On Nov. 27, 2008, Galissa Brown walked out of the Nitro Nightclub in west suburban Stone Park, Ill., at about 1 a.m. She began walking with some of her friends to their car. The police had already been called to this nightclub because of 4 or 5 stabbings. It had been a violent night.
Two blocks from the nightclub, Brown was the victim of a hit-and-run driver. Brown was taken to Loyola Medical Center in Maywood, Ill., and pronounced dead at 1:58 a.m. Neither the vehicle nor the individual driver was ever identified.
Brown alleged that Nitro served alcoholic beverages to the unidentified driver of the car that killed his daughter. In the affidavits that were supplied, it was stated that the car that hit her had been seen parked at the Nitro Nightclub the previous night. That driver, Brown claimed, became intoxicated at the Nitro Nightclub and then became involved in an altercation at the club. The same person then left the club and tried to drive away. That was when the driver hit Brown’s daughter, Galissa. Brown maintained that Nitro, by selling alcohol to the unknown driver, created his state of intoxication and was therefore directly and proximately the cause of the young woman’s unfortunate death.
Nitro was successfully served with the lawsuit in February 2011. There had been several attempts that failed in service of process. Written and oral discovery took place, but the depositions failed to include information that could identify the unknown driver.
On Nov. 9, 2012, Nitro moved for summary judgment arguing that without knowing the identity of the driver, Brown could not show that Nitro had served the driver alcohol or been responsible for the driver’s intoxication and could not prove his claim under the Dram Shop Act.
Brown then moved to reopen discovery, which the court allowed; further depositions and evidence were reviewed. Brown then added a count of negligent spoliation of evidence, claiming that Nitro taped over its surveillance video after 72 hours, destroying the chance of discovering the driver’s identity.
According to Brown, Nitro had a duty to preserve the tape due to the violent nature of the night and because it knew that Brown’s daughter and the driver were at the club at about the same time that night and early morning.
In addition, it was claimed that the nightclub’s owners knew that the police had said they planned to inspect the club’s video footage of the night and morning of this incident to see whether the driver of the vehicle that killed Galissa Brown could be identified.
Brown testified that he believed the driver to be a member of a local street gang, something which frightened the witnesses into silence. A witness statement suggested that the driver was a Nitro patron, but this was dismissed by the Stone Park Police Department’s commander and lead detective in the case as hearsay.
The police department never did request Nitro’s surveillance footage. On March 15, 2013, the circuit court judge granted summary judgment in favor of Nitro. Brown appealed.
With respect to the negligent spoliation count, the court said that there is a requirement that the plaintiff must first show that the defendant owed him a duty of care. Brown argued it was evidence of the negligence, not to the duty, to which negligent spoliation applies. Brown was unable to show that Nitro had a duty of care to Brown or his daughter to preserve the videotape.
There was no proof that Brown had requested Nitro to preserve its surveillance video before the lawsuit was filed. It was only well after the tape had been erased that Brown made the request. The appellate court therefore ruled that Brown had failed to establish either that Nitro had a duty of care to Brown or his daughter or that Nitro had any reason to foresee that the evidence should have been preserved. Accordingly, the summary judgment motion granted in favor of Nitro was affirmed by the Illinois Appellate Court.
Reginald Brown v. Nitro Nightclub, 2014 IL App (1st) 131245-U (June 30, 2014).
Kreisman Law Offices has been handling truck accident cases, car accidents and wrongful death lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Palos Heights, Palos Park, Morton Grove, Harvey, Hazelcrest, Country Club Hills, Lansing, Glenwood, Lynwood, Olympia Fields, Chicago Heights, South Chicago Heights, Crete, Steger, Park Forest, Tinley Park, Orland Park, Joliet, Western Springs, Evergreen Park and Calumet City, Ill.
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