Bethany Krajelis Feb. 24, 2015, 5:13pm

An underage drinker who lost all of his toes to frostbite after failing to notice his shoes came off on his walk home will not be able to revive his lawsuit against the Chicago bar that served him or the man who offered him a ride, an appeals panel held this week.

The First District Appellate Court on Feb. 23 affirmed Cook County Circuit Judge Lynn M. Egan's ruling that granted summary judgment to Pap's Tap Inc. and Raymond Drish, the defendants in a lawsuit plaintiff Jacob Sears brought in 2013.

Justice Mathias W. Delort wrote the panel's 18-page unpublished order, with Justices Joy V. Cunningham and Maureen E. Connors concurring.

Sears' suit stemmed from injuries he sustained on Dec. 21, 2008 after a night at Pap's Tap, a neighborhood bar at 5532 S. Narragansett Ave. in the Garfield Ridge area.

On Dec. 20, 2008, Sears and his friend, both of whom were 18 at the time, went to Pap's Tap, where they sat at the bar and were served drinks. They both testified they weren't required to show ID when they entered the bar or ordered booze.

Drish arrived at the bar early on Dec. 21 after finishing work with his catering business. He was accompanied by one of his employees and a friend of his met them there.

According to Sears' friend, once Drish started talking to them and saw they were drinking Jameson whiskey, Drish asked the bartender to put the bottle on the bar and stopped paying for drinks.

Sears, the order notes, testified he "consumed 'a couple shots of whiskey' and at least six (and possibly eight to fourteen) beers while he was at Pap's Tap."

After that, however, Delort wrote that "Sears and Drish offered differing accounts of what happened next."

Sears claims Drish told him and his friend that he would buy them drinks at another bar once Pap's Tap closed. He said he declined his friend's offer to drive him home and was "more than drunk" when he left to go to another bar with Drish.

Sears contends Drish said he would give him a ride home, but that he walked home in the cold because he felt uncomfortable and feared for his safety after Drish allegedly made sexual advances toward him at the second bar.

"According to Sears, as he was walking home his shoes became stuck in snow and ice and fell off multiple times," Delort wrote in the panel's order. "As a result of the extremely cold temperature, Sears’s feet became numb. Due to the numbness in his feet, Sears eventually failed to notice that his shoes had come off again."

He adds, "As a result of having walked outside in extreme cold while not wearing shoes, Sears suffered severe frostbite to his feet, requiring the amputation of all of his toes and parts of his feet."

Drish, however, claims he never offered to take Sears to a second bar, but was going to give him a ride home from Pap's Tap. While they were waiting for his car to warm up, Drish alleges Sears asked him what he was going to do and he told him he headed to a gay bar.

After asking if he could come with, Drish said he brought Sears to a since-shuttered bar called Escapades, which is about two miles away from Pap's Tap, according to a footnote in the order that cites Google Maps.

Drish then contends that even though he didn't stay near him the entire time, he tried to find Sears before he left that bar to see if he needed a ride. Unable to locate him at Escapades, Drish claims he left.

In June 2013, Sears filed a lawsuit alleging common law negligence against the bar and Drish.

He argued that Pap's Tap had a duty to prevent injury to business invitees and breached that duty when it served him alcohol even though he was underage, as well as failing to offer him the opportunity to stay there to sober up and provide him with a safe means of transportation home, among other claims like failing to card him.

Sears also claimed Pap's Tap owed him a duty “to be free from negligence and to act with reasonable care in its business operations,” but breached that duty when he let Drish use his ability to control the bar to facilitate underage drinking.

Although he testified he walked home from the second bar because Drish had made him feel uncomfortable, the order notes that Sears' suit alleges Drish, who it refers to as an agent, servant and employee of Pap's Tap, ejected him from the vehicle.

Both Pap's Tap and Drish filed motions for summary judgment, saying Sears' claims fall under the Liquor Control Act because they are based on alcohol.

In November 2013, Egan, the trial judge, agreed and granted the defendants' motions, entering judgment in their favor. She further explained Sears' claims were barred because he was the intoxicated person and were brought after the one year period of statute of limitations.

The trial judge also determined that Sears failed to prove Drish ejected him from his car, Drish was not an agent of Pap's Tap, the defendants had a duty to give him a ride home or that they engaged in a voluntary undertaking giving rise to a duty.

Although they believed Egan "relied on an incorrect premise" by applying Sears' suit to the Liquor Control Act even though he "brought tort claims sounding in negligence," the First District justices affirmed her ruling, granting summary judgment to the defendants.

The panel held that Sears' alcohol-related claims aren't valid tort claims under Illinois law because 1) he didn't allege his injury occurred at Pap's Tap given that it happened after he left the second bar and 2) because he was not exposed to danger by Pap's Tap or one of its employees, as he made the decision to decline his friend's offer for a ride home and leave.

On top of determining those claims aren't valid tort claims, the justices further determined "that Sears’s common-law claims are preempted by the [Liquor Control] Act and that we are thus precluded from recognizing the validity of these claims."

The panel also rejected Sears' contention Drish was an agent of Pap's Tap and that he was acting within the scope of his relationship with the bar on Dec. 21, 2008, saying he forfeited the issue by failing to provide the court with any arguments.

And because that issue was central to effort to hold the bar liable, Delort wrote "Sears cannot establish Paps Taps liability for Drish's actions."

Forfeiture aside, the panel said Sears' claims still would have failed because his argument that Drish was an agent because he's been friends with the owner for 40 years, has volunteered there, made bank deposits, taken inventory and maintained the bar's Facebook page were either "not persuasive" or supported by the record.

Based on its finding that Drish was not an agent of Pap's Tap, the justices said Sears' voluntary undertaking claim must also fail.

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