Open Memo 731

ProfessorPearl
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To: Prof. Pearl
From: ID 731
Re: David W. Deering v. Reese’s Riverside Tavern, Inc. and Gull Lake Liquors, Inc.
No. 15CV 1180; Summary Judgement for causation and complicity
Date: November 24, 2015
________________________________________________________________________
Questions Presented
(1) Does the defendant dram shop merit summary judgment if the intoxication of
a person, who previously consumes liquor or arrives already intoxicated, causes an injury
to a third person after further service from the dram shop?
(2) Has the plaintiff third party met the standards of complicity as to bar him from
recovery from the dram shop who intoxicated the inebriate?
Short Answer
(1) It is unlikely. A dram shop need contribute very little to a patron’s intoxication
to raise questions of whether or not they caused the intoxication. The tavern contributed a
sufficient amount of liquor to raise a question of whether it furthered the patron’s
intoxication.
(2) No. Decisions of the courts consistently worked to differentiate the meaning of
complicity from consensus. The facts do not obviate complicity, as it is unlikely the third
party was complicit in the patron’s intoxication.

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Statement of Facts
Mr. David W. Deering is a friend of Mr. Kevin Hanks. The two, in the company of
another friend, Peter Yoffe, took the day of July 28th, 2015 off from work to celebrate Mr.
Hanks’ birthday. Hanks Dep. At 12:00 pm, they jointly purchased thirty-six bottles of
beer, the three spent the day boating where Mr. Hanks drank eight to ten bottles. Deering
Dep. Mr. Deering also drank five to six beers, and Mr. Yoffe only two, where he was
driving. Id.
Afterword, the three had a cookout at Mr. Yoffe’s apartment where Mr. Hanks
drank around an additional 4 beers. Deering Dep.; Hanks Dep At 6:45 pm Mr. Deering
and Mr. Hanks drove to Reese’s Riverside Tavern to participate in a sand volleyball
game. During the volleyball game, Mr. Hanks purchased or was given approximately 3
more alcoholic beverages. Complaint David W. Deering v. Reese’s Riverside Tavern,
Inc. and Gull Lake Liquors, Inc, No. 15CV 1180 (2015). By this time, it became apparent
that Mr. Hanks was intoxicated. Id. After losing the game, Mr. Hanks became visibly
upset at the loss accusing Mr. Deering of poor performance. Deering Dep. In an effort to
imitate Mr. Deering’s performance, he picked up an empty glass beer bottle and swung it
as if he were striking a volleyball. In doing so, he struck Mr. Deering in the eye, causing
irreparable damage. The eye was replaced with a glass eye. Id.

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Applicable Statute
Every person who is injured within this State, in person or property, by any
intoxicated person has a right of action in his or her own name, severally or
jointly, against any person, licensed under the laws of this State or of any
other state to sell alcoholic liquor, who, by selling or giving alcoholic liquor,
within or without the territorial limits of this State, causes the intoxication of
such person. . . Any person owning, renting, leasing or permitting the
occupation of any building or premises with knowledge that alcoholic liquors
are to be soldtherein, or who having leased the same for other purposes, shall
knowingly permit therein the sale of any alcoholic liquors that have caused
the intoxication of any person, shall be liable, severally or jointly, with the
person selling or giving the liquors.
235 Ill. Comp. Stat. 5/6-21(a) (1934)
Discussion
The Dramshop Act grants a cause of action to a third party, injured by an
intoxicated person, “against any person who by selling or giving alcoholic liquor, causes
the intoxication of such person.” Henry v. Bloomington Third Ward Community Club,
411 N.E.2d 540,542 (Ill. App. Ct. 1980). In determining whether Reese’s Riverside
Tavern merits a judgement as a matter of law, the court must first decide if the tavern was
culpable in causing Mr. Hank’s intoxication, even though he may have been intoxicated
upon arrival to the volleyball tournament. Kingston v. Turner, 505 N.E.2d 320,324 (Ill.

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1987). Where Reese’s contributed to Hank’s intoxication, it is very unlikely it will merit
a judgement as a matter of law for a lack of causation. Secondly, it must determine if Mr.
Deering’s alcohol purchase and consumption for Mr. Hank’s birthday implied he was
complicit in Mr. Hanks intoxication. Nelson v. Araiza, 372 N.E.2d 637,641 (Ill. 1978).
Where Mr. Deering did not actively engage is Mr. Hank’s intoxication, it is also unlikely
Reese’s would merit summary judgement pleading Mr. Deering’s complicity.
Causation
The first issue is if the fact finder could find that the dram shop intoxicated a
patron who had already drank before arrival. More than one Dram shop, and not solely
the last, is liable for injuries, if it is a proximate cause to intoxication. Kingston, 505
N.E.2d at 324. In order for a dram shop to be culpable under the Dram Shop Act, it
simply must provide liquor sufficient to produce, contribute to, or exacerbate that
person’s intoxication. Id. This substantial factor must be more than a negligible amount.
Henry, 411 N.E.2d at 541; Mohr v. Jilg, 586 N.E.2nd 807,810 (Ill. App. Ct. 1992). The
amounts necessary to be a cause to intoxication in determined by the trier of fact.
Thompson v. Tranberg, 360 N.E.2d 108,110 (1977). Beyond, causing or contributing to
intoxication, the intoxication must also cause or contribute to an injury sustained by a
third party at the hands of the inebriate. Id.
Multiple dram shop owners, along with the persons furnishing the alcohol, can be
liable for a patron’s actions if they have caused his intoxication. Kingston 505 N.E.2d at
324. In Kingston, Berry spent the afternoon with some friends at New Moon Tavern,

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where they drank up to a gallon of beer between them. 505 N.E.2d at 322. Afterword,
they traveled to MD’s Tavern for dinner and additional drinking. Although Berry’s level
of intoxication was not apparent when they left New Moon, his friends admitted he
seemed drunk leaving MD’s. Id. When the men left, Berry and a friend got on his
motorcycle when they soon after collided with Kingston at an intersection, causing
serious injury and Berry’s own death. Id. The Supreme Court of Illinois reversed the
appellate court, permitting the trial court’s instruction stating, “The sales and
consumption of alcoholic beverages at two or more dram shops may result, that is, cause
a single intoxication.” Id. at 324. Under this rule, requiring no additional definition of
causation, the dram shops were not held liable. The court determined that culpability does
not end at the point of intoxication, but rather by causing the intoxication. Id.
A dram shop is determined to be a cause if it furnished more than a negligible
amount of alcohol, and the intoxication is a cause to the injury. Henry, 411 N.E.2d at 541.
The plaintiff in Henry entered the Bloomington Third Ward Community Club to drink
with his brother-in-law and two brothers. Id. Shortly after, Mr. Pickett and Mr. Thomas
entered the bar, visibly intoxicated. Id. The bartender served them both one drink. The
two men approached the plaintiff and his brothers, where Thomas struck one of the
brothers. Id. In the ensuing tussle between Henry and Thomas, Pickett then shot Henry in
the hip. The court held that the directed verdict by the trial court was improper. Id. at 543.
Although a negligible amount of alcohol is not enough to cause intoxication, a directed
verdict is likely improper of the tavern furnished alcohol to an intoxicated person. Id. If

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the trier of fact determines that the drink exacerbated the intoxication, the dram shop will
be liable, and a directed verdict prevents that determination.
Whether or not a defendant’s conduct caused intoxication is if the furnished
alcohol is a material and substantial factor in the resulting harm. Thompson, 360 N.E.2d
at 111. In Thompson, a girl was struck by Mr. Theroux’s automobile after he had been
drinking at two different dram shops. Id. at 111. The court of appeals held that the trial
court did not err by refusing to direct a verdict in favor of the tavern, and affirmed
judgments on behalf of the plaintiff mother. Hilltop furnished an amount of alcohol to
Mr. Theroux, and liability then depends on whether the amount was negligible or
substantial. Id.; See also Henry, 411 N.E.2d at 540; Mohr v. Jilg, 586 N.E.2nd 807,811
(1992) (explaining the standards for a negligible amount of alcohol). The court placed
three standards to decide whether a defendant’s conduct is substantial: (a) the number of
other contributing factors. (b) if there is a “continuous series of forces”up to the harm.
(c) lapse of time. Thompson, 360 N.E.2d at 112.
Reese’s Tavern gave Mr. Hanks enough alcohol to contribute to his intoxication.
Mr. Hanks’ and Mr. Deering’s drinking while fishing is relevant in only one regard: that
Mr. Hanks may have arrived to the volleyball tournament intoxicated. Even though
Reese’s seeks to argue the same fact as grounds for summary judgment, previous
intoxication is only inculpatory. In Kingston, neither of the dram shops were liable for the
injuries because a trial jury determined the intoxication was not the cause of the injury.
Unlike Kingston, Reese’s is seeking to circumnavigate the jury entirely, believing the

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previous intoxication makes it impossible for Reese’s to cause Hanks’ intoxication. If Mr.
Hanks arrived intoxicated, then it only heightened the awareness which Reese’s should
have exercised as to how much, if any, alcohol they served Mr. Hanks.
Reese’s did not supply a negligent or insignificant amount of alcohol to Mr.
Hanks. In Henry, the tortfeasor purchased one drink, yet the court determined it was
enough to establish a question of contribution to intoxication. Reese’s served Hanks three
alcoholic beverages, which could in itself cause intoxication, let alone contribute to it.
Also, Thomas was in the tavern for around five minutes before he attacked Henry, and
after purchasing the liquor. Under such a time lapse, it would be easier to say the liquor
could not worsen his intoxication than in Deering, where the Hank’s drank the alcohol
over a couple of hours. The question of the substantial amount of alcohol along with a
reasonable time lapse is stronger than Henry where a directed verdict was inappropriate.
Mr. Deering’s injuries would not have occurred, but for the intoxication of Mr.
Hanks. In Thompson, Theroux’s prior intoxication was substantial and the accident
occurred close to the tavern, yet still permitted time for the alcohol from Hilltop, the
latter tavern, to have a material effect on Theroux. Similarly, to Mr. Theroux, Hanks had
the time frame to show the material effect the additional liquor had. The court also
examined Theroux’s drinking at the first tavern, passing time at home, drinking at the
second tavern, and immediately driving into the accident, as a series of events that led to
an accident with little to no supervening causes other than the intoxication. In Deering’s
case too, Hanks had no history of poor sportsmanship or violent behavior that could be to

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blame for the strike. A series of events leading from Hanks’ intoxication to the injury is
apparent.
In conclusion, Reese’s does not merit a motion for summary judgment as a matter
of law where questions exist if the amount of alcohol, the time frame, and the series of
events caused the intoxication of Mr. Hanks. As well, previous intoxication is not in itself
does not exculpate the dram shop.
Complicity
The second basis on which Reese’s seeks summary judgment is if Mr. Deering’s
involvement bars him from recovery. To insure that parties benefitting from the
consumption of alcohol are liable for injuries resulting from it, complicity in the
intoxication prevents a third party from recovering for injuries that result. Walter v.
Carriage House Hotels, 646 N.E.2d 599,602 (Ill. 1995); See Kennedy v. Bobbie &
Clyde’s, 592 N.E.2d 357,360 (Ill. App. Ct. 1992). To insure a plaintiff cannot recover
from his own wrong, complicity concerns the plaintiff’s role in causing the intoxication
of the inebriate, and does not concern his own intoxication. Walter, 646 N.E.2d at 603-
04. In order for a defendant dram shop to move for summary judgment, the facts must
establish that the plaintiff procured the intoxication of the inebriate. Id. at 606. The level
of involvement must go beyond simple accompaniment during a “tour of taverns” or
being a party in a “round of drinks”. Graham v. United Nat’l Investors, 745 N.E.2d
1287,1291 (Ill. App. Ct. 2001). An “active and willing agent” who assists a dram shop

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with intoxication is barred from recovery. Nelson v. Araiza, 372 N.E.2d 637,639 (Ill.
1978). But See Foley v. Stoned Toad, Inc., 396 N.E.2d 834,835 (Ill. App. Ct. 1979)
Where complicity is not a negligence doctrine, it requires the plaintiff to
encourage or promote intoxication of the tortfeasor. Walter, 646 N.E.2d at 606. Carriage
House Hotels was sued after Walter and Shelton took their significant others out for an
evening for a tour of three different taverns, drinking liquor at each of them. Id. The last
of these stops was Carriage House, where the majority of the drinking took place. After
Shelton argued with his date, Connie, the party dispersed for the night. Shelton arrived at
Walter’s apartment demanding information about Connie that Walter could not provide,
at which time he beat Walter severely. Id. The Illinois Supreme Court denied the motion
for a judgment as a matter of law regarding complicity. The court reasoned that Shelton
bought most of the alcohol for himself, and did so for his own dinner and musical
entertainment. Id. at 607. The record did not show that Walter “in any manner
encouraged Shelton to drink” Id. The jury from the trial court also found that the plaintiff
did not cause Shelton’s inebriation, which is strong evidence to show the disputed issue
of complicity.
“Only one who actively contributes to or procures the intoxication of the inebriate
is precluded from recovery.” Nelson, 372 N.E.2d at 641. Deborah Nelson was spending
the evening at a tavern with some friends where they ran into Mr. Araiza, Nelson’s
acquaintance. Id. at 637Araiza was already “pretty drunk” when he bought her a beer,
that Nelson accepted. Id. When Nelson went to leave, Araiza insisted that she let him

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drive her and company to another friend’s home. Araiza then drank another eight cans of
beer in the company of Nelson. Id. After leaving the house, Araiza refused to exit the
driver’s seat and let Nelson drive them home. Since buses were infrequent, it was raining,
and Nelson had no money anyway, she agreed to let Araiza drive. Id. When they asked
Araiza to take them home, he got upset and drove away suddenly, causing an accident
and serious injury to Nelson. Id. The court affirmed the appellate court’s decision, which
reversed a directed verdict in favor of the defendant dram shop. Id. at 641. The case was
then remanded for new trial. Id. The court reasoned that the Dram Shop Act imposes no-
fault liability, and therefore does not rely on negligence. Consequently, the affirmative
defense of complicity is not based on contributory negligence, but rather affirmatively
assisting in the intoxication of the inebriate. Id. at 639,641. Complicity needed to be in
act of intoxicating Araiza, not complicity in behaviors involving risks related to it.
A social drinking partner or a person merely “along for the ride” is not sufficient
to meet standards for complicity. Graham, 745 N.E.2d at 1291. In Graham, the plaintiff,
along with two drinking buddies, Coats and Pierson, spent the evening “bar hopping” and
drinking beers in Coats’ truck. Id. at 1290 After a bar altercation, Coats was arrested,
leaving Pierson and Graham with his truck. Id. Although varying testimonies exist
between the two of who was the designated driver and how much alcohol they drank, the
end result was a crash into a tree after Pierson fell asleep at the wheel. The court reversed
trial court’s decision to grant summary judgment. It further defined what “actively
causing intoxication” meant by saying it needed to be a willing encouragement of or

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voluntary participation in the intoxication. Id. at 1291 Also, they determine that the line
between a bar hopping buddy and a complicit individual will depend on the facts of the
case and largely be left up to the fact finder. Id.
Mr. Deering was no more than negligent as to the intoxication of Mr. Hanks.
Walter and his friend were out together most of the night, both drinking. Walter,
however, was enjoying his night independently, and did not have any intent to get his
friend drunk. Similarly, Deering may have noticed Hanks was getting drunk, but until he
pursues the intoxication of Hanks, he is not complicit. Where the Dram Shop Act is a no
fault statute, negligence does not prevent him from recovering. The dram shop still
carried the same duty to monitor the intoxication of its patrons whether or not Deering
was participating in the evening’s events as well.
Deering did not willingly subject himself to the risk of losing his eye to an
intoxicated person. Deering did voluntarily play volleyball with Hanks, aware that he
drank too much, but in order to show complicity, Deering needed to actively participate
in the intoxication demonstrate he assumed the risk that came with Hanks’ state of mind.
In Nelson, the plaintiff agreed to travel on multiple occasions with Araiza driving, even
though she knew he was drunk, yet she still was not complicit because she did not
willingly accept the risks of the intoxicated driver. Deering, even less than Nelson’s
complicity with Araiza’s driving, did not assume the risk of being struck with a bottle,
nor was he actively engaged in the intoxication.

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Deering’s companionship throughout the evening does not equal complicity.
Graham and his friends had been drinking together throughout the night, but a directed
verdict was in err. Action triggers complicity. Mere presence during bar-hopping is only
an omission to prevent intoxication. It is important to note, that although grabbing a
friend another beer, or buying someone a drink indicated complicity, it is not sufficient
on its own. Additional facts are required to connect the drink with an effort to intoxicate.
Summarily, the facts in the instant case do not clearly represent Deering’s
complicity, and therefore will not permit a court to grant summary judgment.

Open Memo 731

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Open Memo 731