Fuller v. Benny's Corner Bar & Grill, Inc. , 2022 IL App (3d) 180670 ( 2022 )

2022 IL App (3d) 180670Opinion filed June 9, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
LAURA E. FULLER, as Administratrix ) Appeal from the Circuit Court
of the Estate of Joshua W. Fuller, ) of the 10th Judicial Circuit,
Deceased, ) Peoria County, Illinois.
)
Plaintiff-Appellant, )
)
v. )
)
BENNY’S CORNER BAR & GRILL, INC., an )
Illinois Corporation; WOPPERS, INC., an ) Appeal No. 3-18-0670
Illinois Corporation; JJDM, INC., d/b/a ) Circuit No. 16-L-72
Elmwood Tap, an Illinois Corporation; and )
JOSEPH RYNEARSON f/d/b/a Trojan’s )
Corner, )
)
Defendants )
)
(Benny’s Corner Bar & Grill, Inc., Woppers, )
Inc., and Joseph Rynearson f/d/b/a Trojan’s )
Corner, ) Honorable
) Michael P. McCuskey
Defendants-Appellees). ) Judge, presiding.
____________________________________________________________________________
JUSTICE DAUGHERITY delivered the judgment of the court, with opinion.
Justices Schmidt and Lytton concurred in the judgment and opinion.
____________________________________________________________________________
OPINION
¶1 Plaintiff, Laure E. Fuller (plaintiff), as the administratrix of the estate of Joshua W. Fuller
(Fuller), filed a dramshop action pursuant to section 6-21 of the Liquor Control Act of 1934
(Dramshop Act) (235 ILCS 5/6-21 (West 2014)) against four dramshop establishments,
including defendants, Benny’s Corner Bar & Grill, Inc. (Benny’s Corner Bar), Woppers, Inc.
(Woppers), and Joseph Rynearson f/b/d/a Trojan’s Corner (Trojan’s Corner) for injuries that
resulted in Fuller’s death and for medical and funeral expenses incurred by Fuller’s estate.
Plaintiff subsequently filed a motion to amend the complaint to add her own claim for loss of
society, individually as Fuller’s mother, and to add claims for loss of society on behalf of
Fuller’s father, brother, and two sisters. The trial court denied plaintiff’s motion to amend.
Defendants, thereafter, filed a motion for summary judgment, which the trial court granted.
Plaintiff appealed, arguing the trial court erred in denying her motion for leave to amend the
complaint and erred in granting defendants’ motion for summary judgment. We affirm in part
and reverse in part the trial court’s grant of summary judgment, affirm its denial of plaintiff’s
motion to amend, and remand for further proceedings.
¶2 I. BACKGROUND
¶3 On April 15, 2016, plaintiff (administratrix of Fuller’s estate) filed a complaint against
four bars alleging a cause of action under the Dramshop Act (id.). Specifically, plaintiff alleged
prior to 1 a.m. on April 16, 2015, Dillon Nolan had purchased and ingested alcoholic beverages
from defendants, which caused Nolan to become intoxicated; at approximately 1 a.m. on April
16, 2015, Nolan was operating his pickup truck and lost control of his vehicle; and as a direct
and proximate cause of Nolan’s intoxication, Nolan’s vehicle veered off the road, the vehicle
rolled over, Fuller was ejected from the vehicle, and Fuller suffered serious and fatal injuries that
caused Fuller’s death and caused Fuller’s estate to incur medical and funeral expenses. Plaintiff
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requested a judgment against each defendant in excess of $50,000, costs of the suit, and any
other relief the court found fair and just.
¶4 A. Motion for Leave to Amend the Complaint
¶5 On November 3, 2017, plaintiff filed a motion for leave to amend the complaint to add
herself, individually, and Fuller’s father, brother, and two sisters as plaintiffs for dramshop
claims for loss of society against defendants. Although the one-year limitation for filing a loss of
society claim under the Dramshop Act had passed, plaintiff argued the loss of society related
back to the filing date of the original complaint pursuant section 2-616(b) of the Code of Civil
Procedure (Code) (735 ILCS 5/2-616(b) (West 2016)) because the claims grew out of the same
transaction or occurrence and did not prejudice defendants. Plaintiff argued that defendants were
aware that Fuller’s family members were “party to the cause of action through the fact that they
were members of the Estate” and, because they were members of Fuller’s Estate, defendants
knew there had been a loss of society.
¶6 In response, defendants noted that the language of the Dramshop Act provides, “any
person claiming to be injured in means of support or society and not included in any action
brought hereunder may join by motion made within the times herein provided for bringing such
action,” with additional language providing that each dramshop action “shall be barred unless
commenced within one year next after the cause of action accrued” (235 ILCS 5/6-21 (West
2014)). Defendants contended that Dramshop Act’s one-year limitation period was a “special
and jurisdictional” statute of limitations, which precluded the proposed additional claims that
were brought beyond the statute’s one-year limitation period. In support of their contention,
defendants cited to the Illinois Supreme Court’s decision in Demchuk v. Duplancich, 92 Ill. 2d 1,
9 (1982), wherein our supreme court held the one-year limitation in the Dramshop Act was “a
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condition precedent to the right of recovery which must be observed by all plaintiffs in order to
bring themselves within the [Dramshop] Act.”
¶7 In reply, plaintiff argued there was no exception to the relation-back doctrine for claims
brought pursuant to the Dramshop Act. In support of this contention, plaintiff noted that in
Litwiller v. Skar Enterprise Inc., 2011 IL App (4th) 100870, ¶ 27, the Fourth District Appellate
Court held that the trial court in that case had erred in finding the one-year limitation in the
Dramshop Act was a condition precedent to jurisdiction or a special jurisdictional statute of
limitations.
¶8 On May 4, 2018, at the hearing on plaintiff’s motion for leave to amend the complaint,
the trial court found that under the language of the Dramshop Act, a claim for the recovery for
loss of society had to be pled within the one-year period. The trial court entered a written order
denying plaintiff’s motion for leave to file an amended complaint, indicating that it found the
one-year statute of limitations set forth in the Dramshop Act had lapsed and the date of filing for
the amended complaint “did not relate back.”
¶9 Plaintiff subsequently filed a motion to reconsider, arguing the trial court had erroneously
relied on the Illinois Supreme Court’s decision in Demchuk to conclude that the one-year
limitation period in the Dramshop Act was “a special and jurisdictional statute of limitation” that
barred the application of the relation-back doctrine. Plaintiff argued in refuting our supreme
court’s reasoning in Demchuk, the Fourth District Appellate Court in Litwiller had relied on our
supreme court’s decision in Belleville Toyota v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325,
338 (2002), to conclude special and jurisdictional statutes of limitations are no longer relevant
outside the context of administrative hearings. See Litwiller, 2011 IL App (4th) 100870, ¶ 17
(citing Belleville Toyota, 199 Ill. 2d at 338). Plaintiff, therefore, requested that the trial court find
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that the filing date of the proposed amended complaint related-back to the date of filing of the
original complaint pursuant to section 2-616(b) of the Code and grant her motion to reconsider
the order of May 4, 2018, in which the trial court had denied her motion for leave to file an
amended complaint.
¶ 10 In response, defendants reiterated the language of the Dramshop Act and argued that our
supreme court’s decision in Demchuk “merely reflect[ed] the explicit and clear text of the Illinois
Dramshop Act.” Defendants further contended plaintiff’s cited authorities, including the Fourth
District’s decision in Litwiller, did not support plaintiff’s contention that newly added plaintiffs
could circumvent the one-year statute of limitations of the Dramshop Act. Defendant noted that,
in Litwiller, the relation-back doctrine was applied to the dramshop claim to allow an
amendment to correct the identity of the named defendant who had notice of the action (not to
add new plaintiffs with new claims). Defendants contended, among other things, that the
proposed loss of society claims in this case were new causes of action by new parties that were
barred by the one-year limitation period set forth in the Dramshop Act. Defendant argued that,
for those reasons, plaintiff’s motion to reconsider should be denied.
¶ 11 In reply, plaintiff reiterated her argument that there was no exception to the relation-back
doctrine for claims brought pursuant to the Dramshop Act. Plaintiff noted that the language of
the relation-back statute in section 2-616(b) of the Code provided:
“The cause of action *** set up in any amended pleading shall not be barred by
lapse of time under any statute or contract prescribing or limiting the time within
which an action may be brought or right asserted, if the time prescribed or limited
had not expired when the original pleading was filed, and if it shall appear from
the original and amended pleadings that the cause of action asserted *** grew out
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of the same transaction or occurrence set up in the original pleading ***.” 735
ILCS 5/2-616(b) (West 2016).
Plaintiff contended that it was clear from the language of section 2-616(b) of the Code that the
legislature intended for the relation-back doctrine to apply to all statutes, including the Dramshop
Act. Additionally, plaintiff contended that the Fuller family was already a party to the current
lawsuit “because they are members of Joshua Fuller’s estate” and that being a member of
Fuller’s estate was enough to put defendants on notice of their existence as potential plaintiffs.
Alternatively, plaintiff argued that Laura E. Fuller (Fuller’s mother and the administratrix of
Fuller’s estate) was a “named party” in this case and should be allowed to bring a claim on
behalf of herself and the entire Fuller family for loss of society.
¶ 12 At the hearing on plaintiff’s motion to reconsider, plaintiff argued that the relation-back
doctrine should be applied to allow plaintiff leave to amend the complaint to add the loss of
society claims. In the alternative, plaintiff argued that she should be allowed to amend the prayer
for relief of the original complaint to indicate that she was also seeking damages for loss of
society. In response, defendant’s attorney again noted the language of the Dramshop Act and
argued that in adding a loss of society claim, “you have to join in that one year.” Defendants’
attorney noted that in Litwiller the Fourth District Appellate Court applied section 2-616(d) of
the Code to allow an amendment to the complaint to relate back to the original filing date of the
timely filed complaint for plaintiff to correct the identity of defendant, whereas, in this case,
“they are trying to add plaintiffs and causes of action [pursuant to section 2-616(b) of the Code]
that are completely untimely under the explicit law of the Dramshop Act.” Defendants’ counsel
further noted that plaintiff, as the administratrix of Fuller’s estate, was “standing in the shoes of
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the decedent” to bring a dramshop claim for the bodily injury, medical expenses, and pain and
suffering of the decedent and did not represent Fuller’s family.
¶ 13 In ruling on plaintiff’s motion to reconsider, the trial court indicated that it had previously
ruled that “the attempt to add loss of consortium *** [was] a new cause of action” and nothing
had changed since its ruling on May 4, 2018. The trial court indicated that it did not believe that
it had misapprehended “the statute” (the Dramshop Act) or the decision of the Illinois Supreme
Court in Demchuk, the Illinois Supreme Court’s decision in Demchuk had not been overruled,
and the legislature had not, in any way, amended “the statute.” The trial court stated it had
followed “the statute” and the Illinois Supreme Court on both the issue of relation back and the
barring of a new action after one year. The trial court denied plaintiff’s motion to reconsider.
¶ 14 B. Motion for Summary Judgment
¶ 15 On July 23, 2018, defendants filed a motion for summary judgment. Defendants argued
that summary judgment was appropriate due to (1) the lack of evidence that Nolan was
intoxicated by alcohol at the time of the occurrence; (2) additionally and alternatively, Woppers,
individually, argued that the negligible amount of alcohol served to Nolan at its establishment
was insufficient to establish liability under the Dramshop Act; and (3) additionally and
alternatively, Trojan’s Corner argued summary judgment in its favor was appropriate due to a
lack of evidence that Nolan was at Trojan’s Corner on the night of the occurrence.
¶ 16 In support of their motion for summary judgment, defendants argued that Nolan had
testified in his deposition that he was not intoxicated by alcohol at the time of the accident and
that alcohol was not a factor in the motor vehicle accident. Defendants noted that Nolan was
charged with, and subsequently pled guilty to, aggravated driving under the influence (DUI) for
being under the influence of drugs (tetrahydrocannabinol (THC) and amphetamines), not for
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being under the influence of alcohol, at the time of the accident. Defendants also noted that, in
their depositions, various witnesses who had been present at Benny’s Corner Bar in the hours
prior to the incident—Tanya Oatman, Nikki Celia, and Kristin Taff—either could not provide an
opinion as to whether Nolan was intoxicated or testified that Nolan did not appear to be
intoxicated at Benny’s Corner Bar (the first bar Nolan stopped at that night). Defendants
additionally noted that Joshua Bateman, the bartender from Woppers (the last bar Nolan was at
prior to the incident), testified in his deposition that Nolan did not appear intoxicated and had
only consumed a partial can of beer at Woppers. Defendants further argued that witnesses who
interacted with Nolan after the incident—Michael Wilson, Jarrod Martis, James Kosner, and
William Zamaro—had testified that Nolan did not appear intoxicated. Defendants also noted that
Cotyjo Milliman, who interacted with Nolan after the incident, could not provide an opinion as
to whether Nolan was intoxicated. Defendants argued that there was, therefore, no evidence of
Nolan’s intoxication and summary judgment in their favor should be granted. In the alternative,
Woppers, individually, argued that the only evidence regarding Nolan’s alcohol consumption at
its establishment was the testimony of Nolan and Bateman (the bartender) that Nolan had only
consumed a partial can of beer. Woppers argued that, as a matter of law, it could not be held
liable under the Dramshop Act for such a de minimis contribution to Nolan’s alleged intoxication
and, therefore, summary judgment in its favor should be granted. Additionally in the alternative,
Trojan’s Corner argued that summary judgment in its favor was appropriate due to a lack of
evidence that Nolan had visited its establishment on the evening/morning at issue.
¶ 17 In response, plaintiff argued that (1) the trial court should deny Benny’s Corner Bar and
Wopper’s motions for summary judgment because there was a genuine issue of material fact as
to the number of alcoholic beverages consumed by Nolan at Benny’s Corner Bar and at
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Woppers, (2) the evidence of his alcohol consumption prior to the collision and the evidence of
Nolan’s behavior after the collision was sufficient to raise a genuine issue of material fact as to
whether Nolan was intoxicated at the time of the collision, and (3) there was a genuine issue of
material fact regarding the credibility of the witnesses upon whose testimony defendants relied to
support their argument that Nolan was not intoxicated at the time of the incident. Plaintiff
acknowledged a lack of evidence that Nolan had visited Trojan’s Corner on the night of the
occurrence and conceded that summary judgment in favor Trojan Corner was proper.
¶ 18 In support of defendants’ motion for summary judgment and plaintiff’s response thereto,
the parties attached the deposition transcripts of various witnesses, court transcripts, summary
reports of police interviews, and records of the state’s attorney’s office. At the hearing on the
motion for summary judgment, the trial court noted it had read and reviewed all exhibits attached
to the parties’ motion or response thereto. The information contained therein is as follows.
¶ 19 i. Dillon Nolan
¶ 20 Nolan testified in his deposition taken in October 2016, that on April 14, 2015, around 6
p.m., he left work and went home. 1 Around 8 p.m. or 9 p.m., Nolan received a call from Fuller,
who asked Nolan to meet him at Benny’s Corner Bar. Nolan did not think that he consumed any
alcohol prior to arriving at Benny’s Corner Bar, but he could not really remember. Nolan
testified that he had incurred a concussion in the accident, so everything was a “little bit fuzzy.”
Nolan testified that he did not consume any drugs prior to arriving at Benny’s Corner Bar or at
any time before the motor vehicle crash. Nolan stated, “[it] would have been a couple days
before [that] I had the amphetamines, which was the Adderall.”
1
While the allegations of the complaint and deposition testimony of some witnesses referred to
the relevant events as occurring on the evening of April 15, and into the morning of April 16, 2015, other
witnesses referred to the relevant dates as April 14, into the early morning of April 15, 2015.
9
¶ 21 Nolan “would probably assume” it was about 9 p.m. or 10 p.m. when he arrived at
Benny’s Corner Bar, but he did not know the exact time. When Nolan arrived, Fuller was already
pretty drunk and was getting rowdy in the bar. Fuller also seemed preoccupied with the two
women he was with, so Nolan left. Nolan believed he had only been at Benny’s Corner Bar for a
short amount of time and could not recall whether he drank a beer there. He further testified as
follows:
“I think we were there for such a short time. I’m not sure in my mind how
that all played out, if, you know, I got there and realized that [Fuller] was too far
past gone to even, you know, want to hang out. So then I just left, or if I stayed
there for a little bit and then left. If I stayed there for a little while, then I probably
had a beer or something like that. But if I did not, then I’m sure I didn’t.”
¶ 22 About 15 minutes after leaving Benny’s Corner Bar (in Farmington, Illinois), as he was
driving home, Nolan received a call from Fuller, who indicated that he was at Elmwood Tap (in
Elmwood, Illinois). Nolan met Fuller at Elmwood Tap about five minutes later. Nolan and Fuller
stayed at Elmwood Tap for one or two hours. Nolan was not sure how much they drank at
Elmwood Tap or if they even drank there at all. Nolan testified that he probably had purchased
alcohol at Elmwood Tap because he “could not see [him]self sitting there for no reason,” so he
would assume he did. Nolan testified that he typically would be drinking Bud Light bottled beer
if he was in a bar for one or two hours. He was sure that he probably had a drink at Elmwood
Tap, but he could not say with 100% certainty. He was “[n]ot sure either way.” After staying at
Elmwood Tap for an hour or two, Nolan and Fuller walked to Woppers, the bar next door.
¶ 23 When subsequently questioned by the attorney for Elmwood Tap during the deposition,
Nolan testified that he did not recall for sure whether they had been at Elmwood Tap. He stated,
10
“[t]o my knowledge I thought that we were there, but I don’t know. I don’t know.” Nolan agreed
that he did not have a memory, one way or the other, as to whether he was at Elmwood Tap in
the hours prior to the crash. Nolan also agreed that he had previously indicated he had been at
three bars that night. He knew absolutely for sure that he had been at Benny’s Corner Bar in
Farmington that evening, and he thought he had been at two different bars in Elmwood that
night.
¶ 24 Nolan testified that when he walked into Woppers, he ordered a beer. Almost
immediately, another customer, Tim Carver, became belligerent and started yelling at Nolan for
sitting in Carver’s seat. Nolan and Fuller left Woppers because Nolan “didn’t want any trouble
out of the whole thing.” Nolan testified that he and Fuller left Woppers within 10 minutes of
arriving there, Nolan did not finish his beer, Nolan’s beer was not empty when he left, and Nolan
had consumed less than half of a beer at Woppers. When they left Woppers, Fuller got into
Nolan’s pickup truck, and then Nolan “burned rubber” (squealed his tires) and drove away.
Nolan was driving to a 24-hour gas station in Brimfield to get cigarettes when his vehicle rolled
over a few times at around 1 a.m.
¶ 25 Nolan further testified that he was “definitely going over the speed limit” by 5 or 10
miles per hour at the time of the crash. He believed his truck hit some gravel, and then he “over-
corrected or something like that and just ended up flipping or rolling or whatever.” He testified
that he would attribute the accident to the road condition more than anything but also that he had
“no clue” how the accident happened. He subsequently saw pictures of the road conditions at the
time of the accident but did not remember “the whole gravel thing.” He was told after the
accident that the county had been doing road work in that area. Nolan testified that he typically
drove 5 to 10 miles per hour over the speed limit and his speeding was not due to intoxication.
11
¶ 26 Nolan indicated he was 21 years old at the time of the accident. He testified that he was
not buzzed or drunk at the time of the crash. He stated that consuming four beers in four hours
was not enough alcohol to make him drunk. From prior experience, Nolan believed it would take
10 to 12 beers for him to become intoxicated. Nolan indicated that he could not recall many
details regarding the night of the crash because he incurred blunt force trauma to his head in the
crash and also because it had been two years since the crash. Nolan had not been previously
deposed in this case due to pending criminal charges against him. Nolan indicated that he was
not charged with DUI related to alcohol but, rather, for being under the influence of “THC and
amphetamines.”
¶ 27 Nolan testified that after the accident Fuller was not dead. He described Fuller as being
“fine.” Nolan testified that Fuller was able to walk and talk after the accident. Nolan had asked
Fuller if he was all right, and Fuller had indicated that he was fine. Fuller helped Nolan to pick
up pieces of Nolan’s truck from the field after the crash. Nolan did not call 9-1-1 after the
accident because he had previously been in a lot of accidents and, if nothing was wrong, he did
not call the police. Nolan testified that it was “understood” that he and Fuller would not need to
contact police because they had previously been in two accidents together, after which they had
not called police. Nolan indicated that he had not called 9-1-1 in any accident that he had ever
been in because “that’s not how we did it out there.” He stated, “[i]t’s just I didn’t know, I didn’t
realize it.” Nolan did not know why he did not call his parents.
¶ 28 Nolan testified that after the accident, he called his best friend, Kosner, for help getting
his truck towed away. Nolan also called Milliman to drive Nolan and Fuller to Wilson’s house,
where Fuller had been living. Milliman arrived about 10 or 15 minutes after Nolan had called
him. Milliman first assisted Nolan with picking up stuff that was scattered in the field. Shortly
12
thereafter, Milliman, who was a medic in the Army National Guard, checked over Fuller.
Milliman and Nolan asked Fuller if he needed to go to the hospital. Fuller said no. The three of
them sat in the field and waited for Kosner to arrive. Nolan testified that he thought that Fuller
had been “about passed out” at the time because Fuller had been so drunk prior to the crash.
After Milliman arrived, Kosner and Martis arrived with a flatbed truck and skid steer. Nolan,
Milliman, and Martis used the skid steer to load Nolan’s truck on the back of the flatbed truck.
At around 3 a.m., Milliman drove to Wilson’s house with Nolan and Fuller riding in the bed of
Milliman’s pickup truck. Fuller was passed out at that time. Kosner and Martis also left the
accident scene and dropped Nolan’s truck off at Kosner’s “shop.”
¶ 29 According to Nolan, after a 10-minute drive from the accident scene, Nolan, Fuller, and
Milliman arrived at Wilson’s home. Wilson lived with his brother, Zamaro. Nolan had not called
Wilson or Zamaro prior to arriving at their home. When they arrived, Fuller was coherent but
could not walk well. Milliman and either Wilson or Zamaro carried Fuller inside and sat him on
the couch. Nolan did not assist because he had injured his shoulder in the crash. Milliman went
home about 5 or 10 minutes after getting Fuller inside. As Nolan was speaking with Wilson and
Zamaro, Fuller rolled off the couch. Fuller then slept on the floor. After taking a shower, Nolan
went to sleep on the couch. At 7 a.m. or 8 a.m., Zamaro woke Nolan and indicated that Fuller
was not breathing. Zamaro went to get a neighbor (a hospital employee) to check Fuller’s
condition. Nolan waited outside, and Wilson called 9-1-1. When the ambulance arrived, Nolan
informed the medics of the rollover crash. Nolan was taken to the hospital in an ambulance and
was given a blood test, which showed a blood alcohol content of zero.
¶ 30 Nolan testified in his deposition that he was only certain that he had a half of a beer at
Woppers the entire night. He did not know whether he had any beer at Benny’s Corner Bar, but
13
he did not believe that he did. Nolan thought that he had left Benny’s Corner Bar “pretty quick
because of the way [Fuller] way acting,” but he was not sure. Nolan was shown a copy of a
summary of a statement he had given to police on the day of, or the day after, the crash, in which
Nolan indicated that he had a couple of beers at “the Corner Tap” (Benny’s Corner Bar) but did
not have any when he went to Woppers to pick up Fuller. In his deposition, Nolan then testified
that he could have had drinks at the Corner Tap (Benny’s Corner Bar), but he did not know.
Nolan stated that he did not remember a whole lot about that night.
¶ 31 A police report indicated that Nolan was taken to the hospital by ambulance and arrived
around 10:30 a.m. on the morning of the incident. The results of a blood draw indicated that
Nolan had THC and amphetamines (but no alcohol) in his system. A police report also indicated
that Nolan told police he had smoked marijuana two days prior and that the accident occurred
when his tire blew out, he lost control of his vehicle, and his vehicle hit a ditch and landed on its
top. Nolan had indicated to police that he and Fuller had gotten out of the vehicle and were
walking around, but Fuller did not help to load Nolan’s vehicle on the flatbed truck because
Fuller was not feeling well and was sitting on the ground. Nolan was arrested for DUI related to
THC (marijuana use).
¶ 32 Police reports also indicated that when investigating the incident at Wilson’s apartment,
the Fulton County Coroner had indicated he did not believe that Fuller died at the apartment. The
coroner showed officers injuries on Fuller that should have been bleeding if Fuller was alive at
the apartment. The coroner also rolled over Fuller’s body and showed officers that there was no
blood on the carpet under Fuller’s body, which indicated Fuller’s body had been placed at that
location postmortem.
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¶ 33 Nolan testified in his deposition that he had pled guilty to aggravated DUI (related to
being under the influence of drugs) and leaving the scene of an accident involving great bodily
harm or death.
¶ 34 ii. Kristin Taff
¶ 35 Taff testified in her deposition taken in July 2018 that she was at Benny’s Corner Bar
with Nolan and Fuller in the hours prior to the motor vehicle crash. She arrived around 7 p.m.
with her friend Oatman. Fuller was already at the bar. Nolan arrived at some point between 9
p.m. and 10 p.m. but definitely before 10 p.m. Taff, Nolan, and Fuller played a few rounds of
pool, with each round taking 20 minutes. Taff knew Nolan had consumed at least four beers
because the group had bought five rounds of drinks. She did not actually see whether Nolan had
finished the fifth beer because she left before he did. According to Taff, Nolan had also gone up
to the bar on his own at times, but she could not be certain if he had purchased additional
alcoholic beverages for himself. Fuller and Nolan were still at Benny’s Corner Bar when Taff
and Oatman left around 11 p.m. or 11:30 p.m.
¶ 36 Taff testified that she drank at least six beers that evening and had a “buzz.” She also
testified that Nolan did not appear drunk and the beers he had consumed were spread out over
the course of the time that he was at the bar.
¶ 37 Taff indicated that she knew lawsuits related to Fuller’s death had been filed because
Fuller’s sisters had posted the outcome of what had happened in court on social media. In
response to this testimony by Taff, defendants’ attorneys stated, “I am going to make a formal
request that that be preserved, families in the estate, just—.”
¶ 38 iii. Tanya Oatman
15
¶ 39 Oatman testified in her deposition that she arrived at Benny’s Corner Bar on the evening
in question around 6 p.m. Oatman and Taff left around 10:30 p.m. or 11 p.m., before Nolan and
Fuller left. Oatman had never met Nolan prior to that evening. Oatman did not interact with
Nolan and did not play pool with Taff, Nolan, and Fuller. Instead, she was at the other end of the
bar with her group of friends. When Oatman went to get Taff from the other side of the bar so
they could leave, Oatman saw that Nolan and Fuller “had mugs of beer.” She exchanged “a
general hi, bye” with Nolan. Nolan did not appear to be drunk.
¶ 40 iv. Nikki Celia
¶ 41 Celia testified in her deposition that on the evening in question, she and Fuller were
hanging out at Benny’s Corner Bar (in Farmington, Illinois). At some point, Celia left and went
to another establishment down the road but returned later. She did not know if Nolan was at
Benny’s Corner Bar during the time that she had left. When she returned, Fuller indicated that
Nolan was coming to get him and they were going to Woppers (in Elmwood, Illinois) to continue
drinking. While Celia was sitting at the bar with Fuller, Nolan entered and sat next to Fuller.
Fuller asked Celia to “go out drinking” with them, but she declined. Fuller and Nolan left
Benny’s Corner Bar about 30 minutes after Nolan had arrived, around 11:30 p.m. or midnight.
Celia did not pay attention to whether Nolan had been drinking and had no idea whether Nolan
consumed 1 beer or 10 beers. She had no opinion as to whether Nolan showed any signs of
intoxication and was not able to say whether Nolan showed signs of intoxication.
¶ 42 v. Joshua Bateman
¶ 43 On April 21, 2015, a few days after the incident, the bartender from Woppers, Bateman,
gave a statement to police indicating that Nolan had come into Woppers a little after 1 a.m. and
ordered a beer. After 5 to 10 minutes, Fuller came in through the back door. During the time
16
Nolan was waiting for Fuller to arrive, another patron, Carver, was “trying to start s*** with
[Nolan] for no reason.” Nolan said he was leaving and walked out the front door. Fuller also
went out the front door and got into Nolan’s truck. Nolan squealed the tires of his truck as he
drove off. Bateman indicated that Nolan may have had “maybe one or two” beers at Woppers,
with him being certain that he served Nolan a beer. According to Bateman, Nolan did not look
drunk when he came in, whereas Fuller looked like he had been drinking. Bateman was asked,
“so you served one or two beers to Nolan at about what time?” Bateman responded that it had
been around 1:15 a.m. or 1:20 a.m. and that Nolan and Fuller subsequently left Woppers about
1:30 or 1:40 a.m.
¶ 44 In April 2017, in his discovery deposition two years after the incident, Bateman testified
that on the night/morning in question, around midnight, Nolan parked in front of Woppers and
came into the bar. Nolan did not appear drunk. He was not stumbling or slurring his speech and
did not have red eyes. Nolan ordered two Busch Light beers and told Bateman that one beer was
for Fuller who was coming from the bar next door (Elmwood Tap). Fuller arrived 5 to 10
minutes later and appeared to be drunk. Nolan sat down and put his foot up on a chair, which
was the chair in front of which Carver had placed his drink. Carver came out of the bathroom
and “was like, ‘[h]ey, man, I’m sitting here. What’s going on? What is this?’ Blah, blah, blah.”
Nolan and Carver “started going back and forth disagreeing,” but then shook hands and
everything was okay. Fuller came in through the back door of Woppers, grabbed a beer, and
went out front to smoke. Nolan and Carver began arguing again, and then Nolan got up and said,
“ ‘I’m not dealing with this. I’m here to have a good time.’ ” Nolan walked out the front door
and got in his truck. Fuller came in through the front door and asked Carver, “ ‘[h]ey why are
you messing with my buddy? We’re just here to have a good time.’ ” Then Fuller walked out.
17
Nolan “burned rubber and left.” Bateman testified that it seemed that Carver had started the
argument with Nolan. Nolan and Fuller were at Woppers for approximately 20 minutes. Bateman
recalled having to pour out a portion of Nolan’s leftover beer. Bateman had no doubt there had
been some beer left in Nolan’s can. Defendants’ attorney asked, “[a]re you able to say if it was
half a can? Less than half a can? More than half a can? Do you have any idea?” Bateman replied,
“[l]ess than half a can.” Bateman testified that Nolan did not seem to be intoxicated when he left
Woppers. At the time of his deposition, Bateman was no longer working at Woppers.
¶ 45 vi. Cotyjo Milliman
¶ 46 According to a police report, on the morning of the incident, Milliman told police that he
and Zamaro had carried Fuller into Wilson’s residenc, and, at that time, Fuller was highly
intoxicated and injured but was alive. Milliman told police that Fuller had been giving one-word
answers to questions he asked. After bringing Fuller inside, Milliman went home. Milliman told
police that he could smell an odor of alcoholic beverage coming from Nolan, but Milliman could
not say whether Nolan was intoxicated or not.
¶ 47 In a deposition in September 2017, over two years later, Milliman testified that Nolan had
called him between 1 a.m. and 1:30 a.m. on the morning of the motor vehicle crash. Nolan
seemed calm and clear on the phone. Nolan told Milliman that he had put his truck in a ditch and
needed it to be pulled out. When Milliman told Nolan to call 9-1-1, Nolan hung up on him but
then called Milliman back about 10 minutes later. Milliman met Nolan’s other friends, Kosner
and Martis, at a gas station so they could follow Milliman to the crash site. Almost one hour after
receiving the initial call from Nolan, Milliman arrived at the accident scene. Milliman did not
know one way or another if Nolan was intoxicated, but Nolan did not appear to be drunk.
Milliman did not observe Nolan slurring his speech, spitting, or having bloodshot eyes. Milliman
18
testified that Nolan’s truck was completely upside down. Fuller was lying on the ground and was
not moving. Milliman suggested that Nolan call 9-1-1, but Nolan said that Fuller was okay and
was just intoxicated. Milliman thought it was odd not to call police and thought that maybe
Nolan was worried that he and Fuller would be in trouble for anything that they might have done
that night. According to Milliman, Fuller had a heartbeat and spoke. Milliman and Nolan lifted
Fuller and placed him into the bed of Milliman’s pickup truck. Milliman drove Nolan and Fuller
to Wilson’s home. Milliman backed his truck up to the door of Wilson’s house. Fuller was
removed from the truck and laid on the floor inside Wilson’s house. Fuller was not talking.
¶ 48 During the deposition, Milliman testified he had observed a lot of beer cans inside
Nolan’s truck at the accident scene but then clarified that he had seen a lot of beers cans in the
field. Milliman reiterated that he did not observe Nolan displaying any signs of intoxication and
indicated that he had no reason to believe that Nolan was intoxicated. Milliman indicated that he
and Nolan were close childhood friends and had gone to school together from eighth grade until
their high school graduation in 2012. Milliman had seen Nolan become intoxicated in the past
after drinking six to seven beers in a short amount of time, one right after another (“slamming”
beers). After high school, Milliman served in the Army National Guard from 2012 until 2017. As
a result of his involvement in this incident, Milliman was demoted.
¶ 49 vii. James Kosner
¶ 50 According to a police report taken on April 16, 2015, Kosner told police that Nolan had
contacted him after the crash and had asked if he would be interested in a wrecked truck for
parts. Kosner instructed Nolan to leave his truck near Kosner’s shop. Kosner denied picking up
the truck and taking it to his shop. Kosner told police that when he arrived at work that morning,
he noticed Nolan’s truck and did not know how it had gotten there. Kosner was again
19
interviewed by police later in the day on April 16, 2015, and again on April 20, 2015, and
admitted that he had lied during the initial questioning. Kosner told police that at 1:30 a.m. on
April 16, 2015, Nolan called him, indicated that he had been in a wreck, and asked Kosner to
bring a skid loader and trailer to the accident scene. Nolan did not inform Kosner that Fuller was
also involved in the accident. At the accident scene, Kosner and Martis loaded Nolan’s truck
onto Kosner’s trailer and took it away. Kosner had not spoken with Milliman, only briefly spoke
with Nolan, and never saw Fuller. Kosner told police that he initially lied because he was scared
and did not want his equipment to be impounded. Kosner was arrested for obstruction of justice.
¶ 51 In September 2017, at his deposition over two year later, Kosner testified that Nolan had
called him and indicated that he had been in an accident and needed Kosner to pick up his
wrecked vehicle. Kosner’s cell phone records showed that Kosner missed a call from Nolan at
1:13 a.m. and engaged in a 1½-minute conversation with Nolan at 1:21 a.m. Kosner received
another call from Nolan at 1:27 a.m., during which Nolan told Kosner that Milliman would be
meeting up with Kosner at a gas station to show him the way to the accident scene. Martis
accompanied Kosner to the accident scene. They first drove to pick up some equipment to tow
Nolan’s wrecked vehicle and then met Milliman at a gas station. At the accident scene, Kosner
interacted with Nolan for less than 10 minutes. Nolan did not appear intoxicated, and Nolan did
not slur his speech or stumble. Kosner had no interaction with Fuller.
¶ 52 viii. Jarrod Martis
¶ 53 Martis testified that he rode out to the accident scene with Kosner in Kosner’s pickup
truck. At the accident scene, Martis saw Nolan’s crashed vehicle in a ditch. It took them about an
hour to complete the job of towing it away. Martis had interacted with Nolan very briefly, and
Nolan did not appear to be intoxicated or show signs of intoxication. Martis never saw Fuller.
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¶ 54 ix. Michael Wilson
¶ 55 According to a police report, after responding to Wilson and Zamaro’s home on April 16,
2015, and while transporting Wilson and Zamaro to the sheriff’s office for questioning, Wilson
told police (1) Nolan had told Wilson that he wrecked his truck and had to pull Fuller from the
wrecked vehicle; (2) Fuller was conscious and had walked into Wilson’s house; (3) Wilson asked
whether Fuller or Nolan wanted to go the hospital and they both refused; (4) Wilson had offered
Fuller a drink and Fuller declined it; (5) Fuller went to sleep on the floor; (6) Nolan took a
shower; (7) Wilson gave Nolan clothes to wear; (8) when Wilson went back to sleep, he heard
Fuller snoring; and (9) Wilson and Zamaro had to be up at 7:30 a.m. for work, at which time they
noticed Fuller’s condition and went to get their neighbor.
¶ 56 In September 2017, at a deposition over two years later, Wilson testified on the morning
of the incident, he woke up to commotion in his home around 4 a.m. and saw Fuller on the floor,
breathing heavily, and “making crazy noises.” Wilson asked Nolan why Fuller was breathing
that way, and Nolan said that Fuller was fine and that he had checked Fuller’s rib cage, and
everything was “in place.” According to Wilson, Fuller was twitching. Wilson did not call 9-1-1
because did not know the severity of Fuller’s injuries due to Nolan and Milliman lying to him.
Wilson testified that Nolan and Milliman “collaborated” and gave him “the most bulls*** story
[he had] ever heard in his life,” telling him Nolan had wrecked his truck after one of his tires
blew out and the truck went into the ditch. They did not tell Wilson that Nolan’s truck had rolled
over or that Fuller had been ejected from the vehicle. Wilson testified that Nolan did not appear
intoxicated and did not smell like alcohol when he arrived at Wilson’s home. Nolan had
indicated that he had one or two beers at the bar and that was it.
21
¶ 57 During his deposition, Wilson also testified that he had asked Fuller if he wanted to go to
the hospital and Fuller had said no. He had no other conversation with Fuller. Wilson testified
that he was, however, distracted from Fuller’s condition due to Nolan’s condition because Nolan
had “blood all over his face.”Wilson fell back asleep after listening to Fuller making “noises”
until about 5:30 a.m. A few hours later, when Wilson was on his way out the door to go to work
at 7:30 a.m. or 8:30 a.m., he noticed that Fuller was not breathing. He checked Fuller for a pulse
because Fuller was “abnormally pale,” and Fuller had no pulse. Wilson told his neighbor, who
called 9-1-1, while Wilson and Zamaro cleared the house of drugs. Wilson gave Zamaro some
drug paraphernalia to discard, which Zamaro took to the country and “ditched.” Wilson testified
that Fuller was alive when Nolan and Milliman brought Fuller into the house.
¶ 58 Wilson was charged with obstruction of justice for lying to police regarding whether
Fuller was alive when Fuller was brought into Wilson’s home and for giving a false statement to
police in an attempt to aid Nolan in a cover up. Following a bench trial, Wilson was found guilty
of felony obstruction of justice.
¶ 59 x. William Zamaro
¶ 60 According to a police report, police were called to Wilson and Zamaro’s home at 9:14
a.m. on April 16, 2015. At 9:45 a.m., Zamaro drove up to the home and told police officers that
he had gone out to get cigarettes due to the stressful situation.
¶ 61 Two years later, in April 2017, Zamaro testified in a deposition that at the time of the
accident, he and his brother, Wilson, lived together in a house in Farmington, Illinois, and Fuller
was staying with them. At 4 a.m. or 5 a.m. on the morning of the crash, Zamaro was sleeping
when Nolan knocked on the door and indicated there had been a motor vehicle accident. Nolan
had blood on his face and mentioned having had hurt his shoulder. Nolan did not appear drunk,
22
and Zamaro did not believe that Nolan was intoxicated. Nolan was not stumbling or slurring his
speech. Fuller was laying in the back of a pickup truck. Zamaro did not want to comment in the
deposition as to whether Fuller was alive at that time because “last time [he] did that, [he] went
to jail.” Zamaro explained he had been charged with, and pled guilty to, felony obstruction of
justice related to this incident.
¶ 62 Unrelated to Fuller’s condition, Zamaro additionally testified that Nolan indicated that he
and Fuller were coming from Burnzee’s, a bar in Brimfield, when the accident occurred. Zamaro
indicated that the road where the accident occurred would be one way to get from Brimfield to
his home in Farmington and it would not have made sense to take that route if coming directly
from Woppers in Elmwood. Nolan told Zamaro he had been drinking that night, that he had
picked up Fuller because Fuller was too drunk to drive, Nolan and Fuller drank together, and
they got into a wreck. Milliman had told Zamaro that Nolan’s tire blew out and Nolan’s vehicle
hit a ditch. Zamaro had asked Nolan if they should call 9-1-1 or an ambulance, and Nolan said he
thought they were all right. Nolan indicated that he hit his face on the steering wheel. The
remainder of Zamaro’s deposition was suspended due to Zamaro asserting his fifth amendment
rights in relation to questions regarding Fuller’s condition upon arriving at Zamaro’s house.
¶ 63 A few months later, in September 2017, the second half of Zamaro’s deposition took
place. Zamaro testified that on the morning of the incident at around 3 a.m., he heard his
brother’s phone ringing in the other room. Both Zamaro and Wilson were sleeping and did not
answer Wilson’s phone. About 30 or 40 minutes later, Zamaro heard banging on the back door.
Nolan was at the door and indicated that he had been in a wreck. Milliman explained that Nolan
had gotten into a wreck with Fuller in the passenger seat after Nolan’s tire blew out and they hit
a ditch. Zamaro asked if Fuller was injured. Either Nolan or Milliman had indicated that they did
23
not believe Fuller was injured. They all went to Milliman’s pickup truck. Fuller was laying in the
bed of the truck and appeared to be sleeping. Nolan told Zamaro that when he and Fuller had left
Burnzee’s Bar and Grill, Fuller was extremely intoxicated, Fuller was unable to stand, and Nolan
had to load Fuller into the cab of his truck. Zamaro testified that Fuller appeared to be breathing
because he could see the movement of Fuller’s chest rise. Zamaro had shaken Fuller on the
shoulder to try to wake him, and Fuller moved his upper body slightly, shook his head a little,
and made some grunting noises, “[b]ut that was about it.” Zamaro testified, “[h]e moved of his
own free will. He was breathing. He was alive.” Zamaro and Milliman lifted Fuller out of the
truck and carried him into the house and laid him on the floor. They did not lay Fuller on the
couch at any point. Fuller did not speak any coherent words. He just made noises, like groans.
Fuller did not stand up. Zamaro testified that when Fuller was laying down, Fuller moved his
arms and head. Wilson had woken up about the time that Zamaro and Milliman were carrying
Fuller into the house and asked what had happened. They all had a conversation about calling 9-
1-1, and Nolan persuaded them that it was not necessary. Zamaro was concerned that Fuller
needed medical attention but did not know why he did not call 9-1-1, noting that he had been
woken up at 4 a.m. and did not know how to handle the situation. Zamaro had asked Nolan if
Fuller was okay and whether they needed to call an ambulance. Nolan said no and that the
accident was no big deal and he had just gone into a ditch. Zamaro asked what if Fuller had
cracked a rib and had internal injuries. Zamaro testified, “[i]n my ignorance in the moment, I
believed Dillon Nolan when he told me I checked his ribs. They’re not broken.” Nolan had
indicated that he had picked up Fuller from Elmwood because Fuller was too drunk to drive but
also indicated that they went to Burnzee’s afterward and had some drinks. Zamaro stated that
Nolan did not appear to be intoxicated. Zamaro had not been aware that the wreck occurred three
24
hours prior to the time Nolan had come to his house. Zamaro did not know whether Nolan was
intoxicated at the time of the crash.
¶ 64 Zamaro additionally testified that Milliman left shortly after they brought Fuller inside.
Nolan then took a shower. About 30 minutes to an hour after bringing Fuller inside, they all went
to sleep. Fuller was snoring, so it was difficult for Zamaro to go back to sleep. Initially, Zamaro
had laid back down at 4:20 a.m., but he got up 10 minutes later to see who was snoring. Wilson
also came into the living room. Fuller was snoring, and Nolan was sitting on the couch. Zamaro
and Wilson had a “slight discussion” about Fuller snoring so loud and that it had already been a
“crazy night,” they did not know what to do, and that Fuller snored in the past “so it was semi-
normal.” They returned to their rooms and tried to sleep through it. Zamaro woke up at 9 a.m.
and started getting ready for work. About 10 or 15 minutes later, Wilson called Zamaro into the
living room and indicated that he did not think Fuller was okay. Zamaro grabbed Fuller’s wrist to
check for a pulse. There was no pulse and Fuller’s wrist was cold. Zamaro went to the neighbor’s
house because he did not know what to do and because he considered the neighbors good friends
and “actual adults.” Zamaro believed that he told the neighbors that Fuller was dead and to call
9-1-1. Shortly thereafter, police officers arrived. Prior to the police arriving, Zamaro left and
went on a back road to throw some pills out that he had in his room. Although he told police that
he had left to go get cigarettes, he was actually getting rid of controlled substances.
¶ 65 In his deposition, Zamaro acknowledged that he had pled guilty to obstruction of justice
related to lying about Fuller’s condition. Zamaro explained that he had pled guilty because his
brother (Wilson) had previously been found guilty of the same charge after a bench trial and
because he had three pending felony charges related to possession of heroin.
¶ 66 xi. Dr. Scott Denton
25
¶ 67 On March 28, 2016, Dr. Scott Denton testified as an expert witness in forensic pathology
at Wilson’s bench trial. Denton testified that he had been a forensic pathologist for almost 20
years and was employed by coroners in central Illinois to perform autopsies. Denton testified that
he had performed an autopsy on Fuller. Fuller had the following external injuries: scrapes or
abrasions on the right side of his face, chest, and abdomen; a dislocated right arm, with his right
hand positioned above his head (Denton opined Fuller’s right arm had been dislocated and fixed
in that position, either from trauma or from the pulling of his arm upwards); numerous broken
ribs; mud within Fuller’s nose, over his teeth, within his mouth, and within his right ear; and his
right ear was caked with blood. Fuller also had the following internal injuries: a large, six to
seven inch bruise on the left side of Fuller’s head, beneath the scalp over the skull, indicating a
substantial impact to the left side of Fuller’s head; contusions on the temporal lobes of his brain;
bruising in the central part of the brain, indicating trauma to the internal part of the brain;
bilateral fractures of the ribs; some internal bleeding associated with the tearing of the ribs; a
collapsed right lung (deflated because of tears); and a four-inch tear in the chest wall. Denton
testified that there was no bleeding associated with the chest tear. He stated that if someone had
been alive after sustaining such a tear, he would expect the chest cavity to fill with blood. There
was, however, a tear in the chest wall with no bleeding, indicating that within minutes of
sustaining those injuries Fuller’s blood pressure “went to basically nothing very quickly because
if he still had blood pressure and his heart was still pumping, those injuries should have filled up
his chest wall with blood.” The fact that there was no bleeding into the chest cavity was an
indication that Fuller had died very rapidly after that tear. Denton further testified that Fuller
suffered a severe fracture of his back and Fuller’s spinal cord was severely bruised. There was
blood around the spinal cord. There was also bleeding inside the spinal cord, indicating no
26
electrical signals below that area. Denton also testified that Fuller’s brain was “very swollen”
from lack of oxygen and blunt trauma.
¶ 68 Additionally at Wilson’s bench trial, Denton had opined that Fuller died from multiple
blunt injuries of the head and chest due to a severe motor vehicle collision type trauma. He also
opined that after receiving those injuries, Fuller would have lived for “minutes.” When asked
whether Fuller could have been walking around after receiving those injuries, Denton testified
that based on the spinal cord injury, Fuller would have been paralyzed from the mid-chest area
and down. He stated, “so I do not believe he would be walking, no.” Denton further opined that
Fuller would not have been able to sit upright on the couch on his own (without being balanced
in an upright position). Denton testified that based on Fuller’s collapsed lung and brain injuries,
which would have caused the brain to start swelling immediately, Fuller would not have been
able to communicate coherently. Denton opined that it was possible for Fuller to have had a
“lucid interval” after incurring the injuries “but not for any significant time beyond a minute or
two.” Denton testified that if Fuller was still alive after sustaining the indicated injuries, he was
likely unconscious. Denton explained that Fuller’s brain was severely swollen and, “when that
occurs, he’ll be unconscious.” Denton also noted there had been “deep bruising to [Fuller’s]
brain” and opined that Fuller would have been conscious “for a very, very short period of time if
at all,” meaning a few minutes at the most. He acknowledged that Fuller could have been making
sounds, even if unconscious. He testified that even if Fuller had been alive and conscious after
the collision, Fuller would not have been coherent. Denton, opined, however, that Fuller was
likely unconscious after sustaining the injuries. Denton noted that the lack of bleeding from the
tear in the lung and chest wall indicated that Fuller had no blood pressure after incurring those
injuries, which indicated “the person died very rapidly.”
27
¶ 69 In September 2017, in a discovery deposition in this case, Denton testified that Fuller
died from multiple blunt injuries to the head and chest. Fuller also had severe injuries of his
brain, lungs, spine, and spinal cord. Denton stated, “[Fuller’s] lungs were torn, so he basically
just died very rapidly after the impact from the crash.” He explained that when the lung tissue is
torn, the lungs “immediately bleed and will fill the chest cavity with something called a
hemothorax or blood.” Denton testified that when the tear occurred to Fuller’s right lung, Fuller
had no blood pressure (his heart was not pumping). Fuller’s liver also had a tear, and liver
lacerations typically “bleed profusely,” but there had been no bleeding into Fuller’s abdomen.
Fuller’s right lung was collapsed and his ribs were fractured (second through eighth ribs,
bilaterally), which indicated that Fuller would not have been able to breathe for very long, if he
was breathing at all. Denton indicated that a person would die within minutes after such an injury
if they did not have emergency resuscitation right away. Denton testified that Fuller’s injuries
included: bleeding over the spinal cord; a fracture of his sixth and seventh vertebral body
(thoracic spine fracture) and spinal cord injury (at the mid-chest level) that would have caused
paralysis from the mid-chest down, which would have been extremely painful; bruising of the
brain; and hemorrhaging in areas of the brain. Denton testified that Fuller’s brain injury was so
severe that it went “all of the way through the scalp, the skull, and penetrate[d] into the deeper
part of the brain, this blunt trauma.” He stated, “[s]o the person will be unconscious after they
sustain that severe blunt trauma to the center of their brain.” Denton testified that another
indication that Fuller died shortly after the accident was that there was still mud and dirt in
Fuller’s teeth and nose at the time of the autopsy. Denton also noted that Fuller should have been
bleeding from the external lacerations if he had been alive after the accident, “especially on the
face like at the right ear.” There having been no blood on the carpet where Fuller was found
28
would be consistent with Denton’s opinion that Fuller had died at the scene of the collision rather
than at Wilson and Zamaro’s house.
¶ 70 In his deposition, Denton reiterated that his cause of death opinion in this case was that
Fuller died from multiple blunt injuries to the head and chest due to the motor vehicle crash and
that, due to the severity and extent of his injuries, Fuller would have been paralyzed from the
mid-chest down, Fuller was likely unconscious after the crash, and Fuller would have died within
minutes of the crash. Denton testified that Fuller’s injuries were consistent with being ejected
from the vehicle. Based on Fuller’s brain injury, Denton opined that Fuller would have been
instantaneously unconscious at the time of the trauma to his head.
¶ 71 C. Hearing on Motion for Summary Judgment
¶ 72 At the hearing on defendant’s motion for summary judgment, defendant’s attorney
argued that there was no evidence that Nolan was intoxicated at the time of the motor vehicle
crash and that anything that occurred after the crash was irrelevant. Plaintiff’s counsel conceded
“not one witness testified that [Nolan] was intoxicated.” However, plaintiff’s counsel argued
there was an issue of fact as to whether Nolan was intoxicated at the time of the crash where the
evidence showed Nolan had at least two to six drinks at Benny’s Corner Bar, went other places
before going to Woppers, had one to two more drinks at Woppers, and displayed “extremely
unusual behavior” following the crash, including not calling police or an ambulance, not taking
Fuller to the hospital, and having friends move his wrecked vehicle away from the accident site.
¶ 73 The trial court found there was no evidence of “observation of intoxication or even
evidence of intoxication from an excessive amount of drinking.” The trial court additionally
found that there was no caselaw to support plaintiff’s argument that the coverup of the accident
was indicative of unusual behavior showing Nolan’s intoxication. The trial court granted
29
defendants’ motion for summary judgment, finding there was no issue of material fact in dispute.
In its written order, the trial court indicated that defendants’ motion for summary judgment was
granted for the reasons stated on the record and that it adopted defendants’ briefing and oral
arguments on the motion.
¶ 74 Plaintiff appealed the trial court’s order of October 10, 2018, denying her motion for the
trial court to reconsider its order of May 4, 2018, in which the trial court denied her motion for
leave to file a first amended complaint. Plaintiff also appealed the court’s grant of summary
judgment in favor of Benny’s Corner Bar and Woppers. (As noted above, plaintiff had conceded
that summary judgment in favor of Trojan’s Corner was proper).
¶ 75 II. ANALYSIS
¶ 76 On appeal, plaintiff, the administratrix of Fuller’s estate, argues: (1) her motion for leave
to amend the complaint to add dramshop claims for loss of society by Fuller’s family members
should have been allowed and the filing date related back to the filing date of the original
complaint pursuant to section 2-616(b) of the Code; and (2) the trial court erred by granting the
defendants’ motion for summary judgment where there was a material issue of fact regarding
Nolan’s intoxication at the time of the occurrence. In response, defendants argue the trial court’s
denial of plaintiff’s motion for leave to file an amended complaint was proper. Defendants also
argue the granting of their motion for summary judgment should be upheld because the record is
devoid of evidence that Nolan was intoxicated.
¶ 77 A. Motion to Amend the Complaint
¶ 78 Plaintiff argues the trial court erred by denying her motion for leave to file a first
amended complaint to add the loss of society claims by Fuller’s family members. Plaintiff
contends that in doing so, the trial court erroneously relied on our supreme court’s decision in
30
Demchuk, in which our supreme court affirmed the dismissal of dramshop claims brought by
minor children beyond the one-year limitation period after concluding that the Dramshop Act’s
one-year limitation was a special limitation applicable to minors that could not be tolled.
Demchuk, 92 Ill. 2d at 6-9. Plaintiff argues that, subsequent to Demchuk, our supreme court in
Belleville denounced “condition precedents,” so that the one-year limitation in the Dramshop Act
“cannot stand as a condition precedent which precludes the [circuit] court from exercising its
jurisdiction.” In response, defendant argues that denial of plaintiff’s motion for leave to amend
the complaint to add additional plaintiffs and causes of actions was proper where the denial was
within the trial court’s discretion and where plaintiff’s attempt to add additional plaintiffs and
causes of action was time-barred under the Dramshop Act.
¶ 79 A cause of action brought pursuant to the Dramshop Act “shall be barred unless
commenced within one year next after the cause of action accrued.” 235 ILCS 5/6-21(a) (West
2014). Our supreme court has stated that “the special one-year limitation in the Dramshop Act is
a condition precedent to the right of recovery which must be observed by all plaintiffs in order to
bring themselves within the Act.” Demchuk, 92 Ill. 2d at 9.
¶ 80 In Demchuk, two consolidated cases on appeal involved the issue of “the special one-year
limitation contained in the Dramshop Act” and its applicability to minors. Id. at 3. The Illinois
Supreme Court in Demchuk noted that the Dramshop Act had contained its own “special
limitation” since 1949 and indicated that it had previously held that the one-year limitation was a
special limitation upon a statutory cause of action. Id. at 5-7 (citing Lowrey v. Malkowski, 20 Ill.
2d 280, 283-85 (1960) (holding that based on the plain language of the Dramshop Act and the
“evident purpose of the limitation,” the action involving minor plaintiffs was required to be filed
within one year after the cause of action accrued)). Our supreme court in Demchuk
31
acknowledged the well-recognized rule that “a special limitation in a purely statutory cause of
action, unlike a general statute of limitations, operates as a limitation of the liability itself and not
the remedy alone.” Id. at 6. The Demchuk court further indicated that a special limitation in a
statutory cause of action “is a condition attached to the right to bring the action, and plaintiffs
must allege or state facts showing that the action is brought within the time prescribed or they
have failed to bring themselves within the compass of the Act.” Id. at 6-7. The Illinois Supreme
Court in Demchuk, therefore, held “the special one-year limitation in the Dramshop Act is a
condition precedent to the right of recovery which must be observed by all plaintiffs in order to
bring themselves within the Act.” Id. at 9 (holding the Dramshop Act does not provide for tolling
for disabilities such as minority or incompetency).
¶ 81 In Belleville Toyota, on appeal from a multi-million-dollar judgment against defendants
for violating the Motor Vehicle Franchise Act (815 ILCS 710/1 et seq. (West 2000)), defendants
argued that because the plaintiff had failed to comply with the four-year limitations period in that
statute, the claim was extinguished. Belleville Toyota, 199 Ill. 2d at 333. The defendants
contended that compliance with the limitations period was an element of the plaintiff’s case and
a jurisdictional prerequisite. Id. The plaintiffs argued the limitations period contained in that act
was an ordinary statute of limitation and was not a jurisdictional prerequisite to suit. Id.¶ 82 In first addressing the defendant’s argument related to the subject matter jurisdiction of
the circuit court, our supreme court in Belleville Toyota stated, “[w]ith the exception of the
circuit court’s power to review administrative action, which is conferred by statute, a circuit
court’s subject matter jurisdiction is conferred entirely by our state constitution.” Id. at 333-34
(citing Ill. Const. 1970, art. VI, § 9). “[E]xcept in the area of administrative review, the
jurisdiction of the circuit court flows from the constitution.” (Emphasis in original.) Id. at 334-35
32
(citing Ill. Const. 1970, art. VI, § 9). The Illinois Supreme Court noted that under our former
constitution, adopted in 1870, the circuit court had original jurisdiction of “all causes in law and
equity” but its jurisdiction over special statutory proceedings was derived from the legislature so
a court lacked jurisdiction unless the statutory requirements for the cause of action were
satisfied. (Internal quotation marks omitted.) Id. at 336-37. Under the new judicial article
effective in 1964 (amending the 1870 constitution), which was retained in the current Illinois
constitution adopted in 1970, the circuit court had “ ‘original jurisdiction of all justiciable
matters, and such powers of review of administrative action as may be provided by law.’ ” Id. at
337 (quoting Ill. Const. 1870, art. VI (amended 1964), § 9). Our supreme court stated that
considering these changes, the precedential value of case law that had examined a court’s
jurisdiction under the pre-1964 judicial system was “limited to the constitutional context in
which those cases arose.” Id. at 336-37. The Illinois Supreme Court determined defendants’
jurisdictional argument relied on a rule of law that was rooted in the pre-1964 judicial system,
with the rule being that
“a limitations period contained in a statute that creates a substantive right
unknown to the common law, and in which time is made an inherent element of
the right, is more than an ordinary statute of limitations; it is a condition of the
liability itself and goes to the subject matter jurisdiction of the court.” Id. at 338.
The supreme court stated, “[t]o the extent this proposition has any relevance today, it is confined
to the area of administrative review—the only area in which the legislature still determines the
extent of the circuit court’s jurisdiction.” Id. Noting that the claim in Belleville Toyota did not
arise under administrative review law and the circuit court in that case had constitutionally
granted original jurisdiction to hear and determine the claim, the Illinois Supreme Court held the
33
limitation period in the Motor Vehicle Franchise Act was not a jurisdictional prerequisite to suit.
Id. at 341.
¶ 83 After rejecting the defendants’ jurisdictional argument, the Illinois Supreme Court in
Belleville Toyota turned to the issue of whether the limitations period in that act was an element
of plaintiff’s claim that the plaintiff was required to plead and prove, rather than an ordinary
limitations period that provided a technical defense to the claim. Id. at 342. The Belleville Toyota
court stated that its determination of the issue was “a matter of statutory construction,” with the
judicial role of construing statutes being to ascertain, and give effect to, legislative intent. Id. The
Illinois Supreme Court looked to the language and the purpose of the Motor Vehicle Franchise
Act and determined that the limitation period in that act was an ordinary limitation period and
not an element of plaintiff’s claim. Id. at 342-45.
¶ 84 In Litwiller, a tavern patron brought a claim under the Dramshop Act and mistakenly
named the sole member of a limited liability company (LLC) as the defendant rather than the
LLC itself. Litwiller, 2011 IL App (4th) 100870, ¶ 1. After the expiration of the one-year
limitation period in the Dramshop Act, the circuit court granted the sole member’s motion to
dismiss the claim and denied the patron’s motion to amend complaint to name the LLC as the
defendant and for the amended complaint relate back to the filing date of the original complaint.
On appeal, the plaintiff argued the one-year limitation period in the Dramshop Act did not bar
the application of the relation-back doctrine. Id. ¶ 8. The Litwiller court noted that amendments
to a complaint in the case of a mistaken identity of a defendant are governed by section 2-616(d)
of the Code for the relation-back doctrine to apply. Id. ¶ 9 (citing 735 ILCS 5/2-616(d) (West
2008)). The Litwiller court also noted, “[t]here is no exception to the relation-back doctrine for
cases brought pursuant to the Dramshop Act.” Id. ¶ 16. The Litwiller court held the trial court
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had erred by denying plaintiff’s motion to amend the complaint to add the LLC as a defendant
and have the amended pleading relate back to the date of filing of the original complaint where
the plaintiff met the requirements of section 2-616(d) of the Code. Id. ¶ 28.
¶ 85 In this case, there is no dispute that the new plaintiffs (Fuller’s family members) did not
bring their loss of society claims within the Dramshop Act’s one-year limitation period. Plaintiff
argues that the Dramshop Act’s one-year limitation period is not a condition precedent to
jurisdiction. We agree that the Dramshop Act’s one-year limitation period is not a condition
precedent to the circuit court’s jurisdiction over plaintiff’s dramshop claim. See Belleville
Toyota, 199 Ill. 2d at 340 (where a complaint alleges the existence of a justiciable matter, even if
it is done defectively, the trial court possesses the jurisdiction to adjudicate that complaint, as
“[s]ubject matter jurisdiction does not depend upon the legal sufficiency of the pleadings”).
¶ 86 Although the one-year limitation period in the Dramshop Act is not a condition precedent
to the trial court’s jurisdiction, it is, nonetheless, “a condition precedent to the right of recovery
which must be observed by all plaintiffs in order to bring themselves within the Act.” Demchuk,
92 Ill. 2d at 9; but cf. Litwiller, 2011 IL App (4th) 100870, ¶¶ 23, 27. The primary goal of
statutory construction is to ascertain and give effect to the legislature’s intent, and the plain
language of the statute is the best indication of that intent. Lawler v. University of Chicago
Medical Center, 2017 IL 120745, ¶ 12. If the plain language is clear and unambiguous, the
statute will be enforced as written without reading into it exceptions, conditions, or limitations
not expressed by the legislature. Id. The interpretation of a statute is subject to a de novo review.
Id.¶ 87 As discussed above, the language of the Dramshop Act provides that each action under
the Dramshop Act “shall be barred unless commenced within one year next after the cause of
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action accrued.” 235 ILCS 5/6-21(a) (West 2014). The language of the Dramshop Act also
specifically addresses the scenario at issue in this case of adding a loss of society claim to an
existing dramshop claim that was timely filed by a person injured by an intoxicated person,
providing, “any person claiming to be injured in means of support or society and not included in
any action brought hereunder may join by motion made within the times herein provided for
bringing such action.” Id. Our supreme court has stated that the intent of the limitation period in
the Dramshop Act is “to prevent the evil of prolonged liability of dramshop owners who rarely
have actual knowledge of the events upon which their liability is based.” Lowrey, 20 Ill. 2d at
284 (citing Orlicki v. McCarthy, 4 Ill. 2d 342, 353 (1954)). We, therefore, conclude that
compliance with the one-year limitation provision in the Dramshop Act is a condition precedent
to the right of recovery. See 235 ILCS 5/6-21(a) (West 2014); Demchuk, 92 Ill. 2d at 9.
¶ 88 Here, Fuller’s family members failed to file a motion to “join” the existing dramshop
action of Fuller’s estate “within one year next after the cause of action accrued.” See 235 ILCS
5/6-21 (West 2014). Thus, according to the clear language of the statute, their loss of society
claims “shall be barred.” See id.¶ 89 We acknowledge that the relation-back statute provides, in pertinent part:
“(b) The cause of action *** set up in any amended pleading shall not be
barred by lapse of time under any statute *** limiting the time within which an
action may be brought or right asserted, if the time prescribed or limited had not
expired when the original pleading was filed, and if it shall appear from the
original and amended pleadings that the cause of action asserted, or the defense or
cross claim interposed in the amended pleading grew out of the same transaction
or occurrence set up in the original pleading, even though the original pleading
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was defective in that it failed to allege the performance of some act or the
existence of some fact or some other matter which is a necessary condition
precedent to the right of recovery or defense asserted, if the condition precedent
has in fact been performed, and for the purpose of preserving the cause of action,
cross claim or defense set up in the amended pleading, and for that purpose only,
an amendment to any pleading shall be held to relate back to the date of the filing
of the original pleading so amended.” (Emphases added). 735 ILCS 5/2-616(b)
(West 2016).
We agree with plaintiff’s contention that “[t]here is no exception to the relation-back doctrine for
cases brought pursuant to the Dramshop Act.” Litwiller, 2011 IL App (4th) 100870, ¶ 16.
However, in this case, plaintiff does not meet the requirements of the applicable subsection of
the relation-back statute. See 735 ILCS 5/2-616(b) (West 2016).
¶ 90 As discussed above, a “condition precedent” to bringing the loss of society claims in this
case was the filing a motion to join the dramshop claim of Fuller’s estate within one-year after
the accrual of the cause of action. See Morales v. Fail Safe, Inc., 311 Ill. App. 3d 231, 236
(1999) (“[t]he one-year proviso of the Dramshop Act is not a statute of limitations; it is a
condition precedent to the right of recovery which must be observed by all plaintiffs in order to
bring themselves within the coverage of the Act”). Because plaintiff did not meet the condition
precedent for recovery under the Dramshop Act, the relation-back doctrine cannot be applied in
this case. See 735 ILCS 5/2-616(b) (West 2016). We, therefore, affirm the trial court’s order
denying plaintiff’s motion for leave to amend the complaint.
¶ 91 B. Summary Judgment
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¶ 92 Plaintiff additionally argues the trial court erred by granting defendant’s motion for
summary judgment where there was evidence that Nolan had consumed alcohol at both Benny’s
Corner Bar and Woppers and had engaged in unusual behavior to support a finding that Nolan
was intoxicated from alcohol at the time of the motor vehicle crash. Defendants argue the trial
court’s order granting summary judgment in their favor should be upheld by this court because
the record contains no evidence that Nolan was intoxicated by alcohol at the time of the
occurrence.
¶ 93 Summary judgment is appropriate only where the pleadings, depositions, admissions, and
affidavits on file show there is no genuine issue of material fact and the moving party is clearly
entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016); Guns Save Life, Inc.
v. Ali, 2021 IL 126014, ¶ 14. Our review of an order granting summary judgment is de novo.
Guns Save Life, Inc., 2021 IL 126014, ¶ 14.
¶ 94 The Dramshop Act provides, “[e]very person who is injured within this State, in person
or property, by any intoxicated person has a right of action *** against any person, licensed ***
to sell alcoholic liquor, who, by selling or giving alcoholic liquor *** causes the intoxication of
such person.” 235 ILCS 5/6-21 (West 2014). The intent of the Dramshop Act is to place the
responsibility for damages occasioned by the use of alcohol on those who profit from its sale.
Kingston v. Turner, 115 Ill. 2d 445, 457 (1987). A dramshop cause of action is “purely a creature
of statute” where there is no common law remedy in Illinois for either selling or giving
intoxicating liquor to a “ ‘strong and able-bodied man.’ ” Demchuk, 92 Ill. 2d at 5. “Hence, the
liability imposed, which does not depend upon fault or negligence, and the damages recoverable
are expressly and exclusively defined in the Act.” Id.38
¶ 95 To prove a claim under the Dramshop Act, a plaintiff must prove (1) the alleged
intoxicated person was intoxicated at the time of the occurrence; (2) defendant sold or gave
alcohol to the alleged intoxicated person; (3) the alcohol provided caused the intoxication of the
alleged intoxicated person; (4) the intoxication, at least in part, was a proximate cause of the
plaintiff’s injuries; and (5) as result of the occurrence, the injured person suffered personal
injuries, damage to property, loss of means of support, or loss of society. 235 ILCS 5/6-21(a)
(West 2018); Mohr v. Jilg, 223 Ill. App. 3d 217, 221 (1992). A defendant dramshop must have
“caused the intoxication” and must not have merely furnished a negligible amount of liquor.
Kingston, 115 Ill. 2d at 457 (citing Nelson v. Araiza, 69 Ill. 2d 534, 540-41 (1978)). A
de minimis contribution to a party’s intoxication is not a sufficient basis for liability. Id. “The
alcohol furnished at two [or more] separate taverns may cause a single intoxication, subject to
the limitation that a tavern may not be held liable for a de minimis contribution to an individual’s
intoxication.” Mohr, 223 Ill. App. 3d at 221-22. “The trier of facts determines whether the
particular defendant did, in fact, cause the intoxication, subject of course to review as to the
sufficiency of the evidence to establish the cause in fact.” Thompson v. Tranberg, 45 Ill. App. 3d
809, 813 (1977).
¶ 96 In this case, there was evidence indicating that Nolan consumed four to five beers at
Benny’s Corner Bar. He arrived at that bar around 9 or 10 p.m. and left around 11:30 p.m. Taft
testified that at Benny’s Corner Bar she knew that Nolan had drank at least four beers because
five rounds of drinks had been purchased for their group, which included Nolan, but she left
before observing Nolan finish his fifth beer. There was also evidence indicating that after Nolan
left Benny’s Corner Bar, he went to Elmwood Tap for one or two hours. Although the exact
number of beers that Nolan consumed at Elmwood Tap is not known, Nolan testified that he
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would not have been sitting at the bar without drinking alcohol and that he mostly likely would
have been drinking light beer. Thereafter, Nolan went to Woppers, where he consumed at least
some portion of a beer. Arguably, contrary inferences can be drawn from the evidence regarding
the amount of Nolan’s alcohol consumption, but “[i]t is the function of the jury to weigh these
contradictory inferences and draw an ultimate conclusion as to the facts.” Kingston, 115 Ill. 2d at
464.
¶ 97 Here, despite the evidence of Nolan’s alcohol consumption (as well as Nolan having
drugs in his system evidenced by him pleading guilty to an aggravated DUI related to drugs),
defendants contend there was no evidence from which the jury could find Nolan was, in fact,
intoxicated by alcohol at the time of the occurrence. To prove intoxication in a Dramshop Act
action, “one must show that the alleged intoxicant consumed alcohol, and must present
independent evidence showing that he was, in fact, intoxicated.” Felker v. Bartelme, 124 Ill.
App. 2d 43, 48 (1970). Pursuant to the civil Illinois Pattern Jury Instructions, “[a] person is
‘intoxicated’ when as a result of drinking alcoholic liquor there is an impairment of his mental or
physical faculties so as to diminish his ability to think and act with ordinary care.” See Illinois
Pattern Jury Instructions, Civil, No. 150.15 (2d ed. 1971). “IPI No 150.15 is a good definition of
a term which is difficult to accurately define.” Navarro v. Lerman, 48 Ill. App. 2d 27, 36 (1964).
Evidence of intoxication must show actions or conduct that directly, or by reasonable inference,
establish the individual’s conduct at and before the accident was or may have been affected by
the consumption of alcoholic beverages. Skelton v. Chicago Transit Authority, 214 Ill. App. 3d
554, 574-75 (1991). Whether a person is intoxicated is a question of fact for the jury to decide.
Knief v. Sotos, 181 Ill. App. 3d 959, 964 (1989).
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¶ 98 As to the amount of alcohol consumed, no specific quantity of alcohol need be consumed
because the effects of alcohol vary widely among individuals. Hagopian v. First Venture, Ltd.,
90 Ill. App. 3d 951, 954 (1980). “ ‘It is well known that the effect of alcohol upon all persons is
not the same but may be widely different, and that an individual who has had only a slight
amount to drink may in some instances be more dangerous than a person who shows signs of
intoxication.’ ” Id. (quoting Osborn v. Leuffgen, 381 Ill. 295, 298-99 (1942)).
¶ 99 Intoxication can be shown directly, with testimony of the intoxicated person, or
circumstantially, with evidence that the alleged intoxicated person consumed alcohol and either
evidence the person behaved unusually or inappropriately or opinion testimony of someone who
observed indicating that the person was intoxicated. Id.; Skelton, 214 Ill. App. 3d at 575; Lang v.
B.I.T., Inc., 96 Ill. App. 3d 37, 39 (1981) (evidence that the alleged intoxicated person consumed
alcohol, with evidence of unusual behavior or opinion evidence that the person was intoxicated,
would entitle a jury to conclude the person was intoxicated). Evidence of alcohol consumption
alone, unconfirmed by conduct or opinion evidence, is not sufficient to allow the jury to consider
the question of intoxication. Hagopian, 90 Ill. App. 3d at 954. Evidence of alcohol consumption
accompanied by unusual or inappropriate conduct on the part of the alleged intoxicant creates a
question of fact on the issue of intoxication to be resolved by the fact finder. Id. at 955.
¶ 100 In Lang, an action was brought against two dramshops stemming from a three-car
accident in which a patron of the defendant dramshops was involved. Lang, 96 Ill. App. 3d at 38.
The evidence indicated the patron drank three or four glasses of beer and shared in three or four
pitchers of beer with five or six others at one establishment and drank one bottle of beer at
another establishment in the hours leading up to the accident. Id. On appeal from a directed
verdict in favor of the defendants, this court acknowledged the unrefuted evidence of alcohol
41
consumption but found missing any opinion evidence that the patron was intoxicated or any
proof of unusual or erratic behavior to support a finding of intoxication. Id. at 39. The Lang
court, therefore, affirmed the trial court where the record failed to establish the patron was
intoxicated at time of the collision (and also failed to established that tortious act of patron had
caused the injuries where there was no evidence that his vehicle had caused the three-vehicle
collision). Id. 39-40.
¶ 101 In Hagopian, the First District Appellate Court reversed the trial court’s refusal to give a
jury instruction on the issue of intoxication in a personal injury case. Hagopian, 90 Ill. App. 3d
at 954-55. The Hagopian court noted that the testimony presented indicated the alleged
intoxicated person (the plaintiff) had four drinks within four hours; his sister-in-law believed him
to be “high” and “feeling good” but not to be intoxicated; he argued with a woman outside the
club and tried to force his way back in; and he was kicking, screaming obscenities, threatening a
passerby, and causing a scene while being ejected. Id. The appellate court held those
circumstances would support a jury finding that plaintiff was intoxicated and, therefore, the jury
should have been instructed on the issue of intoxication. Id. at 955. “[C]ontrary inferences could
have been drawn from the same set of facts, so that the jury should not, as a matter of law, have
been foreclosed from that determination.” Id.
¶ 102 In Weeks v. Witek, 33 Ill. App. 3d 916, 917-19 (1975), this court held the trial court erred
in directing a verdict in favor of defendants in a dramshop action where the evidence showed the
alleged intoxicated person consumed two bottles of beer at one establishment and four or five
beers at another establishment; threw a bottle 15 feet across the bar at the plaintiff (without any
provocation from plaintiff), striking plaintiff in the forehead and knocking him off his barstool;
kicked and punched plaintiff even though plaintiff was on the floor and bleeding profusely from
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the cut on his forehead; had to be pulled away from plaintiff; and ran out when the bartender
called police. This court noted that while evidence only showing the consumption of alcoholic
beverages was insufficient to show intoxication, evidence of consumption, together with
evidence of “unusual behavior or opinion evidence that he was drunk, would entitle a jury, under
such circumstances, to conclude the person was intoxicated.” Id. at 918 (citing Felker, 124 Ill.
App. 2d 43). Although no witness, including plaintiff, had opined that the aggressor was
intoxicated, this court held that the aggressor’s acts and conduct constituted unusual behavior
warranting the inference that the aggressor was intoxicated. Id. This court stated, “[t]his does not
mean a jury would be required to find [he] was intoxicated any more than it would be required to
do so where there was opinion evidence of intoxication.” Id.¶ 103 In Weiner v. Trasatti, 19 Ill. App. 3d 240, 242-43, 247 (1974), the First District Appellate
Court reversed the circuit court’s directed verdict in favor of the defendant dramshop where
defendant’s patron drank two 12-ounce bottles of beer in defendant’s establishment over the
course of 1 hour and 30 minutes; left the defendant’s establishment and drove for 15 minutes;
began to feel tired; fell asleep; had no recollection of what occurred for the next mile; and struck
the rear of a properly parked vehicle, striking and killing the wife and mother of the plaintiffs.
Both the patron and his passenger opined the patron was sober and there had been nothing
unusual about his behavior or the way he was driving before the patron fell asleep. Id. at 243.
The Weiner court concluded that a jury could have found that the patron was intoxicated at the
time of the occurrence and that it was for the jury to determine whether at the time of occurrence,
the patron was intoxicated and his intoxication was caused by the alcoholic beverage he drank in
defendant’s establishment. Id. at 245.
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¶ 104 In this case, there was evidence of Nolan’s alcohol consumption. Absent from the record
is any opinion evidence from witnesses indicating that Nolan appeared to be intoxicated. In fact,
witnesses at Benny’s Corner Bar, the bartender at Woppers, and witnesses who were in contact
with Nolan after the accident indicated that Nolan did not appear to be drunk. Nonetheless, there
was ample evidence indicative of Nolan’s unusual or erratic behavior where the evidence
indicated the following: Nolan went to Benny’s Corner Bar in Farmington to meet Fuller, left
Fuller at that bar to go home because Fuller was too drunk to hang out with, and then moments
later met up with Fuller at a second bar (Elmwood Tap) in another town (Elmwood) and stayed
at that bar with Fuller for one or two hours, where Nolan would have been drinking; Nolan then
went to the bar next door (Woppers) and almost immediately became involved in a verbal
altercation with a drunk patron and, after that matter settled, Nolan became involved in a second
verbal altercation with the same drunk patron; Nolan left Woppers, squealing the tires of his
pickup truck as he drove off; Nolan drove 5 to 10 miles per hour over the speed limit at the time
of the occurrence; Nolan lost control of his vehicle and flipped his vehicle over, with Fuller
being ejected from the vehicle; Nolan failed to recognize, or had a complete disregard for, the
severity of Fuller’s injuries and/or death; Nolan did not call 9-1-1 or obtain medical attention for
Fuller’s injuries; Nolan called Kosner to tow away his vehicle rather than calling police in regard
to his vehicle’s damage; Nolan called Milliman to drive him and Fuller to Wilson and Zamaro’s
home rather than taking Fuller to a hospital or seeking medical attention for Fuller; Nolan hung
up on Milliman at Milliman’s suggestion to call 9-1-1; Nolan indicated that Fuller was “fine”
despite Fuller’s extensive injuries and/or death; and Nolan minimized the severity of the motor
vehicle crash and Fuller’s condition to prevent others from seeking medical attention for Fuller at
the accident scene and upon arriving at Wilson and Zamaro’s house.
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¶ 105 Thus, there was evidence of Nolan’s alcohol consumption and evidence of his usual
behavior after he consumed the alcohol. Although there was evidence that Nolan did not appear
intoxicated, it is for the trier of fact to assess a witness’s credibility, weigh the testimony, and
draw reasonable inferences from the evidence. People v. Hutichinson, 2013 IL App (1st) 102332,
¶ 27; People v. Oritz, 196 Ill. 2d 236, 259 (2001). In this case, a genuine issue of material fact
exists as to whether Nolan was intoxicated at the time of the motor vehicle crash. Consequently,
the trial court erred in entering summary judgment in favor of defendants.
¶ 106 We, therefore, reverse the trial court’s order granting defendants’ motion for summary
judgment as to defendants Benny’s Corner Bar and Woppers and remand for further proceedings
as to those defendants. We make no determination as to Woppers’ individual argument in
defendants’ motion for summary judgment regarding its lack of liability as a matter of law based
on a de minimis amount of alcohol having been consumed by Nolan at its establishment, which
should be addressed on remand. We affirm the grant of summary judgment in favor of defendant
Trojan’s Corner where plaintiff, in the circuit court, conceded a lack of evidence that Nolan had
visited Trojan’s Corner on the night of the occurrence and that summary judgment in favor of
Trojan’s Corner was proper and plaintiff has made no argument in relation to Trojan’s Corner on
appeal.
¶ 107 III. CONCLUSION
¶ 108 The judgment of the circuit court of Peoria County is affirmed in part and reversed in
part, and this matter is remanded for further proceedings.
¶ 109 Affirmed in part and reversed in part; cause remanded.
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2022 IL App (3d) 180670Decision Under Review: Appeal from the Circuit Court of Peoria County, No. 16-L-72; the
Hon. Michael P. McCuskey, Judge, presiding.
Attorneys James P. LeFante and Shane M. Mahoney, of LeFante Law
for Offices, P.C., of Peoria, for appellant.
Appellant:
Attorneys Greg Gaz, of Springfield, for appellees.
for
Appellee:
46