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Illinois Wrongful Death – “In-Concert Liability”?

Published on February 13th, 2012

A tragic accident on Interstate 290 in Addison, Illinois occurred early Saturday morning February, 11, 2012, when a 32 year old intoxicated man, leaving a work-related event, drove his car into a stopped squad car that had been waiting for a tow truck as a result of a previous collision.. A 42 year old man in the squad car was killed in the crash and the state trooper was injured.

The families of the victims of these tragedies are all too often left with only the amount of money that can be recovered under the intoxicated motorist’s insurance policy. This can be as low as $20,000 per occurrence in Illinois and it rarely exceeds $300,000. Illinois wrongful death lawyers need to be aggressive in exploring all potential areas of recovery for the family in these tragic circumstances.

Illinois accident attorneys seeking to recover damages in addition to the insurance coverage on the intoxicated motorists vehicle can look to see (1) if Dram Shop Act (235 ILCS 5/6-21) liability is present-intoxicated motorist leaving tavern where he became intoxicated causes crash, or (2) whether “in-concert” liability will attach.

The law in Illinois is settled that the exclusive remedy for holding sellers of alcohol (taverns) liable for the actions of intoxicated drivers is under the Dram Shop Act. Cunningham v. Brown, 22 Ill. 2d 23, 174 N.E. 2d 153 (1961). While a defendant is generally under no duty to prevent the criminal acts of a third party absent a “special relationship.” Hills v. Bridgeview Little League, 195 Ill. 2d 210, 228, 745 N.E. 2d 166 (2000), Illinois courts have adopted “in-concert” liability.

Section 876 of the Restatement (Second) of Torts imposes liability on those who act in concert with another tortfeasor giving substantial assistance or encouragement to another’s tortious conduct. The Illinois Supreme Court has adopted Section 876 in Simmons v. Homatas, 236 Ill. 2d 459, 925 N.E. 2d 1089 (2010). The court in Simmons stated: “Although one does not have a duty to prevent the criminal acts of a third party, one does have a duty to refrain from assisting and encouraging such tortious conduct.” 236 Ill. 2d at 476, 925 N.E. 2d at 1100.

In-concert liability may be a narrow exception to the rule that no duty exists to prevent the criminal acts of a third person absent a “special relationship,” nonetheless all of avenues of recovery should be explored in these tragic accidents. All cases of serious personal injuries or wrongful death should always be investigated by an experienced jury trial lawyer who can best assess whether all avenues of recovery are being explored. Should you so choose you can contact Edmund Scanlan toll free at 877-494-1309 for a free consultation to discuss your options.

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