Loretta Reynolds v. CB Sports Bar, Incorporated ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3753
L ORETTA R EYNOLDS,
Plaintiff-Appellant,
v.
CB S PORTS B AR, INC. and C ASEY J. C ARSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:07-cv-00754—J. Phil Gilbert, Judge.
A RGUED A PRIL 14, 2010—D ECIDED O CTOBER 22, 2010
Before P OSNER, R IPPLE, and K ANNE, Circuit Judges.
K ANNE, Circuit Judge. Loretta Reynolds alleges that
Brenda Russell and Casey Carson induced her to become
intoxicated in a bar owned by CB Sports Bar, Inc., and
attempted to take her back to their apartment “for sexual
exploitation.” Reynolds managed to escape, but was
injured when she was struck by a car. Reynolds sued
Russell, Carson, and CB Sports for negligence and
punitive damages. She alleged in her second amended
2 No. 09-3753
complaint that CB Sports (through its bartenders) knew
of Russell and Carson’s plans but negligently failed
to protect her from the attack. The district court dis-
missed the negligence count against CB Sports for
failing to state a claim. Because we conclude that
Reynolds’s complaint is broad enough to encompass a
viable theory of negligence against CB Sports, we reverse
and remand.
I. B ACKGROUND
In her second amended complaint, Reynolds alleged that
in October 2005 she went to Jerzey’s Sports Bar in O’Fallon,
Illinois. Jerzey’s is owned by Appellee CB Sports Bar, Inc.
After two beers, Reynolds left the bar to go back to her
hotel, but discovered that her car would not start. She went
back into the bar and asked the bartender for a phone book
so that she could call for a taxi. The bartender told her that
no taxis were available and that she would have to get a
ride back to her hotel from someone in the bar.
Brenda Russell and Casey Carson approached Reynolds
and offered to give her a ride to her hotel. Before
they left the bar, however, Russell and Carson bought
Reynolds several drinks “in an attempt to cause plain-
tiff to comply with their design to lure her to their apart-
ment for sexual exploitation.” (R. at 16, p. 2.) Reynolds
also alleged that Russell and Carson may have slipped
some kind of drug into her drinks. Reynolds, Russell,
and Carson left the bar together, and they all got into
Russell and Carson’s car. Reynolds realized at some
point during the car ride that they were not driving
No. 09-3753 3
toward her hotel and that Russell and Carson intended
to rape her. Reynolds escaped from the car when
Russell and Carson stopped to buy cigarettes. She at-
tempted to walk back to her hotel, but because she was
still extremely intoxicated, she wandered onto a nearby
highway on-ramp and was struck by a car, suffering
serious injuries.
As it relates to this appeal, the operative paragraph
of her complaint is paragraph 19:
That Defendant Jerzey’s at least knew or should
have known that Defendants Russell and
Carson were getting Plaintiff Loretta Reynolds
intoxicated for the purpose of sexual exploitation.
At worst, Defendant Jerzey’s and its employ/
agent bartender was an active accomplice in the
attempt to ensnare Plaintiff Loretta Reynolds
into an unsavory and unwelcome sexual situation.
(Id., p. 5.) She also alleged that CB Sports knew or
should have known that she would have tried to escape
and that CB Sports “had a duty to protect the welfare of
its customers, including Plaintiff Loretta Reynolds from
situations such as that being plotted by Defendants
Russell and Carson.” (Id.)
CB Sports moved to dismiss her negligence claim
against it for failure to state a claim. The district court
granted the motion, finding that CB Sports’s duty to
protect its business invitees did not extend “to such
distances or circumstances as are involved in this
case,” and that “there is no reason CB Sports could
have reasonably foreseen that there was a danger that
4 No. 09-3753
one of their patrons would be hit by a vehicle while
escaping from criminal activity by another Jerzey’s
patron after leaving the bar—or any other harm of that
general nature.” Reynolds v. CB Sports Bar, Inc., No. 07-cv-
754, 2008 WL 4792704, at *5 (S.D. Ill. Oct. 30, 2008).
While Reynolds’s appeal of the district court’s decision
was pending in this court, she continued to press her
claims against Russell and Carson. Reynolds eventually
moved to dismiss Russell from the case. The district
court later held an evidentiary hearing in October 2009
in which Reynolds provided a more detailed account of
the events in question. Reynolds said that there were
two bartenders, one male and one female, and that both
refused to give her a phone book, telling her that there
were no taxis available. She also said that she asked the
bartenders about Russell and Carson. The bartenders
allegedly told her that “they were fine. That they [the
bartenders] knew them. That they were regulars
and that they would be okay.” (R. at 65, p. 11.) She even-
tually obtained a default judgment against Carson for
$1.5 million. In this appeal we address only the district
court’s granting of CB Sports’s motion to dismiss.
II. A NALYSIS
A. Standard of Review
We review the grant of a motion to dismiss for failure
to state a claim de novo. Reger Dev. LLC v. Nat’l City Bank,
592 F.3d 759, 763 (7th Cir.), cert. denied, ___ S. Ct. ___ (2010).
“[E]valuating the sufficiency of the complaint, we construe
No. 09-3753 5
it in the light most favorable to the nonmoving party,
accept well-pleaded facts as true, and draw all inferences
in her favor.” Id. To survive a motion to dismiss, the
plaintiff must do more than simply recite elements of a
claim; the “complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). The plaintiff need not, however, plead “de-
tailed factual allegations.” Id.B. Dramshop Act
At the outset, we note that CB Sports cannot be held
liable for Reynolds’s injuries based on it having provided
her with alcohol. The Illinois Dramshop Act is the exclu-
sive remedy for injuries resulting from a bar’s provision
of alcohol, 235 ILCS 5/6-21; Simmons v. Homatas, 925
N.E.2d 1089, 1095 (Ill. 2010), and the Act does not
provide a cause of action for injuries sustained by the
intoxicated person himself, 235 ILCS 5/6-21. That being
said, Reynolds failed to bring any action under the
Dramshop Act within one year of being injured, so any
claim she might have had under the Act is time-barred.
See id.The Dramshop Act, however, does not give a bar com-
plete immunity from being sued for tortious conduct; the
Act only preempts actions based on the provision of
alcohol. A plaintiff may still bring a cause of action
against a bar for acts that are independent of serving
6 No. 09-3753
alcohol. Simmons, 925 N.E.2d at 1097-98; Harris v. Gower,
Inc., 506 N.E.2d 624, 626 (Ill. App. Ct. 1987). Therefore,
although CB Sports’s liability here cannot be premised
on its having served Reynolds (or any other patron)
alcohol, it may still be liable if Reynolds has adequately
stated a claim against CB Sports for some other
negligent conduct.
C. Supplemental Facts
The first issue that we must resolve is whether
Reynolds may supplement her complaint on appeal with
facts that she did not include in her complaint. Of note
is her testimony at the evidentiary hearing held after
the district court had already dismissed her complaint
against CB Sports, in which she testified that the bar-
tenders vouched for Russell and Carson. For the reasons
discussed in more detail below, this question is crucial
to the outcome of her appeal.
Prior to Iqbal and Twombly, it was clear that “a plaintiff
[was] free on appeal to give us an unsubstantiated
version of the events, provided it is consistent with the
complaint, to show that the complaint should not have
been dismissed.” Dawson v. General Motors Corp., 977
F.2d 369, 372 (7th Cir. 1992) (internal quotation marks
and alteration omitted). The question now is whether
Iqbal and Twombly narrowed the pleading standard such
that this after-the-fact hypothesis of facts is no longer
permissible.
No. 09-3753 7
We conclude that the Supreme Court’s recent decisions,
while raising the bar for what must be included in the
complaint in the first instance, did not eliminate
the plaintiff’s opportunity to suggest facts outside the
pleading, including on appeal, showing that a complaint
should not be dismissed. See Twombly, 550 U.S. at 563(“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with
the allegations in the complaint.”); McZeal v. Sprint
Nextel Corp., 501 F.3d 1354, 1356 n.4 (Fed. Cir. 2007).
Therefore, although the plaintiff is required to plead
more than bare legal conclusions to survive a motion to
dismiss, once the plaintiff pleads sufficient factual
material to state a plausible claim—that is, sufficient to
put the defendant on notice of a plausible claim
against it—nothing in Iqbal or Twombly precludes the
plaintiff from later suggesting to the court a set of facts,
consistent with the well-pleaded complaint, that shows
that the complaint should not be dismissed.
With this background in mind, we turn to Reynolds’s
complaint. In relevant part, Reynolds alleged in her
second amended complaint that the bartender refused
to help her get a taxicab and told her she would have to
get a ride back to her hotel from another patron. She
also alleged that the bartender assisted Russell and
Carson in getting Reynolds intoxicated knowing their ill
intentions. In Count 2 of her second amended complaint,
Reynolds alleges that CB Sports “at least knew or should
have known that Defendants Russell and Carson were
getting Plaintiff Loretta Reynolds intoxicated for
the purpose of sexual exploitation,” and “[t]hat Defendant
8 No. 09-3753
[CB Sports] had a duty to protect the welfare of its cus-
tomers . . . from situations such as that being plotted
by Defendants Russell and Carson.” (Complaint at 19, 21.)
Taken together, we find these allegations sufficient to
raise a plausible claim of negligence against CB Sports.
Although Reynolds could have included more factual
material in her complaint, she has done enough to
nudge her claim of negligence against CB Sports over
the line to plausible, and the complaint on its face is
sufficient to put CB Sports on notice of her claim against
it. Based on a fair reading of the second amended com-
plaint, CB Sports would have known that Reynolds
was suing it for breaching its purported duty to protect
her from Russell and Carson. Having made a sufficient
showing in the first instance, Reynolds is free on appeal
to suggest additional facts that would demonstrate to
us why her complaint should not be dismissed for
failing to state a claim. We will therefore consider the
additional factual allegations that Reynolds has raised
on appeal, including the allegation that the bartenders
told her that it would be safe for her to ride home
with Russell and Carson.
D. Negligence
We first note that the second half of paragraph 19
attempts to state a cause of action for an intentional tort
and not for negligence. (See Complaint at 19 (“At worst,
Defendant Jerzey’s and its employ/agent bartender was
an active accomplice in the attempt ensnare Plaintiff
Loretta Reynolds into an unsavory and unwelcome
No. 09-3753 9
sexual situation.”).) Subject to some inapplicable excep-
tions, CB Sports is not liable for its agents’ intentional
torts, so it cannot be liable for the bartender’s actions if
he was an active accomplice of the tortious attack against
Reynolds. Accordingly, we now discuss whether the
first sentence of paragraph 19 states a claim of negligence.
1. Duty
Because federal jurisdiction in this case is based on
diversity of citizenship, we apply Illinois substantive
law. See Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 531 (7th
Cir. 1985). “To state a claim for negligence, a plaintiff must
plead a duty owed by a defendant to that plaintiff, a breach
of duty, and injury proximately caused by the breach of
duty.” Bell v. Hutsell, 931 N.E.2d 299, 302 (Ill. App. Ct.
2010). There is normally no duty to protect someone from
criminal attacks by third parties. Hills v. Bridgeview Little
League Ass’n, 745 N.E.2d 1166, 1185-86 (Ill. 2000). However,
a landowner will have a duty to protect lawful entrants
against criminal attacks on the premises if the parties
stand in a special relationship—such as between a
business invitor and invitee, see Rowe v. State Bank of
Lombard, 531 N.E.2d 1358, 1364 (Ill. 1988)—and the
criminal attack was reasonably foreseeable, Hills, 745
N.E.2d at 1186-87; Osborne v. Stages Music Hall, Inc., 726
N.E.2d 728, 733 (Ill. App. Ct. 2000) (emphasizing that
the criminal act must be not only foreseeable, but rea-
sonably foreseeable); see also Mitchell v. Archibald &
Kendall, Inc., 573 F.2d 429, 433 (7th Cir. 1978) (“[A]n owner
10 No. 09-3753
or occupier of land in Illinois owes a duty to invitees on
his premises reasonably to guard against criminal acts of
third parties when knowledge of previous incidents or
circumstances charges him with knowledge of this dan-
ger.”). “A criminal attack by a third person is rea-
sonably foreseeable when the circumstances are such as
to put a reasonably prudent person on notice of the
probability of an attack or when a serious physical alter-
cation has already begun.” Shortall v. Hawkeye’s Bar &
Grill, 670 N.E.2d 768, 770 (Ill. App. Ct. 1996).
Even if there is a special relationship and the criminal
attack is foreseeable, courts must still decide whether
to impute a duty to protect against the attack. See Burks v.
Madyun, 435 N.E.2d 185, 189 (Ill. App. Ct. 1982). Courts
will consider a number of factors in deciding whether
to impose a duty on someone to protect another, in-
cluding “(1) the reasonable foreseeability of the injury;
(2) the likelihood of the injury; (3) the magnitude of
the burden of guarding against the injury; and (4) the
consequences of placing that burden on the defendant.”
Marshall v. Burger King Corp., 856 N.E.2d 1048, 1057
(Ill. 2006).
Had Reynolds been attacked or harmed while on the
bar premises, our task would be substantially easier;
business invitor liability for foreseeable criminal attacks
on the premises is well established. See, e.g., Lewis v.
Razzberries, Inc., 584 N.E.2d 437, 441 (Ill. App. Ct. 1991)
(citing Restatement (Second) of Torts § 344). Here, how-
ever, Reynolds was injured more than one mile from
the bar, and guidance from Illinois courts on this issue
No. 09-3753 11
is decidedly less clear. See Mitchell, 573 F.2d at 433(noting that where “there are no Illinois cases ‘on all
fours’ with the present case, we must decide the case
as we believe the Illinois courts would”).
The general rule is that a business invitee ceases to be
an invitee, and the business invitor’s liability is
therefore extinguished, as soon as the invitee leaves
the premises owned by the invitor. See Lewis, 584 N.E.2d
at 442 (“[T]his court has refused to extend liability to
protect against assaults or altercations occurring after
a patron leaves the owner’s premises.”); Badillo v. DeVivo,
515 N.E.2d 681, 684 (Ill. App. Ct. 1987) (“This court
has repeatedly held that requiring a business operator
to protect its patrons from injuries that occur after the
patron leaves the premises places an unjustifiable
burden on the operator and on the police force.”).
In Badillo, the plaintiff was attacked by another patron
of the defendant bar inside the bar. The bar stopped the
fight and kicked both patrons out. The original aggressor
attacked the plaintiff again as she was getting into her
car a half block away from the bar, this time using a
police baton. 515 N.E.2d at 682. The Illinois Appellate
Court held that the bar was not liable for the injuries
sustained in the attack that occurred outside the bar,
because imposing a duty on the bar to ensure the safety
of its patrons off premises, even if an attack is fore-
seeable, would impose too heavy of a burden on a bar.
Id. at 683-84; see also Lewis, 845 N.E.2d at 441 (finding
that a tavern was not liable for a criminal attack on one
of its patrons that occurred 23 feet off premises because
12 No. 09-3753
“[f]rom the time plaintiff’s decedent left defendant’s
legal boundaries, she was no longer owed a duty of care
as a business invitee”).
Applying Illinois law, this court has also found that a
business was not liable for a criminal attack by a third
party against a truck driver that occurred off the
business’s premises, even though the business’s em-
ployees directed the truck driver to park on a road near
the business on which the employees knew criminal
attacks had previously occurred. Mitchell, 573 F.2d at 437.
There are, however, exceptions to the general rule. In
Shortall, the Illinois Appellate Court found that a bar
could be liable for injuries that occurred during a fight
that occurred just outside the bar. 670 N.E.2d at 772.
The dispute that eventually led to the fight had occurred
in the bar, the fight lasted for fifteen minutes, the bar
escalated the fight by ushering some patrons outside
into the fight, and the bar’s bouncers were watching the
fight through a window but did nothing. Id. at 769-70.
Under those circumstances, the court concluded that
the bar “was under the same duty as if the fight had
occurred inside the bar.” Id. at 772. More generally, the
court held that “tavern owners may not avoid applica-
tion of the duty to act to protect invitees from criminal
attack by third parties simply because the disturbance
giving rise to the duty occurs just out the front door,
especially where the owner contributes to the alterca-
tion by sending patrons out into it.” Id.Similarly, in Osborne, 726 N.E.2d at 734, the court
found that the defendant nightclub could be liable for a
No. 09-3753 13
criminal attack against one of its patrons that occurred
on the sidewalk in front of the nightclub. Earlier that
evening, the nightclub had used barricades to help form
the line going into the club. At some point that evening,
the nightclub’s bouncers ejected two drunk men and
shut the doors behind them. The men pounded on the
doors and yelled profanities at the bouncers. The
plaintiff and a friend walked out of the club onto the
sidewalk in front of the club. One of the men outside
slapped the plaintiff’s friend, and as the plaintiff ap-
proached her friend one of the men spun and kicked her
in the face. Id. at 729-31. The court said that the rea-
sonable foreseeability of the attack, and not whether the
attack occurred on or off premises, was the dispositive
factor for liability. Id. at 733. Significantly, it found
ample evidence to find that the attack against the
plaintiff was reasonably foreseeable: the bouncers knew
that the men outside were drunk and angry, that they
had already been involved in a fight inside the club,
and that they had not cooled off after being evicted. The
bouncers did not remove the men from the sidewalk or
otherwise police the area even though the club had con-
trolled the sidewalk area earlier that evening. Based on
the bouncers’ knowledge and their inaction, the court
concluded that “it was reasonably foreseeable that a
patron would be attacked upon exiting the club and,
therefore, it was incumbent on the club to guard
against such an occurrence.” Id. at 734.
Most recently, in Haupt v. Sharkey, 832 N.E.2d 198, 202-03
(Ill. App. Ct. 2005), the Illinois Appellate Court found
that a bar could be liable for a criminal attack against one
14 No. 09-3753
of its patrons that occurred just off the bar’s premises.
After discussing Shortall and Badillo, the court con-
cluded that “there is no bright line rule that a tavern
owner’s duty to protect its patrons from criminal acts
of third parties absolutely ends at the precise property
line of the tavern.” Id. at 203. The court held that a bar’s
duty “to provide a reasonably safe means of ingress and
egress to patrons,” coupled with the foreseeability of the
criminal attack that occurred as the patron was evicted
from the bar, served to preclude granting summary
judgment in the bar’s favor. Id. at 204-05.
Against this backdrop, Reynolds asks us to find that
CB Sports owed a duty to protect her against Russell
and Carson’s criminal attack that was to occur off the
physical premises owned by CB Sports. To find in
Reynolds’s favor would require us to wade into somewhat
uncharted territory because no Illinois court of which we
are aware has ever extended business invitor liability so
far off premises. However, the fact that Reynolds’s
injuries were sustained more than one mile away from CB
Sports’s bar does not necessarily preclude finding a duty
here. See id. at 203-04.
There is no question in this case that Reynolds was
a business invitee of CB Sports while she was inside
the bar. Therefore, CB Sports clearly had a duty to
protect her from foreseeable criminal attacks by third
parties while she was inside the bar. The dispositive
question, though, is when CB Sports’s duty to protect
Reynolds ended the night she was injured. As noted
previously, the general rule is that she ceased to be an
No. 09-3753 15
invitee when she left the physical premises owned by
CB Sports. Unless the exception to the general rule dis-
cussed above applies, CB Sports cannot be liable for
her injuries because it was under no duty to protect her
at the time she was injured. Our remaining task, then, is
to determine what the scope of the exception to the gen-
eral rule is and whether Reynolds fits within that excep-
tion.
No duty can exist unless the crime was reasonably
foreseeable—that is, that a reasonable person under the
circumstances would have known that an attack would
occur. Id at 204. One clear example of circumstances
that should put a bar on notice of a probable criminal
attack is when a physical altercation has already oc-
curred. Id. The focus of foreseeability is what the defen-
dant knew at the time. Lewis, 584 N.E.2d at 442. Thus, the
criminal attack in Shortall was reasonably foreseeable
to the bar because the bartender had observed the scuffle
that happened inside the bar prior to the fight erupting
outside, and a bouncer watched the fight through a
window as it escalated. Shortall, 670 N.E.2d at 771. In
Osborne, the attack was reasonably foreseeable because
the bouncers had previously fought with the attackers
while they were in the club, the bouncers heard the
men yelling angrily and pounding against the club’s
doors, and the bouncers knew that the men were drunk
and looking for a fight. Osborne, 726 N.E.2d at 734. The
court concluded that the club had a duty to protect
its patrons against a criminal attack by the men outside
the club “[b]ecause of what the bouncers knew about
the two men.” Id. Finally, the attack in Haupt was foresee-
able because the bar owner knew through prior personal
16 No. 09-3753
experience that the attacker had a propensity for fighting,
on the night of the attack he had observed the plaintiff and
the attacker fighting in the bar, and he kicked the men out
of the bar at the same time. Haupt, 832 N.E.2d at 200, 204-
05.
Here, Reynolds has alleged, and we are obliged to
accept as true, that CB Sports “at least knew or should
have known that Defendants Russell and Carson were
getting Plaintiff Loretta Reynolds intoxicated for the
purpose of sexual exploitation.” She does not say
how she knows that the bartender knew, but that is
what discovery is designed to unearth. Assuming as
true that the bartender knew of Russell and Carson’s
criminal purposes, we must conclude that the subse-
quent unrealized criminal attack on Reynolds was rea-
sonably foreseeable to CB Sports.
Of course, just because a criminal attack is reasonably
foreseeable does not necessarily mean that a bar has a
duty to protect against it. See Gustafson v. Mathews, 441
N.E.2d 388, 390 (Ill. App. Ct. 1982) (“Foreseeability is
a necessary but not a sufficient condition for imposing
a duty.”). We must also consider the likelihood of
injury, the burden on the defendant of guarding
against that injury, and any consequences of placing the
burden to protect on the bar. Osborne, 726 N.E.2d at 732.
The likelihood of injury under these circumstances
was very high. This was not a fight that may or may
not have broken out in the bar parking lot, but a pur-
poseful scheme to attack Reynolds with serious conse-
quences sure to result. Therefore, this factor weighs in
favor of finding a duty.
No. 09-3753 17
We do not think it overly burdensome to require a bar
to protect against criminal attacks of the kind in this
case if it knows they will be perpetrated. CB Sports
argues that finding liability here would require all bars
to ensure that their patrons do not leave with shady
characters and that they all make it safely home. To be
sure, we would be inclined to agree with CB Sports
that such a broad duty would violate Illinois public
policy. But we note two limiting principles, drawn from
Illinois courts’ decisions, that make imposing a more
limited duty on CB Sports consistent with established
Illinois law.
First, CB Sports was under no duty to investigate the
plans or intentions of its patrons. To require a bartender
to investigate each patron’s purposes in purchasing
drinks for themselves or someone else would place an
unjustified burden on the bar. This limitation stems
logically from the Illinois courts’ holding that a bar is
under no duty to determine how intoxicated its patrons
are before they drive away from the bar. See Simmons,
925 N.E.2d at 1099; Holtz v. Amax Zinc Co., 519 N.E.2d
54, 58 (Ill. App. Ct. 1988) (“[W]e do not believe that such
an employer can be liable where its agents have simply
failed to take steps to prevent an intoxicated employee
from driving home.”); Gustafson, 441 N.E.2d at 390-91(describing as “an unjustifiably burdensome responsi-
bility” a duty that “would require [businesses] to
evaluate the behavior of their customers to determine
whether they have the capacity to drive safely”).
The second limiting principle follows naturally from
the first. Under the specific facts of this case, CB Sports
18 No. 09-3753
had a duty to protect against only those criminal
attacks occurring far from its physical premises that it
knew would occur. Because CB Sports had no duty to
investigate the motives of its patrons, it can be liable
only for criminal designs of which it was actually aware.
After all, the criminal attack must not only be foresee-
able, but reasonably foreseeable. And when an attack is
to occur far from the physical premises of a bar, it is
unreasonable to require a bar to foresee all the hidden,
nefarious plans of its patrons. However, it is not overly
burdensome to require a bar to protect its invitees if it
knows that one patron is intending to attack another
patron, even if the attack is to occur far from the bar.
In Simmons, the Illinois Supreme Court found that the
rule that taverns are not required to determine the
driving capacity of their patrons was no defense to the
club in that case. Although it was under no duty to do
so, the club had taken on “the burden of determining
whether [the defendant drunk driver] was dangerously
intoxicated” and had therefore “acquired a duty not to
encourage and assist [the defendant] in the tortious
conduct of driving while intoxicated.” 925 N.E.2d at
1099. Likewise, although CB Sports was not obligated to
investigate Russell and Carson’s motives behind buying
Reynolds drinks or driving her home, once it allegedly
learned of their ill motives it acquired the duty to protect
Reynolds from the attack. See also Badillo, 515 N.E.2d at
683 (finding no liability for an off-premises criminal
attack, and distinguishing Yashar v. Yakovac, 48 N.Y.S.2d
128 (N.Y. City Ct. 1944), because in that case, which
No. 09-3753 19
found a duty, the defendant bar knew that the attackers
were waiting for the plaintiff outside the bar).
We conclude that Reynolds has sufficiently pled that
CB Sports owed her a duty to protect her against the
criminal attack by Russell and Carson if it actually knew
of their alleged plan to sexually exploit her off premises.
She has also sufficiently pled the remaining elements of
her negligence claim. Thus, we need not (and should
not) decide at this stage of litigation what CB Sports
could have done to discharge its duty, nor whether CB
Sports’s inaction (such as failing to warn her or give her
a phone book) or action (such as telling her to get a
ride home from someone at the bar or vouching for
Russell and Carson) breached that duty.
2. Causation
CB Sports asks us to conclude as a matter of law that
even if it breached its duty, its breach was not the proxi-
mate cause of Reynolds’s injuries. We decline to so find.
“[P]roximate cause is preeminently an issue of fact to be
decided by the jury,” Rivera v. Garcia, 927 N.E.2d 1235,
1242 (Ill. App. Ct. 2010), and the lack of proximate cause
should only be determined by the court “where the
facts alleged do not sufficiently demonstrate both cause
in fact and legal cause,” Young v. Bryco Arms, 821 N.E.2d
1078, 1086 (Ill. 2004).
As with most accidents, there are several factors that
may have contributed to Reynolds’s injuries, including
the bartender vouching for Russell and Carson and per-
20 No. 09-3753
haps Reynolds’s own negligence. At this stage of litiga-
tion, we cannot say as a matter of law that CB Sports’s
actions were not the proximate cause of Reynolds’s in-
juries. And in fact, Reynolds has pled as much. It does not
matter that Reynolds’s injuries resulted from being hit
by a car while escaping a future attack, rather than
from the attack itself. Proximate cause does not require
that the defendant foresee the exact way in which an
injury will occur. Hooper v. County of Cook, 851 N.E.2d
663, 669 (Ill. App. Ct. 2006). If CB Sports knew that
Reynolds would be attacked, it was reasonably fore-
seeable that she would try to escape and perhaps be
injured. CB Sports will have another opportunity after
discovery to raise the proximate cause issue in a motion
for summary judgment—should it be so inclined—at
which point Reynolds will have to do more than
simply allege proximate cause. Until then, she has
done enough to survive a motion to dismiss.
There is one final item with which we may dispense
quickly. Reynolds also argues that CB Sports voluntarily
assumed the duty to ensure that she make it back to her
hotel safely by refusing to give her a telephone book
and telling her that no taxis were available. “Gen-
erally, pursuant to the voluntary undertaking theory of
liability, one who undertakes, gratuitously or for con-
sideration, to render services to another is subject to
liability for bodily harm caused to the other by one’s
failure to exercise due care in the performance of the
undertaking.” Wakulich v. Mraz, 785 N.E.2d 843, 854 (Ill.
2003) (internal quotation marks omitted). In general,
taverns are not required to ensure their patrons’ safe
No. 09-3753 21
passage to their cars or homes. Badillo, 515 N.E.2d at 684.
To voluntarily assume such a duty requires more than
just not helping patrons safely to their cars. See Lewis,
584 N.E.2d at 441-42. We do not think that simply not
giving Reynolds a phone book or telling her to get a
ride home with someone else in the bar is enough to
say that CB Sports voluntarily assumed a duty to
ensure her safe arrival at her hotel. Reynolds therefore
has failed to state a claim under a voluntary under-
taking theory of liability.
III. C ONCLUSION
We R EVERSE the district court’s judgment of dismissal
of CB Sports Bar, Inc., and R EMAND for further pro-
ceedings consistent with this opinion.
R IPPLE, Circuit Judge, dissenting. This case requires
that we undertake the familiar task of discerning the
content of state law and of applying it as we believe
the Supreme Court of Illinois would apply it if this case
were before it today. As my colleagues correctly point out,
the Supreme Court of Illinois has expanded business
invitor liability over recent years. Nevertheless, we must
be very careful that we do not reach beyond the
22 No. 09-3753
boundaries currently drawn by the state court; any such
expansion would require the reconciliation of important
policy considerations, the prerogative of the Illinois
courts. It is not our place to extend legal liability
beyond the boundaries set by the state. See Todd v. Societe
Bic, S.A., 21 F.3d 1402, 1412 (7th Cir. 1994) (en banc).
On the facts before us, Ms. Reynolds essentially
attempts to make out a case against CB Sports grounded
not in negligence but in intentional tort. I cannot accept
the view that, given the facts before us, current Illinois
law imposes a duty upon CB Sports to protect
Ms. Reynolds from the bartender’s complicity in the
criminal attack of Russell and Carson. Such a holding
would expand drastically Illinois state law with respect
to business invitor liability, and, therefore, exceed our
interpretative authority under the Erie Doctrine.
Illinois courts have expanded liability, in some
instances, for third party attacks that occurred beyond
the business premises because the attacks were “reason-
ably foreseeable.” See Osborne v. Stages Music Hall, Inc., 726
N.E.2d 728, 733 (Ill. App. Ct. 2000). However, a close
examination of the allegations made by Ms. Reynolds
reveals several key distinctions between the factual
circumstances alleged in this case and those addressed
in the Illinois cases relied upon by the court. The
Supreme Court of Illinois has employed a “forseeability
analysis” to expand business invitor liability when
the surrounding circumstances were such that the busi-
ness’s employees had notice of a potential altercation
and negligently facilitated the occurrence. It is one thing
No. 09-3753 23
to suggest that “the circumstances [were] such as to put
a reasonably prudent person on notice of the probability
of an attack,” Shortall v. Hawkeye’s Bar & Grill, 670
N.E.2d 768, 770 (Ill. App. Ct. 1996), and quite another to
make the assertion, as Ms. Reynolds does, that an em-
ployee actually “knew” of the planned attack and took
conscious steps to aid the third party in carrying out
the planned attack. If we accept, as we must, the facts
stated by Ms. Reynolds to be true—that the bartender
indeed knew of the defendants’ plans, refused to
provide her with a phone book, told her she would have
to catch a ride to her hotel with someone in the bar,
reassured her that she would be safe with Russell and
Carson, and then continued to serve her “excessive
amounts of alcohol” purchased by the defendants—the
traditional foreseeability analysis of negligence law
hardly seems relevant in this case. Rather, fairly read,
her allegations allege an intentional tort on the part of
the bartender, not the negligent performance of his
duties. The authorities relied upon by the court today
deal with negligence situations. The Illinois courts were
addressing whether to expand business invitor liability
when the facts were such that the business employees
knew only that an attack could take place, and negligently
did nothing to stop it. By contrast, in this case,
Ms. Reynolds is asserting that the bartender knew that
an attack would take place and actually cooperated with
the assailants in their plot to carry out the attack. Given
these factual allegations, it is difficult to understand
how the bartender could be simply negligent; he knew
of the defendants’ plans for Ms. Reynolds, yet dis-
24 No. 09-3753
couraged other possibilities to her and even told her that
these individuals were safe and served her additional
drinks at the defendants’ request. I do not believe that
Illinois negligence law permits the extension of business
invitor liability to situations in which an employee has
actual knowledge of a planned attack on a patron and
takes affirmative steps to enable the plan to be executed
by the third party.
The Supreme Court of Illinois’s recent decision in
Simmons v. Homatas, 925 N.E.2d 1089 (Ill. 2010), makes
this distinction clear. In that case, the complaint alleged
that the business establishment “knew or should have
known” that one of their patrons was intoxicated and
leaving the premises by driving a vehicle in that
inebriated state. Id. at 1101. The plaintiffs brought a
claim for negligence under Restatement (Second) Torts
§ 876, asserting that the defendant club had given “sub-
stantial assistance or encouragement” to a patron in
committing a breach of duty by driving intoxicated. Id.
In Simmons, the court held the club liable for negligence,
which resulted in a fatal car accident that occurred
fifteen minutes after the patron left the club’s premises.
Simmons, 925 N.E.2d at 1092. The bouncers at the bar
were aware of the patron’s drastically impaired state,
and facilitated his leaving the bar behind the wheel of
his car. See id. The custodial nature of the bouncers’
relationship to the patron in the moments before the
patron drove away from the club permitted the court to
extend business invitor liability beyond the immediate
vicinity of the club. Id. at 1102-03.
No. 09-3753 25
There is a meaningful distinction between extending
liability for the negligent actions of employees that facili-
tate the later tortious conduct of a third person and
extending liability when a plaintiff alleges that the bar-
tender knew that a third person was going to commit
a tortious act, consciously cooperated by steering the
plaintiff toward the third party and assisted the third
party in making the plaintiff more pliable to their
plans. The claim as stated by Ms. Reynolds in the first
sentence of paragraph 19 makes out a claim for an inten-
tional tort. Because CB Sports is not liable for its agents’
intentional torts, it cannot be liable for the bartender’s
actions if he consciously cooperated with the plans of
the defendants, as Ms. Reynolds asserts.
As my colleagues note, Ms. Reynolds’s alternate al-
legation that the bartender “should have known” of the
defendants’ plans for Ms. Reynolds also fails under
Illinois law. Foreseeability alone does not create a duty
on the part of a bar to protect its patrons from the crim-
inal attack of a third party. See Gustafson v. Mathews, 441
N.E.2d 388, 390 (Ill. App. Ct. 1982). Also relevant is
the burden on the bar in protecting against these kinds
of attacks. See Osborne, 726 N.E.2d at 732. As the
majority noted, CB Sports did not have a duty to investi-
gate the plans or intentions of its patrons. See Op. at 17.
A bartender is not charged with the responsibility of
knowing the motivations of everyone he serves and,
given what goes on in bars today, it would impose a
significant burden on these individuals and their em-
ployers to expose them to liability for not having ascer-
tained those motivations. There are no facts in the com-
26 No. 09-3753
plaint or the briefs to support Ms. Reynolds’s conten-
tion that the bartender “should have known” of the de-
fendants’ plans based upon the defendants’ prior
actions or the bartender’s knowledge of the defendants.
To extend the liability of the bar to situations where
the bartender “should have known” of the breach of
duty of another patron would significantly extend the
responsibility, and liability, of individuals in those sit-
uations. To say otherwise would create a remedy that
is quite beyond where the courts of Illinois have gone.
For the reasons stated above, I respectfully dissent.
10-22-10