If a business evicts a patron on the grounds that he’s intoxicated, puts him in his car and requires him to drive away, does the business have a tort duty to persons the patron injures?  According to the Illinois Supreme Court, the answer is "yes."  Simmons v. Homatas, No. 108108(.pdf).

Defendant Homatas visited a strip club.  Because the club featured nude dancing, it was barred from holding a liquor license.  However, the club encouraged patrons to bring their own liquor into the club, and defendant did so.  When Homatas was discovered vomiting in the restroom, club employees ejected him from the club, instructed the valet service to bring his car to the front door, put him in the car and required him to drive away.  Not long after, Homatas collided with another car, killing three passengers.

Because the club didn’t sell Homatas liquor, the plaintiffs couldn’t recover under the Dram Shop Act.  But that wasn’t the end of it, according to the Court.  The Dram Shop Act only preempts claims based on the act of selling or providing alcoholic beverages; it doesn’t necessarily preclude liability for conduct independent of providing alcohol which led to a plaintiff’s injuries.  The club argued that it had no duty to determine whether Homatas was intoxicated, but the Court held it wasn’t imposing one — club employees had voluntarily concluded that the defendant was intoxicated and taken it upon themselves to force him to get in his car and drive away.

The Court held that plaintiffs’ complaint alleged enough facts to give the club a common law duty within the meaning of Section 876 of the Restatement of Torts, which imposes liability on those who give substantial assistance or encouragement to someone’s tortious conduct.  Justices Freeman and Burke dissented, concluding that plaintiffs’ factual allegations weren’t sufficient for liability to attach.  Their opinion is a good road map to defense counsel arguing that plaintiffs’ allegations aren’t "substantial" enough to satisfy Section 876.

The majority took pains to discourage anyone wanting to interpret its holding expansively.  The case presented "special circumstances," the Court wrote:

We do not hold today that restaurants, parking lot attendants or social hosts are required to monitor their patrons and guests to determine whether they are intoxicated.  We hold only that where . . . a defendant is alleged to have removed a patron for being intoxicated, places the patron into a vehicle and requires him to drive off, such facts are sufficient to state a common law negligence cause of action.