In, Simmons v. Homatas, 236 Ill.2d 459 (2010), the Plaintiff administrators filed suit against, among others, On Stage Productions, Inc., the operator of a gentleman’s club (the “Club”), after an intoxicated patron was involved in an accident that killed the Plaintiffs’ decedents.  The Club did not serve alcohol, but allowed patrons to bring their own alcohol.  On the night of the accident, John Homatas and John Chiariello arrived at the Club around 9:00 p.m.  The men brought with them a fifth of vodka.  Over the next two hours the men poured several drinks and by 11:00 p.m. were visibly intoxicated.

           After employees of the Club discovered Homatas vomiting in the bathroom, the employees ejected both men, and instructed the valet service to bring Homatas’ car to the front.  The employees than placed Homatas in his in the drivers side of the car, and instructed him to leave the Club’s premises.  Approximately fifteen minutes later, Homatas collided with a vehicle driven by April Simmons.  The collision resulted in the death of Chiariell, Simmons, and Simmons unborn daughter.   Representatives of the decedents’’ estates then  brought suit, alleging both common law negligence and liability under the Dramshop Act. 

     The Club filed a motion to dismiss the Plaintiffs’ common law claims.  In ruling on this motion, the Circuit Court identified two questions of law suitable for interlocutory appeal.  The questions were accepted by the Supreme Court.  The questions reviewed were: 1) Whether the Club, as a business operator who is not subject to the Dramshop Act, owed a duty of unreasonable risk of harm to a business invitee Chiariello under the specific circumstances of this case; and 2) whether the Club, as a business operator who is not subject to the Dramshop Act, owed a duty of ordinary care to the Simmons Plaintiffs under the specific circumstances of this case.  The Supreme Court answered both questions in the affirmative. 

In its ruling, the Supreme Court affirmed that it is well established under Illinois common law that no liability is imposed on a person who gives or sells alcohol to another person who later harms a third party while intoxicated.  It also affirmed that the Dramshop Act imposes liability only on those persons officially engaged in the business of selling liquor in the State of Illinois.   Under these established principles, it was evident that the Club was not subject to liability under the Dramshop Act. 

 The Club sought to extend this limit on the common law, arguing that the Dramshop Act further acts to preempt any other liability that resulted from Homatas’ intoxication.  The Supreme Court did not agree.  The Supreme Court found that based on the special circumstances of this case, a common law negligence claim is not preempted by the Dramshop Act.

The special circumstances addressed here are unrelated to the service or consumption of alcohol.  Instead, the special circumstances involve the affirmative actions taken by the Defendant after the person became intoxicated, and the Supreme Court specifically states that the Defendant’s liability in this matter does not arise from the service of alcohol.  Indeed, the Club’s potential liability arose following the series of actions taken by the Club’s employees in response to discovering Homatas intoxicated and vomiting in the bathroom.  Following this discovery, employees allegedly ejected Homatas from the club, placed Homatas into his vehicle, and required him to leave the premises. The Supreme Court concluded that, by determining Homatas to be intoxicated and ejecting him for his level of intoxication, the Club acquired a duty not to encourage and assist Homatas in the tortuous conduct of driving while intoxicated.   Thus, it is not the act of ejecting Homatas from the Club for his level of intoxication that creates liability, but the combination of ejecting Homatas for his level of intoxication and requiring him to leave the premises after placing him in his car that creates negligence liability.

The Supreme Court went on to affirm that restaurants, parking lot attendants or social hosts are not required to monitor all their patrons and guests to determine whether they are intoxicated.  In fact, the Court specifically stated that had Homatas left on his own, and the Club had merely failed to prevent him from leaving while intoxicated, no duty to protect Chiarelli or Simmons would arise absent some special relationship.  Ultimately, as discussed above, the Supreme Court found that the allegation that the Club, after determining Homatas to be intoxicated on its own volition, actively participated in or encouraged Homatas’ tortious conduct was enough for the case to survive a motion to dismiss.