Illinois Appellate Court Affirms Section 318 of the Restatement (Second) of Torts Does Not Apply in Illinois – Tilschner v. Spangler

In the premise liability lawsuit of Tilschner v. Spangler, No. 2-10-0111 (May 6, 2011), the Illinois Appellate Court was asked to determine whether a specific law was applicable in Illinois. After reviewing past Illinois case law, the appellate court held that §318 of the Restatement (Second) of Torts has not been adopted in Illinois. The Illinois Appellate Court ruling essentially eliminated the legal basis of the plaintiff’s claim, thereby affirming the lower court’s dismissal of Count II of plaintiff’s complaint.

Tilschner was brought against defendant Ralph Ruppel after he lit fireworks that injured Patricia Tilschner; Tilschner brought a common-law negligence count against Ruppel for his role in causing the injuries Tilschner sustained. However, the appeal involves the negligence claim Tilschner sought to bring against Lowell Spangler, the property owner hosting the party at which the fireworks injury took place.

In Count II of her personal injury complaint, Tilschner alleged that Spangler

[o]wed a duty to the Plaintiff and his other invited guests to keep control and care over his property and to protect them against any unreasonable risks of harm known due to acts of a third person under his control, including the Defendant, Ralph Ruppel, pursuant to the Restatement (Second) of Torts, §318.

However, the trial court dismissed this claim against Spangler, citing the fact that §318 had yet to be adopted by Illinois courts and therefore could not serve as the basis for Tilschner’s negligence claim.

According to the Yale Law School definition, restatements “were developed by legal scholars initially to restate the law, and currently to describe what the law should be. In either case, Restatements are very persuasive although they are not very good at describing the law. They can serve as adequate law finders.”
The Restatement (Second) of Torts at issue in Tilschner, i.e., §318, states:

If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, of present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him of intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to control the third party, third person, and,
(b) knows or should know of the necessity and opportunity for exercising such control.

Before determining whether or not §318 applied to Illinois Courts, the Appellate Court established the guidelines for determining this issue. Basically, in Illinois a restatement is not binding unless it is adopted by the Supreme Court. Eckburg v. Presbytery of Blackhawk, 396 Ill.App.3d 164 (2009); In re Estate of Lieberman, 391 Ill.App.3d 882 (2009). There a simple case review should establish whether or not the Supreme Court had ever officially adopted §318.

In its appeal, plaintiff submitted some case law which it claimed demonstrated that the Illinois Supreme Court had in fact adopted §318. However, the Illinois Appellate Court viewed these matters differently. For example, regarding Cravens v. Inman, 223 Ill. App. 3d 1059 (1991), the Illinois Supreme Court specifically stated that “it did ‘not agree that the views set forth in Cravens [regarding §318] should be adopted through judicial decision.” The appellate court interpreted this statement as evidence that the Supreme Court had not imposed liability under §318.

Likewise, the appellate court dismissed Tilschner’s negligence claims regarding Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 503-04 (1988) and Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 530 (1987), noting that neither claim was based on the application of §318.

Therefore, based on the plaintiff’s inability to cite a single case wherein the supreme court specifically adopted §318 of the Restatement (Second) of Torts, the appellate court determined that the supreme court had yet to officially adopt this section. Until it does, §318 is not law in Illinois and therefore cannot serve as the basis for Count II of Tilschner’s complaint. The appellate court affirmed the lower court’s decision.

Kreisman Law Offices has been handling Illinois premise liability lawsuits for individuals and families for more than 35 years in and around Chicago and Cook County, including Glendale Heights, Carol Stream, Glen Ellyn, and Burr Ridge.

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