Docket No. 108108.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

RYAN T. SIMMONS et al., Appellees, v. JOHN D. HOMATAS et

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

Opinion filed March 18, 2010.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Thomas, Kilbride, and

Karmeier concurred in the judgment and opinion.

Justice Freeman concurred in part and dissented in part, with

opinion, joined by Justice Burke.

OPINION

The separate plaintiffs in this case are special administrators of

the estates of the decedents, who were fatally injured in an

automobile collision. Plaintiffs allege that defendant, On Stage

Productions, Inc., operator of a strip club, negligently encouraged a

patron to consume alcoholic beverages until he became intoxicated

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 dismiss all claims, which was denied by the circuit court

of Kane County. The circuit court did, however, certify two questions

for interlocutory appeal. The court sought guidance as to whether
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defendant owed a duty of care to each plaintiff. The appellate court

answered both questions in the affirmative. 386 Ill. App. 3d 998.

Defendant On Stage then appealed to this court. We are asked now to

determine whether On Stage owed a duty to the decedents based on

its actions the night of the collision.

BACKGROUND

No factual findings have been made in the circuit court in this

case, as it arises from questions certified on denial of a motion to

dismiss. Therefore, the following summary of facts is drawn from the

allegations contained within plaintiffs’ complaints.

Around 9 p.m. on January 4, 2006, John Homatas and John

Chiariello arrived at Diamonds Gentlemens Club (Diamonds or the

club), which is operated by defendant On Stage Productions, Inc. On

Stage operates Diamonds as a fully nude strip club. The club is

located in Du Page County, which prohibits clubs featuring nude

dancing from receiving a license to serve alcohol. As a result,

Diamonds does not serve alcohol to its patrons. However, it does

allow patrons to bring their own alcohol. Diamonds also sells glasses,

ice, soft drinks and other mixers for making alcoholic drinks.

When Homatas and Chiariello arrived at the club, Homatas had

been driving. Homatas left his vehicle with the club’s valet service,

as the club requires. Homatas and Chiariello then went inside. The

two men had brought with them a fifth of rum and a fifth of vodka.

Over the course of the next two hours, the two men poured several

drinks. They purchased mixers, glasses and ice from the club.

Homatas became visibly intoxicated and around 11 p.m. was found

by Diamonds’ employees to be vomiting in the restroom. The

employees immediately ejected 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, employees opened the

driver-side front door and directed Homatas to leave the premises.

Approximately 15 minutes later, Homatas collided with a vehicle

driven by April Simmons. The collision resulted in the deaths of

Chiariello, Simmons, and Simmons’ unborn daughter, Addison

Elizabeth Simmons. Homatas was injured, but has since recovered

from those injuries.
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Representatives of the decedents’ estates then brought suit,

alleging both common law negligence and liability under the

Dramshop Act (235 ILCS 5/6–21 (West 2008)). Chiariello’s estate is

represented by his father, plaintiff Gaetano Chiariello. April’s and

Addison’s estates are represented by April’s husband and Addison’s

father, plaintiff Ryan Simmons.

The Simmons complaint contains six counts. Counts I through IV

allege statutory liability under the Dramshop Act for property damage

and loss of society for each of Simmons’s decedents. Counts IV and

V allege common law claims for wrongful death of April and

Addison. The Chiariello complaint contains two counts. It alleges

common law wrongful death in count I and alleges a statutory

Dramshop Act claim for property damage and loss of society in count

II.

On Stage moved to dismiss under section 2–615 of the Code of

Civil Procedure (735 ILCS 5/2–615 (West 2008)), asserting that both

plaintiffs’ complaints fail to state a cause of action upon which relief

can be granted. First, On Stage argued that the Dramshop Act is the

sole remedy for actions involving liability from alcohol-related

injuries, thereby precluding plaintiffs’ common law claims. Second,

On Stage argued that because the Dramshop Act applies only to

businesses engaged in the sale or gift of alcohol, the Dramshop Act

does not extend liability to On Stage as a result of its policy of not

selling or serving alcohol to its patrons.

The circuit court granted, in part, On Stage’s motion to dismiss.

The court concluded that the Dramshop Act did not apply to the club

because it did not sell or give alcohol to its patrons. It also recognized

that there is no common law cause of action against a provider of

alcoholic beverages for injuries arising out of the sale or gift of such

beverages.However, the court allowed plaintiffs’ remaining common

law counts to proceed after considering whether On Stage nonetheless

otherwise owed a dutyto plaintiffs. Regarding the Chiariello plaintiff,

the court found that a duty existed as a result of a business invitorinvitee relationship between On Stage and Chiariello. Regarding the

Simmons plaintiff, the court concluded that although there was no

special relationship between Homatas and Simmons, a duty may exist

when the defendant’s affirmative conduct creates or contributes to the

risk of harm. After considering the foreseeability and likelihood of
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injury, and the magnitude and consequences of imposing a burden

guarding against the risk, the circuit court concluded that On Stage

also owed a duty to Simmons.

As part of its order denying On Stage’s motion to dismiss

plaintiffs’ common law claims, the circuit court identified this issue

as a question of law suitable for interlocutory appeal pursuant to

Supreme Court Rule 308 (155 Ill. 2d R. 308(a)). After receiving

suggested questions of law from the parties, the circuit court entered

an order certifying two questions. First, as to Chiariello:

“Whether the defendant, Diamonds, a business operator who

is not subject to the Dram Shop Act [sic] (because it does not

sell or serve alcoholic beverages upon its premises), owed a

duty of unreasonable risk of harm to a business invitee

Chiariello, 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 Chiariello off 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;
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• where defendant was aware that its business invitee

Chiariello 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 have

determined that he was unable to operate a motor

vehicle[.]”

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 serve alcoholic beverages upon its premises), has a

duty of ordinary care to the Simmons Plaintiffs, 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 consume to the point

of intoxication;

• thereafter removed its invitee Homatas from the

premises because of his intoxication;

• ordered and assisted the invitee Homatas into the

driver seat of his vehicle;

• 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[.]”

On Stage appealed the order certifying the above questions. The

appellate court allowed the appeal. In reviewing the case, the court
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asked the parties to file supplemental briefs on whether section 876

of the Restatement (Second) of Torts provides a basis upon which it

could find a duty existed. Section 876 addresses the liability of a

defendant for harm resulting to a third person from the tortious

conduct of another. In its published decision, the court concluded that

section 876 does provide the basis of a duty On Stage owed to both

plaintiffs. Thus, the court answered both certified questions in the

affirmative and remanded for further proceedings.

On Stage petitioned for leave to appeal the appellate court’s

decision, which we allowed pursuant to Supreme Court Rule 315

(210 Ill. 2d R. 315). For the reasons that follow, we hold that On

Stage owed a duty of care to both plaintiffs, answer both certified

questions in the affirmative, and remand the cause for further

proceedings.

ANALYSIS

Our review of the appellate court’s ruling on certified questions

is governed by Rule 308. Certified questions, by definition, are

questions of law that we review de novo. We generally limit our

review to the certified questions, but in the interests of judicial

economy and the need to reach an equitable result we may also

consider the propriety of the circuit court order giving rise to these

proceedings. Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 354

(2007).

In answering the certified questions, we first note, as did the

appellate court, that the questions differ slightly as to their wording.

Both wordings, however, reflect the same concern with determining

whether On Stage owed a duty to each plaintiff. Therefore, we will

consider both of these similar questions together, conducting a single

analysis.

On Stage first contends that the legislature has preempted all

alcohol-related liability with passage of the Dramshop Act. On Stage

relies primarily on Charles v. Seigfried, 165 Ill. 2d 482 (1995), to

argue that the Dramshop Act altered the common law rule that 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, and

precluded liability for all other alcohol-related injuries. On Stage also
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cites cases discussed in Charles and those which in turn have since

followed Charles. Therefore, we next summarize this body of case

law.

Charles was not the first case in Illinois to consider whether a

common law action exists in addition to liability under the Dramshop

Act, or in cases where the Dramshop Act does not apply. However,

Charles explained in detail the history of liability associated with

furnishing alcoholic beverages. As On Stage notes, this history began

with the court recognizing that there is no common law cause of

action for injuries arising out of the sale or gift of alcoholic

beverages.Charles, 165 Ill. 2d at 486. The basis for this common law

rule is that the drinking of an intoxicant is the proximate cause of

such injuries, and the furnishing of the beverage is too remote to be

considered the proximate cause of any injuries. Charles, 165 Ill. 2d

at 486.

In 1872, the legislature changed this rule, to a limited extent, with

passage of legislation that is now referred to as the Dramshop Act. At

that time, following the Civil War, the temperance movement took

advantage of what this court called a “great wave” of reform, and

sought to enact laws that would “ ‘provide against the evils resulting

from the sale of intoxicating liquors in the State of Illinois.’ ”

Cunningham v. Brown, 22 Ill. 2d 23, 27 (1961), quoting 4 E. Bogart

& C. Thompson, A Centennial History of Illinois 42-44 (1920). The

Dramshop Act extended liability to persons who sold or gave alcohol

to persons who later injured third parties as a result of being

intoxicated. Charles, 165 Ill. 2d at 487.

In 1889, this court clarified that the Dramshop Act created a cause

of action only against those engaged in the liquor trade. Cruse v.

Aden, 127 Ill. 231, 239 (1889). The legislature did not intend to

extend liability to a social host “who, in his own house, or elsewhere,

gives a glass of intoxicating liquor to a friend as a mere act of

courtesy and politeness.” Cruse, 127 Ill. at 239. The court again

emphasized that under the common law rule, no liability attached to

one who furnished alcohol to another person. Cruse, 127 Ill. at 234.

More recently, this court reaffirmed that the Dramshop Act is the

exclusive remedy for holding providers of alcohol liable for the

actions of an intoxicated person. In Cunningham v. Brown, 22 Ill. 2d

23 (1961), a wife sued tavern operators for providing alcohol to her
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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 express remedy. She also

sought to recover under a common law theory of liability.

The court concluded that neither cause of action was appropriate.

A particular remedy was provided elsewhere within the statute. The

plaintiff’s interests were intended to be protected by that remedy

alone. Cunningham, 22 Ill. 2d at 29. Thus, no common law remedy,

and no independent statutory remedy, was available to the wife as

against the tavern operator who had provided alcohol to her husband.

Cunningham, 22 Ill. 2d at 30-31.

Since Cunningham, this court has repeatedly reaffirmed these

conclusions. Thus, it is well established that under the common law,

no liability is imposed on a person who gives or sells alcohol to

another person who later harms a third party while intoxicated.

Hopkins v. Powers, 113 Ill. 2d 206, 211 (1986); Demchuk v.

Duplancich, 92 Ill. 2d 1, 5 (1982); Knierim v. Izzo, 22 Ill. 2d 73, 77

(1961). It is also established that the Dramshop Act imposes liability

only on those persons officially engaged in the business of selling

liquor in the State of Illinois. Wakulich v. Mraz, 203 Ill. 2d 223, 237

(2003) (rejecting social host liability); Charles, 165 Ill. 2d at 491

(same). Under these long-standing principles it is evident that On

Stage is not subject to liability under the Dramshop Act. On Stage

neither is in the business of selling liquor in Illinois nor is it providing

alcohol as a “social host.” Although the club provided glasses, ice and

mixers to its patrons, the club did not provide alcohol to either

Homatas or Chiariello. The circuit court was, therefore, correct in

concluding that the Dramshop Act does not apply.

On Stage’s primary argument, however, is that the Dramshop Act

further acts to preempt any other liability resulting from Homatas’s

intoxication. On Stage relies on a statement in Charles that the rule

in Illinois is “firmly established” that the General Assembly “has

preempted the entire field of alcohol-related liability through its

passage and continual amendment of the Dramshop Act.” Charles,

165 Ill. 2d at 491. For the reasons below, however, we conclude that

reliance on this statement is misplaced. Although this statement from

Charles applies broadly to those who provide alcohol to another
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person, it does not extend so far as to preempt a common law cause

of action under the circumstances posited by the certified questions.

The body of law cited by On Stage and discussed above primarily

focuses on the liability of those persons providing alcohol to a patron

or guest who ultimately cause injuries to a third party. Both Cruse and

Charles asked whether social hosts were subject to liability under the

Act. In Cunningham the defendants were tavern operators. These

cases demonstrate that the Dramshop Act provides a framework for

determining whether a provider of alcohol will be exposed to liability.

If the provider is a business that sells alcohol, liability may attach, but

only under the Dramshop Act, not under the common law. If the

provider is merely a social host, liability will not attach, either under

the statute or under the common law. What the above cases do not

discuss is liability for injuries that arise not as a result of the provision

of alcohol, but as a result of the encouragement of, or assistance in,

tortious conduct.

The preemption stated in Charles was limited in exactly this way.

In that case, this court concluded “few rules of law are as clear 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-related liability” (Charles,

165 Ill. 2d at 490) and “alcohol-induced injuries” (Charles, 165 Ill.

2d at 489), the court’s analysis addressed 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 recognized this distinction in the more recent

case of Wakulich v. Mraz, 203 Ill. 2d 223 (2003). In that case, the

plaintiff alleged that a pair of brothers, 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.” Wakulich, 203 Ill. 2d at 227. The hosts

removed her soiled blouse and provided a pillow under her head to

prevent aspiration, but did not drive her home or contact her parents,

and prevented others at the home from calling 911 or seeking medical
 

1Although this court’s opinion in Wakulich does not provide details as

to the events following the daughter’s removal from the house, the

appellate court noted that she was taken first to a friend’s house, and later

to the hospital, where she was pronounced dead. Wakulich v. Mraz, 322 Ill.

App. 3d 768, 770 (2001).

 

2Following this court’s decision in Wakulich, the General Assembly

enacted legislation that created a cause of action based on the liability of

persons, including social hosts, who provide alcohol to, and cause the

intoxication of, a person under 18 years of age. 740 ILCS 58/5 (West

2008).

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attention. The daughter died the following day, after the brothers’

father allegedly ordered them to remove her from the house.1

The Wakulich plaintiff sued the brothers, alleging they were

negligent in providing alcohol to her daughter and negligent in failing

to act reasonably to protect her after voluntarily undertaking to care

for her after she became unconscious. Wakulich, 203 Ill. 2d at 227. In

affirming the dismissal of the negligence claim relating to the

brothers’ providing alcohol to the daughter, we reiterated that Illinois

law does not recognize social host liability for the provision of

alcohol, citing Charles.

2

 Regarding the plaintiff’s voluntary

undertaking claim, however, we agreed 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 as social hosts

was irrelevant to this claim. Instead, the brothers’ liability arose “by

virtue of their voluntary assumption of a duty to care *** irrespective

of the circumstances leading up to that point.” Wakulich, 203 Ill. 2d

at 242.

The appellate court has also recognized situations where liability

arose not from the provision of alcohol to a patron, but from the

actions of the defendant tavern after the patron had become

intoxicated. A cocktail lounge owner was held responsible for failing

to protect a patron from an attack by another intoxicated, belligerent

patron. Lessner v. Hurtt, 55 Ill. App. 3d 195, 197 (1977). The court

recognized the rule in Cunningham barring liability for the sale or gift

of alcohol, but concluded that the lounge owner still owed a duty to

protect its patrons while on the premises. Lessner was subsequently
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cited in Harris v. Gower, Inc., 153 Ill. App. 3d 1035, 1037 (1987). In

Harris, a bar patron became intoxicated, and subsequently became

unconscious, after being served several drinks. Bar employees then

removed the patron from the bar and placed him in his vehicle.

Overnight the patron froze to death. The court concluded that

allegations that the bar served the decedent alcohol were significant

only insofar as to how he became unconscious. Again, liability arose

not from providing alcohol, but from the bar employees’ negligence

in placing the decedent in peril. Harris, 153 Ill. App. 3d at 1038. Both

of these cases involved an “alcohol-related injury,” yet each held a

cause of action existed based on negligence unrelated to serving

alcohol.

On Stage argues that the appellate court later recognized Harris

as being based on premises liability and that it later distinguished

Harris in Holtz v. Amax Zinc Co., 165 Ill. App. 3d 578 (1988). The

court’s distinguishing of Harris, however, only emphasizes the

difference between the mere furnishing of alcohol to a person and

conduct that arises to negligence independent of providing alcohol.

In Holtz, an employee became intoxicated at a company picnic and

later drove away, which resulted in severe injuries to the plaintiff.

Holtz, 165 Ill. App. 3d at 579-80. The plaintiff argued that the

employer was negligent in permitting the employee to leave, knowing

that the employee was intoxicated. The court held that an employer

cannot be liable “where its agents have simply failed to take steps to

prevent an intoxicated employee from driving home.” Holtz, 165 Ill.

App. 3d at 583.

As On Stage notes, the court distinguished Harris as based on

premises liability. However, just as the voluntary undertaking

doctrine allowed recovery in Wakulich and the duty of a tavern to

protect its patrons from violence allowed recovery in Lessner,

premises liability in Harris was merely one vehicle through which

negligent conduct independent of serving alcohol could be properly

pled. Thus, in Holtz, the employer was not liable, as there was no

further conduct, beyond serving alcohol, that exposed the employer

to liability. The court in Holtz properly held that merely permitting an

intoxicated employee to leave does not create liability.

Similarly, On Stage’s duty does not arise from providing alcohol

to Homatas. Indeed, the parties agree that the club did not provide any
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alcohol at all. Rather, a duty under the facts alleged arose later,

following a series of actions taken by club employees in response to

discovering Homatas vomiting in the club’s restroom At that point,

employees allegedly ejected Homatas and Chiariello from the club,

ordered the parking attendant to bring Homatas’s car around to the

front door, and assisted Homatas and Chiariello into the vehicle,

directing him then to leave the premises.

On Stage also relies, in part, on Wienke v. Champaign County

Grain Ass’n, 113 Ill. App. 3d 1005 (1983), to contend that helping

Homatas to his vehicle does not trigger liability. In Wienke, the

plaintiffs’ decedents were injured when an intoxicated employee of

the defendant, while driving, collided with the decedents’ vehicle.

Wienke, 113 Ill. App. 3d at 1005-06. Prior to the collision, the

employee had been attending an event sponsored by the defendant, at

which he was served alcohol. The employee left the event with two

coworkers. The coworkers drove the employee to his vehicle, which

was parked approximately four miles from the event. At that time, the

intoxicated employee entered 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 to its employee, consistent with both its own

precedent and this court’s holding in Cunningham. Wienke, 113 Ill.

App. 3d at 1009.The court also considered whether having coworkers

drive the employee to his car, knowing he was intoxicated, could

trigger liability for the employer. In so doing, the court cited

Gustafson v. Mathews, 109 Ill. App. 3d 884 (1982). In that case, an

intoxicated patron was assisted by bar employees out to the parking

lot to his van, where his five children had been waiting. The patron

drove away and later collided with a truck, killing the patron and four

of the children. Gustafson, 109 Ill. App. 3d at 885, 886. The

Gustafson court held that common law imposed no duty on the bar

owners, suggesting that to do so would require imposing the same

duty to all owners of parking lots, and would require them to

“evaluate the behavior of their customers to determine whether they

have the capacity to drive safely.” Gustafson, 109 Ill. App. 3d at 887.

The Wienke court echoed this statement, indicating that finding

liability would “impose a heavy burden upon those *** who aid
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others who may be intoxicated in getting to their automobiles.”

Wienke, 113 Ill. App. 3d at 1010.

Gustafson and Wienke, according to On Stage, represent courts’

efforts to prevent open-ended liability for dram shops, restaurants,

parking lot owners and others that may be put in a position of helping

a patron to his or her vehicle. On Stage argues that allowing recovery

in this case would open such a “Pandora’s box.” We disagree.

Of concern to the courts in Wienke and Gustafson was whether

persons should be given the burden of determining whether a person

was intoxicated and whether that person would drive safely or

recklessly. However, our decision in this case does not implicate

those concerns. On Stage took on the burden of determining whether

Homatas was dangerously intoxicated when club employees

discovered him vomiting in the restroom, 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 Homatas in the tortious conduct of

driving while intoxicated. On Stage, in effect, argues both that it

should not be required to determine whether a patron is intoxicated

and that it cannot be not responsible when it nonetheless voluntarily

chooses to make that determination and then facilitates that patron’s

tortious conduct. Such an argument is untenable. We conclude that

the Dramshop Act does not preempt plaintiffs’ common law claims

in this case, and does not preclude imposing a duty of care on On

Stage.

In addition to preemption, On Stage also argues that to impose a

duty in this case requires that there be a special relationship between

On Stage and the decedents. On Stage cites several cases requiring a

special relationship before a defendant may be held liable for the

criminal acts of a third party. However, its reliance on these cases is

misplaced.

On Stage 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 party. Iseberg v. Gross, 227 Ill. 2d 78, 87 (2007);

Restatement (Second) of Torts §§314, 314A (1965) (concerning a

duty to act for the protection of others, and requiring a special

relationship for such duty to arise). This is true because a private

person generally has no affirmative duty to control the conduct of
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another to prevent such an act. Hills v. Bridgeview Little League

Ass’n, 195 Ill. 2d 210, 228 (2000). However, this case does not raise

a question as to whether On Stage had a duty to control Homatas’s

conduct. Indeed, had Homatas left on his own, and On Stage was

alleged to have merely failed to prevent him from leaving the club

and driving away intoxicated, sections 314 and 314A of the

Restatement may have applied. Under those circumstances, no duty

would have arisen absent a special relationship. As discussed above,

however, this case implicates a different section of the Restatement.

Section 876 imposes liability on those persons who act in concert

with another tortfeasor, giving substantial assistance or

encouragement to another’s tortious conduct. Restatement (Second)

of Torts §876 (1979) (describing in-concert liability).

These sections of the Restatement are not inconsistent. Although

one does not have a duty to prevent the criminal acts of a third party,

one does have a duty to refrain from assisting and encouraging such

tortious conduct. If a plaintiff can demonstrate that the defendant did

not merely fail to act, but also assisted the third party, then the

requirement of a special relationship no longer applies. Although On

Stage argues that Elizondo v. Ramirez, 324 Ill. App. 3d 67 (2001),

involved similar facts to the instant case, that case instead serves as

an example of how the two Restatement sections differ.

In Elizondo, the parents of a 15-year-old girl allowed the girl to

have a party at which she provided alcohol to her underage friends.

At that party, the plaintiff’s decedent was killed in a fight with

another of the party’s guests who was a member of a rival gang. The

plaintiffs argued that no special relationship was needed to impose a

duty on the girl’s parents. The court disagreed, however, reaffirming

that a special relationship is required in such situations. These facts

are not analogous to those presented this case. The parents in no way

assisted or encouraged the actions of the fighting party guests. They

did not provide a weapon or instigate the disagreement. In Elizondo,

the parents merely failed to prevent the fight. In this case, the

appellate court discerned that plaintiffs’ complaint raised a question

under section 876, in that plaintiffs alleged not that On Stage merely

failed to act, but that it affirmatively assisted Homatas in driving

while intoxicated. Under such circumstances, plaintiffs need not

establish a special relationship.
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Under the circumstance described by the circuit court, the

Dramshop Act does not preempt a claim under section 876 of the

Restatement. Nor does section 876 require plaintiffs to prove a

special relationship between the defendant and the decedents.

Therefore, we conclude that On Stage owed a duty to both plaintiffs’

decedents, and answer the certified questions in the affirmative.

On Stage 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 alleged

facts sufficient to state a cause of action under that section. Thus,

according to On Stage, the circuit court nonetheless erred in denying

its motion to dismiss plaintiffs’ common law claims. A grant or

denial of a motion to dismiss 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 considered in determining whether in-concert liability will attach.

These factors are (1) the nature of the act encouraged, (2) the amount

of assistance given by the defendant, (3) his presence or absence at

the time of the tort, (4) his relation to the other and (5) his state of

mind. On Stage argues that plaintiffs’ complaints are not premised on

these factors, and the facts relied upon by the appellate court do not

state a cause of action based on these 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, 216 Ill. App. 3d

962, 971-72 (1991). On Stage contends that the complaint fails, on its

face, to allege the necessary facts. An examination of plaintiffs’

complaint does not support On Stage’s argument.

To state a cause of action under section 876, plaintiffs must

demonstrate that On Stage knew Homatas’s conduct constituted a

breach of duty and that On Stage gave substantial assistance or

encouragement to Homatas in committing that breach of duty. The

comments to that section further note that “[a]dvice 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.”

Restatement (Second) of Torts §876, Comment d, at 317 (1979).
-16-

In the Simmons complaint, Simmons alleged in both of his

common law counts that On Stage knew or should have known that

Homatas was intoxicated and was leaving the premises by 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.”

Similarly, the Chiariello plaintiff alleges that Homatas became

visibly intoxicated at the club, after purchasing mixers and glasses

from On Stage employees. The complaint alleges that On Stage

employees sometime later then discovered Homatas vomiting in the

bathroom and ejected him from the club. Chiariello further alleges

that employees directed the valet service to bring Homatas’s car,

opened the door for him when it arrived, and directed Homatas to

drive away from the premises.

The above facts, as alleged, are sufficient to state a cause of action

for common law negligence under section 876. In this case, a

reasonable jury could find that On Stage knew that the act of driving

while intoxicated is tortious conduct and constitutes a breach of duty

toward others traveling on the public highways. Further, from the face

of the complaints, plaintiffs allege On Stage knew Homatas was

intoxicated, and clearly knew he was driving from the premises. A

reasonable jury could also conclude that ejecting Homatas from the

club, having the parking valet bring Homatas’s car to the front of the

club, and assisting him into his vehicle and directing him to drive off

constitutes substantial assistance from, or encouragement by, On

Stage toward Homatas in his tortious conduct.

On Stage argues, however, that plaintiffs’ complaints allege

nothing about On Stage encouraging Homatas to speed, drive on the

wrong side of the road or otherwise 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 liability to attach to its

conduct. We agree with plaintiffs.

A case upon which On Stage relies is Wolf v. Liberis, 153 Ill.

App. 3d 488 (1987). In Wolf, the defendant had a fight 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

defendant, intoxicated, drove to her fiance’s apartment. After

resolving their dispute, the defendant’s fiance offered to follow her
-17-

as she drove home. During the drive the defendant crashed her

vehicle into a store window. The fiance backed the car out of the

store. He told the defendant to stay there as he went to call the police.

The defendant, however, chose to leave the scene. After she left,

her fiance became involved in a struggle with several assailants. In

his efforts to get away, he lost control of his car, striking the vehicle

being operated by the plaintiff’s decedent. The plaintiff sought to

recover from the defendant on a theory of in-concert liability, alleging

she had assisted and encouraged her fiance’s tortious conduct.

We find Wolf to be inapposite. The appellate court in Wolf

concluded that because defendant had already driven away by the

time of the accident, she could not have assisted or encouraged his

conduct. The defendant did not suggest or require her fiance to do

anything that 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 defendant must

be present in order to encourage tortious conduct. Rather, Wolf is

merely an example, under particular circumstances, of actions that do

not rise to assistance and encouragement.

In Wolf, the defendant made no suggestions as to what her fiance

should do in response to his being assaulted or required him to take

any action. Here, On Stage is alleged to have required Homatas to

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 Homatas to leave its premises. That option was to leave, by

car, even though it had determined that Homatas was intoxicated.

On Stage also cites Fugate v. Galvin, 84 Ill. App. 3d 573 (1980),

which upheld the general rule that passengers of a car are not

responsible for damages caused by the driver, unless the passenger is

the owner of the car, or otherwise has a right to control the vehicle.

Fugate, 84 Ill. App. 3d at 575. In that case, the passenger asked his

intoxicated friend to drive him to another friend’s house. The

appellate court rejected the argument that the passenger was liable for

putting the driver “in motion.” Fugate, 84 Ill. App. 3d at 574. In the

appellate court’s view, “[t]he decision to take to the road in an

intoxicated condition remained the driver’s alone.” Fugate, 84 Ill.

App. 3d at 576.
-18-

Fugate is also readily distinguished. The context of a friend

simply asking another friend for a ride home is significantly different

from what plaintiffs allege in this case. Here, Homatas’s choices of

action were limited by his having club employees bring him his car,

opening his door, placing him inside and requiring him to leave the

premises. The facts, as alleged by plaintiffs, do not suggest that On

Stage was making a request of Homatas. Instead they suggest that On

Stage left Homatas little choice but to drive his vehicle off the club’s

property and onto the public highways.

As the circuit court recognized, this case presents a set of special

circumstances. We do not hold today that restaurants, parking lot

attendants or social hosts are required to monitor their patrons and

guests to determine whether they are intoxicated. We hold only that

where, as here, a defendant is alleged to have removed a patron for

being intoxicated, places the patron into a vehicle and requires him

to drive off, such facts are sufficient to state a common law

negligence cause of action that is not preempted by the Dramshop

Act.

CONCLUSION

We answer both certified questionsin the affirmative, and remand

this cause to the circuit court for further proceedings consistent with

this opinion.

Certified questions answered;

cause remanded.

JUSTICE FREEMAN, concurring in part and dissenting in part:

I agree that the circuit court correctly dismissed plaintiffs’

Dramshop Act claims. Slip op. at 13. The more difficult question is

whether plaintiffs have adequately pled common law claims for inconcert liability. It was this issue that prompted the certified questions

and the appellate court’s request for additional briefing on section 876

of the Restatement (Second) of Torts. I do not agree that plaintiffs’
-19-

complaints, as currently pled, adequately state a cause of action based

upon section 876.

Section 876 of the Restatement (Second) of Torts sets forth 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 further explains: 

“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.”

Restatement (Second) of Torts §876, Comment d, at 317

(1979). 

This comment also stresses, however, that liability does not easily

attach, cautioning that “[t]he assistance of or participation by the

defendant may be so slight that he is not liable for the act of the

other.” Restatement (Second) of Torts §876, Comment d, at 317

(1979). In determining whether the “substantial assistance or

encouragement” required for imposition of in-concert liability exists,

the comment instructs that the following five factors are to be

considered:

“[1] the nature of the act encouraged, [2] the amount of

assistance given by the defendant, [3] his presence or absence

at the time of the tort, [4] his relation to the other 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-concert liability, but our appellate court has. Appellate
-20-

decisions establish that a person is liable under this provision when

two elements are met: (1) he knows that the other person’s conduct

is tortious; and (2) he “gives substantial assistance or encouragement”

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 (Second) of Torts §876(b), at 315 (1979); Fortae v.

Holland, 334 Ill. App. 3d 705, 716-17 (2002); Sanke v. Bechina, 216

Ill. App. 3d 962, 964 (1991). 

The appellate court has also quoted from comment d of section

876 to underscore that the five factors make up the element of

“substantial assistance or encouragement,” and that for in-concert

liability to attach, heightened culpability is required to the extent that

a defendant’s conduct must be “more than benign.” Sanke, 216 Ill.

App. 3d at 971; see also Kohn, 347 Ill. App. 3d at 759 (the

Restatement makes a distinction “in assessing the quality of a

defendant’s conduct before subjecting the actor to liability, i.e., it is

not enough that a defendant assist or encourage another to engage in

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

encouragement must be substantial, not merely slight”); Fortae, 334

Ill. App. 3d at 719-20 (an analysis of in-concert liability “calls for us

to look at the language in the commentary [to] subsection (b) *** to

determine if [defendant’s] participation was so slight that one

defendant was to not be liable for the act of the other”). 

Under this authority, there might indeed be a basis for in-concert

liability in this case. But that would require allegations that Homatas

was intoxicated to the point of rendering him incapable of safely

operating a motor vehicle, that this impairment was obvious to

defendant’s employees and they were aware of it, and, despite this

knowledge, the employees placed him behind the wheel of a running

motor vehicle and sent him off, the equivalent of a ticking time bomb.

Such conduct might constitute the “moral support to a tortfeasor”

referenced in comment d, and as illustrated by its accompanying five

factors, as well as the “substantial assistance” contemplated by the

Restatement. 

The allegations of the complaints here, however, do not come

close to that. It is enough for the majority that the complaints allege

that defendant knew that Homatas was drunk, knew that drunk

driving is tortious conduct, and knew that he would drive away from
-21-

defendant’s premises. Slip op. at 16. The element of knowledge,

however, is only one element to be pled and proven under section

876, and it is not the same as “substantial assistance.” As one legal

commentator has recognized:

“There are *** occasional statements that mere knowledge by

each party of what the other is doing is sufficient ‘concert’ to

make each liable for the acts of the other, but this seems

clearly wrong. Such knowledge may very well be important

evidence that a tacit understanding exists; but since there is

ordinarily no duty to take affirmative steps to interfere, the

mere presence of the particular defendant at the commission

of the wrong, or his failure to object to it, is not enough to

charge him with responsibility.” W. Prosser, Torts §46, at 292

(4th ed. 1971).

In other words, the element of “substantial assistance or

encouragement” is not satisfied by allegations that a defendant failed

to prevent another’s tortious conduct. Plaintiffs’ complaints are

deficient in pleading the “substantial assistance or encouragement”

element as required by our fact-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 what is actually

alleged shows the error in the majority’s conclusion. According to the

complaint, once Homatas arrived at the club, his car was “met by a

valet, Homatas paid a valet fee, and [his] car was then driven away.”

During the two hours Homatas was at the club, he “became visibly

intoxicated, but employees of [the club] continued to encourage [him]

to pour himself drinks and to that end provided him with additional

mixers and ice.” At 11 p.m., Homatas, “exhibiting obvious symptoms

of extreme intoxication, and perhaps, acute alcohol poisoning, began

vomiting in [the club’s] bathroom.” At that time, it is alleged that

club employees “discovered that Homatas was vomiting in the

bathroom and immediately ejected both Homatas and Chiariello from

the establishment.” 

The allegations that Homatas was visibly intoxicated and

“perhaps” exhibited alcohol poisoning are conclusory. No facts are

alleged to support the conclusion of intoxication, i.e., slurred speech,
 

3This is particularly true here where earlier in the Chiariello complaint

it is alleged that club employees were not given the proper training in

identifying “the signs of intoxication.”

-22-

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

alcohol poisoning is supported is anyone’s guess. Parenthetically, the

vomiting that the majority relies on as an indication of possible

intoxication may have nothing to do with the ability to safely operate

a motor vehicle. 

The element of “substantial assistance” being central to in-concert

liability, the allegations concerning what club employees did with

respect to the car deserve even more careful consideration.

Chiariello’s complaint alleges that some 10 minutes 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 the

club.” Its employees “then opened the driver’s door of the car and

directed Homatas and Chiariello to immediately drive away from the

premises.” “Directed” merely suggests that Homatas was told to

leave. This cannot be a basis of liability under section 876. 

The Simmons complaint is even less factually specific. It alleges

that club employees knew or should have known that Homatas

“became intoxicated as a result of his consumption of alcoholic

beverages” in the club. The complaint further alleges that “[d]espite

their knowledge *** [employees] negligently and carelessly directed

*** Homatas, while he was in an intoxicated condition, to leave the

premises.” Again, the words “intoxication,” “intoxicated condition,”

and “directed” are conclusions that, alone, are insufficient as a basis

for in-concert liability. Other allegations even undermine the notion

of potential liability. For example, the complaint states that defendant

merely “remov[ed] [Homatas] from the premises and allow[ed] him

to drive [his] vehicle away from the premises.” Was Homatas

directed to leave or was he allowed to drive away? Neither allegation

is sufficient to establish defendant’s assistance or encouragement, as

would be necessary for liability under section 876 to attach.

Both complaints lack the factual allegations necessary to establish

“substantial assistance.” Therefore, I cannot agree with the majority

that they adequately plead a cause of action under section 876. 
-23-

As I earlier noted, the majority’s reliance on allegations about

defendants’ knowledge is problematic. Beyond that, the majority

takes considerable license in casting the allegations in a light to

support its conclusion that the complaints, as pled, are sufficient to

withstand a motion to dismiss under section 2–615. For example,

with respect to the allegation that defendant’s employees “opened the

driver’s door” for Homatas, the majority characterizes the action as

the valet “assist[ed] him into his vehicle.” Slip op. at 16. Neither

complaint uses the verb “assisted” in its allegations. Elsewhere, the

majority states that defendant is alleged to have “placed [Homatas]

into his vehicle.” Slip op. at 17. In its conclusion, the majority again

states that it is alleged that defendant “place[d] the patron in a

vehicle.” Slip op. at 18. Neither complaint actually alleges this. 

The majority’s paraphrasing paints a picture of club employees

throwing a drunken Homatas out of the club, kicking and screaming,

physically placing him in his car, and commanding him to drive off

into the night. That may be what happened, but the complaints do not,

in fact, allege this. 

Although I agree with the majority that defendant’s reliance on

Wolf v. Liberis, 153 Ill. App. 3d 488 (1987), is misplaced, another

decision, Umble v. Sandy McKie & Sons, Inc., 294 Ill. App. 3d 449

(1998), is helpful in analyzing this issue. There, it was alleged that

employees of an automotive garage took possession of a car brought

in by an intoxicated customer. The customer’s condition was apparent

to the employees, who repaired the car and returned it to the customer

when he paid for it. The customer later collided with a car driven by

the plaintiff’s decedent. The plaintiff alleged that the defendant was

negligent in giving car keys to an obviously intoxicated driver.

Umble, 294 Ill. App. 3d at 451. The appellate court affirmed the

dismissal of the complaint because the allegations did not “establish

that defendant provided substantial assistance” to the customer.

Umble, 294 Ill. App. 3d at 452. Specifically, the court stated that it

could “not equate failing to prevent certain conduct with actively

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

Umble underscores that a plaintiff must plead more than the fact

that a defendant simply assisted or encouraged another to commit a

tort under section 876. The defendant’s repair and return of the

customer’s car–even though, according to the opinion, the defendant
-24-

knew the customer was intoxicated–did not satisfy this test. This

demonstrates that defendant here needed to do more than just return

the car to Homatas to constitute the substantial assistance

contemplated under section 876. 

As things stand, plaintiffs have not pled that defendant

substantially assisted or encouraged Homatas’s tortious conduct, an

observation made by the appellate court in raising the issue of inconcert liability. See 386 Ill. App. 3d at 1013 (acknowledging that

“plaintiffs do not appear to have strongly pressed the in-concert

liability argument before the trial court”). Accordingly, it is my view

that it is appropriate to remand this cause to allow plaintiffs the

opportunity to do so.

JUSTICE BURKE joins in this partial concurrence and partial

dissent.