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Schramer v. Tiger Athletic Ass'n

Case Date: 09/07/2004
Court: 2nd District Appellate
Docket No: 2-03-1432 Rel

No. 2--03--1432

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

CAROL A. SCHRAMER,

          Plaintiff-Appellant,

v.

TIGER ATHLETIC ASSOCIATION OF
AURORA,

          Defendant-Appellee

(LaVern C. Schramer, Jr., Michelle A.
Schramer, and Charles S. Schramer, Plaintiffs).

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)		 Appeal from the Circuit Court
of Kane County.


No. 02--L--137





Honorable
Donald J. Fabian,
Judge, Presiding.

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, Carol A. Schramer, appeals from an order of the circuit court of Kane Countydismissing her complaint against defendant, Tiger Athletic Association of Aurora, for recovery of herhusband's hospital, medical, and funeral expenses pursuant to section 6--21 of the Liquor Control Actof 1934 (235 ILCS 5/6--21 (West 2000)), popularly known as the Dramshop Act. At issue iswhether the Dramshop Act provides for recovery of these expenses where the decedent perished asa result of his own intoxication. We conclude that it does, and we therefore reverse.

In her complaint, plaintiff alleged that on March 21, 2001, her husband, LaVern C. Schramer,Sr., became intoxicated at a tavern operated by defendant and was killed in a motor vehicle accidentcaused by his intoxication. In count I of the complaint, plaintiff alleged that as a result of theaccident, she had become liable for LaVern, Sr.'s hospital, medical, and funeral expenses undersection 15 of the Rights of Married Persons Act (750 ILCS 65/15 (West 2000)), commonly knownas the Family Expense Act. The complaint originally included a second count that plaintiff filed alongwith LaVern C. Schramer, Jr., Michelle A. Schramer, and Charles S. Schramer. Count II, whichsought recovery for the loss of support and society, was voluntarily dismissed and is not at issue inthis appeal. Defendant filed its answer to count I, but subsequently moved to strike that count,relying in part on the recent decision of a divided panel of the Appellate Court, Third District, inWidmer v. Hoover, 342 Ill. App. 3d 280 (2003). Widmer squarely held that the surviving spouse ofone who dies as a result of his or her own intoxication has no cause of action under the DramshopAct for medical and funeral expenses. Plaintiff did not dispute that Widmer was directly on point andthat its holding would be fatal to her claim. Plaintiff argued, however, that Widmer was in conflictwith this court's decision in Muranyi v. Frisch-Auf, 308 Ill. App. 3d 213 (1999), and that the trialcourt was bound to follow the latter decision. Ruling that Widmer was controlling, the trial courtgranted the motion to strike and dismissed count I with prejudice. This appeal followed.

We initially note that defendant ostensibly moved to strike count I pursuant to section 2--619(a)(2) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(2) (West 2002)) on the basisthat plaintiff lacked legal capacity to sue. A section 2--619 motion may be filed "within the time forpleading." 735 ILCS 5/2--619(a) (West 2002). As noted, defendant had already filed its answerwhen it moved to strike. Thus, to the extent the motion was brought under section 2--619, it wasarguably untimely, although plaintiff raised no objection on this basis.

In actuality, though, the motion to strike had nothing to do with the subject of capacity,which, for purposes of section 2--619(a)(2), pertains to defenses such as incompetency, infancy, andthe like. Phillips Construction Co. v. Muscarello, 42 Ill. App. 3d 151, 154 (1976); see also 59 Am.Jur. 2d Parties