Rhys Saunders Sep. 4, 2013, 11:43am

The First District Appellate Court has upheld the dismissal of negligence claims against the owner of a bar where a man had been attacked shortly before he was killed.

In an unpublished order filed Aug. 15, the appeals panel held that the bar manager of the Green Dolphin, 2200 N. Ashland Ave., was not under any obligation to warn Carlos Aguirre Jr. of a threat made inside the bar by a man who killed him about an hour later.

Justice James Epstein delivered the court's order and Justices Terrence Lavin and Aurelia Pucinski concurred.

According to the appellate court order, Jose Melecio and a group of unnamed people got drunk at the Green Dolphin during the early morning hours of Nov. 8, 2009, when he physically assaulted Aguirre before the bar manager ejected him.

Melecio then told the manager “he was going to get his boys and ‘shut this place down,’” the order states.

Aguirre stayed inside the bar for about an hour after Melecio left, and was later shot while walking toward his vehicle.

Jocelyn Contini filed a civil suit against the Green Dolphin on behalf of her minor daughter, Samantha Contini, who is also Aguirre’s daughter and the special administrator of his estate.

In a second amended complaint filed March 6, 2012, Contini sought recovery under the Illinois Dram Shop Act, which establishes the liability of businesses that sell liquor when death or injury is caused to third-parties. She also sought recovery under the Illinois Wrongful Death and Survival acts.

Contini asserts in her suit that the bar was negligent under the Wrongful Death Act because bar personnel should have known that Melecio was “an intoxicated, belligerent, aggressive and dangerous individual who had physically assaulted” Aguirre inside the bar.

The suit also claims the bar’s general manager should have known that Melecio’s statement that he was “going to get his boys and ‘shut this place down’” showed his intent to return to the bar that same day, and that when he did, Aguirre was likely to be a target of violence.

Contini contends that because Aguirre stayed inside the bar for “nearly an hour” after Melecio left, he remained “within the ‘special relationship with defendant’ created by Aguirre’s patronage."

Because of that “special relationship” and the “unreasonable and foreseeable risk of physical harm which arose as aforesaid within the scope of that relationship,” Contini claims the bar manager was obligated to warn Aguirre of Melecio’s statement.

The appeals panel, however, sided with the Green Dolphin's argument that requiring the bar manager to warn Aguirre of Melecio's statement was too burdensome, the threat was vague and the risk of harm specifically to Aguirre was not “reasonably foreseeable.”

“Any duty to provide a warning regarding Melecio’s statement presumably would need to extend to all patrons at defendant’s establishment, not just Aguirre,” Epstein wrote for the panel.

He added, “In addition, (the bar manager) would need to offer direction to its patrons in order to avoid panic and potential injury. If Melecio did not return that day, such duty to warn presumably would continue indefinitely, or at least until Melecio and ‘his boys’ were apprehended.”

The appeals panel also rejected a challenge to the timeliness of the appeal.

On July 26, 2012, Cook County Associate Judge William Gomolinski entered an order dismissing with prejudice the negligence-related counts of the suit. Contini filed a motion to reconsider the order to dismiss the counts the following month.

Gomolinski denied her motion on Sept. 13, 2012, stating that “the filing of (Contini’s) Motion to Reconsider tolled the time for filing an appeal of the Court’s July 26, 2012, order.”

Contini on Oct. 11, 2012 filed a notice of appeal relating to the order granting the motion to dismiss the negligence-related counts and the order denying the motion for reconsideration.

Green Dolphin claimed that Contini’s appeal of the order denying the motion for reconsideration be dismissed because she failed to file a notice of appeal within 30 days of the trial court’s July 26, 2012 order dismissing the negligence-related counts.

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