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SECOND DIVISION
March 30, 2001

No. 1-99-0775

JUSTICE McBRIDE delivered the opinion of the court:

Plaintiff Mary Louise Wakulich, individually and as specialadministratrix of the estate of decedent Elizabeth Wakulich, brought an actionagainst defendants Dennis, Michael, and Brian Mraz. Plaintiff's amended secondamended complaint was dismissed by the trial court for failing to state a causeof action. Plaintiff now appeals.

Plaintiff's amended second amended complaint alleged that onJune 15, 1997, and continuing into the morning of June 16, her daughter,Elizabeth (decedent), was at the home of defendant Dennis Mraz, and his sons,defendants Michael and Brian Mraz. At the time, decedent was 16 years old,Michael was 21 years old, and Brian was 18 years old. On the evening of June 15,Michael and Brian provided decedent with a quart of an alcoholic beverage knownas Goldschlager. The complaint alleges that during the evening of June 15 andearly morning of June 16, Michael and Brian induced decedent to drink the entirequart of Goldschlager through goading, the application of great social pressure,and by offering money. Decedent, to collect the offered money, was required toconsume the entire bottle of Goldschlager without losing consciousness orvomiting. The complaint alleges that Dennis was present in the home and knew orshould have known that alcoholic beverages were being served to minors in hishome.

In the early morning hours of June 16, decedent, afterdrinking the Goldschlager, lost consciousness. According to the complaint,Michael and Brian then placed her in the downstairs family room, where theyobserved her vomiting profusely and making "gurgling" sounds. Theylater checked on her again, at which time they removed her vomit-saturatedblouse and placed a pillow under her head to prevent aspiration. According tothe complaint, Michael and Brian did not seek medical attention for decedent andactually prevented others present in the home from calling 911 or seeking othermedical intervention. Later in the morning, Dennis ordered Michael and Brian toremove decedent from the home. They then took her to a friend's home. Later,decedent was taken to a hospital where she was pronounced dead.

According to the complaint, Michael was subsequentlyconvicted of contributing to the delinquency of a child, a Class A misdemeanor.720 ILCS 130/2a (West 1996).

Plaintiff's amended second amended complaint brought claimsagainst the three defendants pursuant to the Wrongful Death Act (740 ILCS180/0.01 et seq. (West 1996)) and the Survival Act (755 ILCS5/27-6 (West 1996)). It was alleged that defendants Michael and Brian werenegligent in inducing decedent into drinking to excess, and all three defendantswere negligent in failing to act to protect decedent after voluntarilyundertaking her care after she became unconscious.

Defendants filed a motion to dismiss plaintiff's amendedsecond amended complaint pursuant to section 2-615 of the Code of CivilProcedure for failure to state a cause of action. 735 ILCS 5/2-615 (West 1998).Their motion stated that the various counts should be dismissed because underlong-standing Illinois law, there is no common law cause of action for alcoholliability beyond that explicitly provided for in the Dramshop Act (235 ILCS5/6-21) (West 1996)), and because liability under that act does not extend tosocial hosts or those not engaged in the liquor business. The motion alsocontended that the defendants owed no legal duty to seek medical assistance forthe decedent and that the counts brought pursuant to the Survival Act should bedismissed because an administratrix appointed pursuant to the Wrongful Death Acthas no standing to commence Survival Act claims.

The trial court dismissed plaintiff's amended second amendedcomplaint. Plaintiff now appeals.

Plaintiff contends that the trial court erred in grantingdefendants' motion to dismiss her amended second amended complaint for failureto state a cause of action. In ruling on a section 2-615 motion to dismiss, itmust be determined whether the allegations of the complaint, when considered ina light most favorable to the plaintiff, sufficiently state a cause of actionupon which relief can be granted. Board of Directors of Bloomfield ClubRecreation Ass'n v. Hoffman Group, Inc., 186 Ill. 2d 419, 424, 712 N.E.2d330 (1999). Unless it clearly appears that the plaintiff can prove no set offacts that will entitle him or her to relief, a cause of action will not bedismissed on the pleadings. Bloomfield Club Recreation Ass'n, 186 Ill. 2dat 424; Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co.,114 Ill. 2d 278, 286, 499 N.E.2d 1319 (1986). For purposes of judging thesufficiency of a complaint, all well-pleaded facts must be taken as true. CharlesHester Enterprises, 114 Ill. 2d at 286. A trial court's dismissal of anaction pursuant to section 2-615 of the Code of Civil Procedure for failure tostate a cause of action is reviewed de novo. Bloomfield ClubRecreation Ass'n, 186 Ill. 2d at 424.

In Charles v. Seigfried, 165 Ill. 2d 482, 491, 651N.E.2d 154 (1995), our supreme court held that the entire field ofalcohol-related liability had been preempted by the Illinois General Assemblythrough its passage and continual amendment of the Dramshop Act. The courtfurther held that the legislative preemption extended to social hosts whoprovide alcoholic beverages to another person, whether that person is an adult,underage, or a minor. Charles, 165 Ill. 2d at 491. The court traced therule that no social host liability exists in Illinois under the common law orDramshop Act back to the 1889 case of Cruse v. Aden, 127 Ill. 231, 20N.E. 73 (1889). See Charles, 165 Ill. 2d at 487-88.

Justice McMorrow, joined by Justice Harrison, wrote a lengthydissent to the majority opinion in Charles, arguing for the recognitionof social host liability for the provision of alcohol to minors who becomeintoxicated and are subsequently injured in alcohol-related vehicle accidents. Charles,165 Ill. 2d at 504-23 (McMorrow, J., dissenting). The dissent contains thefollowing passage relevant to this appeal:

"Our appellate court has expressed growing dissatisfaction with jurisprudence of this State regarding civil liability for alcohol-related injuries. Appellate decisions have already created exceptions to the general rule of non-liability for the provision of alcohol in contexts other than dramshop actions. (See, e.g., Haben v. Anderson (1992), 232 Ill. App. 3d 260, [597 N.E.2d 655]; Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, [507 N.E.2d 1193] (imposing common law negligence liability when minor 'required' to consume alcohol during college 'hazing' party).)" Charles, 165 Ill. 2d at 510 (McMorrow, J., dissenting).

In Quinn, 155 Ill. App. 3d 231, 507 N.E.2d 1193, oneof the cases cited in the above passage, the plaintiff, a pledge of thedefendant fraternity, was required to participate in an initiation ceremony inorder to become a member of the fraternity. The plaintiff was directed to drinka 40-ounce pitcher of beer without letting it leave his lips or until hevomited. He was then directed to drink from an eight-ounce bottle of whiskey andwas taken to a tavern where members of the fraternity purchased more liquor forthe pledges. Quinn, 155 Ill. App. 3d at 233-34. Plaintiff eventuallybecame extremely intoxicated, unconscious, and suffered neurological damage tohis arms and hands as a result of his alcohol intake. The plaintiff brought acause of action grounded in simple common law negligence. Although the courtnoted that the plaintiff, in asking the court to acknowledge a cause of actionin negligence, was asking it to "draw perilously close to the extensivecase law prohibiting common law causes of action for negligently sellingalcohol," the court held that a cause of action existed. Quinn, 155Ill. App. 3d at 235-38. The court based its finding that a cause of actionexisted on two factors:

"First, the fact that plaintiff was required to drink to intoxication. This sufficiently distinguishes the instant case from the social host-guest situation. The social pressure that exists once a college or university student has pledged into a fraternal organization is so great that compliance with initiation requirements places him or her in a position of acting in a coerced manner.

Second, the legislature has enacted a statute against hazing. This indicates to us a social policy against embarrassing or endangering our youth through thoughtless and meaningless activity." Quinn, 155 Ill. App. 3d at 237-38.

In Haben v. Anderson, 232 Ill. App. 3d 260, 597 N.E.2d655, the other case cited in the above passage from Justice McMorrow's dissentin Charles, the plaintiff was the special administrator of the estate ofa deceased student who had been a "rookie" on a lacrosse clubsanctioned by a university. The 12 defendants, all active members of the club,participated in the "initiation" of new recruits, including thedecedent, to the club. The plaintiff alleged that the initiation hazing anddrinking activities conducted by the defendant club members had occurred for anumber of years and had become a tradition and de factorequirement for membership in the club. In the course of the initiationactivities, the decedent became highly intoxicated, lost consciousness, and wascarried to one of the defendant's dormitory rooms, where he was discovered deadthe next morning. The Haben court found that the plaintiff's complaintadequately stated a cause of action pursuant to Quinn. Haben, 232Ill. App. 3d at 267. In so holding, the court noted that the plaintiff hadalleged "that Club membership was a much valued status, that drinking was ade facto requirement for membership in the club, and that thedecedent was 'pressured' to drink." Haben, 232 Ill. App. 3d at 265.The court also relied on the fact that a violation of a statute prohibitingcertain hazing activities was involved. Haben, 232 Ill. App. 3d at 267.

A number of counts in plaintiff's action are premised on thecontinuing viability, after Charles, of the decisions in Quinn andHaben. Thus, the first issue before this court is whether Quinnand Haben remain good law in the wake of the supreme court's opinion in Charles.

Plaintiff contends that Quinn and Haben createdan exception to the general rule of nonliability for the provision of alcohol incontexts other than dramshop actions that has survived the majority's decisionin Charles. According to plaintiff, where the majority in Charles"addressed and attempted to refute each of the dissent's arguments,"but failed to specifically mention or overturn the Quinn and Habendecisions, those holdings remain good law by implication.

Defendants, and the trial court, believe that no suchexception survived. Defendants argue that the supreme court, in Charles,was unequivocal when it stated that "[a]ll binding precedent on the subjectteaches us that the General Assembly has preempted the entire field ofalcohol-related liability through its passage and continual amendment of theDramshop Act." Charles, 165 Ill. 2d at 491. The court, inconclusion, held that it was declining to "create any form of social hostliability." Charles, 165 Ill. 2d at 504. Thus, defendants conclude,the narrow exception to social host liability created by Quinn waseliminated by the Charles decision despite the majority's failure tooverrule it by name.

We agree with defendants. The supreme court, in Charles,cast a wide net in stating that the General Assembly has preempted the entirefield of alcohol-related liability. Charles, 165 Ill. 2d at 488.Based on the majority's repeated statements regarding preemption of the entirefield and repeated findings that any form of social host liability that is to becreated must come from the legislature, we cannot now say that the liabilityexception created by Quinn survived Charles.

Even assuming, arguendo, that a cause of actionpursuant to Quinn and Hagen is still viable after Charles,we find that plaintiff has failed to sufficiently plead such a cause of action.As stated earlier, the Quinn court found that a cause of action existedwhere (1) the plaintiff was required to drink to intoxication; and (2) thelegislature had enacted a statute against hazing, thus indicating "a socialpolicy against embarrassing or endangering our youth through thoughtless andmeaningless activity." Quinn, 155 Ill. App. 3d at 237-38. In Haben,the court found that "it is sufficient to state a cause of action under theQuinn case if it is alleged that there was a de factorequirement to consume alcohol for membership in an organization and that therewas a violation of the Hazing Act." Haben, 232 Ill. App. 3d at 267.

Plaintiff contends that the first prong of the Quinn/Habenexception has been sufficiently pled here where it was alleged that defendantsMichael and Brian Mraz used their age and considerable experience to coercedecedent into consuming an excessive amount of alcohol, decedent was severalyears younger than Michael and Brian and thus felt compelled to fit in with theolder group, Michael and Brian challenged decedent by offering her money if shedrank the entire bottle of Goldschlager, and defendants' goading occurred infront of several of decedent's friends. Plaintiff believes that it was theinvoluntary nature of decedent's actions that distinguish this case from othersocial host cases and which brings it within the Quinn/Habenexception.

Defendants maintain that decedent was not required to drinkto intoxication, but instead voluntarily chose to do so in a social setting.Defendants argue that the facts in the instant case are more analogous to thosein Goodknight v. Piraino, 197 Ill. App. 3d 319, 554 N.E.2d 1 (1990), thanthey are to Quinn and Haben. In Goodknight, the 18-year-oldfemale plaintiff attended a party promoted by a village and held at the villagecommunity building. The plaintiff alleged that at the party, at which liquor wassold, she was "coerced" into drinking alcohol by her male companionand others who attended the party. Plaintiff became intoxicated and was laterinjured when she crashed her car.

The appellate court held that, for purposes of a motion todismiss, the plaintiff's contention that it could be inferred from herallegations that her drinking and intoxication were involuntary was a conclusionof fact that need not be taken as true. Goodknight, 197 Ill. App. 3d at325. The court then addressed the plaintiff's contention that "thedictatorial and coercive behavior of [her male companion] and those whosurrounded her, combined with [the defendant village and defendant nonprofitcorporations'] facilitating presence and promotion of the drinking, imposed a'requirement' she consume the liquor, just as the fraternity required theplaintiff in Quinn to drink." Goodknight, 197 Ill. App. 3d at325. The court found that plaintiff's argument went too far. Specifically, thecourt noted that in Quinn, the drinking was a requirement to get into aspecific fraternity, membership in a fraternity was seen as a "much valuedstatus," and that great pressure was assumed to have been upon theplaintiff to comply with the fraternity's membership qualifications. Goodknight,197 Ill. App. 3d at 325. The court held that "Quinn did notrecognize an exception to the [Dramshop] Act for every 18-year-old who 'feelspressured' to drink, but a narrow one--a duty on the part of fraternities andsororities to refrain from requiring participation in such acts ***." Goodknight,197 Ill. App. 3d at 325.

We conclude that the allegations of peer pressure and offersof money in the instant case fail, for similar reasons, to bring this casewithin the ambit of Quinn. Despite the tragedy presented by the facts ofthis case, those same facts establish only that decedent was someone whosuccumbed to peer pressure. Where decedent was not attempting to join an actualorganization, it would be a dramatic expansion of the Quinn/Habenexception, assuming such an exception survived Charles, to find that acause of action exists here.

We also disagree with plaintiff's contention that the conductof the defendants violated the second prong of the Quinn/Hagenexception. Plaintiff, citing Quinn, 155 Ill. App. 3d at 238,characterizes the second prong as the violation of a statute where theunderlying social policy of the statute is to prevent embarrassing orendangering our youth through thoughtless and meaningless activity. Here, thestatute at issue concerns contributing to the delinquency of a child. 720 ILCS130/2a (West 1996). Defendant Michael Mraz, in an unrelated proceeding, waspurportedly convicted of a violation of that criminal statute for his role inthe facts of this case. The statute prohibits any person from knowingly orwilfully causing, aiding, or encouraging, any girl or boy to be or become adelinquent child, or from knowingly or wilfully doing any acts which directlytend to render any such child delinquent. 720 ILCS 130/2a (West 1996). Plaintiffcontends that the social policy underlying the statute is the same as thatunderlying the anti-hazing statute at issue in Quinn and a legal dutypursuant to the Quinn/Haben exception is thereby created.

An argument similar to plaintiff's argument here was made in Charles.In Charles, 165 Ill. 2d at 498, the plaintiffs maintained that the courtshould create a civil cause of action where a social host had violated a sectionof the Liquor Control Act of 1934 (235 ILCS 5/1-1 et seq. (West1996)), making it a petty offense for an adult to knowingly permit a gatheringof persons under the age of 18 at a residence where the persons under the age of18 are known to be consuming alcohol or leave the residence in an intoxicatedcondition. The court proceeded to review various legislative proposals imposingforms of social host liability that the General Assembly had considered andchosen not to adopt in the 10 years previous. Charles, 165 Ill. 2d at499-501. Based on its review, the court concluded that it could not, in the faceof the legislative refusals to do so, determine that grafting social hostliability onto any section of the Liquor Control Act would conform withlegislative intent. Charles, 165 Ill. 2d at 501. Such an interpretation,the court found, "would be tantamount to judicial gymnastics." Charles,165 Ill. 2d at 501. Similarly, in light of Charles, we cannot concludethat the legislature, by making contributing to the delinquency of a child acriminal violation, intended to create civil liability for social hosts whoviolate the statute.

Moreover, in the instant case, to allow a civil action toflow from the violation of a criminal statute prohibiting an adult fromencouraging a minor to consume alcohol would go a long way toward evisceratingthe general rule of no common law social host liability. As the court held in Charles,165 Ill. 2d at 491, the legislative preemption in the field of alcohol-relatedliability extends to social hosts who provide alcoholic beverages to anotherperson, whether that person is an adult, underage, or a minor. That findingwould have no meaning if a civil cause of action were found to exist whenever anadult had arguably caused, aided, or encouraged a minor to consume alcohol.

Plaintiff next contends that public policy dictates thiscourt recognize a common law negligence action against an adult social host whoknowingly serves alcohol to a minor. In so arguing, plaintiff first contendsthat the Dramshop Act (235 ILCS 5/6-21 (West 1996)) does not explicitly preempta cause of action based upon a social host providing alcohol to a minor andurges the court to follow what she terms a national trend in tort law favoringsocial host liability for providing alcohol to minors. In so arguing, plaintiffechoes Justice McMorrow's dissent in Charles. See Charles, 165Ill. 2d at 504-23 (McMorrow, J., dissenting). However, in light of the stronglanguage of the majority opinion in Charles, 165 Ill. 2d at 493-97, inwhich the court stated that the adoption of any form of social host liabilitywas a subject better suited to the legislature, it would be inappropriate forthis court to accept plaintiff's invitation to follow the national trend andimpose liability in tort on social hosts who serve alcohol to minors. In soholding, we note that the Charles majority specifically disagreed withthe dissent's claim that there was a "clear national trend" favoringsocial host liability for adults who provide alcohol to minors. Charles,165 Ill. 2d at 495-96 (discussing Justice McMorrow's dissent).

Plaintiff next maintains that she has pleaded sufficientfacts to establish a cause of action based upon defendants' failure to exercisedue care in voluntarily undertaking to care for plaintiff's decedent after shebecame unconscious. We agree.

"One who voluntarily undertakes to render services toanother is liable for bodily harm caused by his failure to perform such serviceswith due care or with such competence and skill as he possesses." Siklasv. Ecker Center for Mental Health, Inc., 248 Ill. App. 3d 124, 131, 617N.E.2d 507 (1993). In the complaint in the instant case, plaintiff alleged thatdecedent lost consciousness shortly after consuming the alcohol she was coercedinto drinking, that defendants Michael and Brian then placed her in a downstairsfamily room where they observed her vomiting profusely and making"gurgling" sounds, that Michael and Brian checked on decedent in theearly morning hours at which time they removed her vomit-saturated blouse andplaced a pillow under her head to prevent aspiration, and that defendant DennisMraz ordered decedent removed from the home, at which time Michael and Brianphysically moved decedent from the home in her unconscious state. According tothe complaint, decedent sustained injuries as a direct and proximate result ofthose negligent acts.

Defendants maintain that absent a special relationship thereis no duty on the part of a social host to supervise an intoxicated guest. Thelack of duty, defendants argue, includes seeking medical attention. Defendantsrely on the cases of Zamiar v. Linderman, 132 Ill. App. 3d 886, 890, 478N.E.2d 534 (1985) (rejecting the plaintiff's invitation to enunciate a commonlaw duty for social hosts providing alcohol to "supervise" intoxicatedguests), and Estate of Ritchie v. Farrell, 213 Ill. App. 3d 846, 849, 572N.E.2d 367 (1991) (holding that, absent a special relationship between theparties, there was no duty to come to the aid and assistance of a person who hadvoluntarily chosen to drink an inordinate amount). We agree with defendantsthat, as social hosts, they had no duty to obtain medical assistance fordecedent. Both Ritchie and Zamiar are distinguishable, however,because there was no voluntary undertaking on the part of the defendants inthose cases. Here, plaintiff has alleged that Michael and Brian voluntarilyundertook affirmative steps to care for decedent and did so in a negligentmanner. See Castro v. Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d542, 547, 732 N.E.2d 37 (2000) (noting that liability can be imposed for thenegligent performance of a voluntary undertaking even where no legal duty basedupon a "special relationship" between the parties exists).

In Haben, 232 Ill. App. 3d at 267-68, in addition tothe social host liability issue discussed earlier, a separate count in thecomplaint alleged that one of the defendant lacrosse club members hadvoluntarily assumed a duty to care for the decedent by allowing the decedent tobe placed on the floor of defendant's dormitory room unconscious, and bychecking on him during the night at which time he heard him making gurglingnoises. The appellate court found that the trial court had erroneously dismissedthe voluntary undertaking count where, based on the allegations in thecomplaint, a trier of fact could conclude, inter alia, that thedefendant had "assumed a duty to care for the decedent by checking on himduring the night" and that defendant had not acted "reasonably toprevent harm to the decedent after allowing him to be placed on the floor of hisroom unconscious and after hearing gurgling sounds when checking on him." Haben,232 Ill. App. 3d at 268. As noted by the trial court in the instant case,plaintiff here has almost mirrored the voluntary undertaking allegations made inHaben. 232 Ill. App. 3d at 267-68.

Although defendants argue that no part of Habenremains good law following Charles, we find that the voluntaryundertaking analysis in Haben was separate and distinct from the court'sanalysis of social host liability. Contrary to defendants' argument, thevoluntary undertaking counts here and in Haben were not premised on aduty that arose through the defendants' status as social hosts, but rather on aduty that arose through the unrelated voluntary undertakings of defendants whoincidently happened to also be social hosts. As noted earlier, defendants had noduty as social hosts to come to the aid of decedent or obtain medical assistancefor her. The viability of the voluntary undertaking counts, however, is notdependent on a duty created through the defendants' provision of alcohol todecedent but, rather, on the defendants having voluntarily undertaken to carefor decedent after she became unconscious and having allegedly failed toexercise due care in the performance of that undertaking. We therefore find thatthe status of the defendants as social hosts cannot insulate them from liabilityfor allegedly failing to exercise due care in the performance of their voluntaryundertaking.

Defendants maintain that none of their alleged acts indicatea voluntary assumption of any responsibility for decedent's health orwell-being. We disagree. Specifically, it was alleged that after decedent becameunconscious, Michael and Brian carried her downstairs, placed her on a couch,observed her vomiting profusely and making gurgling noises, checked on herlater, changed her vomit-saturated shirt, and placed a pillow underneath herhead to prevent aspiration. The actions of Michael and Brian more clearlydemonstrated an undertaking concerning decedent's well-being than the acts foundto be sufficient to state the same cause of action in Haben. We findtherefore, that plaintiff has sufficiently pled that defendants Michael andBrian voluntarily assumed a duty to care for decedent.

Defendants maintain that they were not negligent indischarging any responsibility they did undertake, that a finding that there wasa duty in this case creates uncertainty as to how that duty may be adequatelydischarged, and that decedent's death was not the proximate result of anyvoluntary undertaking on their part. We are confident that a jury or other trierof fact is capable of determining whether defendants, having voluntarilyundertaken to care for the decedent after she became unconscious and began tovomit and gurgle, performed that undertaking with due care. We also find thatthe complaint alleges various acts, including allegations that defendantsMichael and Brian prevented other individuals from calling for emergency medicalintervention, from which a jury could find the defendants acted negligently indischarging their voluntarily assumed duty, proximately leading to decedent'sdeath.

We find that the trial court erred in concluding that theWrongful Death Act and Survival Act claims against Michael and Brian in countsIII, IV, VII, and VIII failed to state a cause of action.

Finally, plaintiff asks that if this case is reversed andremanded, she be allowed to request leave to amend her second amended complaintin order to have an independent administrator bring the counts pled pursuant tothe Survival Act. Our review of the record shows that the trial court, justprior to the dismissal of the amended second amended complaint that resulted inthis appeal, ruled that "technically and procedurally and to dot all thei's and cross all the t's," it would be necessary for an independentadministrator of the estate appointed in probate court to bring the Survival Actactions rather than a special administratrix appointed under the Wrongful DeathAct. We see no bar to plaintiff seeking leave, on remand, to amend her complaintto correct this technical defect in compliance with the trial court's ruling.

Accordingly, we affirm the trial court's dismissal of countsI, II, V, VI, IX, and X of plaintiff's amended second amended complaint. Wereverse the trial court's dismissal of counts III, IV, VII, and VIII againstdefendants Michael and Brian and remand this case for further proceedings.

Affirmed in part and reversed in part; cause remanded.

GORDON and COUSINS, JJ., concur.