Mitchell v. Michael's Sports Lounge

240 N.E.3d 603

2023 IL App (1st) 220011

Thomas MITCHELL, Administrator on Behalf of the Estate of Sandra Mitchell, Plaintiff-Appellant,

v.MICHAEL’S SPORTS LOUNGE and Madd Anthony’s Bar and Grill/LaCo-co Pizza and Sports Club, Defendants

(Michael’s Sports Lounge, Defendant-Appellee).

No. 1-22-0011

Appellate Court of Illinois, First District, THIRD DIVISION.

Filed December 13, 2023

Appeal from the Circuit Court of Cook County, No. 20 L 11343, Honorable Melissa A. Durkin, Judge Presiding.

Richard Dvorak and Liza Vasilyeva, of Dvorak Law Offices, LLC, of Clarendon Hills, for appellant.

Robert M. Burke Jr., of Heineke & Burke, LLC, of Chicago, for appellee.

OPINION

PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 After consuming alcoholic beverages at Michael’s Sports Lounge (MSL), Robert Cantu, while operating a motor vehicle on May 20, 2018, struck and killed pedestrian Sandra Mitchell (Sandra). Sandra’s husband, Thomas Mitchell (Thomas), as the administrator of her estate, filed a complaint under section 6-21 of the Liquor Control Act of 1934 (235 ILCS 5/6-21 (West 2018))—commonly referred to as the Dramshop Act—against MSL in the circuit court of Cook County on October 22, 2020. MSL subsequently filed a motion for summary judgment under section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2020)), arguing that the claim was barred by the one-year limitation period in the Dramshop Act (235 ILCS 5/6-21(a) (West 2018)).

¶ 2 In this appeal, Thomas challenges the circuit court order granting summary judgment in favor of MSL and dismissing the claim. Asserting that he filed the Dramshop Act claim on behalf of himself and his two minor children, Thomas maintains that the children’s minority tolls the limitation period. Thomas alternatively contends that the claim was timely filed based on the "discovery rule"; i.e., Thomas did not have notice that Cantu was potentially overserved at MSL until Thomas met with prosecutors on October 23, 2019, which was less than one year before the lawsuit was filed. For the reasons discussed below, we affirm.

¶ 3 BACKGROUND

¶ 4 The Complaint

¶ 5 Thomas, as administrator of Sandra’s estate, filed a two-count complaint on October 22, 2020, in the circuit court of Cook County against two defendants: MSL and LaCoco’s Pizza Inc. doing business as LaCoco’s Pizza & Wings (LaCoco).¹ The complaint alleged, in part, as follows.

¶ 6 From May 19 until the morning of May 20, 2018, MSL served numerous alcoholic beverages to Cantu, who became "visibly intoxicated." Cantu and an "unknown employee" of MSL then went to LaCoco, where Cantu continued to consume alcoholic beverages. At approximately 3:30 a.m. on May 20, 2018, Sandra was struck and killed by Cantu’s vehicle in the 5100 block of South Archer Avenue in Chicago.

¶ 7 Cantu was criminally prosecuted for Sandra’s death. During the investigation in the criminal case, Thomas met with prosecutors on October 23, 2019. On that date, Thomas "became aware of the names of the bars in question"—MSL and LaCoco—"and the fact that their employees served Cantu alcohol[ic] beverages."

¶ 8 Count I alleged a Dramshop Act claim, i.e., that due to Cantu’s intoxication from service at MSL and LaCoco, he drove while impaired, resulting in Sandra’s fatal injuries. Count II alleged a wrongful death/survival claim under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2018)). Count II stated, in part, that Sandra "left two minor daughters and her husband, Thomas Mitchell, who brings this action on her behalf."

¶ 9 Motions to Dismiss and Related Matters

¶ 10 MSL filed a motion to dismiss the complaint, arguing that count I was time- barred by the one-year limitation period in the Dramshop Act (235 ILCS 5/6-21(a) (West 2018)) and count II was time-barred by the two-year limitation period in the Wrongful Death Act (740 ILCS 180/2(d) (West 2018)).

¶ 11 While the motion to dismiss was pending, Thomas filed a motion to amend the complaint. Attached to the motion was a proposed amended complaint, which included a single count against MSL and LaCoco captioned "Wrongful Death/Survival Action, Dram Shop Act." As discussed below, there is no indication in the record on appeal that the motion to amend was ruled upon or that the amended complaint was ever filed.

¶ 12 In his response to MSL’s motion to dismiss, Thomas argued that his cause of action was timely for two reasons. Thomas initially claimed that the action was brought on his behalf and on behalf of his children, who "are entitled to half of the share of the proceeds of this case." According to Thomas, the limitation period had not yet begun to accrue since the children had not yet reached the age of majority. Thomas also argued that the action survived pursuant to the "discovery rule," which postpones accrual until an injured plaintiff knows or reasonably should have known that he has been injured and that his injury was wrongfully caused. Thomas maintained that he did not learn that the employees of MSL and LaCoco caused or contributed to Cantu’s intoxication until Thomas’s meeting with prosecutors on October 23, 2019.

¶ 13 The circuit court denied MSL’s motion to dismiss, finding that there was a question of fact as to whether the discovery rule tolls the running of the limitation period. The circuit court further found that recovery on behalf of Sandra’s two minor children under the Wrongful Death Act is tolled until they reach the age of majority.

¶ 14 MSL and LaCoco then each filed motions to dismiss under section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)). The defendants contended that the Wrongful Death Act count must be dismissed since the Dramshop Act is the exclusive remedy in Illinois for holding providers of alcohol liable for the actions of an intoxicated individual. The defendants further asserted that the Dramshop Act count should be dismissed, as the discovery rule does not apply when the decedent’s death is caused by a sudden traumatic event and the applicable limitation period would commence upon the occurrence of the traumatic event.

¶ 15 After briefing, the circuit court entered an order on April 21, 2021, dismissing with prejudice the count under the Wrongful Death Act (count II); the circuit court concluded that the Dramshop Act provides the exclusive remedy under these circumstances. As to count I, the circuit court denied the requests to dismiss the claim as time-barred. The circuit court found that the Dramshop Act contains no provisions that toll a minor’s claim. The circuit court further found that a claim under the Dramshop Act accrues—and the limitation period starts to run—when an individual knows or reasonably should know of his injury and knows or reasonably should know that it was wrongfully caused. According to the circuit court, the "missing fact" herein was precisely when Thomas learned that the collision was caused by Cantu’s intoxication.

¶ 16 Motion for Summary Judgment

¶ 17 MSL and LaCoco each filed an answer to the complaint and an affirmative defense, i.e., that the Dramshop Act claim was time-barred. MSL and LaCoco also filed a joint motion for summary judgment pursuant to section 2-1005 of the Code (id. § 2-1005). The defendants contended that the sole issue was when Thomas was placed on notice that Sandra’s death was caused by an intoxicated driver. In his answers to LaCoco’s requests to admit, Thomas admitted that he knew within seven days after the crash that the at-fault driver was intoxicated and had been arrested for drunk driving. According to defendants, the limitation period commenced at that point, and Thomas had a duty to further investigate this claim. Given that the one-year limitation period would have expired in May 2019, the defendants argued that the October 2020 complaint was untimely. MSL and LaCoco further contended that the discovery rule does not apply to sudden traumatic events, such as an automobile crash, as recognized in Golla v. General Motors Corp., 167 Ill. 2d 353, 362, 212 Ill.Dec. 549, 657 N.E.2d 894 (1995). Citing Demchuk v. Duplancich, 92 Ill. 2d 1, 9, 64 Ill.Dec. 560, 440 N.E.2d 112 (1982), the defendants also maintained that there is no tolling of the time limitation for minors under the Dramshop Act.

¶ 18 Thomas responded, in part, that nothing about Cantu’s intoxication or Sandra’s death alerted him that Cantu consumed alcohol in an Illinois establishment that serves alcohol; e.g., he could have become intoxicated at home or at a party. While Thomas acknowledged that he had sufficient notice to identify Cantu as a potential defendant in May 2018, Thomas maintained that he did not learn until October 23, 2019, that Cantu may have been overserved by MSL or LaCoco.

¶ 19 Prior to a ruling on the motions for summary judgment, LaCoco agreed to settle and was dismissed from the case. In an order entered on December 23, 2021, the circuit court granted MSL’s motion for summary judgment and held that Thomas’s claims were time-barred under the one-year limitation period in the Dramshop Act. Thomas filed this timely appeal.

¶ 20 ANALYSIS

¶ 21 Thomas contends on appeal that the Dramshop Act claim was timely filed and thus the circuit court erred in granting MSL’s motion for summary judgment and dismissing the claim. MSL argues that the circuit court correctly concluded that the claim was time-barred. Prior to considering the parties’ contentions, we initially address an issue with Thomas’s opening brief.

¶ 22 MSL observes that portions of Thomas’s statement of facts are incorrect. We agree. For example, Thomas represents that a single-count first amended complaint was filed. Based on our review of the record, Thomas filed a motion to amend the complaint, but it was not presented to the circuit court or ruled upon. The operative complaint is thus the original (and only) complaint. Thomas also maintains that the action was brought by him, on behalf of Sandra’s estate, and his two minor...