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Dram Shop & Negligence

Jury Instructions-IL > Dram Shop & Negligence > Dram Shop & Negligence

Leonard DeFily vs  Venuti Management., Inc., and Venuti’s Ristorante & Banquets, LLC, 11 L 128

Patron recovers against dramshop/night club.

The jury returned a verdict of $100,000 on the Dram Shop Count and awarded no funds on the Negligence Count where the plaintiff had claimed that he suffered a permanent eye injury as a result of an unprovoked attack without warning by an over served patron at a west side nightclub. (Note the combined/bracketed instructions for each, separate count below.)

IPI 1.01 – Modified by the court to be read at end of case,  and updated by IPI Committee in 2009 to include old IPI 3.01 language)

            Now that the evidence has concluded, I will further instruct you as to the law and your duties.  The law regarding this case is contained in the instructions I will give to you.  You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

            It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a company, a corporation, a partnership or an individual, should receive your same fair consideration.

I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

            You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

            You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

            The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your deliberations violates the rules of evidence and you are prohibited from using them

            You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

            An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

IPI 2.01 – Evidence Deposition

            The testimony of Dr. Manishi Desai was presented by the reading of her testimony. You should give her testimony the same consideration you would give it had she personally appeared in court.

IPI 3.02 Witness Who Has Been Interviewed by Attorney

            An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not reflect adversely on the truth of the testimony of the witness.

IPI 3.04 Circumstantial Evidence

            A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 15.01 Proximate Cause—Definition [Updated Sept.2009]

            When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.

IPI 21.01 – BURDEN OF PROOF

            When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which he has the burden of proof is more probably true than not true.

   COUNT I

DRAM SHOP ACT OF ILLINOIS

150.01 Dram Shop Act—Injury to Person or Property by an Intoxicated Person/Modified

The parties in this case are:

The Plaintiff is:           Leonard DeFily

The Defendants are:    Venuti Management., Inc & Venuti’s Ristorante & Banquets, LLC,(heretofore called “Venuti”)

Count I of the Plaintiff-DeFily’s complaint against the Defendant, Venuti, concerns the Dram Shop Act of Illinois

At the time of the occurrence in question, there was in force in the State of Illinois a statute called the Dram Shop Act that provides that every person who shall be injured in person or property by any intoxicated person as a result of his intoxication shall have a right of action in his own name against any person who shall, by selling or giving alcoholic liquor, have caused the intoxication of such intoxicated person.

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[150.15 Dram Shop Act—”Intoxicated” Defined]

Under The Dram Shop Act, 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.

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[150.16 Dram Shop Act—”Alcoholic Liquor” Defined]

Under The Dram Shop Act, the term “alcoholic liquor” means and includes every liquid or solid containing alcohol, wine, beer, or spirits including brandy, rum, whiskey, and gin and capable of being consumed as a beverage by a human being, but does not mean or include any such liquid or solid which contains one-half of one per cent, or less, of alcohol, by volume.

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[150.02 Dram Shop Act—Issue/Burden of Proof/ 150.17 Dram Shop Act—Affirmative Defenses—Complicity—Issue/Burden/Modified per Werner v Nebal, 377 Ill. App.3d447 (1st 2007)/ 150.17A Dram Shop Act—Effect of Finding Complicity Defense]

In Count I of this lawsuit the plaintiff Leonard DeFily claims that he is entitled to recover damages from the defendant, Venuti, under The Dram Shop Act, Under the Act the plaintiff must prove:

First, that at the time of the occurrence Gandolfo Messina was an intoxicated patron of Venuti.

Second, that Venuti’s agents or employees sold or gave intoxicating liquor consumed by Gandolfo Messina.

Third, the liquor thus consumed caused the intoxication of Gandolfo Messina.

Fourth, Gandolfo Messina’s intoxication was at least one cause of the occurrence in question.

Fifth, as a result of the occurrence the plaintiff was injured.

If you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.

On the other hand, if you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff.

COUNT II

                                             NEGLIGENCE

IPI 10.01 Negligence—Adult—Definition

Count II of the Plaintiff-DeFily’s complaint against the Defendant, Venuti, concerns a claim of Negligence.

When I use the word “negligence” in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.

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[IPI 10.02 Ordinary Care—Adult—Definition]

When I use the words “ordinary care,” I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.

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[IPI 10.04 Duty to Use Ordinary Care—Adult—Defendant/Modified for Third-Party Action Modified with Benders 72.27]

Under Count II, as to Negligence, it was the duty of the defendant, Venuti, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff, Leonard DeFily. That means it was the duty of the defendant to be free from negligence.

It was the duty of the defendant as an owner of the property in question, to exercise ordinary care to protect the plaintiff from reasonably foreseeable criminal activity.

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[IPI 20.02 (a) Issues Made by the Pleadings—Negligence—One or More Defendants—]

Under Count II as to Negligence, the plaintiff, Leonard Defily, claims that the defendant, Venuti, was guilty of one or more of the negligent acts or omission:

Failed to protect patrons, including the plaintiff, from injury when it knew or should have known that Gandolfo Messina posed a danger to others;

Failed to use reasonable care in the operation, management, supervision and/or control of the premises when it knew or should have known that Gandolfo Messina posed a danger to others;

Failed to reasonably maintain and keep proper order on the premises to protect the plaintiff and others from a reasonably foreseeable physical attack by Gandolfo Messina;

The plaintiff further claims that one or more of the foregoing was a proximate cause his injuries.

The defendant, Venuti, denies that it did any of the things claimed by the plaintiff, denies that it was negligent in doing any of the things claimed by the plaintiff, and denies that any claimed act or omission on the defendant’s part was a proximate cause of the plaintiff’s claimed injuries. The defendant further denies that the plaintiff sustained injuries to the extent claimed.

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[B21.00 et seq Burden of Proof—]

Under Count II, as to Negligence, the plaintiff, Leonard DeFily, has the burden of proving each of the following propositions as to the defendant, Venuti:

First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;

Second, that the plaintiff suffered injuries;

Third, that the negligence of the defendant was a proximate cause of the plaintiff’s injuries.

If you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.

On the other hand, if you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff.

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[12.04 Concurrent Negligence Other Than Defendant’s]

More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that its negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.

However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant

30.01 Measure of Damages

If you decide in favor  of a party on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have result from wrongful conduct, taking into consideration the nature, extent and duration of the injury.

Disfigurement

The reasonable expense of necessary medical care, treatment and services received.

The pain and suffering experienced and reasonable certain to be experienced in the future as a result of the injuries;

The loss of a normal life experienced and reasonably certain to be experienced in the future as a result of the injuries.

30.04.02 Loss of a Normal Life—Definition

When I use the expression “loss of a normal life”, I mean the temporary or permanent diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspects of life.

Whether any of these elements of damages has been proved by the evidence is for you to determine.

34.01-4 Damages Arising in the Future—Mortality Tables as Evidence of Damages—Injury Case

If you find that the plaintiff, Leonard DeFily, is entitled to damages arising in the future because of injuries, you must determine the amount of these damages which will arise in the future.

If these damages are of a continuing nature, you may consider how long they will continue. If these damages are permanent in nature, then in computing these damages you may consider how long Leonard DeFily is likely to live.    

According to a table of mortality in evidence, the life expectancy of a person aged 30 is 56 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 30. It may be considered by you in connection with other evidence relating to the probable life expectancy of Leonard DeFily in this case, including evidence of his health, habits, and other activities, bearing in mind that some persons live longer and some persons less than the average.

36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for a defendant on the question of liability, you will have no occasion to consider the question of damages.

50.11 A Corporation Acts Through Its Employees

The defendant, Venuti Management., Inc & Venuti’s Ristorante & Banquets, LLC, is a corporation and can act only through its officers and employees. Any act or omission of an officer or employee within the scope of his employment is the action or omission of the defendants.

IPI B45.01 – FORMS OF VERDICT – COMPARATIVE

            When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations. Your verdict must be unanimous.

            A verdict form is supplied with these instructions. After you have reached your verdict, fill in and sign the verdict form and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The parties in this case are:

The Plaintiff is:           Leonard DeFily

The Defendants are:    Venuti Management., Inc & Venuti’s Ristorante & Banquets, LLC, (heretofore called “Venuti”)

There are two counts in this complaint. Count I is under the Dram Shop Act and Count II is for Negligence.

If you find for the plaintiff and against the defendant in Count I under The Dram Shop Act, you should mark number “1” of the Verdict Form with an X after the word “Yes”. On the other hand if you find for the defendant and against the plaintiff in Count I under the Dram Shop Act, you should mark number “1” of the Verdict Form with an X after the word “No”.

If you find for the plaintiff and against the defendant in Count II for Negligence, you should mark number “2” of the Verdict Form with an X after the word “Yes”. On the other hand if you find for the defendant and against the plaintiff in Count II for Negligence, you should mark number “2” of the Verdict Form with an X after the word “No”.

A “Special Interrogatory” is supplied with these instructions. After you have reached a verdict, fill in and sign the Special Interrogatory and return it to the court along with the forms of verdict. The Special Interrogatory must be signed by each of you.

IPI B45.01.A – VERDICT FORM A

VERDICT FORM 

On the following Counts of the complaint, we, the jury find as follows:

1.         In favor of the plaintiff, Leonard Defily, and against the defendant,

Venuti, for violation of Count I under  The Dram Shop Act           Yes ______   No ________

2.         In favor of the plaintiff, Leonard Defily, and against the defendant,

Venuti, for violation of Count II for Negligence                               Yes ______   No ________

If you decided “Yes” to either Count I or Count II in favor of the Plaintiff and against the defendant, then you should assess the plaintiff’s total damages as itemized below.

If you decided “No” to both Counts I and II in favor of the defendant and against the plaintiff, then you will have no occasion to consider the question of damages below.

  Disfigurement.                                                                                         $______________________

  Reasonable expense of necessary medical care received.                        $______________________

  Pain and suffering experienced.                                                               $______________________

  Pain and suffering reasonably certain to be  experienced in the future.   $______________________

  Loss of a normal life experienced.                                                            $______________________

  Loss of a normal life reasonably certain to be experienced in the future. $______________________

  PLAINTIFF’S TOTAL DAMAGES:                                                        $_____________________________

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(Foreperson)

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SPECIAL INTERROGATORY

Based upon the entire evidence presented in this case, did the defendant know or should it have known that the attack upon Leonard DeFily by Gandolfo Messina on March 15, 2007 was reasonably foreseeable?

Yes ______                 No ________

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(Foreperson)

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