DCBA - Recent Case Law

Recent Case Law

By Steven R. Merican

Here are a few recent cases of importance and note - June 2004.

Following are summaries of selected opinions recently issued by the Illinois Supreme Court:

Adams v. Northern Illinois Gas Co., 2004 Ill. Lexis 379, Docket No. 94748 (4/1/04). Utility has a common law duty to warn customer of danger caused by potentially ill-fitting connector about which the Utility has knowledge. The Utility’s tariff does not abrogate the common law duty. Janice Adams died when her house caught fire and exploded. The explosion occurred from a failure of the flexible brass gas connector that connected her kitchen range to the gas supply. That style connector was used a great deal throughout the 1950s, 60s and 70s. It became known — and the record showed that NI-Gas indisputably was aware — that a chemical reaction with natural gas could cause the connector to fail, thus allowing release of natural gas into the premises.

In a wrongful death action, plaintiff claimed that NI-Gas had a duty to warn Janice Adams that the connector had a tendency to fail. NI-Gas moved for summary judgment, arguing that it did not owe a duty to warn that the connector was potentially hazardous because decedent, not NI-Gas, owned the connector.

The circuit court agreed with NI-Gas and entered summary judgment. The appellate court reversed. The supreme court held that NI-Gas did have a common law duty to warn, and that NI-Gas’s tariff did not discharge that duty.

NI-Gas argued that its duty to its customers extended only for the distribution of gas while it is under the company’s control – i.e., the time the gas is in the NI-Gas’s own pipes. The court rejected that argument because: "In the present case … there is no dispute that NI-Gas knew that sulfides in the gas corroded brazed connectors, ultimately causing the connectors to leak gas; it was only a question of when the connector would fail. Based on its superior knowledge and the fact that it helped to create the dangerous condition, we hold that NI-Gas owed a common law duty of reasonable care with respect to the brazed connectors."

NI-Gas also argued that its tariff on file with the Illinois Commerce Commission "is the sole source of its duties to its customers." The tariff states that NI-Gas "assumes no responsibility in connection with the installation, maintenance or operation of the Customer’s equipment…"

The supreme court acknowledged that "a tariff provision such as the one at issue in this case provides the source for, and determines the nature and extent of, a public utility’s service obligations to its customers." However, "if the claim is unrelated to the tariff, then the claim is not limited or barred."

The court ruled that applying a common law duty on NI-Gas in this case would not conflict with the public policies that underlie a utility’s tariff. "Plaintiff is not seeking rate preferences that are not accorded to other NI-Gas customers; she is not seeking to enforce ‘side agreements’ which vary from our interpretation of the tariff. Rather, if proved, awarding damages on plaintiff’s claim would neither discriminate against other NI-Gas customers nor involve the court in tariff setting."

Arvia v. Madigan, 2004 Ill. Lexis 671, Docket No. 95590 (4/15/04). Zero Tolerance Law does not violate Equal Protection or Due Process rights. The Zero Tolerance Law permits a police officer, with probable cause, to request a driver who is younger than 21, if he is arrested, to take a Breathalyzer test. If the test shows any alcohol content, then the driver’s driving privilege is suspended for three months. If the driver refuses to take the test, driving privileges are suspended for six months.

Patrick Arvia, who was under the age of 21, was pulled over for failing to obey a stop sign. The police officer requested that Arvia take a Breathalyzer Test. Arvia refused, so his driver’s license was summarily suspended for six months. Arvia’s appeal of the suspension through an administrative hearing in the Secretary of State’s office was denied. He then sued in the circuit court for a declaration that the Zero Tolerance Law violated the equal protection rights of drivers under the age of 21.

Arvia’s theory was that driver’s younger than 21 are treated differently than older drivers who are arrested for driving under the influence of alcohol. Under the Zero Tolerance Law, Arvia was required to challenge the license suspension at an administrative hearing. However, older drivers arrested for DUI may challenge the suspension at a judicial hearing in the circuit court. Arvia argued that the judicial hearing was a superior method to that offered through the Secretary of State’s office.

The circuit court ruled that the law violated equal protection and due process rights. However, the supreme court reversed, first pointing out that had Arvia been arrested for driving under the influence "he would have had the same access to a judicial hearing to contest the summary suspension of his driving privileges as any other driver because the DUI law does not distinguish among drivers on the basis of age."

The supreme court also concluded that "persons faced with summary suspension of driving privileges under the zero tolerance law are not similarly situated to persons faced with summary suspensions under the DUI law for purposes of equal protection review …"

The court focused on the differences underlying each law. "Under the DUI law, the implied-consent provisions [to take a Breathalyzer test] are only triggered where the person is arrested for driving under the influence of alcohol or drugs … In contrast, the implied-consent provisions of the zero tolerance law are triggered where a driver under the legal drinking age violates any provision of the Illinois Vehicle Code and the officer has probable cause to believe he or she has consumed any amount of an alcoholic beverage … A young driver whose license is suspended under the zero tolerance law faces no other collateral consequences, such as criminal prosecution."

The supreme court also reversed the circuit court’s ruling that the Zero Tolerance Law violated due process rights. "We find no basis to conclude, as the circuit court did, that the administrative hearing under the zero tolerance law was substantially different from the judicial proceeding under the DUI law and no reason to conclude that the administrative procedure deprives drivers of procedural due process."

Wexler v. The Wirtz Corp., 2004 Ill. Lexis 383, Docket Nos. 94127, 94128, 94171 (4/1/04). Retail purchaser of liquor does not have standing to contest the constitutionality of tax levied on manufacturers and distributors of alcoholic beverages. Saul Wexler sued to contest the constitutionality of a tax imposed on manufacturers and importing distributors of alcoholic beverages. Wexler was a retail purchaser of liquor, but was neither a manufacturer nor a distributor. His theory was that he paid more for his liquor, and therefore could contest the tax, "because the higher tax was passed along to retailers and then to consumers in the form of higher prices." Defendant state officials claimed that Wexler did not have standing to contest the tax. The supreme court agreed, and reversed the circuit court’s ruling that the tax was unconstitutional.

Wexler’s complaint that he actually paid the tax in the form of a higher retail price did not afford standing. The supreme court ruled: "To the extent that Wexler was actually burdened by the higher tax … it was a burden he shouldered willingly." Even if Wexler’s higher price was a tax payment, his situation did not fit the categories that allow a taxpayer to contest a tax: (1)lack of knowledge of the facts upon which to protest the tax at the time it was paid; (2) payment of the tax under duress.

Wexler knew about the tax and planned to protest it, so the court focused on the issue of duress. "Implied duress will suffice … Such duress exists where the taxpayer’s refusal to pay the tax would result in loss of reasonable access to a good or service considered essential." The court ruled that alcoholic beverages are not essential goods. "Without commenting on the social utility of beer, wine, and spirits, we note simply that they are not essential, in any objective sense, to consumers such as Wexler."

Wexler also argued that the State Officers and Employees Money Distribution Act provided standing. The Act, also known as the Protest Fund Act, allows taxpayers to recover voluntary tax payments that are made under protest. The supreme court rejected this argument, too, for similar reasons. The tax was levied on the distributor, not Wexler, so "Wexler was not responsible for paying or remitting any part of the challenged tax to the state," contrary to a requirement of the Act.

The court referred to the situation as "peculiar." "Judge and Dolph [distributor], which pays the tax, does not wish to challenge it. Wexler, who seeks to challenge the tax, has never paid it." The court therefore denied Wexler standing.

Steve Merican is a sole practitioner in Oakbrook Terrace, Illinois. His practice concentrates on appeals in state and federal courts. His URL is http://www.illinoislocalcounsel.com.