Motion 13-Defendant's 2-615 and 2-619 Motion to Dismiss in Car Accident Case

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Defendant, David B. Hill, III's, Motion to Dismiss

Tenney & Bentley, LLC, One of the Attorneys for Defendant, David B. Hill, III, Timothy K. Travers, Tenney & Bentley, LLC #1900, 111 W. Washington Street, Suite 1900, Chicago, IL 60602, 312-407-7800.

Defendant, David B. Hill, III (“Hill”), by his attorneys, Tenney & Bentley, LLC, and pursuant to Sections 2-619 -1, 2- 615 and 2-619(5) of the Illinois Code of Civil Procedure states:

Plaintiff, as special administrator of the Estate of Danzel Brandon, has filed a ten count Third Amended Complaint at Law (“Complaint”) arising out of the death of her son, Danzel Brandon, in an automobile accident occurring on December 27, 2005. Plaintiff alleges that Danzel Brandon was a passenger in an automobile driven by defendant, Michael H. Young (“Young”), and that Young was intoxicated at the time he caused the accident. Plaintiff's Complaint was not filed until September 17, 2007.

Counts VII and VIII of the Complaint are the only counts which are directed towards Hill. In Count VII, plaintiff improperly attempts to allege a cause of action combining the Illinois Wrongful Death Act 740, ILCS 180/1 (2006), with a violation of the Illinois Liquor Control Act 235 ILCS, 5/6-21 (2006). In Count VIII, plaintiff presumably relies upon the Illinois Survival Act, 755 ILCS 5/27-6 (2006) and attempts to allege a cause of action for violation of the Illinois Liquor Control Act.

COUNTS VII AND VIII

Section 2-619

Section 6-21 of the Liquor Control Act, 235 ILCS 5/6-21 (2005) provides that actions “shall be barred unless commenced within one year next after the cause of action accrued”.

Any cause of action in this case accrued on December 27, 2005 when Danzel Brandon was injured and died in the automobile accident. Plaintiff did not name Hill as a defendant in her original Complaint At Law, her First Amended Complaint At Law or her Second Amended Complaint at Law. Plaintiff first named Hill as a defendant in her Third Amended Complaint which was filed on September 17, 2007, almost two years after the cause of action accrued. Consequently, the statutory time period expired before the filing of plaintiff's claim against Hill in Counts VII and VIII and those counts should be dismissed, with prejudice.

WHEREFORE, defendant, David B. Hill, III, prays that Count VII and Count VIII of the Third Amended Complaint be dismissed with prejudice and defendant be awarded his costs incurred.

COUNT VII

Section 2- 615

In Count VII, plaintiff essentially alleges that Danzel Brandon was killed as a result of Young's intoxication and that Young became intoxicated at a tavern allegedly owned, operated, managed and controlled by Hill.

Section 6-21 of the Liquor Control Act “provides the only remedy against tavern operators and owners of tavern premises for injuries to person, property or means of support by an intoxicated person or in consequence of intoxication.” Cunningham v. Brown, 22 Ill. 2d 23 (1961). Since Cunningham, the Illinois Supreme Court has applied that rule in conjunction with the Wrongful Death Act and held that an action cannot be maintained against tavern owners and operators under the Wrongful Death Act for a death caused by an intoxicated person or in consequence of intoxication. Knierim v. Izzo, 22 Ill. 2d 73 (1961). See also McKeown v. Homoyo, 209 Ill. App. 3d 959 (1991) (holding that the Liquor Control Act provides the exclusive remedy for the negligent sale or supply of liquor, if the alleged injury arises in any way from the sale of intoxicating beverages).

Thus, Plaintiff cannot state a cause of action pursuant to the Wrongful Death Act because the Wrongful Death Act does not provide a remedy to her. Accordingly, Plaintiff's sole cause of action against Hill is pursuant to the Liquor Control Act.

WHEREFORE, defendant, David B. Hill, III, prays that Count VII of the Third Amended Complaint be dismissed and defendant be awarded his costs incurred.

COUNT VIII

Section 2- 615

Count VII of the Second Amended Complaint is entitled “Survival Action - Medical and Funeral Expenses” and it appears that Plaintiff purports to state a cause of action under the Survival Act contained in the Illinois Survival Statute, 755 ILCS 5/27-6 (2006). Count VIII incorporates the allegations contained in Count VII and further alleges that “Decedent incurred substantial hospital, medical, and funeral expenses by reason of Decedent's injuries and resulting death.”

While the Survival Act provides than at action brought under the Liquor Control Act survives the death of a party, it does not provide a cause of action separate from the Liquor Control Act. The Survival Act is merely a pass-through mechanism for a cause of action existing prior to death.

WHEREFORE, defendant, David B. Hill, III, requests that Count VIII of the Third Amended Complaint be dismissed and defendant be awarded his costs incurred.

TENNEY & BENTLEY, LLC

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