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No. 3--02--0629

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

PRESIDING JUSTICE McDADE delivered the opinion of the court:

The plaintiff, Michael Widmer, appeals an order of thecircuit court dismissing his claim seeking compensation forliabilities he incurred as a result of the death of his wife,Danna Widmer. We affirm.

FACTS

On February 24, 2001, Danna Widmer and her friend DarlaKuster patronized Miss Karen's, a tavern owned by defendant KarenHoover. At the bar, Danna drank a substantial amount of alcoholand became drunk. After midnight, on the morning of the 25th,Danna and Darla left the tavern. Danna was driving and droppedDarla off at her house in Loda, Illinois, near Lake Iroquois.Soon after leaving Darla's house, Danna drove her car into thelake and drowned.

Michael Widmer, Danna's widower, became liable for medicaland funeral expenses as a result of Danna's death. He filed atwo-count complaint against Karen Hoover, James Bristle andPamela Bristle. Count I of the complaint sought damages under theDramshop Act (Act) (235 ILCS 5/6--21 (West 2002) against Hoover,as the owner of the tavern where Danna became intoxicated. CountII sought damages under the Act against the Bristles as owners ofthe property where the tavern is located. The plaintiff allegedthat his wife became drunk at Miss Karen's and as a result of herintoxication, drove her car into the lake and drowned. He alsoalleged that as a result of his wife's death, he incurred damageto his property in the amount for which he was liable for hiswife's medical and funeral expenses under the Rights of MarriedPersons Act (Family Expense Act). (750 ILCS 65/15 (West 2002)).

The defendants filed a motion to dismiss under section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West2002)) and argued that the Dramshop Act barred the plaintiff fromrecovering damages for injuries sustained by the intoxicateddriver. The trial court agreed with the defendants'interpretation of the statute and dismissed the action. Theplaintiff appeals.

ANALYSIS

The single issue on appeal is whether the widower of anintoxicated driver who is killed in an auto accident as a resultof her intoxication can recover under the Dramshop Act (235 ILCS5/6--21 (West 2002)) for medical and funeral expenses for whichhe became liable because of the Family Expense Act (750 ILCS65/15 (West 2002)). The trial court found that the Actexplicitly barred the plaintiff's cause of action, since theclaim seeks recovery of amounts paid as a result of the injuryand death of an intoxicated driver. The plaintiff argues that hehas a statutory right to recover for injury to his property,regardless of how that injury arose, and asks this court toreverse the dismissal.

A section 2--615 motion to dismiss should be granted whenthe allegations in the complaint, viewed in the light mostfavorable to the plaintiff, fail to support a cause of actionupon which relief can be granted. Bea v. Bethany Home, Inc., 333Ill. App. 3d 410, 413, 755 N.E.2d 621, 623 (2002). We will reviewthe dismissal de novo. Smith v. Malone, 317 Ill. App. 3d 974,979, 742 N.E.2d 785, 788 (2000).

The Dramshop Act provides:

"Every person who is injured within this state, inperson or property, by any intoxicated person has aright of action in his or her own name, severally orjointly, against any person, licensed under the laws ofthis State or any other state to sell liquor, who, byselling or giving liquor, *** causes the intoxicationof such person." 235 ILCS 5/6--21 (West 2002).Effective January 1, 1986, the statutory liability was limited bythe following provision:

"nothing in this Act shall be construed to confera cause of action for injuries to the person orproperty of the intoxicated person himself, nor shallanything in this Act be construed to confer a cause ofaction for loss of means of support on the intoxicatedperson himself or on any person claiming to besupported by such intoxicated person." Pub. Act84-271, eff. Jan. 1, 1996 (amending 235 ILCS 5/6-21). The plaintiff asserts that he was damaged in his property byhis intoxicated wife's death when he was forced to pay hermedical and funeral expenses pursuant to the Family Expense Act.An injury to property does not require direct physical damage totangible real or personal property. Farmers State Bank & TrustCo. v. Lahey's Lounge, Inc., 165 Ill. App. 3d 473, 480, 519N.E.2d 121, 125 (1988). "Damage to property" may also occur whenthe assets and money of the plaintiff are depleted by the paymentof medical and funeral expenses. Farmer's State Bank, 165 Ill.App. 3d at 480, 519 N.E.2d at 125; Fortner v. Norris, 19 Ill.App. 2d 212, 216-18, 153 N.E.2d 433, 435-36 (1958).

The plaintiff relies principally on Bachman v. Sharon & Lo'sPlace, Inc., 185 Ill. App. 3d 40, 541 N.E.2d 153 (1989), wherethe plaintiff alleged that she was damaged in her propertybecause she was liable for the medical and funeral expenses ofher husband, who, due to his own intoxication, died in a carcrash. Bachman, 185 Ill. App. 3d at 42, 541 N.E.2d at 154-55.Although the case appears to be decisive here, the ruling wasbased on the Dramshop Act prior to the 1986 amendment. Thedefendants argue that Bachman is no longer good law in light ofthe statute as amended.

Prior to the 1986 amendment, it was well established that aperson who was required by statute to pay the medical or funeralexpenses of a driver who was injured or killed due to his ownintoxication could recover those expenses under the Dramshop Actas an injury to property. Bachman, 185 Ill. App. 3d at 42, 541N.E.2d at 154-55. See also Kelly v Hughes, 33 Ill. App. 2d 314,1789 N.E.2d 273 (1962); Shephard v. Marsaglia, 31 Ill. App. 2d379, 176 N.E.2d 473 (1961). We believe the amendment to theDramshop Act has changed that rule.

It appears that the intent of the 1986 amendment was toinsulate dramshop owners from damages resulting from theintentional illegal activity of an intoxicated but otherwisepresumably responsible driver. To this end, the amendmentprohibits recovery in two circumstances. First, there will be noliability "for injuries to the person or property of theintoxicated person himself." 235 ILCS 5/6-21 (West 2002). Second, claims for loss of means of support on behalf of theintoxicated person or by those claiming to be supported by theintoxicated person are barred by the amendment.

In this case, the claim is for medical and funeral expensesdirectly attributable to the injuries sustained by the decedent.

Despite the characterization of the claim as an injury to theproperty of the surviving spouse, it is, in fact, one thatfactually and legally derives from and is inextricably linkedwith the action of plaintiff's decedent in driving whileintoxicated and the resulting injuries to her person and herdeath. The amendment prohibits compensation for injuriessustained by an intoxicated driver, and that appears to us to beprecisely what plaintiff is seeking.

The alleged damage to the plaintiff's property is wholly derivative of the injuries sustained by his wife. Had theplaintiff's wife survived the accident, her recovery of damageswould clearly be prohibited by the statute since the plainlanguage of the amendment prohibits recovery for injuries to anintoxicated driver. We do not believe that her death somehowconverted her medical and funeral expenses to something otherthan damages for injuries to an intoxicated driver.

Nor do we believe that was the legislative intent. As notedabove, the interpretation urged by plaintiff represented thegeneral rule prior to the 1986 amendment. There was no need forthe statutory modification if the legislature simply wanted tomaintain the status quo. Moreover, if that had been its purpose,it certainly could have clearly so stated.

For these reasons, we affirm the order of the circuit courtof Iroquois County dismissing plaintiff's complaint for damages.

Affirmed.

SLATER, J., concurs. BARRY, J., dissents.

JUSTICE BARRY, dissenting:

I respectfully dissent because I do not agree with themajority's conclusion that the plaintiff's right to recover formedical and funeral expenses for which he became liable under theFamily Expense Act (750 ILCS 65/15 (West 2002)) was barred by the1986 amendment to the Dram Shop Act (Act) (235 ILCS 5/6-21 (West2002)). I do not disagree that the amendment applies because itbecame effective on January 1, 1986 and the accident occurred onFebruary 25, 2001.

The 1986 amendment eliminated a cause of action by theintoxicated person for injuries to her person or property andeliminated a claim for loss of means of support on behalf of theintoxicated person or others asserting such a claim. The majoritycontends that the legislature's elimination of these causes ofaction reflected its intent to also eliminate what the majoritycharacterizes as damage to Michael's property "wholly derivative ofthe injuries sustained by his wife."

I disagree with the majority's assumption that the legislatureintended to preclude a cause of action by family members forrecovery of property damage they incurred as a result of theintoxicant's actions. As noted by the majority, prior to the 1986amendment of the Act, it was well established that a spouse couldrecover medical and funeral expenses. See Bachman v. Sharon & Lo'sPlace, Inc., 185 Ill. App. 3d 40, 541 N.E.2d 153 (1989). Wepresume that the legislature knew how the Act was judiciallyinterpreted prior to its amendment and acted with that knowledge. See Morris v. William L. Dawson Nursing Center, Inc., 187 Ill. 2d494, 499, 719 N.E. 2d 715, 718 (1999). While the legislatureeliminated several causes of action with the 1986 amendment, it didnot eliminate the cause of action by a spouse for property damage.

I find nothing in the amending language to support themajority's interpretation of the statute. In fact, the legislativehistory reveals that the legislature intended that claims by anintoxicant's family for property damages that they suffered as aresult of the intoxicant's actions continue to remain viable. During the House proceedings on the amendment, its sponsor,Representative Countryman, stated that the amendment "does not takeway that cause of action for ... by relative[s] for the other 2potential causes of action[,] that is[,] personal injury andproperty damage." See 84th Gen. Assem. House Proceedings, May 23,1985, at 162-63 (statements of Representative Countryman). Inresponse to a comment that the amendment would leave the family ofa deceased intoxicant without recourse, Representative Countrymanspecifically noted that the family "does have recourse under thepersonal injury and property damage." He added that "[a]nd thereare instances whether the funeral bill[,] for instance[,] is afamily expense, there may be some potential in that instance." See84th Gen. Assem. House Proceedings, May 23, 1985, at 168(statements of Representative Countryman).

In my opinion, the 1986 amendment of the Act does not alterthe ability of an intoxicant's spouse to recover hospital andfuneral expenses. I would allow Michael to pursue his cause ofaction to recover for damage to his property resulting from hisliability for his wife's medical and funeral expenses.