{ "id": 3529519, "name": "JAMES M. KINGSTON et al., Plaintiffs-Appellants, v. KATHLEEN R. TURNER, d/b/a New Moon Tavern et al., Defendants-Appellees", "name_abbreviation": "Kingston v. Turner", "decision_date": "1985-05-22", "docket_number": "No. 5\u201484\u20140487", "first_page": "677", "last_page": "686", "citations": [ { "type": "official", "cite": "133 Ill. App. 3d 677" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "444 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 914", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5437861 ], "pin_cites": [ { "page": "920" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0914-01" ] }, { "cite": "369 N.E.2d 155", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 82", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3399049 ], "pin_cites": [ { "page": "90-91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0082-01" ] }, { "cite": "375 N.E.2d 456", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 400", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3357786 ], "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0400-01" ] }, { "cite": "360 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2893261 ], "weight": 5, "pin_cites": [ { "page": "811" }, { "page": "811-12" }, { "page": "812" }, { "page": "812" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0809-01" ] }, { "cite": "313 N.E.2d 689", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "691" } ], "opinion_index": 1 }, { "cite": "20 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5343329 ], "weight": 2, "pin_cites": [ { "page": "697" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/20/0695-01" ] }, { "cite": "372 N.E.2d 637", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "639" } ], "opinion_index": 1 }, { "cite": "69 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5455234 ], "pin_cites": [ { "page": "540-41" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/69/0534-01" ] }, { "cite": "360 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "111" }, { "page": "111" } ], "opinion_index": 1 }, { "cite": "45 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2893261 ], "weight": 3, "pin_cites": [ { "page": "812" }, { "page": "812" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/45/0809-01" ] } ], "analysis": { "cardinality": 908, "char_count": 20247, "ocr_confidence": 0.747, "pagerank": { "raw": 8.7520234643265e-08, "percentile": 0.4949527945451646 }, "sha256": "ddaa291b0865d13d5ebab5a001a813e64a5c2bf53c0b513bfee929369d2a27ed", "simhash": "1:75e778d9ab27dd8e", "word_count": 3362 }, "last_updated": "2023-07-14T17:42:49.711724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES M. KINGSTON et al., Plaintiffs-Appellants, v. KATHLEEN R. TURNER, d/b/a New Moon Tavern et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nOn July 19, 1982, a motorcycle driven by John C. Berry struck the left side of a pickup truck driven by plaintiff Jim Kingston. Berry was killed in the accident, and plaintiff was injured. Subsequently, plaintiff and his wife, individually and as parents and next friends of their children, filed a complaint directed partly against defendants, owners of two taverns where Berry consumed alcoholic beverages prior to the accident. The count of the complaint directed against defendants sought recovery pursuant to article VI, section 14, of the Liquor Control Act (Ill. Rev. Stat. 1981, ch. 43, par. 135). A trial by jury resulted in a verdict for defendants, and the trial court entered judgment on the verdict. Plaintiffs appeal, raising several issues for our consideration. For the reasons which follow, we need only address plaintiffs\u2019 contention that the court erred in failing to give a jury instruction tendered by plaintiffs.\nThe evidence offered by plaintiffs tended to establish that Berry consumed beer, at both the New Moon Tavern and MD\u2019s Tavern prior to the accident. David Scott testified that he was at both taverns with Berry, and that the beer consumed by Berry had \u201csome effect\u201d on Berry\u2019s disposition and behavior. Debra Dugan indicated that she was driving west along Route 140 in Bethalto, on the date of the accident, when a motorcycle came onto the highway from MD\u2019s Tavern, drove close to the rear of her car, and accelerated past her at a high rate of speed. The motorcycle continued along for a short distance and then struck the plaintiff\u2019s truck, which was attempting to cross the four lanes of Route 140. According to Ms. Dugan, plaintiff had pulled out from a street on the right-hand side of the road, had crossed the first lane of traffic, and was positioned partly in the second lane of traffic and partly in a central lane provided for motorists wishing to turn left off of westbound Route 140 at the intersection where the accident occurred. Ms. Dugan, who was driving in the right-hand lane, testified that the motorcycle \u201chad plenty of time *** to get back into my lane where he could have cleared the pickup truck,\u201d but that the motorcycle did not make this maneuver. Plaintiff James Kingston testified that he looked in both directions before proceeding into the intersection, and that he did not see the motorcycle until it was about 20 feet away from him. A toxicologist testified that a sample of vitreous fluid taken from Berry\u2019s eye after the accident revealed an ethanol concentration of .195, and, in the opinion of the toxicologist, this reading indicated that Berry was intoxicated at the time of his death. Defendants offered no evidence.\nDuring the jury instruction conference, plaintiff tendered the following non-Illinois Pattern Jury (IPI), Civil, instruction:\n\u201cThe sales and consumption of alcoholic beverages at two or more dramshops may result, that is, cause a single intoxication. When I use the phrase \u2018caused the intoxication of John Clark Berry,\u2019 I mean the liquor consumed at a given dramshop is a material and substantial factor in causing the intoxication. This is a question of fact for you to determine.\u201d\nThe court refused to give this instruction. Subsequently, during its deliberations, the jury sent the court a note which referred to part of one of the jury instructions, and asked the following question:\n\u201c3.) That the liquor thus consumed caused the intoxication of John Clark Berry.\nDoes this question mean that one or both establishments is totally responsible for Berry\u2019s intoxication; or that one or both contributed to Berry\u2019s intoxication?\u201d\nIn a discussion following receipt by the court of the note, plaintiff retendered the instruction quoted above, and the court again refused to give it. The jury resumed its deliberations without further instruction, and ultimately returned the following verdict and answers to special interrogatories:\n\u201cWas John Clark Berry intoxicated at the time of the collision on July 19, 1982?\nYes: X\nNo: _\nIf yes, was such intoxication the result of consuming alcoholic beverages sold by (A) Kathleen Turner, d/b/a New Moon Tavern or (B) Donald W. Emde, d/b/a MD\u2019s Tavern?\n(A) Yes: _ No: X\n(B) Yes: _ No: X\n* * *\nWe, the Jury, find for all of the Defendants and against all of the Plaintiffs.\u201d\nOn appeal, plaintiffs assert that the court committed reversible error in not giving the requested instruction on the meaning of \u201ccause.\u201d We agree. Article VI, section 14, of the Liquor Control Act (Ill. Rev. Stat. 1981, ch. 43, par. 135) provides, in pertinent part:\n\u201cEvery person who is injured in person or property by any intoxicated person, has a right of action ***, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. *** An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication ***.\u201d\nIn Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 360 N.E.2d 108, the court noted that, before this statute was amended in 1971, the reference in it to \u201ccausing the intoxication\u201d included the phrase \u201cin whole or in part.\u201d (45 Ill. App. 3d 809, 811.) The Thompson court went on to discuss the meaning of this amendment:\n\u201cThe amendment basically establishes the requirement that there must be evidence that the charged dramshop has not merely furnished a negligible amount of intoxicating liquor but has in fact caused the intoxication. [Citation.]\nIt does not follow, however, that the legislature intended to limit recovery to a single defendant who causes the intoxication. The statute recognizes this by giving the right of action \u2018severally or jointly\u2019 against any person who causes the intoxication. (Ill. Rev. Stat. 1973, ch. 43, par. 135; see Comment, The Illinois Dramshop Act: Effect of the 1971 Amendment, 1974 U. Ill. L.E 466, 472-73.) Moreover, the ordinary meaning of the word \u2018causes\u2019 as used in the statute does not exclude the possibility that two or more causes may join to result in a single intoxication. If the legislature had intended that liability be limited to the one dramshop which is most responsible for causing the intoxication, it would most likely have retained the alternative that intoxication may be caused \u2018in whole\u2019 rather than deleting it with the \u2018in part\u2019 alternative. Further [,] there is a general recognition in the law that causation giving rise to liability may be the result of two or more independent acts. [Citations.]\u201d 45 Ill. App. 3d 809, 811-12.\nWhen a jury raises an explicit question on a point of law relevant to the deliberation of the factual issues before it, it is the duty of the trial judge to attempt to clarify the question in the minds of the jury members. (Gale v. Hoekstra (1978), 59 Ill. App. 3d 400, 407, 375 N.E.2d 456.) Moreover, when the meaning of a word used in a statute has been judicially construed, an instruction reflecting this construction may appropriately be given. (Cf. Perry v. Chicago & North Western Transportation Co. (1977), 54 Ill. App. 3d 82, 90-91, 369 N.E.2d 155 (no error in refusing to give instruction regarding statute pertaining to railroad crossings, as instruction did not reflect judicial interpretation of words \u201csafe\u201d and \u201capproaches\u201d contained within statute).) Here, the word \u201ccauses,\u201d as used in the Liquor Control Act, was specifically construed in Thompson v. Tranberg to mean \u201cwhether the defendant\u2019s conduct was a material and substantial factor in producing or contributing to produce the intoxication.\u201d (Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 812.) The instruction tendered by plaintiff accurately incorporated this definition, and would have correctly answered the question posed by the jury. We therefore hold that the court erred in not giving the requested instruction.\nHaving concluded that the failure to give this instruction was error, we must also determine whether that error was of sufficient magnitude to warrant reversal. Upon careful consideration of the complete record, we are unable to say that the court\u2019s failure to give the instruction was harmless error. Unrebutted evidence established that Berry was intoxicated at the time of the accident, and that his mood was affected by the alcohol consumed at defendants\u2019 establishments. There is no evidence suggesting that Berry consumed liquor anywhere else, and Debra Dugan testified that Berry had more than ample time to turn back into the right-hand lane and avoid the accident. While defendants assert that plaintiff\u2019s conduct in driving across the road was the proximate cause of the accident, the intoxication resulting from the sale need not be the sole cause of the injuries (Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App. 3d 914, 920, 444 N.E.2d 504), or even the principal cause (see Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 812, 360 N.E.2d 108). In light of the substantial, uncontradicted evidence tending to show that Berry was intoxicated, that he consumed liquor at defendants\u2019 taverns, and that the intoxication at least partially caused the accident, we are compelled to conclude that the trial court\u2019s failure to instruct the jury as to the legal meaning of the word \u201ccause\u201d constitutes reversible error under the facts of this case.\nFor the foregoing reasons, the judgment of the circuit court of Madison County is reversed, and this cause is remanded for a new trial.\nReversed and remanded.\nWELCH, J., concurs.", "type": "majority", "author": "JUSTICE HARRISON" }, { "text": "PRESIDING JUSTICE JONES,\ndissenting:\nI respectfully dissent.\nThe instruction that the majority has held to have been erroneously refused by the trial court is intrinsically and fundamentally faulty. The fact that the instruction is not in Illinois Pattern Jury Instructions (IPI), Civil (2d ed. 1971) is the least of its shortcomings. Whether considered as a whole or sentence by sentence, it is ungrammatical, incongruous, confusing and uninstructive.\nThe first sentence of plaintiffs\u2019 instruction No. 14 appears to be a solecism, for it equates \u201ccause\u201d and \u201cresult.\u201d The second sentence is one of definition embedded in the middle of the instruction, and the phrase it defines does not appear elsewhere in the instruction. Definitional instructions ordinarily used in an IPI Civil series carry no further phraseology and generally recite \u201cWhen I use the phrase _in these instructions ***.\u201d With further regard to the second sentence of the instruction, the phrase \u201cconsumed at a given dramshop\u201d does not address the question of drinking at more than one dramshop. That phrase does not serve to answer the jury\u2019s question, but it does serve to obscure the fact that the jury could impose liability on just one of the dramshops. The third sentence of the instruction informs the jury, \u201cThis is a question of fact for you to determine.\u201d \u201cThis\u201d is a pronoun that has no noun to refer to as an antecedent. Moreover, the first two sentences do not pose a question or any sort of proposition for an answer by the jury.\nUpon consideration of the foregoing, it is little wonder that plaintiffs\u2019 instruction No. 14 was refused by the trial court. I would venture the opinion that no instruction in the phraseology of plaintiffs\u2019 instruction No. 14 will ever appear in IPI Civil, or gain acceptance as a non-IPI instruction.\nPlaintiffs\u2019 purpose in tendering their instruction No. 14 was apparently to tell the jury that more than one dramshop could \u201ccause\u201d a person to become intoxicated and, therefore, be liable under the Act. The majority has adopted the plaintiffs\u2019 argument and the tendered instruction. I disagree with the felt necessity for such an instruction and with the reasoning leading to its adoption.\nIt was not an oversight that led the drafting committee of IPI Civil instructions to omit a definition of \u201ccauses the intoxication.\u201d Fourteen years have elapsed since the 1971 amendment to the Liquor Control Act that deleted the \u201cin whole or in part\u201d language. Cases and commentary following the amendment make it plain that the intent of the legislature in imposing dramshop liability upon those who \u201ccause\u201d intoxication was a considered policy decision and not the result of an inadvertent choice of words. The intent of the legislature was to constrict liability. The supreme court in Nelson v. Araiza (1978), 69 Ill. 2d 534, 540-41, 372 N.E.2d 637, 639, had this to say:\n\u201cIn 1971 the \u2018in whole or in part\u2019 language was eliminated. The current statute provides a right of action only against those who cause the intoxication. This, according to the appellate court decisions touching upon it, narrows the scope of liability. The defendant must have caused the intoxication and not merely have furnished a negligible amount of liquor.\u201d\nAnd the appellate court in Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 812, 360 N.E.2d 108, 111, in a similar vein stated:\n\u201cThere had been a number of legal decisions under the prior act defining \u2018in whole or in part\u2019 strictly against a defendant with the result that proof of gift or sale of intoxicating liquor in any degree no matter how slight was sufficient. [Citations.] In some cases, however, it was recognized that the elements of the quantity of liquor consumed and the remoteness in time could support a denial of recovery. [Citations.] It seems fair to conclude that the intent of the legislature with respect to the 1971 amendment was to eliminate the possibility that dram-shop liability could be founded on any consumption of alcohol no matter how slight but to impose liability only when intoxication could be said as a matter of fact to have been caused by a dramshop.\u201d\nAlso see Caruso v. Kazense (1974), 20 Ill. App. 3d 695, 313 N.E.2d 689; The Illinois Dramshop Act: Effect of the 1971 Amendment, 1974 U. Ill. L.F. 466, 472-73.\nIt is to be noted that the IPI Civil series of instructions relating to the trial of dramshop actions (IPI Civil 2d No. 150 et seq.) nowhere define the word \u201ccauses\u201d or the phrase \u201ccauses the intoxication.\u201d This is neither an omission nor an oversight. The simple reason for omitting such a definition is that the word \u201ccauses\u201d is a simple one with a meaning understood by all. The definition \u25a0 of the word \u201ccause\u201d (when used in verb form, as it is in the Act) assigned by Webster\u2019s Third New International Dictionary is \u201cto serve as cause or occasion of: bring into existence: make.\u201d This meaning is a commonly understood one and needs no elaboration. If a jury is told in an instruction that \u201ccause\u201d is defined as \u201cconduct that was a material and substantial factor in producing or contributing to producing the intoxication,\u201d it will serve only to confuse and obfuscate that which they already understand. Such definition of \u201ccause\u201d will, furthermore, lead to a corruption of the statute and lead to a diversion from the fulfillment of the legislative purpose. While the term \u201cmaterial and substantial factor\u201d may well serve a court of review in considering the weight to be accorded a jury\u2019s finding, it certainly will be of no aid to a jury in determining whether a particular dramshop \u201ccaused\u201d an intoxication. In this regard, it is to be noted that the Thompson case, relied upon by the majority, was not concerned with the propriety of a jury instruction.\nThe court in Caruso v. Kazense states: \u201cThe phrase, \u2018causes the intoxication\u2019 is not a technical legal term requiring definition. We note that IPI 150 et seq. (2d ed.) does not define the term.\u201d (20 Ill. App. 3d 695, 697, 313 N.E.2d 689, 691.) In Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 360 N.E.2d 108, the court stated: \u201cMoreover, the ordinary meaning of the word \u2018causes\u2019 as used in the statute does not exclude the possibility that two or more causes may join to result in a single intoxication.\u201d (45 Ill. App. 3d 809, 812, 360 N.E.2d 108, 111.) In the instant case the jury was thoroughly instructed on the possibility that either or both defendant dramshops could be found liable under the Act if they had \u201ccaused\u201d the intoxication of Berry. Plaintiffs\u2019 instruction No. 9 set forth the dramshop statute and advised the jury that any person who causes the intoxication could be liable. Plaintiffs\u2019 instruction No. 15 set forth the statute that imposes liability under the Act upon any owner that knowingly permits the sale of alcoholic liquors that causes an intoxication. Most pointedly, plaintiffs\u2019 instruction No. 8, in setting out plaintiffs\u2019 burden of proof, advised the jury that the plaintiffs had the burden of proving that \u201cthe defendants, or one of them, their agents or servants, sold or gave intoxicating liquor consumed by John Clark Berry; that the liquor thus consumed caused the intoxication of John Clark Berry.\u201d This language was then repeated two times as the instruction continued for the two additional counts of the complaint. Three verdict forms were submitted to the jury. One, plaintiffs\u2019 instruction No. 26, was for use in finding for the plaintiffs and against all defendants. Another, plaintiffs\u2019 instruction No. 27, was for use in finding for plaintiffs and against \u201cthe following defendants __\u201d The third was for use in finding for all the defendants.\nIn addition to the wording of the instructions, plaintiffs\u2019 attorney repeatedly told the jury in his closing argument that both defendant dramshops could and should be found liable as having caused Berry\u2019s intoxication. In the first phase of his final argument to the jury, plaintiffs\u2019 attorney stated:\n\u201cWell, I think that the question of where he became intoxicated, where, which of the quantities of alcohol that he consumed on this evening in question, did he become intoxicated as a result of what he drank at the New Moon or because of what he drank, the last bit that he had over there at MD\u2019s Tavern.\nI think he got the alcoholic beverage that intoxicated him in both places.\u201d\nAgain, in the final, or reply, phase of his closing argument, plaintiffs\u2019 attorney stated:\n\u201cI am glad you have been encouraged to use your common sense because I think anybody who is using their common sense would know that not only did this occur and that a factor in the occurrence was the intoxication of this man, but that really he got intoxicated at both places. He consumed the alcohol at both places. It is like taking a glass and you fill it up with water, and another guy comes along and he fills it a little bit more full; and pretty soon it goes over the brim. Who makes it go over the brim?\nThey both make it go over the brim.\u201d\nIn addition to the two quoted remarks, there are at least four additional instances in which plaintiffs\u2019 attorney told the jury that both defendant dramshops caused the intoxication of Berry. In view of the instances in the instructions and the arguments in which the jury was told that both defendants could be held liable under the Act, they could not have been confused upon that issue, and there was no occasion to give plaintiffs\u2019 instruction No. 14, as the trial court fully realized.\nI conclude with the observation that the jury answered a special interrogatory by finding that John Clark Berry was intoxicated but that such intoxication was not the result of consuming alcoholic beverages at either of the defendant dramshops. Both findings are well supported by the evidence. Moreover, in reading the entire transcript, one is persuaded that the jury concluded from the evidence that plaintiffs\u2019 injury was not brought about by the intoxicated person, Berry. Rather, it resulted from his pulling from a side street and stop sign into the path of oncoming traffic. This conclusion, too, is well within the realm of the evidence.\nI would affirm.", "type": "dissent", "author": "PRESIDING JUSTICE JONES," } ], "attorneys": [ "John Dale Stobbs, of Stobbs & Sinclair, of Alton, for appellants.", "Francis J. Lynch, of Law Offices of Guy A. Studach, of Springfield, for appellees Kathleen R. Turner, Wayne S. Tenison, and Virginia I. Tenison.", "Michael B. Constance, Edward J. Szewczyk, and Steven G. Bailey, all of Donovan, Hatch & Constance, P.C., of Belleville, for other appellees." ], "corrections": "", "head_matter": "JAMES M. KINGSTON et al., Plaintiffs-Appellants, v. KATHLEEN R. TURNER, d/b/a New Moon Tavern et al., Defendants-Appellees.\nFifth District\nNo. 5\u201484\u20140487\nOpinion filed May 22, 1985.\nRehearing denied June 25, 1985.\nJONES, P.J., dissenting.\nJohn Dale Stobbs, of Stobbs & Sinclair, of Alton, for appellants.\nFrancis J. Lynch, of Law Offices of Guy A. Studach, of Springfield, for appellees Kathleen R. Turner, Wayne S. Tenison, and Virginia I. Tenison.\nMichael B. Constance, Edward J. Szewczyk, and Steven G. Bailey, all of Donovan, Hatch & Constance, P.C., of Belleville, for other appellees." }, "file_name": "0677-01", "first_page_order": 699, "last_page_order": 708 }