Where a decedent leaves the business premises of defendant and travels off the property before suffering an injury, the defendant can not be held liable under premises liability as that only applies while the plaintiff is physically on the defendant’s property.

The 1st District Appellate Court affirmed the decision of Cook County Circuit Judge James N. O’Hara.

On Aug. 13, 2011, Megan Elam attended a concert with her friends that was hosted, promoted, owned, operated, managed and maintained by Live Nation Worldwide Inc. (Live Nation). In addition, Live Nation provided security services. One of Megan’s friends was Sarah Lavko. Prior to the concert, Lavko purchased a bottle of rum, which she drank a large amount. Lavko attended the concert and went unnoticed by security. Disputed deposition testimony suggested that she also drank a mixture of codeine and soda. Megan accepted a ride home from Lavko, who drove onto the gravel shoulder of a curve at 83 miles per hour, swerving wildly and flipping the vehicle into a drainage ditch. Megan, who had not been wearing a seatbelt, died of her injuries. A marijuana pipe was found in Lavko’s purse and had not been noticed or confiscated by Live Nation security and Lavko’s blood alcohol level was .197, well over twice the legal limit.

Debra and William Elam (the Elams) hired O’Connor & Nakos Ltd. to (O’Connor & Nakos) to pursue money damages. They settled with Lavko for the full $100,000 policy limit, and in 2012, filed a wrongful death action against Live Nation and Aramark Sports & Entertainment Services LLC. Aramark settled for $135,891.98. In 2013, a third amended complaint was filed against Live Nation for wrongful death, alleging the dangerous turnoff designated for vehicles exiting the venue led to Megan’s death. Live Nation moved for summary judgment, and in July 2014, the Elams settled with Live Nation for $10,000.

The Elams filed suit against O’Connor & Nakos in 2016, alleging legal malpractice for failure to timely plead recognized theories of liability, citing the known propensity of concertgoers to drive drunk, the voluntary security measures and Live Nation’s failure to perform the duties with due care and enforce its own rules. O’Connor & Nakos moved for summary judgment, arguing that no negligence could be shown because Live Nation, as a matter of law, could not be liable for Megan’s death. The trial court granted summary judgment. The Elams appealed.

On appeal, the Elams asserted that they had valid claims against Live Nation in premises liability and as a voluntary undertaking which O’Connor & Nakos failed to pursue. The appellate court disagreed. The first issue was that of premises liability. The appellate court emphasized that it was undisputed that the accident took place around one mile away from Live Nation’s premises, and the appellate court cited the Restatement (Second) of Torts section 344, that a commercial landowner “is subject to liability to members of the public while they are upon the land[.]” Because the accident did not occur on the premises, the Elams had no claim sounding in premises liability.

The appellate court also emphasized that the provision of general security does not imply a voluntary duty to monitor the intoxication level of all concertgoers or to prevent intoxicated people from driving. Live Nation security was instructed to prevent disruptions and encourage enjoyment of the event. As the Elams provided no theory under which they could have recovered additionally from Live Nation, the appellate court concluded that the trial court had been right to grant summary judgment.

The appellate court therefore affirmed the decision of the circuit court.

Debra Elam, et al. v. O’Connor & Nakos Ltd., et al.
2019 IL App (1st) 181123
Writing for the court: Justice Bertina E. Lampkin
Concurring: Justices Robert E. Gordon and Eileen O’Neill Burke
Released: April 9, 2020