In an opinion sure to be of interest to tavern owners, Illinois court finds no liability for bar that expelled drunk employee/patron who later died where bar had no contact following ejectment

The facts alleged in the complaint are important and the decision renders some interesting guidance for taverns ejecting patrons.

The complaint asserted that an employee of the bar attended an employer sponsored event at the tavern. At the event, the bar provided free alcoholic beverages to the employees. The employee at issue drank alcohol and became intoxicated. In the late evening or early morning, the tavern stopped serving the employee and “ejected” him from the bar. The complaint alleges that after he was ejected, he walked away from the bar and later fell and suffered a traumatic brain injury, resulting in his death. The employee’s estate brought suit arguing that the bar owed a duty of car to its ejected patrons based on a “voluntary undertaking.” 

Under a voluntary undertaking theory, 

“[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.”

Restatement (Second) of Torts § 323 (1965). 

The district court rejected this theory finding that Illinois law imposes no such duty of care on a tavern that simply ejects a drunk patron and does nothing more:

“The complaint alleges that [defendant] is liable for the death because of the voluntary undertaking of asking him to leave the tavern. The voluntary undertaking is limited to the extent of that undertaking. And here that undertaking ended when he left the bar. The act of removing him from the bar did not place him in a worse situation. Now that is not to say that he was not in a bad situation, he was in a bad situation, but he was in that bad situation because of his intoxication. And Illinois law does not place a duty on taverns like [defendant] to make sure that the intoxicated patrons that they eject get home safely. They can’t eject them in a manner that increases the danger such as placing them in a car in frozen temperatures, but here he was asked to leave on a May night, and while the complaint doesn’t specify how far away from the bar he was, it does say that the next day he was found deceased based on a traumatic brain injury. I don’t believe that there [are] grounds to go beyond what the Dram Shop Act has preempted here. Illinois taverns, there is—they simply are not—or don’t owe a duty to intoxicated patrons to make sure that they get safely home. Now we can disagree about whether or not that should be the law, but it’s not for the court to determine that. The law is that they aren’t—they don’t have a duty to make sure they get home safely. I also don’t think that there’s a sufficient proximate cause in the complaint, so for those two reasons, I do believe that, even though it’s difficult to say so, that the motion to dismiss should be granted and that this case should be dismissed. That will be the ruling of the court.”

The estate appealed.

Here’s why the fact that the bar only kicked the employee out and didn’t do more  is important, the opinion notes that there are several instances under Illinois law where the courts have found that a bar/tavern or others who have served alcohol to someone have voluntarily undertaken a duty of care for the intoxicated person: 

In Simmons, 236 Ill. 2d at 478, the supreme court found common law negligence under section 876 of the Restatement (Second) of Torts (concert of action) (Restatement (Second) of Torts § 876 (1979)). Defendant—an adult entertainment club—owed a duty of care to plaintiffs where defendant removed a patron for being intoxicated, placed the patron into a vehicle, and required him to drive off, which resulted in a collision that killed plaintiffs’ decedents. Simmons, 236 Ill. 2d at 481.

In Wakulich, 203 Ill. 2d at 246-47, the Illinois Supreme Court found a cause of action for negligent performance of a voluntary undertaking. Liability arose where the defendants took complete and exclusive control of the care of an intoxicated and unconscious minor. Id. at 243. The defendants hosted a party where a minor became intoxicated and unconscious. Id. at 226-27. The defendants placed the minor in the family room, checked on her periodically, took measures to prevent aspiration, and prevented other persons from calling 911 or seeking other medical intervention. Id. at 243.

In Harris, 153 Ill. App. 3d at 1036-37, the owners of a tavern took an intoxicated, unconscious patron out of the building and placed him in his car where he froze to death. The appellate court found a cause of action for common law negligence where the defendant placed decedent in a position of peril. Id. at 1038. 

In the opinion, the court finds each of the above cases distinguishable from the case where the bar only ejected the customer and did nothing more. The distinctions may help bar owners in understanding the difference between having responsibility for a drunk patron and not: 

Defendant’s action in cutting off an intoxicated decedent and ejecting decedent from the premises did not rise to the level of control exerted by the defendants in Wakulich and Harris. Defendant did not take complete and exclusive control of the care and safety of decedent by merely instructing decedent to leave the premises. Rather, defendant ejected an intoxicated decedent in a routine manner. 

When decedent left [the bar], he was conscious. Defendant’s actions of escorting decedent out of the bar did not place decedent in peril or in a worse situation. We agree with the trial court that decedent was in a bad situation because of his intoxication, not due to any action taken by defendant. Moreover, any undertaking by defendant ended when it escorted decedent off the premises. … Defendant’s actions in ejecting an intoxicated decedent from its premises failed to amount to a voluntary undertaking to look after decedent’s care and safety. As no duty existed, defendant is not liable for injuries decedent sustained after decedent left [the bar]. Under these circumstances, the absence of a voluntary undertaking precludes any duty on defendant’s behalf. Thus, we conclude that the trial court did not err by dismissing the complaint for failure to state a cause of action. 

You can read the opinion in Vogt v Round Robin Enterprises here.

Takeaway: Merely ejecting the drunk patron is where you should probably stop. Helping them into a car, getting them a cab, taking any action, however kind, can be viewed as undertaking some duty towards your patrons and if injury occurs later, you could be sued for it.