“Friends Don’t Let Friends Drive Drunk” Takes on New Meaning: In-Concert Theory Alive and Well in Illinois

The Illinois Appellate Court reversed a Lake County Court’s dismissal of a personal injury and wrongful death action filed for the death of a child against the boat driver’s girlfriend. The child fell off of an inflatable tube while tubing and was struck by a cigarette boat driven by one of the defendants who was significantly impaired by cocaine and alcohol. The plaintiff’s case against the defendant’s girlfriend was reinstated because it adequately stated a claim under the theory of in-concert liability. The defendant’s girlfriend could be liable because she, 1) actively encouraged him to continue operating the boat at speeds in excess of 40 mph, 2) provided him with money for cocaine and alcohol, and 3) knew of his history of drug and alcohol abuse. Under an in-concert theory, the girlfriend was deemed a contributing tortfeasor whose encouragement of the boat operator constituted substantial assistance and a proximate cause of the child’s death. The court also upheld the plaintiff’s claim for negligent infliction of emotional distress on behalf of the child’s sister who was riding on same tube in the direct path of the boat less than 50 feet from the collision. She saw the collision and feared that she would be struck by boat. While the common sense endemic in the law usually holds adults responsible for their own risky behavior, i.e. alcohol and drug consumption, this represents a departure when another person is an active contributor to the risky behavior that leads to injury. It also presents another potential avenue of recovery for plaintiff’s attorneys to pursue on behalf of injury victims. Borcia v. Hatyina, 2015 IL App (2d) 140559 (April 14, 2015).