking medica l1 Although this cou rt’s opinion

in Wakulich does not provide details as to the events follow

ing the daughter’s rem

oval from the house, the appella te court noted that she was taken first to a friend’s house, and later to the hospital, where she was pronounced d ead. Wakulich v. Mraz , 322 I ll. App. 3 d 768, 770 (2 001).

2 Following this cou

rt’s decision in Wakulich , the G eneral A ssemb ly enacted legis lation t

hat cre ated a cau se of action based on the liability of pers o ns, including social ho sts, who provid e alcohol to, and cau se the intoxication

of, a perso n under 18 years of ag e. 740 IL CS 58/5 (West 2008).

-10- attention. The daughter died the following day , af ter the broth ers’ father allegedly

ordered them to remove her from the house. 1 T he Wakulich plaintiff

sued the brothers , alleg ing th ey wer e negligent inproviding alcohol to her daughter and negligent in failing to act rea sonably

to protect her af

ter volun tarily underta king tocare for her after she became unconsc ious. Wakulich , 203 Ill. 2d at 227. In affirmingthe dismissal of the negligence claim rela ting to the brother s’ providing alcohol to the dau ghter, we reite

rated th at Il linois law does not recognize social host liability f or the provision of alcohol, citi ng Charles

. 2 Regarding the plaintiff’ s voluntary undertakingclaim, however, we agre ed with the appellate court that this claim should not have been dismissed. Wakulich , 203 Ill. 2d at 246-47. We reasoned that the fact the brothers served associal ho sts
was irrelevant to this claim. Instead, the brothe rs’ liability arose “by virtue of their volu ntary assumption

of a duty to care *** irrespective of the ci rcumstan ces lea ding up to

that point.” Wakulich , 203 Ill. 2d at 242. The appella

te court has alsorecognized situations where liability

arose not f rom the provision of alcohol to a patron, but from the actions of the defendant tavern after the pa tron had becom e intoxicated. A cockta

il lounge owner was held responsible for f ailing to protect a patron from an attack by another intoxicated, belligerent patron. L e ssner v. H

urtt , 55 Ill. App. 3d 195, 197 (1977). The court recognized

the rule in Cunningham barringliability for the sale or g ift of alcohol, but concluded that the lounge owner still owed a duty to protect its patrons while on the premises. Lessner was subse quently-11- cited in Harris v. Gower, Inc. , 153 Ill. App. 3d 1035, 103 7 (1 987 ). In Harris , a bar patr

on beca me intoxica

ted, and s ubseque ntly became

unconsc ious, after being served sever al drinks. Bar em

ployee s then

remove d the patron from the bar and placed him in his vehicle. Overnight

the patron froze to death. The co urt con cluded that allegations that the bar served the dec edent alcohol were significant only insofar as to how he b ecame u

nconscio us. Aga in, liabili ty a rose notfrom providing alcohol, but from the bar e mploy ees’ negligence inplacing the dece dent in pe ril. Harris , 153 I ll. App. 3d at 1038. B oth of these cases involved an “alcohol-related injury ,” yet ea c h he ld a

cause of action existed based on negligence unr elated to serving alcohol. OnStage arguesthat the appellate court later recognized Harris
as being ba sed o n premises liability and that it later distinguished Harris in Holtz v. Amax Zinc Co. , 165 I ll . Ap p. 3d 578 (1988). The court’s distingu

ish ing of Harris , however, only e mphasizes the difference betw een the mere furnishing of alcohol to a pe rson and

co nduct that aris es to negligenc e indepe ndent of p

roviding alcohol. In Holtz , an employee

became intoxicated at a company p icnic and later drove away , which resulted in severe injur ies to the plaintiff. Holtz , 165 Ill. App. 3d at 579-80 . The plaintiff argued that the employer was neg ligent in

permitting the employe e to leave, knowing that the emplo ye e was into xicated. T he court held that an emp lo ye r cannot be liable “where its agents have simply failed to take steps to prevent an intoxicated employee fr om driving home.” Holtz , 165 I ll. App. 3d at 583. As On Stage notes, the court distinguished Harris as based on premises liability . Howeve r, just a s the voluntary underta king doctrine allowed rec o very in Wakulich and the du ty o f a tave

rn to protect its patron s f

rom violence allowed recovery in Lessner , pre mises liability in Harris was merely one vehicle through w

hic h negligent conduct independent of serving alcohol c ould be pr

operly pled. Thus, in Holtz , the employer wa s not liable, as there was no f urther conduct, bey

ond servi ng alco hol, that e xposed the e

mplo ye r to liability. The court in Holtz properly he ld that merely per mitting an in to xi ca te d e mp lo yee to le av e d oe s n ot cr ea te li ab il it y. Si mi la rl y, On Stage’s duty does notarise from providing alcohol to Homatas. Indeed, the pa rties agree that

the club did not

provide any-12- alcohol at all. Ra

ther, a d uty under the

facts a ll e ged arose later, following a series of actions taken by c lub employ

ees in re sponse to discoveringHomatas vomiting in the club’s restroom At that point, employees

all eged ly ejected H omatas and Chiariello from the club, ordered the parking attend a nt to bring Homatas’s car around to the front door, and assisted Homatas and Chiariello into t he vehicle, directin g him the n to leave the prem ises. OnStage also relies, in part, on Wienke v. ChampaignCounty Grain Ass’n , 113 I ll. App. 3d 1005 (198 3), to con

tend that he lping Homatas to his vehi cle does n ot t rigger liability . In Wienke , the plaintiff s’ decede nts were inju red wh en an intoxicated employee of the defendant, while driving, collided with the decede nts’ vehicle. Wienke , 113 Ill. App. 3d at 1005-06. Prior to thecollisi on, the employee had been attending

an event sponsored by

the defendant, at whichhe was served alcohol. The empl oyee lef t the event with two coworke rs. The coworkers drovethe employee to his vehicle , which

was parked a

pproximate ly

four miles from

the event. At that time, the intoxicatedemployee e

ntered his vehicle and drove away , later causing the collision. Wienke , 113 Ill. App. 3d at 1006. The court first rejected a theory of liability based on

the defendant having furnished

alcohol t o its employ

ee, con sistent wit

h both its own precedent and this c ourt’s ho ldin g in Cunningham

. Wienke , 113 I ll. App. 3d at 10 09. T he court also considered whether having coworkers drive the emplo ye e to his c ar, kno wing he was intoxic ated, co

uld trigger liability for th e employer. I

n so doing, the court cited Gustafson v. Mathe

ws , 109 Ill. A

pp. 3d 884 (1982). In that case, a n intoxicatedpatron was assisted by bar employ

ees out to the parking lotto his van, where h

is five ch ildren ha d been wa

itin g. The pat

ron drove away

and later collided with a

truck, killing the patron and four of the children. Gustafson , 109 Ill. App. 3d at 885 , 88 6. The Gustafson court held that common law imposed no du ty on the bar owners, sug gest ing that

to do so wou

ld requir e imposing

the same duty to all owners of parking lots, and would re quire the

m to “evalua te the beha

vior of th eir customers to determine whether they have the capacity

to drive safely.” Gustafson , 109 Ill. App. 3d at 887. The Wien k

e court echoed this statement, indicating that finding liability would “imp ose a heav y bu rden upon those *** who aid-13- others who may be intoxicated in ge tting to their automobil es.” Wienke , 113 Ill. App. 3d at 1010. Gustafson and Wienke , according to On Stage, repres ent cour

ts’ efforts to preve nt open-e nded liab ility

for dra m shops, r estaura

nts, parkinglot owners and others that may be put in a position of

helping

a patron to his or her vehicle. On Stage arg ues that allowing recovery in this case would open such a “Pandora’s box.” We disagree

. Of conc e rn to the courts in Wienke and Gustafson was whether persons should be given the burden of determiningwhether a person

was intox icate d and whether that person would drive safely or
re ck le ss ly. Howeve

r, our de cision in th

is cas e does no t implicate those concerns. On Stage took on the burden of determining whether Homatas was dangerously int oxica ted when club employe es discovered

him vomiting

in the re stroom, a

likely result of

his intoxication. On Stage, on its own initiative, made this determination and expelled Homatas from the club. In doing so, On Stage acquired

a duty not to encourage and assist Homatasin the tortious conduct of driving while into xicated. On Stage , in effe ct, arg ues both that it should not be required to determine whether a patron is intoxicated and that it cannot

be not re sponsible

when it nonethele ss volunta rily chooses to make that determination and then facilitates that patron’s tortious conduct. Such an a rgumen t is u nt enable. We conclude that the Dramshop Act does not preempt plaintiff s’ common

law clai ms inthis case, a

nd doe s not preclude imposing a duty of care on On Stage. Inaddit ion t o preem ptio n, On S tage also argues that to impose a duty in this case requires that there be a special r elationship between OnStage and the decedents. On Stage c ites s everal cases r equir ing a special relationship bef

ore adefendant may

be held liable for the criminal acts of a

third par ty. Howeve

r, its rel iance on

thesecases is misplaced. OnStage is correct

that a special relationship is required in order to impose a duty on

the defendant to protect others from the criminal acts of a third pa

rty. Ise berg v. G

ross , 227 Ill. 2d 78, 87 (2007); Restatement

(Second) of Torts §§314, 3 14A (1 965) ( concer ning a duty to act for the protection of others, and requiring a special relation ship for such duty to arise) . This is tru

e becau se a priv ate person gener ally has no af

firmativ e duty

to contro l th e co nduct of-14- another to prevent such an act. Hills v. Bridgevi e w Little League Ass’n , 195 I ll. 2d 210, 228 (2000). H owever , this case doe s not raise

a question as to whether On St age had a duty to control Homatas’s conduc t. Indeed, had Homatas le ft on his own, and On Stage was alleged to have merely

fai le d to prevent him from leaving the club anddriv ing away

intoxicated, sections 314 and 314A of the Restatement

may have a

pplied. Under those circ

umstance s, no duty would have arisen absent a special relationship. As discussed above, however, this case

implicates a different section of the Res tatement

. Sectio n 876 im

poses liability on those persons who act in conc ert withan othe r tortfeasor, giving substantial assistance o r encouragement

to another’s tortious conduct. Restatement (Second) of Torts §876 (1979) (describing in-conce rt liability). Thesesections of the Restatement are not incons istent. Alth ough

one do es no t h av e a du ty t o p re ve nt th e c ri mi na l a ct s o f a th ir d p ar ty,
one does have a duty

to refrain from assisting and encoura ging such tortious conduct. If a plaintiff can demonstr ate that t he defe ndant did

no t me re ly f

ail to act, but also assisted the third party, the n the requirement

of a special relationship no longer applies. Although On Stage argue s that Elizondo v. Ramirez , 324 I ll. App. 3d 67 (2001), involved similar

facts to the instant case, that case instead serves a s an example of how the two Restatement sections differ. In Elizondo , the par

ents of a 15-y ear-ol d girl a

llowed the

girl to have a party

at which she provid

ed alcohol to her u

nderag e frien

ds. A tthat party, the plaintiff’ s decedent was killed in a f ight wit h another of the pa rty ’s gues ts who was a member of a rival gang. The plaintiffs argued that no special relationship was nee ded to impose

a duty on the girl’s parents. Thecourt disagreed, however, r eaffirming that a sp ecial re lationship

is requir ed in such

situations . These f

acts
are not analogous to those presented this case. The par ents in no way assisted or

encouraged the actions of the fighting party

guests. They did not provide a weapon or

in st iga te t he d is agr eem ent . In Elizondo , the parents

merely failed to

prevent the f

ight. In this case, the appella te court discerned that

plaintiffs’ complaint raised a question under section 8 76, in

that plaintiffs allege d not that O n Stage merely failed to act, but that it affirmatively a ssisted Homatas in driving while intoxicated. Under s uch circumstances, plaintiffs need not establish a special relationship.-15- Under the circ umstance describ ed by

the circ uit court , the Dramshop Act does not pree mpt a claim under section 876 of the Restatem ent. Nor does section 876 re quir e plaintiffs to prove a special relation ship betwe en the de fendant and the de cedents

. Therefore, we conclude that On Stage owed

a duty to both pla

intiffs’ decedents, and answer the cer tified questions in the affirmative. OnStage argues, in the alternative, that even if the Dramshop Act does not preempt a cause of action under section 876, and On Stage did indeed owe a duty

to the decedents, the plaintiffs have not allege d facts sufficient to state a cause of action u nder tha

t section. Thus, according to On Stage, the circ

uit court n

onethele ss erred in deny

ing its motion to dis miss plaint iffs’ common law c laim s. A gran t or denial of a motion to d

ismiss is a

question of law that we review de

novo

. Wakulich , 203 Ill. 2d at 228. The comment to subsection (b) of section 876 lists five factors to be consider

ed in determining whether in-concert liability will attach. Thesefactors are (1) the nature of the act e ncouraged, (2) the amount of assistance given by

the defe n dant, (3) his presence or absence a t the time of the tort, (4) his relation to the other and (5) his state of mind. On Stage arguesthat plaintiffs’ complaints are not premised on these factors, and the facts relied upon by the appellate

court do not state a c ause of a

ction bas ed on thes e factors. The question of whether a defendant has substantially assisted or encouraged

another person in his tortious conduct based on the above factors is a question for the jury. Sanke v. Bechina , 21 6 Ill. App. 3d 962, 971-72 (1 991). On St age c ontends that the co mplaint fa ils, on its face, to allege the necessary facts. An examination of p laintiff s’ complain t does not s

upport On

Stage’ s argument. To state a cause of action under section 876 , plaintif fs must demons trate that On Stage knew Homatas’s conduct constituted a breach of dut y and that On St age ga ve substantial assistance or encouragement

to Homatas in co mmitting that breach of duty . The

comments to that section further note that “[a]dvice or encou ragemen t to act operates as a moral support to a tortfeasor and if the act encouraged

is known to be tort i ous it has the same effect upon the liability of the advi ser as participation or phy sical assistance.” Restatem ent (Sec ond) of T orts §876, Comment d , at 317 (1979).-16- Inthe Sim

mons co mplaint, Sim

mons alleg ed in both o f his common la

w countsthat

On Stage knew or should have known that Homatas was intoxicated and was le aving t he prem ises b y driving a vehicle in that state. Simmons also alleged that On Stage “removed” Homatas from

the club, and “negligently and carelessly

directed John D. Homatas *** to leave the premises of the club.” Si mi la rl y, the Chiariello p la intiff al leges t hat Homat

as beca me visibly into xica ted at the cl ub, af ter pu rchasi ng m ixers and glasses fromOn Stage employ

ees. The complaint al leg es tha t On S tage employees

sometime

later the n discove red Homa tas vomitin

g in the bathroomand ejec

ted him fr

om t he cl ub. Chiariello further alleges that empl oyees dire cted the valet service to bring Homatas’s c ar, opened the door for him when it arrived, and dire cted H omatas to drive aw ay

from the p

remises. The above facts, as alleged, ar e sufficient to state a cause of action f or common law negligence under section 876. In thi s case, a
reasona ble jury could find that On Stage knew that the act of driving while intoxicate d is tortious c onduct an d constitu tes a breach of duty toward others traveling on the public highway s. Further, from the face of the complaints, plai ntiffs allege On Stage knew Homa tas was intoxicated, and clea

rly knew he was drivin

g from t he prem ises. A

reasona ble jury could als o conclu

de that ejecting Homatas from the club, having the parking valet bring Homatas’s c ar to the front of the club, and assis ting him in

to his vehi cle and directing him to drive off constitutes subst anti al assistance from, or encourag ement by, On Stage toward Homatas in his tortious c onduct. OnStage argues, howeve r, that plaintiffs’ complaint s alle ge nothing about On St age encouraging Homatas to spee d, drive on the wrongside of the road o r o therwise drive erratically once Homatas had left the club. Plaintiffs respond that On Stage need not have been present at the time of the collision in order for liabi lity

to attach to its conduct. We agre e with pla intiffs. A case upon which On

Stage r elies is Wolf v. Liber is , 153 I ll. App. 3d 488 (1987). In Wolf , the defendant

had a fig ht with her fiance while having dinner at a restaurant. During the dinner the defendant had several glasses of wine. The two went home separately . Later, the defenda nt, intoxicated, dr ove to her fiance’s apartment. After resolving their dispute, the d efendant’s fiance offered to follow her-17- as s he drove home. During the drive the def endant crashed h e r vehicle into a store window. The fian ce back ed the car out of the store. He told the defendant to stay there as he went to call the police. The defenda

nt, however, chose to leave the scene. A fter she

left, her fiance became involved in a strug gle w it h se ver al a ss ail ant s. In his efforts to get away , he lost control of his car, striking the vehicle being operated by

the plaintiff’s decedent. The plai ntiff soug ht to

recover from the defendant

on a theory of

in-concert liability, alleg

ing she had a ssisted an

d encour aged h er fiance’s tor

tious cond

uct. We find Wolf

to be inapposite. The appellate court in Wolf concluded

that beca

us e defendant had already driven away

by the time of the accident, she could not have assisted or enc ourag ed his conduct. The defendant did not suggest or require her fiance to do any thing tha t would have caused him to act

negligently . She left the

scene before she could have induced her fiance to drive in a particular

manner. Wolf

does not stand for the proposition

that a de fendant

must be present in order to encourage tort io us conduct. Rather, Wolf is merely an example, under particular circumstances, of a ctions that do not rise to assistanc e and encourag ement. In Wolf , the defendant made no sugge stions as to what her fiance should do in respon se to his being assaulted or required him to take

a ny action. Here, On Stage is alleg ed to have required Homatas t o leave the club, placed

him into his vehicle, and required him to leave its premises. Under

the plaintiff’s theory, On Stage provided only one option for Homa

tas to lea ve its pre mises. That option was to leave, by car, even though it had determined that Homata s was intoxicated. OnStage a

lso cites Fugate v

. Galvin , 84 Ill. App. 3d 573 (1980), whichupheld the g eneral ru le that passengers of a car are not responsi ble for damages caused by the driver, unless the

passeng er is the owner of

the car , or other

wise has a

right t o control the vehicle. Fugate , 84 Ill . App. 3d a

t 575. I n that ca se, the pa ssenge

r asked h is intoxicatedfriend to drive him to another friend’s hous e . The appella te court rejected the argument that the p asseng er was li able for putting the driver “in motion.” Fugate , 84 I ll. App. 3d at 574. In the appella te court’s view, “[t]he decision to take to the road in an intoxicatedcondition remained the driver’s alone.” F ugate , 84 I ll. App. 3d at 576.-18- Fuga te is also re adily

distingu ished. Th e context o f a frie n d simply asking another friend for a ride home is significantly diff erent fromwhat plaintiffs allege in this case. Here, H o matas’s choices of actionwere limited

by his having c lub employeesbring him his car, opening his door, placing him inside and requiring hi m to leave the premises

. The facts, as alle ged by plaintiffs, do not suggest that On Stage was makinga reque st of Homa tas. I nstead th ey

sugge st that On Stage left Homa

tas little c hoice but to drive h is vehicle off the club’s propert y a nd onto the

public hig

hway s. As the circuit c ourt rec ognized, this case presents a set of special circumst ances. We do n ot hold today that restaura nts, parking lot attenda nts or social hosts are required to moni tor their patrons and guests to determine whether they are intoxicated. We hold only that where, as here, a defendant is alleg ed to have removed a patron fo r being intoxicated, places the patron into a vehicle and requires him to drive off, such fac ts are sufficient to state a common law negligenc e cause of action that is not preempted by the Dramshop Act.

CONCLUSIO N We answer both certified question s in th e affirmative, and remand this cause to the circuit court for furth er proc eedin gs consiste nt with this opinion.

Certified questions answered; cause remanded.

JUSTICE FREEMAN , concur

ring in part and dissenting

in part: Iagree that the c ircuit co

urt corr ectly dismi s sed plain

tiffs’ Dramshop Act claims. Slip op. at 13. The more difficul t question is whet her plaintiffs have adequatelypled common law claims for inconcert liab i lity. I t was this issue that prompted the certified questions and the ap pella

te court’s request for additional briefing on se ction 876 of the Resta tement (Se cond) of

Torts. I do not agree

th at plainti ffs’-19- complain ts, as curr ently pled, ade quately

state a cause of action based upon section 876. Section 876 of the Restatem ent (Sec ond) of T orts sets f orth three situations of “in-concert” liability . Relevant here, section 876 provides : “For

harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

*** (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 ***.” Restatement (Second) of Torts §876(b), at 315 (1979). Comment d

to section

876 furth er explain s: “Advice or encou

ragement to ac t operate s as a mor al support to a tortfeasor and if the act encoura ged is known to be tortious it

has the sa

me e ff ec t u po n t he li ab il it y of the adviser as partic ipation or physical assistance . If the encouragement

or assistanc e is a

substantial factor in causing the resulting

tort, the one givin

g it is himself

a tortfeasor and is re s ponsible for the consequences of the other’s ac t.” Restatement

( Second) of Torts § 876, Comme nt d , at 317 (1979). This comment also stresses, however, that liability does not easily attach, cautioning that “[t]he assistanc e of or participation by the defendant may be so slight that

he is no t liable for the act of the

o t her.” Restatem ent (Sec ond) of T orts §876, Comment d , at 317 (1979). In determining whe ther the “substantial assistance or
encoura gement ” required for imposition of in-concert liability exists, t he comment in structs that the fo llowing f ive fac tors a

re to b e considered: “[1] the nature of the act encourag ed, [2] the amount of assistance given by

the defendant, [3] his presence or absence at the time of the tort, [4] his rela tion to the o ther and

[5] his state of mind ***.” Restatement (Second) of Torts §876, Comment d , at 317 (1979). This court has not addressed the question of what must be pled

to establish in-conc ert liabi lity , but our a ppellate court ha s. Appella

te-20- decisions establish

that a pe rson is lia ble under this pro vision when tw o elemen ts are met: (1) he knows that the other person’s conduct is tortious; and (2) he “ gives su bstantial assistanc e or enc ourag ement” to that person to engage in tortious conduct. See, e .g. , Kohn v. Laidlaw Transit, Inc. , 347 Ill. App. 3d 746, 758-59 ( 2004), quoting Restatement (Se cond) of Torts §876(b), at 315 (1979); Fortae v. Holland , 334 I ll. App. 3d 70 5, 716-17 (2002); Sanke v. Bechina , 216 Ill. App. 3d 962, 964 (1991). The appella

te court has also q

uoted fr om commen

t d o f section 876 to underscore that the five factors make up the element of “substantial assistance or enco ura gement,” and that for in-concer t liability to attach, heighte

ned culpa bility is required to the extent that

a defendant’s conduct must be “more than benig n.” Sanke , 216 I ll. App. 3d at 971; see also Kohn , 347 Ill. App. 3d at 759 (the Restatement

makes a d

isti nction “ in assessing the quality of a de fe nd an t’ s c on du ct be fo re su bj ec ti ng th e a ct or to li ab il it y, i.e. , it is notenough that

a defendant assist or

encoura ge ano ther to e

ngag e in

a tort; rather, to subject a defendant to liability , the assistance or encouragement

must be sub stantial, not mere ly slight” ); Fortae , 334 Ill. App. 3d at 719-20 (an analy sis of in-conc ert liabi lity

“calls for us to look at the

langua ge in the commentary [to] subsection (b) *** to determine if [defen

dant’s] pa

rtic ip ation was so slight that one defendant was to not be liable for the act of the other ”). Under this authority, there might indee d be a basi s for in-concert liability in this case. But

that would require allegations that Homatas

was intoxicated to the point of rendering him incapable of s afely operatinga motor ve

hicle, th at this im

pairment was obvio

us to defendant’s emp loy ees and they were a ware of it, and, de spite this knowledge, the employees plac ed him behind the wheel of

a running motor vehicle and sent him off, the equiv alent of a ticking time bomb. Such conduct might constitute the “moral support to a tortfeasor” referenced

in commen

t d , and as illustrated by its accompany ing five factor s, as well as the “substant ia l assistance” contemplated by the Restatement. The allegations of the complaints he re, h owever , do not co me close to that. It is enough for the majority that the

complain ts allege that defenda nt knew th a t Homatas was drunk, knew that drunk driving is tortious c onduct, a nd knew that he wou

ld drive away

from-21- defendant’s premises. Slip op. at 16. The element of kno wledge, however, is only one element to be ple d and proven under section 876, and it is not

the same as “substantial assistance.” As one lega l commentator has recognized: “There are *** occasional statements that mere knowledge by each party of wha

t the other is doing i s suffici ent ‘con cert’ to make each lia

ble for the acts of

th e othe r, but this s eems clearly wr on g. Su ch kn ow le dg e m ay v er y we ll be important evidence that a tac it unders tanding exists; but sin

ce ther e is ordinar ily no duty to take affirmat

ive steps to int erfere, the mere presenceof the particular defendant at the commission of the wrong, or his failure to o bject to it, is not e nough to charge him with responsibility.” W. Prosser, Torts §46, at 292 (4th ed. 1971). Inother words, t

he ele ment of “substantial assistance or

encoura gement ” is not satisfied by alleg ations thata defendant failed to prevent another’s tortious cond uc t. Plaintiffs’ complaints are deficient in pleading the “subst antial as sistance or encou ragement” element as required

by our fac

t-pleading standards. Estate of Johnson v. Condell Memorial Hospital , 119 Ill. 2d 496, 509-10 (1988). Of the two complaints, Chiariello’s comes nearer to establishing the basis for in-concert liability . A close look at wha t is actua lly alleged shows the error in the majority ’s conclusion. According to the complain t, once Homatas arri ved at th e c lu b, hi s c ar wa s “ me t b y a valet, Homatas paid a valet fee, and [his] car was then driven away .” During the two ho

urs Homat

as w as at the clu

b, he “be came vis ibly intoxicated, but employee s of [the cl ub] continued to enc ourag e [him] to pour himself drinks and to that end provided him with additional mixers and ice.” At 11 p.m., Homatas, “exhibiting obvious sy

mptoms of extreme intoxication, and perhaps, acute alcohol poisoning, began vomiting in [the club ’s] bathroom

. ” At that time, it is alleged that club employees “disc ov ered th at Homatas was vomiting in the bathroomand immediately ejec ted both Homatas and Chiariello from the establishment.” The allegations that Homatas wa s visibly intoxicated and “perha ps” exhibi ted a lcohol poisoning are conclusory . No facts are alleged to supportthe conclusion of intoxication, i.e. , slurred speech,3 This is p articula rly true here where earlier in the Chiariello comp laint itis alleg ed that c lub em

plo yees were not give

n the pr oper tra ining in identifying “the signs of intoxication.”

-22- compromised

motor skills, etc. 3 Exactly how the conclusion of acute alcohol poisoning

is support

ed is any one’s g uess. Parenthetically, the vomiting that the ma

jorit y relie s on as an i

ndication of possib le intoxication may have nothing to do with the ability

to safely operate a motor vehicle. The elem ent of “substantial assistance” being centra l to in- concer

t li ab il it y, the al lega ti ons conc erning what club

employ ees did with respect to the ca

r deser ve even mo r e careful consideration. Chiariello’s complaint alleges that some 10 mi nutes after Homatas

was found ill in the bathroom, club employees “ ordered the valet service to start Homatas’s car and bring it to the front door of th e club.” Its employ

ees “th en opened the driver’s door of the car and directed Homatas and Chiariello to immediately drive away f rom the premises.” “Directed” mer ely su gges ts that Homatas was told to leave. This cannot be a basis of liability under section 876. The Simmons comp laint is ev en less f actually specific. It alleg es that club employees kne

w or should have known that Homatas “became intoxicated as a r esult of his con sumption of

alcoholi c bevera ges” inthe club. The comp laint fur ther alle ges tha

t “[d]espite their knowledg e *** [empl oye es] negligently and carelessly

directed *** Homatas, while he was in an intoxicate d condition, to leave the premises.” Again, the words “intoxication,” “intoxicated condition,” and “directed” are

conclusions that, alone, are insufficient as a basi s for in-concert

liability. Other

allegations even undermine the notion of potential liability. For example, the complaint states that defe ndant merely “remov[ed] [Homatas] from the premises and allow[ed] him to d rive [his] ve

hicle aw ay

from the p

remises. ” Was Homa

ta s directed to leave or was he al lo we d t o d ri ve aw ay? Neither allegation is sufficient

to establish defendant’s assistance or encourageme nt, as would be necessary

for liability under section 876 to attach. Both complain ts lack the factua l alleg atio ns nece ssary

to establi sh “substantial assistance.” Therefore, I ca nnot ag ree with the major

ity that they adequa

tely plead a c ause of action under section 876.-23- As I earlier noted , the majority’s relianc e on allegations about defenda nts’ knowledge is problematic. Bey ond t hat, the majority takes consider

able licens e in cast

ing the a llegat ions in a lig

ht to support its conclu sion that the compla ints, as ple d, are sufficien t to withstand a motion t o dismiss under section 2–615. For example, with respec t to the allegation that defendant’s employ ees “opened the driver’s door” for Homatas, the majority chara cteriz es the action as the valet “a ssist[ed] him i n to his vehicle.” Slip op. at 16. Neither complaint uses the verb “assisted ” inits allegations. Elsewhere, the majority states tha

t defend ant is alle ged to h ave “pla ced [Homa

tas] into his vehicle.” Slip op. at 1 7. In its conclu sion, the majority again stat es that it is alleged that defendant “place[d] the patro n in a vehicle.” Slip op. at 18. Neither complaint actually alleges this. The majority’s para

phrasing pai nt s a picture of club employ ees throwing a drunken

Homatas out of the club, kicking and scream ing, phy sically

placing him in his car, and commanding him to drive off into the night. That may

be what h appene d, but the c omplaints d o not, in fact, allege this. Alth ough I agre e w i th the majority that defenda nt’s reliance on Wolf v. Liberis , 153 Ill. App. 3d 488 (1987), is misplaced, a nothe r decision, Umble v. Sandy McKie & Sons, Inc. , 29 4 Il l. App. 3d 449 (1998), is hel

pful i n ana ly zi ng this issue. There, it was alleged that employees

of an automotive garage

took possession of

a car brought in by a n intoxicate d custome

r. The c ustomer’ s condition was apparen t to the employ

ees, who repair ed the ca r and re turned it to the customer when he paid f or it. The customer later collided with a car driven by the plaintiff’s decedent. The plaintiff alleged that the defendant was negligent in gi ving car k ey s to an obvio usly intoxi ca ted driver. Umble , 294 Ill. App. 3d at 451. The appellate c ourt affirmed the dismissal of the complaint because the allegations did not “e stablish that defenda nt provided s ubstantial assistance” to the customer. Umble , 294 Ill. App

. 3d at 452. Specific ally , the cour t stated that it could “not equate failing

to preve nt certa in conduct with act

ively encouraging that conduct.” Umble , 294 Ill. App. 3d at 451-52. Umble undersc ores tha

t a plaintiff must plead

more than the fact that a defendant simply a ssisted or encouraged another to comm it a tortunder section 876. The defendant’s repair a nd retu rn of the customer’s car–even though, accor ding to the opinion, the defendant-24- knewthe customer was intoxicated–did not satisfy th is test. Th

is demonstrates that defendant here needed to do more than just return the car to Homatas to constitute the substantial assistance contemplated under section 876. A s thing s stand, plaintiffs have not pled that defendant substantia lly assisted or

encouraged Homatas’s tortious conduct, a n observation

made by the a

ppellate court in r aising the issue of inconcert liability. See 386 I ll. App . 3d at 1013 (acknowledging that “plaintiffs do not appear to have strongly pressed the in-concert liability argume nt befor e the tria l court” ). Accordingly

, it is my view that it is appropriate to remand this cause to allow p laintiffs the opportunity to do so.

JUSTICE BURKE jo ins in

t his partial concurrence and partial dissent.