author: JUSTICE McMORROW

text:
    JANICE CRAVENS, Special Adm’r of the Estate of Joleen Cravens, Deceased, Plaintiff-Appellant, v. DAVID INMAN et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 90—1124
    Opinion filed December 19, 1991.

      Baskin, Server, Berke & Weinstein, of Chicago (Perry M. Berke and John R Malkinson, of counsel), for appellant.
    Hinshaw & Culbertson, of Chicago (Joseph J. O’Connell, Joshua G. Vincent, and Gary J. Bazydlo, of counsel), for appellees.
    Richard E Hallen, of Chicago, for amicus curiae.

   JUSTICE McMORROW

delivered the opinion of the court:

Joleen Cravens, the minor daughter of Janice Cravens (plaintiff), died from injuries sustained in an automobile accident which occurred while Joleen was a passenger in a motor vehicle driven by her friend, Rita Lenzi (Lenzi), also a minor. Plaintiff filed suit against Lenzi, David and Rita Inman (defendants), and other persons not parties to this appeal. In counts II and III of her complaint, plaintiff alleged that the defendants negligently served Lenzi alcohol at a social gathering at the defendants’ home, allowed Lenzi to become intoxicated and leave the social gathering in an automobile, and that Lenzi thereafter drove the car in a reckless manner resulting in a crash that caused the death of the plaintiff’s daughter. The trial court dismissed counts II and III against defendants, and plaintiff appeals. Because we conclude that counts II and III of plaintiff’s complaint were suffident to state daims for which relief may be granted based upon common law principles of negligence, we reverse and remand.

The allegations of plaintiff’s second amended complaint, which we accept as true for the purpose of review (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 566 N.E.2d 1365), alleged the following. On or about October 31, 1987, defendants held a housewarming party at their New Lenox, Illinois, home. The defendants invited adult guests and various minor friends and acquaintances of their son. These minors included Lenzi and plaintiff’s daughter, Joleen. The complaint alleges that Joleen and Lenzi were under 16 years of age on the date of the party.

Plaintiff alleged that the defendants knowingly served beer and alcohol to all guests, without supervision and without determining or observing whether minors were consuming these beverages. Plaintiff alleged that the defendants knew, or in the exercise of ordinary care should have known, that many, if not all, of their guests arrived at the housewarming party by automobile, that the guests intended to leave by the same method, and that consumption of alcoholic beverages by their guests, including the minors, could and would affect their mental faculties as well as their ability to safely and properly operate a motor vehicle.

Plaintiff alleged that although defendants knew that many of their guests were minors and that alcohol was being served to all guests, the defendants served liquor, and entrusted and permitted their minor son to serve liquor, to the minor son’s friends, including Lenzi, throughout the course of the party. Plaintiff alleged that defendants continued to do so after the defendants knew or should have known that such alcohol consumption by the minor guests was causing the minors to become intoxicated and to show “the effects of said intoxication.”

According to plaintiff’s complaint, defendants permitted Lenzi to continue her alcohol consumption at the housewarming party even after Lenzi had reached a “state of intoxication.” Plaintiff alleged that as a result of this intoxication, Lenzi’s judgment, senses and faculties became totally impaired, thereby preventing her from appreciating and having an awareness of her condition. Plaintiff alleged that defendants made no effort to determine the manner in which Lenzi was planning on leaving their premises or her physical condition at the time she in fact left the premises.

Plaintiff alleged that Lenzi left the defendants’ home with other guests, including plaintiff’s minor daughter, in an automobile owned by another minor who attended the party, Gerard Neauveau (Neauveau). Thereafter, Lenzi took control of the motor vehicle in which the daughter was a passenger. Plaintiff alleged that at this time, Lenzi drove in an uncontrolled and reckless manner, including the avoidance of police pursuit, until Lenzi lost control of the vehicle and it crashed, thereby causing plaintiffs daughter to sustain injuries resulting in her death.

Plaintiff sought damages from defendants based upon common law negligence (count II), breach of statutory duties giving rise to common law negligence (count III), and violation of the Illinois Dram-shop Act (111. Rev. Stat. 1989, ch. 43, par. 135) (count IV). Plaintiff also alleged negligence claims against Lenzi (count I) and against Neauveau (count V). We note that in count V, directed against Neauveau, plaintiff alleged that when the group initially left the housewarming party, Neauveau was driving the automobile. Plaintiff further alleged that Neauveau stopped at a gas station, got out of the car, and left the motor running and the keys in the ignition. At this point, Lenzi got behind the wheel and began driving the car. Plaintiff alleged that neither Lenzi nor her daughter was of lawful age to drive a motor vehicle, and that neither possessed a license to operate an automobile.

Upon defendants’ motion under section 2 — 615(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615(a)), the trial court dismissed counts II, III, and IV for failure to state claims for which relief could be granted (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), and found no just reason to delay enforcement of or appeal from this ruling (134 Ill. 2d R. 304(a)). Plaintiff appeals from the dismissal of counts II and III of her second amended complaint.

The fundamental question presented for our review is whether the facts alleged give rise, under Illinois common law, to claims for defendant’s negligence liability with respect to the injuries sustained by plaintiff and her deceased daughter. Relying on stare decisis, the defendants claim that we should adopt the view of prior Illinois Appellate Court decisions that have declined to recognize social host liability for the provision of alcohol to a minor resulting in injury, on the ground that such liability is preempted by the Illinois Dramshop Act, and requires consideration of factors best resolved by the Illinois legislature or the Illinois Supreme Court. Plaintiff responds that Illinois jurisprudence does not prevent recognition of plaintiff’s common law negligence claims, and that this court should adopt the view of other jurisdictions that have recognized social host liability under facts similar to those presented herein.

I. CIVIL LIABILITY FOR ALCOHOL-RELATED INJURIES

In Illinois, a commercial vendor’s civil liability for alcohol-related injuries is governed by the Dramshop Act (Act) (Ill. Rev. Stat. 1989, ch. 43, par. 135). Subsection (a) of the Act currently states in pertinent part:

“Every person who is injured within this State, in person or property, by any intoxicated person has a right of action in his or her own name, severally or jointly, against any person, licensed under the laws of this State or of any other state to sell alcoholic liquor, who, by selling or giving alcoholic liquor, within or without the territorial limits of this State, causes the intoxication of such person.” (Ill. Rev. Stat. 1989, ch. 43, par. 135(a).)

Subsection (a) further provides that an “action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication of any person resulting as hereinabove set out.” (Ill. Rev. Stat. 1989, ch. 43, par. 135(a).) The Act limits recovery (1) for injury to the person or property to a maximum of $30,000 for each person incurring damages, and (2) for loss of means of support to a maximum of $40,000. (Ill. Rev. Stat. 1989, ch. 43, par. 135(a).) Subsection (b) of the Act provides in pertinent part that “[o]nly causes of action arising under subsection (a) *** may be asserted against a defendant in an action in which jurisdiction over him or her is based upon this subsection.” Ill. Rev. Stat. 1989, ch. 34, par. 135(b); see generally Ogilvie, History & Appraisal of the Illinois Dram Shop Act, 1958 U. Ill. Law Forum 175; Comment, The Continuing Search for Solutions to the Drinking Driver Tragedy & the Problem of Social Host Liability, 82 Nw. U.L. Rev. 403 (1988); Comment, Social Host Liability In Illinois: Right Without a Remedy, 19 J. Marshall L. Rev. 735 (1986); Comment, Reconsidering the Illinois Dram Shop Act: A Plea for the Recognition of a Common Law Action in Contemporary Dram Shop Litigation, 19 J. Marshall L. Rev. 49 (1985).

Certain provisions of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1989, ch. 43, par. 93.9 et seq.) pertain to the provision of alcohol to a minor. Section 6 — 20 explicitly forbids the consumption of alcohol by anyone under 21 years of age, and prohibits the furnishing of alcohol to an underage person. This section only permits underage alcohol consumption when it occurs “in the performance of a religious service or ceremony, or *** under the direct supervision and approval of the parents or parent or those persons standing in loco parentis of such person under 21 years of age in the privacy of a home.” (Ill. Rev. Stat. 1989, ch. 43, par. 134a.) Violation of this provision is a Class C misdemeanor.

Section 6 — 16(c) of the Liquor Control Act prohibits a minor’s consumption of alcohol at a social gathering:

“(c) Any person shall be guilty of a petty offense where he or she knowingly permits a gathering at a residence which he or she occupies of two or more persons where any one or more of the persons is under 18 years of age and the following factors also apply:
(1) the person occupying the residence knows that any such person under the age of 18 is in possession of or is consuming any alcoholic beverage; and
(2) the possession or consumption of the alcohol by the person under 18 is not otherwise permitted by this Act; and
(3) the person occupying the residence knows that the person under the age of 18 leaves the residence in an intoxicated condition.” Ill. Rev. Stat. 1989, ch. 43, par. 131(c).

The Dramshop Act has been the subject of numerous judicial pronouncements. Two Illinois Supreme Court decisions, Cruse v. Aden (1889), 127 Ill. 231, 20 N.E. 73, and Cunningham, v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153, are cited by the parties in the case at bar as particularly significant in this cause.

In Cruse (127 Ill. 231, 20 N.E. 73), a wife filed suit against an acquaintance of her husband, at whose home the husband had consumed alcohol and become intoxicated. The pleading alleged that the husband, in returning on horseback from the acquaintance’s house, was thrown from his horse and died. The wife claimed that the Dramshop Act permitted her to recover damages from the social host who furnished the husband alcohol.

The Illinois Supreme Court rejected the wife’s argument and held that the Dramshop Act does not apply when a social host has provided alcohol to an adult who becomes intoxicated and injures himself. The court initially noted that the wife’s suit could not be founded on common law principles of negligence, observing that “[i]t was not a tort, at common law, to either sell or give intoxicating liquor to ‘a strong and able-bodied man’ ” and noting that the plaintiff’s suit was not a common law tort action. (Cruse, 127 Ill. at 234.) Based upon its review of the various provisions of the Dramshop Act, the court determined that the Act does not apply to individuals who are not engaged in the commercial sale of alcohol. (127 Ill. at 239.) On this basis, the court concluded that the cause of action created by the Act was not intended to govern a social host’s provision of alcohol to a guest. 127 Ill. at 239.

In Cunningham (22 Ill. 2d 23, 174 N.E.2d 153), the plaintiffs filed suit against a tavern owner who had served alcohol to their husband and father, who thereafter suffered alcohol-related depression and took his own life. The plaintiffs argued that in addition to a claim under the Dramshop Act, they should also be permitted to state a civil action for violation of the provision in the Liquor Control Act that prohibits the sale of alcohol to an intoxicated person, as well as a common law negligence action. In considering the plaintiff’s arguments, the court noted that prior to adoption of the Dramshop Act, no reported case involved the question of common law negligence liability of a dramshop owner and that decisions subsequent to adoption of the Act were based upon that Act rather than the common law. 22 Ill. 2d at 25-26.

Upon a review of the historical background of the Act and its amendments, the court determined that there was no additional civil action for violation of the statute, reasoning that the legislature enacted the Dramshop Act in order to create a new remedy that did not exist prior to adoption of the Act. (22 Ill. 2d at 28-29.) The court then turned to a consideration of whether it should recognize a common law remedy in addition to that provided in the Dramshop Act. The court found “some merit” to the plaintiffs’ argument that the knowing sale of alcohol to an intoxicated person could be a proximate cause of alcohol-induced injuries. (22 Ill. 2d at 30.) Nevertheless, the court declined to recognize a common law tort remedy for a dramshop owner’s sale of alcohol to an intoxicated adult, noting that such a common law remedy would be virtually identical to and duplicative of the remedy provided for under the Dramshop Act. 22 Ill. 2d at 30.

Other Illinois Supreme Court decisions have also observed that the Dramshop Act provides the exclusive remedy for injuries caused by an intoxicated adult who was served liquor by a dramshop owner. E.g., Hopkins v. Powers (1986), 113 Ill. 2d 206, 497 N.E.2d 757 (dramshop owner is not subject to “liability in tort” for purpose of contribution among joint tortfeasors); Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 484 N.E.2d 1088 (Wisconsin dramshop not subject to jurisdiction under Illinois long-arm statute); Graham v. General U.S. Grant Post No. 2665 (1969), 43 Ill. 2d 1, 248 N.E.2d 657 (Dramshop Act has no extraterritorial effect outside Illinois; reaffirmed Cunningham ruling that Act preempts common law negligence liability for dramshop sale of alcohol to adult); see also Stevens v. Lou’s Lemon Tree, Ltd. (1989), 187 Ill. App. 3d 458, 543 N.E.2d 293 (Dramshop Act is exclusive remedy for injuries resulting from tavern owner’s sale of alcohol to adult).

Based upon this precedent, our appellate court has held that the Dramshop Act precludes recognition of common law negligence liability for a commercial vendor’s sale of liquor to a minor. Goodknight v. Piraino (1990), 197 Ill. App. 3d 319, 554 N.E.2d 1; Puckett v. Mr. Lucky’s Ltd. (1988), 175 Ill. App. 3d 355, 529 N.E.2d 1169; Ruth v. Benvenutti (1983), 114 Ill. App. 3d 404, 449 N.E.2d 209; Gora v. 7-11 Food Stores (1982), 109 Ill. App. 3d 109, 440 N.E.2d 279; Shepherd v. Marsaglia (1961), 31 Ill. App. 2d 379, 176 N.E.2d 473; see also Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 440 N.E.2d 112 (one-year statute of limitations under Act applicable to minors; court refused to consider whether it should recognize common law action for negligence based on Liquor Control Act’s prohibition of sale of alcohol to minors, as claim not properly presented for review).

The Act preempts common law negligence liability for a business or social host’s provision of alcohol to an adult who becomes intoxicated and inflicts injuries upon a third party. E.g., Thompson v. Trickle (1983), 114 Ill. App. 3d 930, 449 N.E.2d 910; Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 394 N.E.2d 801; Camille v. Berry Fertilizers, Inc. (1975), 30 Ill. App. 3d 1050, 334 N.E.2d 205.

In addition, our appellate court has usually declined to acknowledge common law negligence liability where a social host has provided liquor to a minor. Estate of Ritchie v. Farrell (1991), 213 Ill. App. 3d 846, 572 N.E.2d 367 (social host who provided alcohol to minor not liable for minor’s death from acute alcohol intoxication); Flory v. Weaver (1990), 196 Ill. App. 3d 149, 553 N.E.2d 105 (social host not liable when minor guest became intoxicated and fatally shot another minor guest and himself); Zamiar v. Linderman (1985), 132 Ill. App. 3d 886, 478 N.E.2d 534 (social host who provided alcohol to minor not liable when intoxicated minor slipped on rug and injured himself); Heldt v. Brei (1983), 118 Ill. App. 3d 798, 455 N.E.2d 842 (social host who permitted party among minor child and his friends, where alcohol was available to the minors, not liable when intoxicated minor left party, drove automobile, and killed third person in car accident); Coulter v. Swearingen (1983), 113 Ill. App. 3d 650, 447 N.E.2d 561 (social host not liable when minor guest became intoxicated, drove car, and injured third party in vehicle collision); Lowe v. Rubin (1981), 98 Ill. App. 3d 496, 424 N.E.2d 710 (social host not liable when minor guest became intoxicated and struck another guest, causing loss of sight in eye); Miller v. Moran (1981), 96 Ill. App. 3d 596, 421 N.E.2d 1046 (social host not Hable when minor guest became intoxicated, drove car, and severely injured third party in auto accident).

However, Illinois decisions have recognized the injustice of the present jurisprudence. Our courts have observed that the extraordinary toll in personal injuries and property damage caused by alcohol-related accidents “may well warrant” a reevaluation of current legal precedent in this State. (Estate of Ritchie, 213 Ill. App. 3d at 850.) Our decisions have also acknowledged that there “may well be validity to the position” that the Dramshop Act should not be considered an exclusive remedy when liquor is provided to a minor, and that perhaps the law should be altered so that all persons who furnish alcohol to minors are held financially accountable for injuries proximately caused by the minors’ alcohol use. (Puckett, 175 Ill. App. 3d at 357.) It has also been cogently observed that the furnishing of alcohol to a minor seriously endangers the health, safety, and welfare of all Illinois citizens. Puckett, 175 Ill. App. 3d at 361 (Knecht, J., dissenting).

Nevertheless, the appellate court has concluded that any change in Illinois law should be undertaken by the legislature or our supreme court. (E.g., Estate of Ritchie, 213 Ill. App. 3d at 850; Flory, 196 Ill. App. 3d at 151-52; Puckett, 175 Ill. App. 3d at 357; Zamiar, 132 Ill. App. 3d at 890; Coulter, 113 Ill. App. 3d at 654; Lowe, 98 Ill. App. 3d at 500; Miller, 96 Ill. App. 3d at 599-600.) Pending such action, the appellate court has usually invoked and adhered to a general rule that the sole remedy for alcohol-related injuries is found in the Dramshop Act, under which a social host is not liable. Estate of Ritchie, 213 Ill. App. 3d at 849; Zamiar, 132 Ill. App. 3d at 888; Heldt, 118 Ill. App. 3d at 800; Coulter, 113 Ill. App. 3d at 653; Lowe, 98 Ill. App. 3d at 489; Miller, 96 Ill. App. 3d at 599; but see Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 507 N.E.2d 1193 (recognizing common law negligence liability where minor “required” to consume alcohol as part of fraternity “hazing” party).

The view in Illinois that there could be no common law negligence liability for a social host’s provision of alcohol to an adult, on the theory that it “was not a tort, at common law, to either sell or give intoxicating liquor to ‘a strong and able-bodied man’ ” (Cruse, 127 Ill. at 234), was shared by the majority of other States in this country. (See generally 45 Am. Jur. 2d Intoxicating Liquors §553 (1969); 48A C.J.S. Intoxicating Liquors §428 (1981).) A number of States, in addition to Illinois, have enacted dramshop statutes that impose civil liability upon commercial vendors of alcohol for liquor-related injuries. See 45 Am. Jur. 2d Intoxicating Liquors §561 (1969); 48A C.J.S. Intoxicating Liquors §429 (1981).

In contrast to the Illinois rule declining to impose social host liability for furnishing alcohol to a minor, a substantial majority of other States now recognize social host liability where the host has served alcohol to a minor who becomes intoxicated, drives an automobile, and causes an injury-producing accident. (See generally Annot., 62 A.L.R.4th 16 (1988).) For example, the following States have adopted such a view, either by case law or legislative enactment.

In contrast, only one State has enacted a statute that specifically absolves a social host of civil liability for furnishing alcohol to a minor. (Cal. Bus. & Prof. Code §§25602, 25602.1 (1991) (overruling prior cases that imposed common law negligence liability for provision of alcohol to adult or minor).) We note that, exclusive of Illinois, few State courts have deferred to their legislatures to resolve whether social host civil liability should be imposed for injuries related to the provision of alcohol to a minor. Bankston v. Brennan (Fla. 1987), 507 So. 2d 1385; Johnston v. KFC National Management Co. (Haw. 1990), 788 P.2d 159; Hebb v. Walker (1988), 73 Md. App. 655, 536 A.2d 113; Garren v. Cummings & McGrady, Inc. (1986), 289 S.C. 348, 345 S.E.2d 508; see also Burkhart v. Harrod (App. 1988), 110 Wash. 2d 381, 755 P.2d 759 (recognizing liability where alcohol furnished to one who was obviously intoxicated, helpless, or in a special relationship to social host).

II. DRAMSHOP ACT’S PREEMPTIVE EFFECT ON CIVIL LIABILITY AND JUDICIAL DEFERENCE TO LEGISLATIVE ACTION

Defendants argue that the Dramshop Act preempts common law negligence liability for a social host’s provision of alcohol to a minor and that further action in this field is more appropriately undertaken by the legislature.

Legislative preemption of judicial action can occur in a variety of contexts. For example, a legislative enactment is said to preempt the judiciary’s recognition of common law negligence liability when the statute explicitly provides an exclusive remedy. (See, e.g., Ill. Rev. Stat. 1989, ch. 48, par. 138.5 (workers’ compensation).) There is no explicit statement in the Illinois Dramshop Act, or the Illinois Liquor Control Act, with respect to whether the provisions set forth therein are deemed to preempt any civil negligence liability for a social host’s provision of alcohol to a minor. Consequently, recognition of social host liability in the instant cause is not specifically preempted by the terms of the Dramshop Act or the Liquor Control Act.

Defendants suggest that the court’s analysis in Cunningham (22 Ill. 2d 23, 174 N.E.2d 153), wherein the court refused to recognize common law negligence liability of a commercial vendor’s sale of alcohol to an adult, indicates that the Dramshop Act is intended to have preemptive effect on the judiciary’s development of common law negligence liability for all alcohol-related injuries. We disagree.

The court’s reasoning in Cunningham (22 Ill. 2d 23, 174 N.E.2d 153) is not dispositive of the instant action. In Cunningham, the court concluded that the legislature’s adoption of the Dramshop Act indicated that the legislature, by providing for commercial vendors’ liability in the sale of alcohol to adults, intended to create a new remedy. (22 Ill. 2d at 29.) The Dramshop Act and the Liquor Control Act contain no provision regarding social host civil liability. As a result, we cannot say that these statutes disclose a legislative intent to create or abrogate a common law remedy for the facts presented herein. The court in Cunningham was also persuaded that no common law negligence liability should be imposed upon a commercial vendor for sale of alcohol to an adult because the recognition of such a cause of action would be almost coextensive to the remedy created in the Dramshop Act. (22 Ill. 2d at 30.) In the case at bar, in contrast, recognition of social host liability would not be duplicative of a statutory liability created by the legislature.

Although the Illinois Supreme Court has held that the Dramshop Act precludes an action for common law negligence against a dram-shop owner (Cunningham, 22 Ill. 2d 23, 174 N.E.2d 153) and an action for statutory damages under the Act against a social host who has served alcohol to an adult (Cruse, 127 Ill. 231, 20 N.E. 73), the Illinois Supreme Court has not ruled on the question of whether social host liability is precluded, by virtue of the Dramshop Act, under the instant facts. (Cf. Demchuk, 92 Ill. 2d 1, 440 N.E.2d 112 (court refused to consider whether it should recognize common law action for negligence based on Liquor Control Act’s prohibition of sale of alcohol to minors, as claim not properly presented for review).) The Illinois judiciary’s concern over the abuse of alcohol by minors has led our court to recognize common law negligence liability where a minor was “required” to consume alcohol as part of a fraternity “hazing” party. (Quinn, 155 Ill. App. 3d 231, 507 N.E.2d 1193.) The legislature has enacted no statutory amendment to codify, amend, or overrule the decisions in Cruse, Cunningham, or Quinn, nor any of the appellate court decisions that have declined to recognize social host liability for the provision of alcohol to a minor.

We, therefore, are unable to conclude that the presence of the Dramshop Act and the Liquor Control Act indicates that the Illinois General Assembly has determined that there should be no social host liability for the provision of alcohol to a minor. Nor can we find that these acts should have preclusive effect upon this court’s power to develop the common law of negligence liability in this State. (Cf. Maki v. Frelk (1968), 40 Ill. 2d 193, 203 (Ward, J., dissenting) (“ ‘legislature’s inaction [may be] attributable to its feeling that it is more appropriate *** for the judiciary to act’ ”), quoted in Alvis v. Ribar (1981), 85 Ill. 2d 1, 22, 421 N.E.2d 886.) Although we are firmly dedicated to the notion that the legislature and the court should exercise a shared responsibility to cooperatively develop the common law in response to the changing needs of our society, we believe that the injustice of the present jurisprudence places upon this court the imperative duty to rectify that injustice through reevaluation of our current legal precedent. Alvis, 85 Ill. 2d at 23-24.

We cannot accept defendants’ claim that the decision to recognize social host liability is more properly considered by the legislature. Defendants advance the reasoning of the Wisconsin Supreme Court in Olsen v. Copeland (1979), 90 Wis. 2d 483, 491, 280 N.W.2d 178, adopted in Lowe (98 Ill. App. 3d 496, 424 N.E.2d 710) and Miller (96 Ill. App. 3d 596, 421 N.E.2d 1246), that the legislature is best equipped to weigh the competing factors pertaining to the issue presented in the case at bar. However, the Wisconsin Supreme Court expressly overruled Olsen in Sorensen v. Jarvis (1984), 119 Wis. 2d 627, 350 N.W.2d 108, and explicitly recognized social host common law negligence liability for injuries sustained in an accident caused by an intoxicated minor in Koback v. Crook (1985), 123 Wis. 2d 259, 366 N.W.2d 857. We find defendants’ reliance on Olsen inadequate basis to support defendants’ argument.

Moreover, the issues presented in the instant cause are not exclusively or uniquely a matter of legislative concern. Counts II and III of plaintiff’s complaint are founded on principles of common law negligence. Our common law, which is of judicial origin, is comprised of broad, flexible principles that find their source in fundamental values of justice, logic, and common sense, and is adapted by the judiciary according to the changing demands of our society. (See, e.g., Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 117 N.E.2d 74.) As the Illinois Supreme Court noted in Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881, wherein the court recognized the common law right of a woman to sue for loss of spousal consortium:

“We find no wisdom in abdicating to the legislature our essential function of re-evaluating common-law concepts in the light of present day realities. Nor do we find judicial sagacity in continually looking backward and parroting the words and analyses of other courts so as to embalm for posterity the legal concepts of the past.” 20 Ill. 2d at 429.

See also Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 551, 457 N.E.2d 1, quoting Rickey v. Chicago Transit Authority (1981), 101 Ill. App. 3d 439, 441, 428 N.E.2d 596; Alvis, 85 Ill. 2d at 23-24; Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182, affirming Suvada v. White Motor Co. (1964), 51 Ill. App. 2d 318, 201 N.E.2d 313.

Recognition of social host liability under the instant facts will not, in our view, contradict the decision of the Illinois Supreme Court in Cruse (127 Ill. 231, 20 N.E. 73). The court’s determination in Cruse that it was not actionable to furnish alcohol to a “strong and able-bodied man” is not compelling reason to deny plaintiff’s recovery in the instant cause. As the court observed in Ely v. Murphy (1988), 207 Conn. 88, 540 A.2d 54:

“The proposition that intoxication results from the voluntary conduct of the person who consumes intoxicating liquor assumes a knowing and intelligent exercise of choice, and for that reason is more applicable to adults than to minors. With respect to minors, various legislative enactments have placed them at a disability in the context of alcohol consumption. *** These *** statutes reflect a continuing and growing public awareness and concern that children as a class are simply incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol. ***
This growing public awareness *** causes us to conclude that common law precepts in this area also warrant reexamination.” 207 Conn. at 93-94, 540 A.2d at 57.

III. STARE DECISIS

Defendants also argue that, based upon principles of stare decisis, this court should adhere to precedent that has declined to recognize social host negligence liability for the provision of alcohol to a minor. Defendants assert that the rule of stare decisis is based on sound principles in the administration of justice, and long-standing rules should not be lightly changed or modified. Nevertheless, it is equally well established that stare decisis is not so static that it deprives the court of all power to develop the law. (Alvis, 85 Ill. 2d at 24.) Moreover, the maintenance of stability in our legal concepts does not and should not occupy a preeminent position over the judiciary’s obligation to reconsider legal rules that have become inequitable in light of the changing needs of our society. Alvis, 85 Ill. 2d at 24.

Defendants also contend that we should adhere to stare decisis in order to avoid the creation of conflict among the appellate districts, which “could lead to a certain amount of economic and social havoc.” (Puckett, 175 Ill. App. 3d at 358.) We find defendants’ observations insufficient basis to avoid the imposition of common law negligence liability for defendants’ alleged actions in the instant cause. In our view, the concerns suggested by defendant are greatly outweighed by the economic and social devastation on society that occurs when social hosts, as alleged in the instant cause, knowingly permit minor guests at a social gathering to consume alcohol to the point of inebriation, and allow the minor guests to depart from the gathering by driving a motor vehicle while intoxicated. We are unable to conclude that the concerns suggested by defendants are sufficient to preclude recognition of social host negligence liability under the facts of this case. Cf. Puckett, 175 Ill. App. 3d at 361 (Knecht, J., dissenting).

IV. SUFFICIENCY OF COUNTS II AND III OF PLAINTIFF’S COMPLAINT

We agree with plaintiffs assertion that this court should, under the precise facts of the instant cause, adopt the view of other States that have recognized social host negligence liability for automobile accident injuries caused by an intoxicated minor driver. We emphasize that our holding is limited to the facts alleged in plaintiff’s pleading, i.e., where (1) a social host has knowingly served alcohol, and permits the liquor to be served, to youths under 18 years of age at the social host’s residence, (2) the social host permits the minors’ consumption to continue to the point of intoxication, and (3) the social host allows the inebriated minors to depart from the residence in a motor vehicle. We express no opinion with respect to factual scenarios other than the one presented herein.

We conclude that counts II and III of plaintiff’s complaint properly relied upon negligence principles to state claims against defendants in the instant cause. The elements of a cause of action based on common law negligence are, briefly stated, the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. Ward v. K mart Corp. (1990), 136 Ill. 2d 132,140, 554 N.E.2d 223.

In count II of her complaint, plaintiff alleged that defendants’ conduct amounted to common law negligence. Under the Illinois Premises Liability Act, defendants owed plaintiff’s decedent the duty to exercise “reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” (111. Rev. Stat. 1989, ch. 80, par. 302.) Where a landowner “permits a third person to use land ***, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him *** from so conducting himself as to create an unreasonable risk of bodily harm” to others, when the landowner “(a) knows or has reason to know that he has the ability to control the third person, and (b) knows or should know of the necessity and opportunity for exercising such control.” Restatement (Second) of Torts §318, at 126-27 (1965); see Teter v. Clemens (1986), 112 Ill. 2d 252, 492 N.E.2d 1340; King v. Petefish (1989), 185 Ill. App. 3d 630, 541 N.E.2d 847; see also Restatement (Second) of Torts §371, at 275 (1965).

Based upon these principles, plaintiff’s count II was sufficient to state a claim for common law negligence. According to plaintiff’s pleading, defendants were present at their housewarming party, served alcohol to the minor friends of their son, and permitted their son to also furnish the minor guests with alcohol. Defendants were aware that most of their guests had arrived by automobile and would depart by the same method of transportation. As the adult parents and homeowners at the social gathering, the defendants knew or should have known that they had the ability to control their minor guests’ consumption of alcohol. Because the minors had arrived in automobiles, the defendants knew or should have known of the necessity of controlling the minors’ alcohol consumption in order to prevent the minors’ driving of the automobile while intoxicated upon their departure from the party. In addition, the defendants should have realized that allowing the minor guests to become intoxicated, and leave in an automobile, would expose them to the unreasonable risk of an automobile accident caused by the minors’ drunk driving. Nevertheless, defendants permitted the minor guests to become inebriated and leave the housewarming party in an automobile. These specific allegations are sufficient to state a claim for common law negligence based upon premises liability.

In count III of her complaint, plaintiff alleged that defendants’ conduct was negligent because it violated statutory duties under sections 6 — 16 and 6 — 20 of the Liquor Control Act. Section 6 — 20 provides that it is unlawful to give, sell, or deliver alcohol to a minor. (Ill. Rev. Stat. 1989, ch. 43, par. 134a.) Section 6 — 16(c) renders it unlawful to serve alcohol to a minor at a social gathering and to permit the minor to leave the gathering in an intoxicated condition. Ill. Rev. Stat. 1989, ch. 43, par. 131(c).

In our view, the facts alleged in the complaint were sufficient to state a claim for negligence based upon defendants’ alleged violations of sections 6 — 16 and 6 — 20 of the Liquor Control Act. Violation of a statutory duty gives rise to prima facie evidence of negligence when the plaintiff falls within the group which the statute is intended to protect, and when the harm suffered by the plaintiff is of a type the statute was designed to prevent. (Quinn, 155 Ill. App. 3d at 238.) According to plaintiff’s complaint, the defendants allowed Lenzi, Neauveau, and plaintiff’s daughter, all of whom were under 18 years of age, to consume alcohol at a social gathering at the defendants’ residence. Defendants then allegedly allowed the youths to leave the home, in a motor vehicle, while the minors were in an intoxicated condition. The plaintiff’s decedent, as well as Lenzi and Neauveau, belonged to the group which sections 6 — 16 and 6 — 20 are intended to protect, and their alcohol-related car crash was a type of injury these sections were designed to prevent.

We are unable to accept defendants’ claim that this court should not adopt the prevailing view in other jurisdictions that recognize a common law negligence duty for a social host’s provision of alcohol to a minor. Illinois common law imposes a duty of care upon a defendant when the defendant and the plaintiff stand in such a relationship to one another that the law imposes upon the defendant an obligation to exercise reasonable conduct for the benefit of the plaintiff. (Ward, 136 Ill. 2d at 140.) Relevant factors in determining whether the defendant owed a duty to plaintiff include the foreseeability of the injury, the likelihood of injury, the magnitude of placing the burden upon defendant to guard against the injury, and the consequences of imposing that burden upon the defendant. Ward, 136 Ill. 2d at 140-41.

With respect to the foreseeability and likelihood of the injuries sustained by plaintiff’s decedent in the instant cause, we note that defendants do not challenge the proposition that it is reasonably foreseeable that a minor who is permitted to consume alcohol to the point of intoxication at a social host’s gathering, and who is thereafter allowed to depart from the gathering in a motor vehicle, will be unable to drive the automobile in a reasonably safe manner, but will instead drive in a reckless fashion that causes injury to a third person. The likelihood of injury, where a minor is permitted to drink to intoxication and then drive a motor vehicle, is also not disputed by the defendants. Both plaintiff and her amicus curiae, Mothers Against Drunk Driving (MADD), provide statistical support for their argument that automobile accidents, causing personal injury, are substantially more likely when the driver is an intoxicated minor. Defendants do not contest these statistics. Defendants do not quarrel with the legal position advanced by plaintiff and MADD that, when a social host permits a minor under the age of 18 to consume alcohol to the point of intoxication, and then allows the minor to drive a motor vehicle, resulting injuries from a car accident caused by the intoxicated minor are both foreseeable and likely. In our view, these points need no substantial elaboration. See Puckett, 175 Ill. App. 3d at 361 (Knecht, J., dissenting) (statistics regarding fatalities and injuries caused by minors’ driving while intoxicated).

We also find it significant that Illinois statutes specifically and explicitly forbid the provision of alcohol to a minor and render such behavior a criminal offense. (Ill. Rev. Stat. 1989, ch. 43, par. 131.) Moreover, Illinois statutes expressly prohibit the furnishing of alcohol to a minor at a residential social gathering and denominate this violation as a criminal offense. (Ill. Rev. Stat. 1989, ch. 43, par. 134a.) These enactments demonstrate that minors are to be afforded special protection, under Illinois law, from the deleterious consequences of alcohol abuse and that minors are not deemed capable of appreciating the risks of alcohol consumption.

The allegations of plaintiff’s complaint indicate that defendants violated these statutory enactments. As alleged in the pleading, the defendants knowingly served alcohol to guests under the age of 18 and knowingly permitted their minor son to serve alcohol to these youths. The defendants in the instant cause then permitted the minors’ alcohol consumption to continue to the level of intoxication, and, according to the complaint, were aware that the minors’ consumption had caused them to become inebriated. The defendants then permitted the minors to depart in a motor vehicle, notwithstanding their intoxication. The court’s observations in Quinn are equally applicable to the case at bar:

“When [minors are permitted] to consume such large amounts of alcohol [at a social gathering held at the defendant-social host’s home], it is foreseeable and likely that injuries will occur. Even the injury alleged here is foreseeable. It is a small burden to guard against such injuries. *** Finally, we can think of no better party to bear the [proportionate] burden of plaintiff’s injuries than the one that [permitted] him to sustain them. The result is then predictable. A [social host] *** is to be [proportionately] liable for injuries sustained when [permitting minor guests] to engage in illegal and very dangerous activities [of becoming intoxicated and driving a motor vehicle].” (Quinn, 155 Ill. App. 3d at 237.)

As in Quinn, the alleged misconduct of the defendants contravenes “a social policy against *** endangering our youth through thoughtless and meaningless activity.” 155 Ill. App. 3d at 238.

Defendants contend that they should not be subjected to common law tort liability, because such liability would be unlimited, whereas liability for commercial suppliers is limited to a specific maximum dollar amount under the Dramshop Act. (See Zamiar, 132 Ill. App. 3d at 889; Lowe, 98 Ill. App. 3d at 499; Miller, 96 Ill. App. 3d at 601.) However, the limited dollar recovery provided in the Act reflects the unique liability created under the Act: a dramshop owner is liable without fault. (See, e.g., Stevens, 187 Ill. App. 3d at 464.) The defendants’ common law negligence liability, on the other hand, requires proof that the defendant breached a duty to exercise the appropriate standard of care under the circumstances, i.e., proof of fault. (See, e.g., Ward, 136 Ill. 2d at 140.) In addition, the defendants’ common law negligence liability would not be “unlimited,” but would be offset by the percentage attributable to the plaintiff’s comparative fault, if any, and the contribution, if any, of other tortfeasors. See, e.g., Quinn, 155 Ill. App. 3d at 237.

Defendants also suggest that no liability should be imposed upon them, because the plaintiff can obtain compensatory damages from Lenzi, who was driving the automobile when the accident occurred. This argument, however, avoids the question of whether defendants should be held liable, under principles of common law negligence, to the extent that their allegedly negligent conduct proximately caused plaintiff’s injuries. The circumstance that another party may also be liable does not and should not exculpate defendants from all civil liability for their allegedly negligent conduct under the instant facts.

Defendants assert that recognition of negligence liability here will impose an impossible burden upon social hosts. Defendants suggest that social hosts will find it too difficult to “police” their guests to determine if these guests are, in fact, minors. Defendants also contend that homeowners should not be subjected to liability because their minor child and the child’s minor friends consumed alcohol in the social host’s residence while the host was unaware of this consumption.

However, the record here does not present the hypothetical circumstances advanced by the defendants. In addition, we note that cases from other jurisdictions, where social host negligence liability has been recognized for the provision of alcohol to a minor, have not extended such liability to the hypothetical facts advanced by defendants. See, e.g., Liao v. Harry’s Bar (Ala. 1990), 574 So. 2d 775; Bowling v. Popp (Ind. App. 1989), 536 N.E.2d 511; Alioto v. Marnell (1988), 402 Mass. 36, 520 N.E.2d 1284.

For the reasons stated, the trial court’s dismissal of counts II and III of plaintiff’s amended complaint is reversed, and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE McMORROW PRESIDING JUSTICE JIGANTI,

license: Public Domain

text:
    JAMES CALLAHAN, Plaintiff-Appellee, v. THE DEPARTMENT OF STATE POLICE, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 90—0525
    Opinion filed December 19, 1991.
    JIGANTI, P.J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Eugene G. Callahan, Matthew W. LaKoma, and Robert J. Metis, all of Callahan, Fitzpatrick, LaKoma & McGlynn, of Oak Brook, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Defendant, the Illinois Department of State Police (Department), appeals from the order of the circuit court reversing the decision of the Illinois State Police Merit Board (Board) that plaintiff, Special Agent James Callahan, had violated the Department’s rule proscribing insubordination by disobeying a lawful order of a superior. The Department contends that the trial court erred in reversing the decision of the Board because the decision was not against the manifest weight of the evidence presented at the administrative hearing.

In November 1986, Callahan was charged with violating certain paragraphs of the Department’s Rules of Conduct, including paragraph 1 — 4, Insubordination, which states in relevant part:

“Officers shall promptly obey any lawful orders of a superior.”

Callahan denied the charges, and a hearing was held before an administrative hearing officer. Although the record is voluminous, the facts are relatively uncomplicated and largely undisputed.

In August 1984, Callahan was involved in an automobile accident while on duty. As a result of the collision, he was hospitalized for a period of time and was off from work for a total of approximately six to seven weeks. This time off was compensated as service-connected sick leave, which is designated by the Department as “512” time, in contrast to “515” time, which refers to personal, non-service-related sick time. The “512” time category derives from the Continuing Compensation Act (111. Rev. Stat. 1983, ch. 70, par. 91), which allows up to one year of full compensation to State law enforcement officers who are injured in the line of duty, and from the Illinois Workers’ Compensation Act (111. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.), which also provides for disability payments to employees injured in the course of their work.

In July 1985, Callahan was examined by Dr. Proctor Anderson, an orthopedic physician associated with the Department. Dr. Anderson prepared a report in which he stated his opinion that Callahan did not require further treatment at that time. Following review of the report by Master Sergeant Donald Burgess, the supervisor of the medical records section, Burgess recommended to James Zagel, then-Director of the Department, that Callahan’s workers’ compensation benefits, including additional “512” time and treatment expenses relating to the 1984 injury, be discontinued. On July 31, 1985, the following letter, which is the subject of this case, was sent to Callahan:

“Dear Special Agent Callahan:
RE: Service-Connected Injury
D/A 8/31/84
Our Case No. 11 — 84—N—260
On July 15, 1985, you were examined by Proctor Anderson M.D. at our request regarding the injuries sustained in the above-captioned case. Based on Dr. Anderson’s report, your workers’ compensation benefits including additional service-connected time off and any treatment expense will be discontinued effective August 1, 1985.
If you have any questions, please contact Master Sergeant Don Burgess at 217/782/4453.
Very truly yours,
James B. Zagel Director.”

This letter is a standard form letter sent to all officers whose “512” time is being discontinued.

On June 3, 1986, Callahan called his supervisor, Lieutenant Michael Sliozis, and informed him that he, Callahan, was having problems with his back and was undergoing treatment from Dr. James Phelps, a chiropractor. Callahan returned to work on June 23. There was some conflicting testimony concerning whether Rita Klein, the business manager, approached Callahan or Callahan approached Klein regarding whether the time off was to be designated as “512” or “515” time. It was agreed, however, that Callahan informed Klein that his doctor believed that his back problems were related to the 1984 injury, and that Callahan caused the 21 days off in June, which had been originally recorded in the computer as “515” time, to be re-designated by Klein as “512” time under the case number of his 1984 injury. Changes in the designation of time off are not unusual, and all time records are reviewed monthly.

In mid-July 1986, a summary of Callahan’s 1986 time off was prepared by Sliozis at the direction of one of Sliozis’ superiors. Sliozis then met with Callahan to discuss the change from “515” to “512” time for his June sick days. Sliozis advised Callahan that he would have to submit to an examination by a “state doctor” and also provide a letter from his own doctor, both of which Callahan agreed to do.

On July 22, after learning of the letter of July 31, 1985, discontinuing “512” time for the 1984 injury, Sliozis met again with Callahan and questioned him regarding the “512” designation for the June 1986 sick days. Callahan acknowledged receiving the letter, but stated that it was his belief that Department policy allowed the taking of additional “512” time under the case number of the original injury if that injury recurred. He informed Sliozis that his doctor believed that his then-current back problems were related to the 1984 injury, and that he had consulted with his attorney before causing the days off in June to be changed from “515” to “512” time. Sliozis informed Callahan that Major Charles Doerr had directed him to have Callahan's time off in June changed from “512” time to other time-off categories. Callahan stated that he disagreed with Doerr’s decision but would not contest it pending examination by Dr. Anderson and a Department review of his medical records. On July 29, the Department received a letter from Dr. Phelps stating that he had been treating Callahan for back problems and that in his opinion those problems were related to the 1984 accident. On August 15, 1986, after an examination by Dr. Anderson and a review of Callahan’s medical records, Sliozis sent a memorandum directing the timekeeper to change the time taken by Callahan in June 1986 from “512” to other time-off categories.

It is undisputed that the Department had no written rule governing the procedure to be followed for reactivating “512” time for medical problems arising from an earlier injury. Major Charles Doerr testified, however, that the proper procedure in these circumstances would have been for Callahan to submit a memorandum to the Director’s office through the chain of command together with medical documentation supporting his request for reconsideration of the 1985 discontinuance of “512” time for the original injury. Sergeant Burgess testified that although it is not unusual for the Department to allow additional “512” time for the reoccurrence of a previous work-related injury, Callahan should have contacted him or someone on his staff in the medical records section and submitted documentation of his claim prior to changing or causing to have changed the designation of his time off from “515” to “512” time.

Following a disciplinary meeting in October 1986, Callahan was suspended for 15 days for insubordination and other alleged violations of Department rules. Upon administrative review, the hearing officer issued his “Findings of Fact and Conclusions of Law” in which he stated that the letter of July 31, 1985, “amounted to a lawful order from a superior,” and that Callahan’s changing of the designation of his time off in June 1986 from “515” to “512” without authorization constituted insubordination in violation of paragraph 1 — 4 of the Department rules. The hearing officer also concluded, however, that the Department had failed to sustain its burden of proof on two other charges filed against Callahan. The Police Merit Board accepted the hearing officer’s findings of fact and conclusions of law and reduced Callahan’s suspension from 15 to 5 days for insubordination. The circuit court reversed the decision of the Board, ruling that the letter of July 31, 1985, was not an order. This appeal followed.

Opinion

The Department contends that the trial court erred in reversing the Board’s decision that Callahan’s conduct constituted insubordination. The Department argues that it is well settled that an administrative agency’s findings on questions of fact are considered prima facie true and correct (Ill. Rev. Stat. 1987, ch. 110, par. 3— 110) and that those findings should not be disturbed on review unless they are contrary to the manifest weight of the evidence (Garland v. Department of Labor (1984), 104 Ill. 2d 383, 472 N.E.2d 434). A finding is against the manifest weight of the evidence if an opposite conclusion is clearly evident from the record. (Sheehan v. Board of Fire & Police Commissioners (1987), 158 Ill. App. 3d 275, 509 N.E.2d 467.) The Department maintains that the findings of the hearing officer were not against the manifest weight of the evidence and that the Board’s decision must, therefore, be upheld.

However, it is also well settled that the manifest weight of the evidence standard of review does not apply where the question presented is one of law. (Kankakee County Board of Review v. Property Tax Appeal Board (1989), 131 Ill. 2d 1, 544 N.E.2d 762; Lake County Board of Review v. Property Tax Appeal Board (1989), 192 Ill. App. 3d 613, 548 N.E.2d 1129.) When the facts are not in dispute, their legal effect becomes a matter of law which is reviewable by the court, and a reviewing court is not bound by an agency’s conclusions of law. Kensington Steel Corp. v. Industrial Comm’n (1944), 385 Ill. 504, 53 N.E.2d 395; Local 7-641 v. Department of Labor (1982), 106 Ill. App. 3d 476, 435 N.E.2d 1192; Hale v. Hellstrom (1981), 101 Ill. App. 3d 1127, 428 N.E.2d 1197.

In the instant case, the trial court found that the hearing officer’s conclusion that the July 1985 letter “amounted to” an order which Callahan disobeyed by claiming additional “512” medical leave in June 1986 was incorrect as a matter of law. We agree with the trial court’s ruling.

The trial court in the case at bar noted that the word “order” is defined in Black’s Law Dictionary as “[a] mandate; precept; command or direction authoritatively given; rule or regulation.” (Black’s Law Dictionary 988 (5th ed. 1979).) The letter at issue was a standard form letter sent to all officers upon the termination of service-connected injury benefits. Contrary to the Department’s argument that it “directed [Callahan] not to use any more ‘512’ time with regard to the 1984 accident,” the letter contains no mandate, command or direction to Callahan to do or refrain from doing any act. It simply informed Callahan that his workers’ compensation benefits, including service-connected time off attributable to injuries sustained in the 1984 accident, were being discontinued. It then advised him to contact Burgess in the medical records section if he had any questions.

Relying on Zisner v. Board of Fire & Police Commissioners (1961), 28 Ill. App. 2d 435, 172 N.E.2d 33, the Department nevertheless argues that “although the *** letter *** did not contain the language of a formal order,” its clear import was that Callahan “was not to take any more ‘512’ *** time off with regard to his 1984 accident.” We cannot agree.

Zisner involved a notice, signed by the assistant fire chief at the direction of the hospitalized fire chief, and posted in the city’s firehouses which read:

“All off duty men are to report to [a local auditorium on a specified date.]
A refresher class as a follow up of the regional officer school will be conducted.
Coffee and donuts will be provided again in the auditorium.”

Nineteen members of the fire department who failed to attend the refresher course were suspended for insubordination. Although the court opined that the notice “did not appear in the language of a formal order,” seemingly because of the reference to refreshments, the court nonetheless found that the notice constituted an order which the firefighters were obliged to obey.

In the case sub judice, the Department’s reliance on Zisner is clearly misplaced. The Zisner case language, “[a]ll off duty men are to report,” is a clear and definite directive. The letter in the instant case contains no command or directive. It does not, as the Department argues, tell Callahan that “he was not to take any more 512 time.” Rather, the letter merely informed him that the Department was discontinuing the benefits it had been giving to Callahan for the injuries attributable to the 1984 accident.

The written findings of the hearing officer suggest to us that his finding of insubordination was based on Callahan’s change of the classification of his time from “515” to “512” sick leave “without authorization” and “contrary to proper procedure.” However, it has been conceded that there was no written policy concerning the procedure to be followed for seeking additional “512” time following its earlier discontinuance. Further, witnesses differed as to what they understood to be the proper, albeit unwritten, policy governing this situation. Doerr testified that Callahan should have sent a memo and medical documentation to the Director’s office; Burgess testified that such information should have been submitted to his office.

However, Callahan was not charged with failing to follow proper procedure. He was charged with insubordination for failing to obey a lawful order of a superior. Since we hold, as a matter of law, that the letter did not constitute a lawful order, it necessarily follows that the decision of the Board finding that Callahan was insubordinate for violating a lawful order was erroneous.

For the reason stated, the order of the trial court reversing the decision of the Board is affirmed.

Affirmed.

JOHNSON, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

I respectfully dissent from the opinion of the majority because I believe that it was within the province of the Board to determine whether the plaintiff’s conduct amounted to a violation of the Department’s rule prohibiting insubordination.

The plaintiff was sent a letter informing him that his service-connected time off relating to an injury which occurred in 1984 was being discontinued as of August 1, 1985. The letter contained the name of a person the plaintiff could contact if he had any questions. Ten months later, without informing anyone, the plaintiff took additional service-connected time off relating to that injury. As a result, he was suspended for violating the Department’s rule against insubordination, which provides that “officers should promptly obey any lawful orders of a superior.” The majority examined the language of the letter and concluded that as a matter of law it did not constitute an order.

It is true, as the majority asserts, that a reviewing court is not bound by an agency’s conclusion of law. However, administrative agencies are afforded substantial discretion by a reviewing court in construing and applying their own rules, and a court will interfere only where the agency’s interpretation is plainly erroneous. (Illinois Bell Telephone Co. v. Human Rights Comm’n (1989), 190 Ill. App. 3d 1036, 1047, 547 N.E.2d 499; Scheffki v. Board of Fire & Police Commissioners (1974), 23 Ill. App. 3d 971, 973, 320 N.E.2d 371.) In the context of disciplinary action taken by a police department, deference is accorded the agency because, as a part of the executive branch of government, it has both the responsibility and expertise in matters relating to the enforcement of standards which concern the maintenance of discipline and morale within the department. (Taylor v. Police Board (1978), 62 Ill. App. 3d 486, 489, 378 N.E.2d 1160.) A reviewing court’s only obligation is to determine whether the agency’s interpretation of its own rules has a reasonable basis in law. Taylor, 62 Ill. App. 3d 486, 376 N.E.2d 1160.

In the case at bar, I believe that it was within the Board’s power to determine whether the plaintiff’s conduct violated the rule prohibiting insubordination. As was stated in Zinser v. Board of Fire & Police Commissioners (1961), 28 Ill. App. 2d 435, 439, 172 N.E.2d 33, the absence of formal language is not in itself determinative of whether a particular communication constitutes an order. The need for discipline and obedience is inherent in the operation of a paramilitary organization such as the Illinois Department of State Police. CPhillips v. Hall (1983), 113 Ill. App. 3d 409, 419, 447 N.E.2d 418.) In light of that need, I believe that the Board should be accorded great deference in setting standards of acceptable conduct for Department personnel. In my view, the conclusion of the Board that the plaintiff’s conduct constituted insubordination has a reasonable basis in law and should not be overturned.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK HAMPTON, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 88—3693
    Opinion filed December 19, 1991.

      Charles K. Piet, of Chicago, for appellant.
    Jack O'Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Charles E. Bell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Frank Hampton, was convicted of murder and armed robbery, and sentenced to 50 years in prison. On appeal, he challenges the sufficiency of the evidence and the fairness of his trial.

We affirm.

Hampton and a codefendant, James Myers, were charged in the slaying of Gertrude Riddle, whose daughter-in-law found her body on October 28, 1986. Riddle was the victim of multiple stab wounds, punctures, and abrasions. Both defendants had worked at the same company as Riddle, but she had known Hampton better than Myers. She had dated Hampton and lent him money.

Police who arrived at the victim’s home observed blood on the floor and wall where the body was found and a metal towel bar and purse on the kitchen table. There was a knife on the kitchen floor with its blade bent at a 90-degree angle. An officer found a fingerprint on the towel bar and two Kool cigarette butts under the kitchen sink. A bloody fingerprint was found inside a kitchen drawer. The police detected no evidence of forced entry and no signs that the home had been ransacked. It was determined that the victim had died two days before, on Sunday, October 26.

The foreman of Hampton’s and Riddle’s place of employment testified that both had worked on Friday, October 24, 1986, and had received paychecks that day. The next Monday, neither came to work or called in. Early on Tuesday morning, Hampton came in to see his supervisor to say he was sick. Two days later, he called in to say he was in Kentucky having car problems and that his doctor had told him to take a few days off. Hampton asked his supervisor to hold his paycheck and keep his job open until Monday, when he said he would return.

Hampton had lived with Juril Bryson periodically since 1982. She had asked him to move out because of his heavy drinking, so he moved into a motel in Des Plaines. The day before Riddle’s murder, on a Saturday, Bryson had eaten dinner with Hampton. She testified he had $60 on him then. Bryson said that it was Hampton’s practice when they lived together to cash his paychecks, give her money for his share of the bills, and then carry the remaining cash or give it to her. He had no checking or savings accounts and no source of income except for his job.

Bryson testified that she received a telephone call at work at 8 a.m. on October 31. During this call, Hampton told her that James Myers had killed Riddle on Sunday night while he, Hampton, was shooting pool, and that Myers had threatened to kill him if he told anyone. Hampton also told Bryson that Myers planned to blame Hampton if caught because Hampton had a criminal record and would not be believed. He said that he was calling from Kentucky, that Myers was with him, and that he was afraid. Bryson told Hampton that she had already been interviewed by the police. Later that day, Hampton again called her and at one point said to call the police. He also told Bryson he had called Riddle to borrow money because Myers needed $200. When the two men came over, she said she did not have the money.

The police who arrested Hampton and Myers inspected the motel rooms in which the men had stayed. In Myers’ room an officer found a washcloth in the sink with reddish-brown stains, several Kool cigarette butts, and some clothing. In Hampton’s room was a package of Kools and clothing with apparent bloodstains.

In Hampton’s automobile, police found a pair of jeans and a bed sheet with apparent bloodstains.

Hampton and Myers were taken into custody. Officers returned to the motel to search for a pocket knife. In the bushes was a knife with a four-inch blade, which belonged to Myers. Pants with blood were also recovered from Myers at the time of his arrest. Myers had approximately $500 in his possession.

The owner of a video rental store testified that Hampton and Myers came in October 28 and rented a video player and tapes.

Before James Myers was offered as a witness for the State, the court granted the defense motion for a hearing to determine whether Myers was competent to testify. Dr. Albert Stipes, an expert in forensic psychiatry, was the only witness. He had interviewed the defendant for three hours and obtained a social history and psychological evaluation from Myers’ brother and a psychiatric institute. The witness also reviewed Myers’ police records, military records, and hospital records.

Dr. Stipes testified that Myers had attacked a superior officer while in the military in 1972, an act that the doctor said is not necessarily indicative of mental illness.

Myers had been hospitalized in 1976 after an auto accident and could not remember the details from the accident. At the time a doctor performed an electroencephalogram (EEG) on Myers and determined that he had temporal lobe epilepsy. Such a condition might cause grand mal seizures and lead to violence. Two other EEGs, performed in 1988, revealed no abnormalities, however.

Myers also had a history of drug abuse for the past 20 years. He suffered blackouts while drinking and could not recall events that occurred while he was inebriated. He reported auditory hallucinations upon being transferred to the general population of Cook County jail, but suffered them only when put into the general population at jail, and did not appear to suffer any delusions or hallucinations during Dr. Stipes’ interview with him. Myers told Dr. Stipes that he had been using PGP in the month preceding his arrest in November 1986 for Riddle’s murder. He said he used alcohol almost daily. Dr. Stipes also reviewed Myers’ written statement given to police after his arrest in which he said that he had blacked out and could not remember certain events.

Dr. Stipes diagnosed Myers as suffering from continuous alcohol dependency and a borderline personality disorder with antisocial features. The witness concluded, however, that in his professional opinion, Myers was competent to testify in court. He cited Myers’ ability to recall events and his capability for telling the truth.

The court then ruled in favor of allowing Myers to testify.

Myers testified that he had pleaded guilty to the charges against him and agreed to testify against Hampton at trial in return for a 30-year sentence.

Myers said that Hampton came to Myers’ motel room on the Sunday morning of Riddle’s homicide because he wanted some beer. The two men went to three different bars. On the way to the third bar, Hampton said, “I’ll kill the woman and show you how sincere I am.” Myers asked to be let out of the car, but Hampton said he was only kidding.

Myers testified he had consumed 20 to 30 beers and between 5 and 10 shots of tequila by the time they went to the victim’s house. They also had purchased a six-pack. Myers believed that Riddle and Hampton had “gone together” and were friends.

Myers went into the living room. He heard Hampton and the victim arguing in a different room. Hampton came out and told Myers to get a rope to tie up the victim, and Myers got a cord from a coffee pot in the kitchen. Myers said he tried to tie up the victim but could not and told Hampton they should go. He said Hampton asked for his knife and told him to open it. The victim was pleading with Myers not to let Hampton hurt her.

Hampton cut her neck and told Myers to get other ones from the kitchen because the pocket knife was too dull. Myers got two knives. Hampton asked Myers to hold the victim, which he did, and Hampton started stabbing her. Myers testified he could not watch and got scared and went to the bathroom looking for an escape route. He said he grabbed the towel bar to protect himself against Hampton if necessary. Myers put the towel bar in his pants and went into the hall, where he saw Hampton dropping Riddle to the ground and plunging the knife into her. Myers told Hampton he heard the victim breathe, and Hampton then took the longer knife and stuck it in her back, pushing down on it with his knee because of the resistance.

According to Myers, Hampton directed him to search the bedroom because “she supposed to be loaded.” Myers found $1,800, which he pocketed to divide up later. Myers said Hampton told him to throw a few things around to make it look like the place was ransacked.

The two men left and disposed of the knives. Myers testified that they threw Hampton’s clothes in the Des Plaines River because of the bloodstains. The men split the money they had stolen and then went out drinking again.

The next morning, according to Myers, Hampton came to his motel room and said they had to go back and get a knife out of the house. They went back and looked for 10 minutes but did not find the knife. Again, they went drinking at various taverns.

On Tuesday morning Hampton told Myers they had to leave the State. Hampton said he wanted to visit a relative. They rented a video recorder to sell in case they needed some quick cash.

Myers testified that Hampton drove to West Virginia. Myers asked him what he thought would happen if Myers turned himself in and Hampton said Myers would get the same punishment as if he had stabbed Riddle himself.

Myers denied threatening Hampton or displaying any weapons to him. He admitted to being an alcoholic and said that they stopped in bars on their way to West Virginia.

The men arrived at Hampton’s brother’s house in West Virginia at the end of October but stayed only a short while before deciding to go back to Illinois.

When they had gotten as far as Kankakee, Myers registered in a motel room under the name of Paul Kendall. They found a bowling alley with a bar. Myers left for awhile, and when he returned, Hampton was gone. He was not at the motel either, and Myers went back to the bar, where he was arrested.

Myers’ fingerprints were found on the towel bar and there were bloodstains found on his jeans. He had $400 or $500, belonging to the victim, at the time of his arrest. He admitted his blackouts and said he may have even blacked out while in Riddle’s home.

Myers did not call the police after the murder, he said, because he was drunk all of the time and did not believe that the incident had actually occurred.

The State also called a bartender at the Kankakee bowling lanes who had seen and talked to both Hampton and Myers in the bar on November 1, 1986. Hampton told the bartender he was trying to reach a brother who lived close by because they were running short of money.

Hampton’s brother picked him up at the bowling alley after Hampton telephoned him and said that Myers had killed the victim and was going to kill him, too. The brother took Hampton to the police station.

The State rested following the presentation of certain stipulations.

The defense called as a witness a woman who lived four doors away from the victim. The witness recalled seeing a van driving through the neighborhood very slowly, before Riddle’s death. She identified Myers as the driver and sole occupant of the van.

Hampton’s brother from West Virginia testified that when he saw Hampton and Myers, Hampton appeared nervous and said he was going to Texas to look for work. According to the brother’s testimony, Hampton gave him a photograph of his son. That gesture, he explained, was one Hampton had used in the past as a signal he was in trouble. Hampton hugged his brother and sister-in-law and asked them to pray for him.

Hampton’s other brother, from Bradley, Illinois, testified regarding the conversation he had when Hampton called from the bowling alley and asked to be picked up.

The defense called police officers to relate statements Myers made to them upon his arrest which differed from Myers’ trial testimony.

The court found Hampton guilty on all counts. A different judge denied the post-trial motion and sentenced him to 50 years in prison.

Opinion

Hampton challenges his conviction as being fatally deficient because it is based in large part upon the testimony of his codefendant, an alcoholic drug user who was given leniency in exchange for his testimony. He cites cases for the proposition that uncorroborated testimony of an accomplice must be cautiously scrutinized on appeal because it is suspect. See, e.g., People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153.

The State relies on the standard of review that requires this court to view the evidence in the light most favorable to the State and reverse only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (E.g., People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) In Young, the court held that testimony of an accomplice is sufficient to sustain a conviction, even if uncorroborated, if it convinces the trier of fact of the defendant’s guilt beyond a reasonable doubt.

In the pending case, the trial court evaluated the credibility of the witnesses, including Myers, and concluded that Hampton had been proved guilty of murdering Riddle beyond a reasonable doubt. There were no facts presented that would have mitigated the offense to a lesser grade, and Hampton presented no evidence to indicate he did not participate in the slaying of the victim. Even if Myers had done the actual stabbing and Hampton had held the victim and aided and abetted her slaying, both defendants are equally guilty under the evidence adduced at trial. That Myers plea-bargained and received a 30-year sentence in exchange for testifying against Hampton does not destroy his credibility as to the main events that occurred in the victim’s home on October 26 and afterwards. The two men were jointly responsible for Riddle’s brutal death and robbery; their subsequent flight from the State also suggests their guilt.

If Hampton truly had wanted to contact the police and escape from his supposedly threatening partner, the record indicates he had several opportunities to do so. Instead, the two men drank their way to and from West Virginia before Hampton finally told his brother to come and pick him up.

The record also contains evidence that corroborates Myers’ ability to recall the events surrounding the killing. For example, he testified that more than one knife was used on the victim. This is supported by the doctor who performed the autopsy, who said that more than one weapon had made the wounds. Other, pretrial statements of Myers were also substantiated, such as the location of the pocket knife and the fact the coffee pot cord had been cut. Myers’ version of the events following the murder was partially corroborated by independent witnesses, such as the video store owner and Hampton’s brother from West Virginia.

Hampton’s attempt to establish that Myers had exerted a coercive restraint upon his ability to contact police fails in light of the lapse of time from the murder to the time of the arrests. Hampton did not tell his supervisor he was in trouble when he stopped in before leaving the State, nor did he take the opportunity while on the road to leave Myers behind and take off in the car he was driving.

We have reviewed the record and find no basis upon which to reverse the conviction in this case. Any discrepancies in the evidence were for the trier of fact to resolve as a matter of credibility. (E.g., People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277, cert. denied (1987), 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240; People v. Hansen (1963), 28 Ill. 2d 322, 192 N.E.2d 359, cert. denied (1964), 376 U.S. 910, 11 L. Ed. 2d 608, 84 S. Ct. 665.) Hampton had the opportunity to challenge the competence of Myers as a witness, and he did so. Dr. Stipes’ opinion that Myers was competent to recall events and testify at trial was not shown to be unwarranted or ill-founded. Therefore, the trial court’s ruling on Myers’ competency was not an abuse of discretion, nor is it against the manifest weight of the evidence.

Regarding Myers’ general credibility, as distinguished from competency, his drug and alcohol use is certainly relevant (People v. Di Maso (1981), 100 Ill. App. 3d 338, 426 N.E.2d 972), but there is nothing in the record to suggest that the trial court failed to consider that history of substance abuse, along with all other pertinent information, in evaluating Myers’ credibility. Construing the evidence in the light most favorable to the prosecution, we conclude that Hampton’s convictions must be affirmed.

The second and final issue on appeal is whether Hampton was denied a fair trial when the post-trial motions and sentencing matters were heard by a different judge. The trial judge in this case died before the post-trial and sentencing proceedings. Hampton apparently believes that because post-trial motions and sentencing matters are resolved in part by a judge’s familiarity with the trial evidence, a different judge is incapable of resolving the issues presented.

We disagree. In People v. Ficke (1931), 343 Ill. 367, 387, 175 N.E.2d 543, the Illinois Supreme Court noted that when a trial judge dies it becomes the duty of another judge presiding in the same court to decide the motion for new trial. While the new judge would not have heard the trial witnesses testify, he or she nonetheless would be qualified to review the record of the trial proceedings.

The record indicates that in the pending case the second judge reviewed the full record before ruling on the motions and imposing sentence. While Hampton asserts that “[a] primary purpose of post-trial motions is to allow the trial judge an opportunity to consider the arguments of the parties and to re-assess his rulings,” we believe that another judge is capable of making that reassessment as well. To accept Hampton’s argument would be to implicitly hold that the death or unavailability of a trial judge automatically triggers a new trial because the replacement judge cannot properly evaluate the first judge’s rulings on the evidence. We reject such reasoning as unpersuasive and impracticable. Hampton has not demonstrated any reason why the second judge in this case should be considered incapable of reviewing the evidence and arguments in reaching her rulings. Without some showing that the second judge did not adequately review the trial evidence or understand the case, we decline to adopt Hampton’s position and reverse for a new trial.

Accordingly, we affirm the conviction of Hampton and the sentence imposed thereon.

Affirmed.

McMORROW and JOHNSON, JJ., concur.


author: JUSTICE JOHNSON

text:
    HARRY CUTUK, Plaintiff-Appellee, v. HAYES/GALLARDO, INC., Defendant-Appellant (Main Bank, as Trustee, et al., Defendants).
    First District (4th Division)
    No. 1 — 90—3693
    Opinion filed December 19, 1991.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Joseph J. Wilson, and Christine L. Olson, of counsel), for appellant.
    Schroeder & Hruby, Ltd., of Chicago (Ralph R. Hruby, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Hayes/Gallardo, Inc., brought this permissive interlocutory appeal after the circuit court of Cook County denied its motion for summary judgment against plaintiff, Harry Cutuk, a sole proprietor. (134 Ill. R. 2d 308.) In the underlying action, plaintiff alleged that he had been engaged as a subcontractor by defendant to perform certain electrical work. Plaintiff further alleged that on July 9, 1987, he sustained personal injuries because defendant furnished him with a defective ladder and, therefore, defendant was liable to him under the Illinois Structural Work Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60). The only issue on review is whether a sole proprietor is a protected person within the meaning of the Act where the defendant had some control or supervision over the sole proprietor.

We affirm.

Defendant, a general contractor, was employed to renovate a building located at 2014 West Wabansia in Chicago, Illinois. Defendant engaged plaintiff as a subcontractor to install electrical service lines to the building. Plaintiff, an electrical contractor, operated a business under the name of Harry Electric, a sole proprietorship.

On July 9, 1987, plaintiff borrowed a ladder owned by defendant to remove old service lines from the exterior of the building. Although the record is unclear as to whether plaintiff had permission to use the ladder on the date in question, he had received permission from Carlos Gallardo, the representative of defendant, to use the ladder on a previous occasion. Defendant’s employee helped move the ladder, and plaintiff and his aide secured the ladder against the building. Plaintiff was working on the ladder when it swayed and tipped. While attempting to steady himself, he received an electrical shock and fell to the ground.

Plaintiff stated that Gallardo was on the jobsite everyday and that Gallardo knew he was going to use the ladder on the day of the accident. Plaintiff testified that Gallardo instructed him on the manner and method of performing the structural work as follows:

“Well, [Gallardo] would tell [me], ‘Okay, this area out here, don’t run your pipes in this particular area. I might do something out here; or this area is not ready; or keep the pins, if you're running them through the walls, keep them high because someone else would go through the wall or partition wall,’ those kinds of things.”

Plaintiff also said that defendant’s bank would check his work to ascertain whether he had completed a specified percentage of the job. He further stated that he was not told how to perform his electrical work nor was he given safety directives, although municipal inspectors would check his work. According to plaintiffs deposition, he considered himself an experienced electrician, was at defendant’s job on a daily basis, had his own equipment, brought his own van, and usually provided his own ladders.

Plaintiff filed a two-count amended complaint against Hayes/Gallardo, Inc., Main Bank, as trustee under trust No. 87 — 103, Arlene Rezman, Dorothy Schwartz and Monica Rezman alleging violations of the Act. On April 27, 1989, Hayes/Gallardo, Inc., the remaining defendant in this action, filed its motion for summary judgment contending that, under Illinois law, plaintiff as a sole proprietor was not a protected person within the meaning of the Act. The court denied defendant’s motion and subsequently certified the matter pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308).

The Act provides in relevant part:

“§1. That all *** ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, *** or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon ***.” Ill. Rev. Stat. 1983, ch. 48, par. 60.
“§9. Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building *** or other structure within the provisions of this act, shall comply with all terms thereof ***.
* * *
For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby ***.” Ill. Rev. Stat. 1983, ch. 48, par. 69.

Defendant’s sole contention on appeal is that since plaintiff is a sole proprietor he is not a protected person under the Act. Plaintiff counters that his status as a sole proprietor should not preclude him from maintaining a Structural Work Act case as a matter of law. Plaintiff further argues that the court must first examine whether the evidence establishes that he was in charge of the work prior to resolving whether he is excluded from the Act’s protection. We agree with plaintiff.

We do not believe that a sole proprietor should be excluded from maintaining an action under the Act as a matter of law. The Act is designed to lessen the extent of danger encountered by those engaged in hazardous work activities. (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 127.) It expressly provides a cause of action for any injury to person or property occasioned by a willful violation of the Act. (Ill. Rev. Stat. 1983, ch. 48, par. 69.) “Illinois courts have mandated that the Act should be liberally construed to carry out its legislative purpose” (Hughes v. Taylor Electric Co. (1989), 184 Ill. App. 3d 454, 456), and “to afford ‘broad protection to working [people].’ ” Halberstadt, 55 Ill. 2d at 127, quoting Juliano v. Oravec (1973), 53 Ill. 2d 566, 570.

The Act does not distinguish a sole proprietor from any other type of worker, and we can find no sound reason for excluding sole proprietors from its protection as a matter of law. Our supreme court stated in Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, that “the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.” (Larson, 33 Ill. 2d at 322.) We believe that to strictly construe the Act so as to exclude sole proprietors from its coverage as a matter of law is contrary to the expressed purpose of insuring maximum protection to those engaged in hazardous work activities.

Well-established case law supports a finding that the trier of fact must first weigh the evidence and determine whether the sole proprietor was in charge of the work before excluding him from the Act’s protection. The Act is intended “to remove fault of the employee as a defense and place full responsibility on the ‘person in charge.’ ” (Bryntesen v. Carroll Construction Co. (1963), 27 Ill. 2d 566, 569.) In order to be held liable under the Act, it must be determined that the party had charge of the work in question. Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 451.

Some factors which are taken into consideration in determining whether a party is in charge of the work under the Act were set forth in Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6:

“These factors are: (1) supervision and control of the work; (2) retention of the right to supervise and control the work; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) responsibility for taking safety precautions at the jobsite; (6) authority to issue change orders; and (7) the right to stop the work. [Citations.] Other factors include: (8) ownership of the equipment used on the jobsite; (9) defendant’s familiarity with construction customs and practices; and (10) whether defendant was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits.” (Chance, 112 Ill. App. 3d at 11.)

In addition, a defendant need not be in direct charge of the operation from which the injury arose as long as it is in charge of the overall work. KohutJco v. Four Columns, Ltd,. (1986), 148 Ill. App. 3d 181, 186.

A review of the record supports the trial court’s finding that a question of fact exists on the issue of which party was in charge of the work. We find that the trial court must first weigh the evidence and determine whether the sole proprietor was in charge of the work before excluding him from maintaining an action under the Act.

Further, we believe that the sole proprietor should be a protected person within the meaning of the Act where defendant has some control over the sole proprietor. In National Oats Co. v. Volkman (1975), 29 Ill. App. 3d 298, a subcontractor, who was also a partner in a firm, was killed on the jobsite. After decedent’s representative obtained a judgment under the Act, the property owner and the prime contractor filed an indemnity action against the surviving partner of the firm. In permitting the indemnity action, the court stated that the Act “casts responsibility upon the responsible persons pro rata.” (National Oats, 29 Ill. App. 3d at 303.) Further, the fact that decedent’s estate may share in the liability for the violation of the Act did not preclude the action altogether. (National Oats, 29 Ill. App. 3d at 303.) The court recognized that an indemnity action would indirectly defeat part of the plaintiff’s liability because of the separate legal and financial identity of the partnership.

This court has recognized that more than one entity may be in charge of the work within the meaning of the Act. (Carlson v. Metropolitan Sanitary District of Greater Chicago (1965), 64 Ill. App. 2d 331.) In the event both defendant and plaintiff are held to be in charge of the work, defendant may bring an action in contribution against plaintiff in his capacity as the sole proprietorship seeking contribution to the extent that the sole proprietor was responsible. See National Oats, 29 Ill. App. 3d 298.

In so holding, we are cognizant of the decisions of the Illinois Appellate Court for the Third District in Holley v. Badgerow (1987), 162 Ill. App. 3d 572, and Dean v. Talman Home Federal Savings & Loan Association (1987), 163 Ill. App. 3d 800. In Holley, the plaintiff was a sole proprietor and subcontractor who was hired by the contractor to rebuild a fireplace. The plaintiff, in turn, hired a mason and a general laborer to assist him. After the plaintiff sustained injuries on the job-site, he filed a Structural Work Act claim against the contractor and the owner of the property. The trial court granted the defendants’ motion for summary judgment, finding that the plaintiff was not a protected person within the meaning of the Act. In affirming the trial court, the appellate court held that the plaintiff was not a protected person because as a sole proprietor he was in charge of the work. Holley, 162 Ill. App. 3d at 575.

The Holley court held that the plaintiff was in charge of the work without weighing the evidence. The court appears to state categorically that a sole proprietor, without more, is in charge of the work. We believe it is error to find that a sole proprietor is in charge of the work without first conducting a thorough review of the facts.

Similarly in Dean v. Talman Home Federal Savings & Loan Association (1987), 163 Ill. App. 3d 800, the plaintiff was a sole proprietor and roofing contractor whom the defendant had hired to repair a roof on a repossessed house. The defendant controlled where the plaintiff could begin the work, the time and manner of the plaintiff’s payment, and also determined whether the work was completed in a satisfactory manner. The court, however, held that the defendant’s position was comparable to that of a mere property owner and not that of a party supervising a subcontractor’s project. The court concluded that the plaintiff, as sole proprietor, was in charge of the work and not protected by the Act because he used his own equipment, worked under his own supervision and had a number of years of experience in the roofing business. (Dean, 163 Ill. App. 3d at 804.) Although the facts were weighed in Dean, the court relied on the case of Brown v. Village of Shipman (1980), 89 Ill. App. 3d 162, to hold that a sole proprietor is not a protected person under the Act because he is in charge of the work.

In Brown, the plaintiff was a sole proprietor who was injured while demolishing a building owned by the defendant and who was in charge of the demolition. The defendant filed a counterclaim against the plaintiff for indemnity which was dismissed by the trial court. On appeal, the court expressly recognized that the sole proprietor had a cause of action under the Act, but held that where a sole proprietor shares responsibilities and potential liability under the Act he may not seek the Act’s protection for the consequences of his own fault. (Brown, 89 Ill. App. 3d at 165.) The court stated that a counterclaim for indemnity would permit a sole proprietor’s degree of negligence to indirectly nullify the value of his cause of action. (Brown, 89 Ill. App. 3d at 166.) We believe that Brown preserves a sole proprietor’s standing to bring a Structural Work Act case to the extent he is not in charge of the work. See National Oats Co. v. Volkman (1975), 29 Ill. App. 3d 298.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.