Gregor v. Kleiser

443 N.E.2d 1162, 111 Ill. App. 3d 333, 67 Ill. Dec. 38, 38 A.L.R. 4th 193, 1982 Ill. App. LEXIS 2599
CourtAppellate Court of Illinois
DecidedDecember 29, 1982
Docket82-58
StatusPublished
Cited by57 cases

This text of 443 N.E.2d 1162 (Gregor v. Kleiser) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gregor v. Kleiser, 443 N.E.2d 1162, 111 Ill. App. 3d 333, 67 Ill. Dec. 38, 38 A.L.R. 4th 193, 1982 Ill. App. LEXIS 2599 (Ill. Ct. App. 1982).

Opinion

JUSTICE VAN DEUSEN

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Du Page County dismissing plaintiff’s second amended complaint for failure to state a cause of action against William E. Kleiser, Donna Kleiser and William Kleiser, Jr. In his reply brief, plaintiff conceded that his reliance on the doctrine of nuisance in count II was misplaced, and he therefore withdrew those allegations and has limited his appeal to that portion of the order dismissing count I of his second amended complaint.

An appeal from an order dismissing a complaint for failure to state a cause of action preserves for review only a question of law as to the complaint’s legal sufficiency. (Richards v. Leimbacher (1971), 131 Ill. App. 2d 775, 778.) The well-settled principles of law that control the disposition of such a motion are succinctly set forth in Cain v.

American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 578-79:

“A motion to dismiss admits for purposes of review such facts as are well pleaded, but it does not admit conclusions of law, the pleader’s construction of a statute, or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. (Richards v. Leimbacher, 131 Ill. App. 2d 775, 267 N.E.2d 523; Fred Nemerovski, and Co. v. Barbara, 106 Ill. App. 2d 466, 246 N.E.2d 124.) In determining whether a complaint states facts or conclusions, the complaint must be considered as a whole and not in its disconnected parts. (Courtney v. Board of Education, 6 Ill. App. 3d 424, 286 N.E.2d 25.) With these legal principles in mind, a complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle plaintiffs to relief. (Courtney v. Board of Education, swpra; Callaizakis v. Astor Development Co., 4 Ill. App. 3d 163, 280 N.E.2d 512.) Finally, section 42(2) of the Civil Practice Act states that ‘[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.’ (Ill. Rev. Stat. 1973, ch. 110, par. 42(2).)”

Therefore, the question before us is whether, measured by the foregoing standards, the allegations of count I of the plaintiff’s second amended complaint are sufficient to state a cause of action against any or all of the defendant Kleisers.

Count I of the complaint charged that certain alleged acts or omissions of the defendants constituted wilful and wanton misconduct which was the proximate cause of plaintiff’s injuries and damages.

In more detail, count I asserted, in substance, that on or about February 22, 1980, approximately 200 teenagers, most if not all of whom had been invited by William Kleiser, Jr., were gathered at the residence of William E. Kleiser and Donna Kleiser between the hours of 7:30 p.m. and 11:30 p.m. as the guests of the Kleisers and their teenage son, William Kleiser, Jr. Defendant Pape was also a guest at the invitation of William Kleiser, Jr., who engaged, authorized and directed Pape to maintain discipline by physical force and to perform the role of bouncer. Defendant Kleiser, Jr., knew well Pape’s reputation and vicious propensities for violence upon others, as well as his body-building, weight-lifting achievements and extraordinary physical strength. It was further asserted in the complaint that the 200 guests so gathered were unmanageable and constituted a danger to the pub-lie, including plaintiff; that they consumed alcoholic beverages; that the combination of the large number of young persons and the consumption of alcohol by them created a dangerous situation to the public at large, including plaintiff; and that the Kleisers knew or should have known that the above combination of facts created a condition which was dangerous and constituted a threat of bodily injury to the public at large, including plaintiff. At approximately 11:30 p.m., according to the allegations in the complaint, Pape, without cause or provocation, assaulted the plaintiff, causing the plaintiff to have severe and permanent injuries. Additionally, the complaint alleged that the Kleisers and each of them were guilty of conscious, reckless and wilful acts or omissions as set forth which proximately caused plaintiff to be injured and damaged.

Under the facts well pleaded, plaintiff was a social guest upon the premises of William E. Kleiser and Donna Kleiser. A social guest is a person who goes onto the property of another for companionship, diversion and enjoyment of hospitality. (Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 673.) It is well settled that a social guest is treated as a licensee and not an invitee. Ciaglo v. Ciaglo (1959), 20 Ill. App. 2d 360, 367.

A property owner is under no duty to make premises safe for a licensee. His only duty is to warn the licensee of concealed defects that are known to the owner and refrain from injuring him wilfully or wantonly. (DuMond v. City of Mattoon (1965), 60 Ill. App. 2d 83, 91, citing Kapka v. Urbaszewski (1964), 47 Ill. App. 2d 321, 325.) Wilful and wanton misconduct means a course of action which shows either a deliberate intention to harm or an utter indifference to, or conscious disregard for, the safety of others. (Kapka v. Urbaszewski (1964), 47 Ill. App. 2d 321, 324.) Wilful and wanton misconduct must be manifested by the facts alleged in the complaint, and the mere characterization of certain acts as wilful and wanton misconduct is insufficient to withstand a motion to dismiss. Cipolla v. Bloom Township High School District No. 206 (1979), 69 Ill. App. 3d 434, 437.

We first point out that the allegations of the complaint that the number of the guests of the defendants was so large as to be unmanageable and to constitute a danger and threat to the public at large, including the plaintiff, and the additional allegation that the combination of a dangerously large number of approximately 200 young persons together with the consumption of alcoholic beverages by said young persons created a dangerous situation are conclusions of fact. A motion to dismiss does not admit conclusions of fact unsupported by underlying allegations of specific facts upon which such conelusions rest. (Richards v. Leimbacher (1971), 131 Ill. App. 2d 775, 778.) The underlying allegations here are that 200 teenagers, minors and adults, were gathered on defendants’ premises and consumed alcoholic beverages. There are no allegations that any of the group were intoxicated, nor are any facts alleged upon which one could conclude that they were acting in an unruly or dangerous manner. The only antisocial behavior alleged in the complaint was that Charles A. Pape, without cause or provocation, struck and injured the plaintiff.

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Bluebook (online)
443 N.E.2d 1162, 111 Ill. App. 3d 333, 67 Ill. Dec. 38, 38 A.L.R. 4th 193, 1982 Ill. App. LEXIS 2599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregor-v-kleiser-illappct-1982.