ILLINOIS ALCOHOL-RELATED INJURIES: LOOKING BEYOND DRAMSHOP - Mark P. Loftus

Interesting decision recently handed down by First District Appellate Court in an alcohol-related death claim. The opinion, Hicks v. Korean Airlines Company, unfortunately, does not provide a comprehensive summary of the facts. It appears that on October 4, 2001, Tracy Kim, an employee of Korean Airlines Company attended a dinner with some other Korean Air employees. After the initial event, festivities continued at a second location. Kim attended the second event as well. While driving later that evening, Kim struck a car driven by Terrell Simmons. Both Kim and Simmons were killed.
Alfreda Hicks sued on behalf of Simmons. In Count II of the First Amended Complaint, Hicks sought recovery under a respondeat superior theory[alleging at the time of the occurence, Kim was acting in the scope of her employment]. In Count III, Hicks sued under the Illinois Dram Shop Act, 235 IlCS 5/6-21. The Illinois Dram Shop statute carves out the scenarios where persons injured as a result of another’s intoxication can recover against the entity that provided the alcohol. Recovery for alcohol-related claims beyond Dram Shop causes of action can be difficult. The Dram Shop claim made by Hicks was ultimately thrown out.
Korean Air sought summary judgment on Count II as well, asserting Kim wasn’t acting in the scope of her employment at the time of the crash. Korean argued that at the time of the occurrence, Kim was not going to, or coming from work. Additionally, Korean argued that at the time of the crash, Kim was not performing any work-related activity. The plaintiff however, produced evidence that the initial dinner was actually to entertain a Korean Air bigshot who was launching a new credit card linked to the frequent flyer program. Additionally, there was some evidence the second event was a Korean Air promotional event, paid for by Korean Air. Nonetheless, the trial Court ultimately granted Korean’s motion and Count II was tossed as well.
Plaintiff appealed the Trial Court’s decision to throw out Count II. The Appellate Court reversed the decision of the lower court. The opinion contains an exhaustive analysis of the relevant law[way too long to include here]. The Court acknowledged that the Dramshop Act broadly preempts claims arising from the provision of alcohol. But, the Court noted, the Dramshop Act does not preempt claims that are independent from the provision of alcohol. The Court found that the respondeat superior theory alleged by Hicks was independent of the Dramshop Claim. Again, although not entirely clear from the opinion, it seems the Appellate Court found a factual question existed as to whether, in light of the evening’s activities, Ms. Kim was acting in the scope of her employment at the time of the crash. The Appellate Court remanded the case back to the trial court for further proceedings. Kudos to Joe Klest and David A. Novoselsky, on a good result under tough facts.