Dram shop law does not preempt vicarious liability claim

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December 28, 2010

Dram shop law does not preempt vicarious liability claim 

An Illinois appellate court held that the state’s dram shop act does not preempt a vicarious liability claim against an employer under the respondeat superior doctrine for injuries caused by an intoxicated employee.

Tracy Kim attended a party at a restaurant with other Korean Airlines Co. employees. While driving afterward, allegedly intoxicated, Kim struck and killed Terrell Simmons. Simmons’s estate sued Korean Airlines and others, alleging vicarious liability.

The trial court granted the defense summary judgment, ruling that the plaintiff’s claims were preempted by the dram shop act.

Reversing, the appellate court noted that there is no common law cause of action for injuries arising out of the sale or gift of alcoholic beverages. Citing recent case law, the court found that where an entity falls outside the act because it is not a business that sells or provides alcohol, liability may attach under alternative theories, such as the voluntary undertaking or vicarious liability doctrines.

The court rejected the defendant’s arguments that its ruling would upset the legislative scheme established by the act. Reversing summary judgment did not affect the legislature’s intent when doing so was not based on the airline’s provision of alcohol, the court found. The court also rejected the argument that affirmative misconduct is required for vicarious liability. Negligence liability can attach so long as the employee’s negligence is within the scope of his or her employment, the court found.

The court concluded that the dram shop act did not preempt the plaintiff’s claim that Korean Airlines was vicariously liable under respondeat superior because it was not a dram shop claim.

Citation: Hicks v. Korean Airlines Co., 2010 WL 3834881 (Ill. App. Sept. 29, 2010).

Plaintiff counsel: AAJ member Joseph G. Klest, Schaumburg, Illinois; and David A. Novoselsky and Brian A. Schroeder, both of Chicago.

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