Falcon et al v. City of Chicago, et al

Filing 181

MEMORANDUM Opinion and Order signed by the Honorable Martha M. Pacold on 3/31/2021: For the reasons set forth in the attached opinion and order, the motions for summary judgment by defendants CPD officer Danielle Deering, Alsip Restaurant and Lounge, Inc., and VPEN, Inc., 116 , 121 , 141 , are granted. Mailed notice (cn).

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FRANCISCA FALCON, as
Representative of the Estate of RUBY
FALCON, Deceased
Plaintiff,

Case No. 17-cv-05991

v.

Judge Martha M. Pacold

CITY OF CHICAGO, a municipal
corporation, DANIELLE DEERING,
ALSIP RESTAURANT AND LOUNGE,
INC. d/b/a Bar 122, and VPEN, INC.
d/b/a 115 Bourbon Street
Defendants.

MEMORANDUM OPINION AND ORDER
On July 20, 2016, Chicago Police Department (CPD) probationary officer
Ruby Falcon died of a gunshot wound at the home of her friend and colleague, CPD
officer Danielle Deering. Francisca Falcon, Falcon’s mother, as the representative
of Falcon’s estate, brought this seven-count action asserting a claim against the City
of Chicago under 42 U.S.C. § 1983 and state law claims against the city, Deering,
and two Chicago-area bars. Deering filed a motion for summary judgment on the
claims against her, [141]; the bars filed motions for summary judgment on the
claims against them, [116], [121]. For the reasons below, all three motions are
granted.
Background
In resolving defendants’ motions for summary judgment, the court views the
evidence in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The following facts are undisputed
unless otherwise noted.
On the night of July 29, 2016 (and into the early morning of July 30), Falcon,
Deering, and their colleague Sherry Wagner socialized at two Chicago-area bars.

DSOF, [143] ¶ 1. 1 The three began their evening at a bar called 115 Bourbon
Street, which is owned by defendant VPEN, Inc. (“VPEN”). [143] ¶¶ 2–3. Wagner
then drove the group to Bar 122, which is owned by defendant Alsip Restaurant and
Lounge, Inc. (“Alsip”). [143] ¶ 3. From there, Deering and Falcon took an Uber or
rideshare to retrieve Deering’s car from the parking lot of 115 Bourbon Street.
[143] ¶ 5. Deering then drove herself and Falcon back to Deering’s home to meet up
with other CPD coworkers. [143] ¶ 6.
Once Deering and Falcon arrived at Deering’s home, Deering directed her
coworkers to gather in the basement while she went upstairs to make up a bed and
retrieve beers from the kitchen. [143] ¶¶ 9–10. While in the kitchen, Deering
removed her off-duty weapon and holster and placed them on the kitchen counter.
[143] ¶ 11. Deering then observed Falcon entering the room. [143] ¶ 14. Deering
testified that Falcon asked where Wagner was, and that Falcon responded
aggressively when Deering said Wagner was not there. [143] ¶¶ 15–16. After that,
Deering says that she (Deering) saw Falcon hold Deering’s gun to her (Falcon’s)
head and pull the trigger. [143] ¶¶ 17–19. Cory Junious—the last officer to arrive
at Deering’s home—heard the shot from outside the back door where he was about
to enter. [143] ¶¶ 20–21. He came inside, where he saw Deering screaming and
Falcon collapsed, face down, on the other side of the kitchen island. [143] ¶¶ 22–23.
Responders to the scene found Deering’s gun underneath Falcon’s body. [143] ¶ 29.
In 2017, plaintiff filed suit in state court, and the City of Chicago removed
the case to this district. [1]. In January 2018, plaintiff filed a second amended
complaint alleging claims against Deering, Alsip, VPEN, and the city. [54].
The city moved to dismiss. The prior judge granted that motion in part (as to
Count II, the state law wrongful death claim against the city) and denied it in part
(as to Count V, the § 1983 Monell claim against the city). See Falcon v. City of Chi.,
No. 17-cv-05991, 2018 WL 2716286, at *7 (N.D. Ill. June 6, 2018), abrogated in part
by First Midwest Bank Guardian of Est. of LaPorta v. City of Chi., 988 F.3d 978,
987–90, 993 (7th Cir. 2021).

Bracketed numbers refer to docket entries and are followed by the page or paragraph
number. Page numbers refer to the CM/ECF page number. Citations to the parties’ Local
Rule 56.1 Statements of Fact are identified as follows: “DSOF” for Deering’s Statement of
Facts, [143] at 2–5; “Pl.’s Resp. DSOF” for Falcon’s response to Deering’s Statement of
Facts, [172] at 1–7; “PSOF” for Falcon’s Statement of Facts, [172] at 7–9; “Def.’s Resp.
PSOF” for Deering’s response to Falcon’s Statement of Facts, [178]; “VSOF” for VPEN’s
Statement of Facts, [122]; “Pl.’s Resp. VSOF” for Falcon’s response to VPEN’s Statement of
Facts, [130] at 1– 4; “Pl.’s SOF Re. VSOF” for Falcon’s Statement of Additional Facts in
response to VPEN, [130] at 4–5; “ASOF” for Alsip’s Statement of Facts, [115]; and “Pl.’s
SOF Re. ASOF” for Falcon’s Statement of Additional Facts in response to Alsip, [132].
1

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Later, Deering and the two bars (VPEN and Alsip) filed separate motions for
summary judgment on the claims against each of them, all of which are state law
claims. This opinion addresses those three motions.
Discussion
Summary judgment is proper where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). “The Supreme Court instructs that Rule 56 ‘mandates the entry of
summary judgment . . . against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.’” Austin v. Walgreen Co., 885 F.3d
1085, 1087 (7th Cir. 2018) (quoting Celotex, 477 U.S. at 322). In other words, to
resolve this motion for summary judgement, the court “must determine what it is
that [plaintiff] would be required to prove at trial,” Austin, 885 F.3d at 1088, and
ask whether “a reasonable jury” could find that she has met her burden of proof,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law—
here, Illinois state law—controls which facts the plaintiff would have to prove at
trial. Austin, 885 F.3d at 1088.
In adjudicating a motion for summary judgment, the court gives the
nonmoving party “the benefit of reasonable inferences from the evidence, . . . but not
speculative inferences in [its] favor.” White v. City of Chi., 829 F.3d 837, 841 (7th
Cir. 2016) (citations omitted); cf. Smith v. Eli Lilly & Co., 137 Ill. 2d 222, 232 (1990)
(“A fundamental principle of tort law is that the plaintiff has the burden of proving
by a preponderance of the evidence that the defendant caused the complained-of
harm or injury; mere conjecture or speculation is insufficient proof.”). “Speculation
does not defeat summary judgment,” Austin v. Walgreen Co., 885 F.3d 1085, 1089
(7th Cir. 2018), and the “mere ‘metaphysical possibility’” that defendant is liable “is
not enough to create a material issue of fact,” Jacobs v. Univ. of Wisconsin Hosp. &
Clinics Auth., 12 F. App’x 386, 390 (7th Cir. 2001) (quoting Robin v. Espo Eng’g
Corp., 200 F.3d 1081, 1091 (7th Cir. 2000)).
I. Deering’s Motion
Plaintiff’s second amended complaint asserts three claims against Deering:
wrongful death sounding in negligence (Count 1), survival sounding in battery
(Count 3), and survival sounding in negligence (Count 4). 2 Deering moves for
summary judgment on all three claims.

“Wrongful-death actions are meant to compensate for the injuries suffered by [the
decedent’s] family, whereas the survival actions target the injuries sustained by [the
decedent] herself.” Hankins v. Alpha Kappa Alpha Sorority, Inc., No. 19-cv-00147, 2020

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A. Battery (Count 3)
Deering first moves for summary judgment on the battery claim against her.
Under Illinois law, battery “is an intentional tort for the unauthorized
touching of the person of another.” Cunningham v. City of Chi., No. 17-cv-05070,
2020 WL 1503580, at *4 (N.D. Ill. Mar. 30, 2020) (citing Fiala v. Bickford Sr. Living
Grp., LLC, 2015 IL App (2d) 150067, ¶ 20 (2015)); see also Restatement (Second)
Torts § 18 cmt. e (“In order that the actor may be liable [for battery], it is necessary
that an act be done for the purpose of bringing about a harmful or offensive contact
or an apprehension of such contact to another or to a third person or with
knowledge that such a result will, to a substantial certainty, be produced by his
act.”).
Deering argues there is no evidence from which a reasonable factfinder could
determine that it is more likely than not that Deering fired the gunshot that killed
Falcon. Falcon’s death is a terrible tragedy, but plaintiff has not put forth any
affirmative evidence that Deering pulled the trigger or otherwise committed
battery. Given the summary judgment standard, the claim against Deering cannot
proceed. See Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (“[S]ummary
judgment is ‘not a dress rehearsal or practice run; it is the put up or shut up
moment in a lawsuit.’”) (citation omitted).
This plaintiff, “like all others, is entitled to try to meet [her burden] with
either direct or circumstantial evidence.” Kleen Prod. LLC v. Georgia-Pac. LLC, 910
F.3d 927, 934 (7th Cir. 2018). But the plaintiff still “need[s] to put forward evidence
that would allow a trier of fact to nudge the ball over the 50-yard line and rationally
to say that [liability] is more likely than not.” Id.; see also Smith v. Eli Lilly & Co.,
137 Ill. 2d 222, 232 (1990) (“conjecture or speculation is insufficient” to satisfy
plaintiff’s burden).
Meeting that burden—allowing a trier of fact to rationally say that liability is
more likely than not—presents a challenge for plaintiff here because only Falcon
and Deering were present in the room at the time of Falcon’s death; others were in
the house but not in the room. Thus, Deering is the only direct eyewitness to the
event, and of course Deering is also a defendant. Nonetheless, plaintiff must meet
the burden of responding to the motion with evidence that would allow a rational
factfinder to conclude that it is more likely than not that Deering shot Falcon.
Plaintiff has not done so. As explained below, the only available direct evidence
(Deering’s testimony) is that Falcon pulled the trigger (with what level of
intentionality, if any, is unknown). No direct evidence supports an inference that
Deering shot Falcon, and the “scintilla” of circumstantial evidence on which plaintiff
WL 1330660, at *3 n.4 (N.D. Ill. Mar. 22, 2020) (citing Wyness v. Armstrong World Indus.,
Inc., 131 Ill. 2d 403, 410 (1989)).

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rests her case—namely, evidence that Falcon was a generally happy person—is
insufficient to allow a factfinder to draw the conclusion that Deering shot Falcon
either. Robertson v. Dep’t of Health Servs., 949 F.3d 371, 378 (7th Cir. 2020).
Plaintiff points to three types of evidence as the basis on which a jury could
infer that Deering shot Falcon: (1) testimony of Scott Rochowicz, a forensic scientist
with the Illinois State Police, (2) testimony of Dr. Golden, the medical examiner who
conducted Falcon’s autopsy, and (3) testimony of family members and friends of
Falcon about Falcon’s typical mental condition. This evidence, however, would not
allow a jury to infer that Deering discharged the gun.
As to Rochowicz, the forensic scientist with the Illinois State Police,
Rochowicz performed a gunshot residue analysis on samples from the hands of
Falcon and Deering. Def.’s Resp. PSOF, [178] ¶ 16. Plaintiff points out, and
Deering does not contest, that Rochowicz noted that there was no evidence that
Falcon fired a gun, nor could he exclude the possibility that Deering fired a gun.
[178] ¶ 16. But Rochowicz also testified that he could not exclude the possibility
that Falcon fired the gun. [178] ¶ 16. Indeed, Rochowicz testified that both tests
(on Deering and Falcon) were negative for gunshot residue. [173-1] at 44. He
testified consistently that he could draw no conclusions about who was holding the
gun: that there was no evidence that Deering fired the weapon, [173-1] at 44, that
he did not know who was holding the firearm when it was discharged, [173-1] at 23–
25, that he could not exclude the possibility that Deering fired a gun, [173-1] at 55,
58, and that he could not exclude the possibility that Falcon fired a gun, [173-1] at
56, 58. Rochowicz further testified that it is “not uncommon” for a gunshot residue
test to find nothing on the hands of the shooter, in part because certain commonly
used types of ammunition do not contain the heavy-metal elements analyzed in
most gunshot-residue tests. Id. at 24, 47–48. In short, Rochowicz’s analysis and
testimony were wholly inconclusive. Nothing in Rochowicz’s testimony suggests
that Deering fired the weapon; any such inference “would be complete speculation,”
as Rochowicz himself testified. [173-1] at 58–59.
Plaintiff also cites testimony by Dr. Golden, the medical examiner who
conducted Falcon’s autopsy. Dr. Golden listed Falcon’s cause of death as a gunshot
wound to the head and the manner of death as “suicide” in her August 12, 2016
postmortem examination report. [143] ¶ 25; [172] ¶ 25; [173-2] at 10. Plaintiff
emphasizes that Dr. Golden based her conclusions in part on the CPD’s submission
stating that Falcon committed suicide. [172] at 9 ¶ 18; [178] ¶ 18. At her
deposition, Dr. Golden first testified that it was her opinion (based on both the CPD
submission and her examination, including the nature of the wound) to a
reasonable degree of medical and forensic certainty that the manner of death was
suicide, [173-2] at 10–11, 17, 23, then that the evidence was consistent with
homicide as well as suicide (the portion of the testimony that plaintiff emphasizes),
[173-2] at 26, and then that nothing in her examination contradicted the
information provided by CPD investigators, [173-2] at 27–28, and that she had not
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reviewed any evidence to indicate that this was not a suicide, [173-2] at 29.
Dr. Golden’s testimony also reflects that given the nature of the wound (a “hardcontact” wound), whether a homicide or suicide, the gun would have had to have
been held directly against Falcon’s head. [173-2] at 11, 23, 29. Given this
testimony, to find for plaintiff, a jury would need to have a basis to conclude that
Deering held the gun directly to Falcon’s head and fired it. While that may have
been a theoretical possibility, plaintiff identifies no evidence that could support that
inference. As with Rochowicz’s testimony, Dr. Golden’s testimony does not suggest
that Deering fired the gun. A reasonable jury could not hold Deering liable for
battery solely because the available physical evidence does not rule out the
“metaphysical possibility” of a homicide in the abstract. Robin, 200 F.3d at 1091; cf.
Joyce v. JC Penney Corp., 389 F. App’x 529, 531 (7th Cir. 2010) (“speculation about
causation will not defeat summary judgment” even where doctors are “unwilling to
rule out the possibility” that defendant’s actions contributed to the plaintiff’s
injuries).
Plaintiff also points to evidence that some family members and friends of
Falcon, including Deering, had never heard Falcon express a desire to kill herself,
and / or believed that Falcon was a happy person who was making plans for the
future. See PSOF, [172] ¶¶ 8, 15, 20–21. 3 Yet plaintiff does not dispute that at the
time of the incident, Falcon had a current prescription for antidepressant
medication. DSOF, [143] ¶ 30; Pl.’s Resp. DSOF, [172] ¶ 30. And Falcon’s prior
romantic partner testified without contradiction to having previously observed
Falcon holding a gun to her own head while saying that she “wanted to f***ing die,”
[143] ¶ 31; [143-8] at 57–60, and that Falcon had a history of depressive episodes,
prescription-drug and alcohol abuse, and self-harm, [143-8] at 57–60, 76–77, 78–80.
Construing all this evidence in the light most favorable to plaintiff, it suggests at
most that Falcon, when in a normal mood and state of mind, was not predisposed to
suicide. But the uncontradicted evidence in the record indicates that Falcon was
Plaintiff’s response brief consistently and improperly cites no sources for its factual
assertions rather than citing Plaintiff’s Local Rule 56.1 Statement of Additional Material
Facts. See Malec v. Sanford, 191 F.R.D. 581, 586 (N.D. Ill. 2000) (“Citations in the fact
section [of the supporting memorandum of law] should be to the 56.1(a) or (b) statement of
facts.”); Packer v. Trs. of Ind. Univ. Sch. of Med., 800 F.3d 843, 850 (7th Cir. 2015) (“It is
not the court’s role or obligation to read an entire deposition or affidavit in an effort to
locate the particular testimony a party might be relying on; the court ought to know what
portion of [the record] the party is invoking so that it can . . . assess whether it is admissible
and actually supports the fact or inference for which it is cited.”). Nevertheless, the court,
in its discretion, will credit plaintiff’s assertions when it can locate support for them in any
of the parties’ statements of fact.
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not in a normal state of mind in the moments leading up to her death; rather, she
was intoxicated and agitated. Moreover, even if a jury believed that Falcon would
not have intentionally killed herself, this does nothing to diminish the possibility
that Falcon, while intoxicated, could have discharged the gun mistakenly,
accidentally, or without understanding the consequences of her actions. In any
event, there is no evidence in the record that would allow a jury to determine that it
is more likely that Deering (intentionally or accidentally) shot Falcon than that
Falcon (intentionally or accidentally) shot herself.
As mentioned above, this plaintiff, “like all others, is entitled to try to meet
[her burden of proof] with either direct or circumstantial evidence.” Kleen Prod.
LLC, 910 F.3d at 934. But again, plaintiff still “need[s] to put forward evidence that
would allow a trier of fact to nudge the ball over the 50-yard line and rationally to
say that [liability] is more likely than not.” Id.; see also Smith, 137 Ill. 2d at 232
(“conjecture or speculation is insufficient” to satisfy plaintiff’s burden). Plaintiff has
not met this burden. Plaintiff has not put forward evidence that would allow a
rational factfinder to conclude that Deering shot Falcon. No direct evidence
supports such an inference, and plaintiff does not point to circumstantial evidence
that would allow a reasonable factfinder to draw this conclusion either. Plaintiff
does not, for example, offer evidence suggesting that Deering had a motive to shoot
Falcon, that Deering attempted to clean up or alter evidence after the fact, or that
Deering’s testimony that Falcon shot herself is untrustworthy. The only bit of
circumstantial evidence in support of plaintiff’s theory—the testimony that Falcon
was generally a happy person with plans for the future—is not enough to “plausibly
allow one to infer,” Kleen Prod., 910 F.3d at 937, that Deering killed Falcon. The
motion for summary judgment is granted as to Count 3.
B. Negligence (Counts 1 and 4)
Plaintiff also alleges in Counts 1 (wrongful death sounding in negligence) and
4 (survival sounding in negligence) that Deering’s negligent and / or willful and
wanton conduct caused Falcon’s death.
“To state a cause of action for negligence under Illinois law, a plaintiff must
establish the existence of a duty, the defendant’s breach of that duty, and that the
breach proximately caused the plaintiff’s resulting injuries.” Roh v. Starbucks
Corp., 881 F.3d 969, 973 (7th Cir. 2018) (citing Mt. Zion State Bank & Trust v.
Consol. Commc’ns, Inc., 169 Ill. 2d 110, 116 (1995)).
In Illinois, there “‘is no separate and independent tort of willful and wanton
conduct. . . . It is regarded as an aggravated form of negligence.’” Doe v. Bd. of
Educ. of City of Chi., No. 19-cv-00263, 2020 WL 1445638, at *14 (N.D. Ill. Mar. 24,
2020) (quoting Krywin v. Chicago Transit Auth., 238 Ill. 2d 215, 235 (2010)); see also
Doe v. Coe, 2019 IL 123521, ¶ 78 (“A plaintiff must allege and prove the same
elements for a willful and wanton cause of action as she does for a negligence
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action.”). To “recover damages based upon a defendant’s alleged negligence
involving willful and wanton conduct,” a plaintiff must likewise prove that the
“defendant owed a duty to the plaintiff, that the defendant breached the duty, and
that the breach was the proximate cause of the plaintiff’s injury.” Krywin, 238 Ill.
2d at 225.
Deering argues that summary judgment is appropriate on the negligence
claims because there is no evidence in the record that (1) Deering breached a
relevant duty to Falcon or (2) that any such breach proximately caused Falcon’s
death. Plaintiff’s response brief does not respond to the first of these arguments, so
any argument in response is waived. See Alioto v. Town of Lisbon, 651 F.3d 715,
721 (7th Cir. 2011) (“We apply [the waiver] rule where a party fails to develop
arguments related to a discrete issue.”); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466
(7th Cir. 2010) (“Failure to respond to an argument . . . results in waiver.”). This
alone warrants summary judgment for Deering on these claims, since duty is an
element of the claims.
As to proximate cause, plaintiff again does not present any evidence that
would allow a reasonable jury to find in plaintiff’s favor. Plaintiff concedes that if
Falcon committed suicide, Deering could not be liable for any prior negligence. See
[174-1] at 2 n.1 (citing Chalhoub v. Dixon, 338 Ill. App. 3d 535, 539–40 (2003) (“It is
well-established under Illinois law that a plaintiff may not recover for a decedent’s
suicide following a tortious act because suicide is an independent intervening event
that the tortfeasor cannot be expected to foresee.”)). Apart from this concession,
plaintiff makes no arguments regarding proximate cause, again amounting to
waiver.
Given Chaloub’s principle that suicide severs the causal chain, plaintiff bears
the burden of responding to the motion with evidence creating genuine issues both
that something other than suicide occurred, and that Deering’s actions proximately
caused Falcon’s death. Plaintiff’s only evidence, as discussed above, consists of
(1) opinions about Falcon’s general happiness and plans for the future, (2) the fact
that Rochowicz’s gunshot residue analysis was inconclusive, and (3) Dr. Golden’s
testimony that the physical evidence did not rule out a homicide. This evidence is
not enough to support a finding of proximate cause. It does not suggest either that
Deering intentionally or negligently shot the gun. “[S]peculation or conjecture
regarding the cause of an injury is not sufficient in Illinois to impose liability for
negligence.” Piotrowski v. Menard, Inc., 842 F.3d 1035, 1038 (7th Cir. 2016). The
motion for summary judgment is granted as to Counts 1 and 4 as well.
II. Alsip’s and VPEN’s Motions
The lack of evidence that Deering caused Falcon’s death has another
implication. In Counts 6 and 7, plaintiff asserts claims against Alsip and VPEN,
respectively, for violations of the Illinois Dram Shop Act. That statute provides
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individuals injured “by any intoxicated person” a right of action “against any
person, licensed under the laws of this State or of any other state to sell alcoholic
liquor, who, by selling or giving alcoholic liquor, within or without the territorial
limits of this State, causes the intoxication of such person.” 235 ILCS 5/6-21(a). As
VPEN points out, the statute also says as relevant:
Nothing in this Act shall be construed to confer a cause of action for
injuries to the person or property of the intoxicated person himself, nor
shall anything in this Act be construed to confer a cause of action for
loss of means of support or society on the intoxicated person himself or
on any person claiming to be supported by such intoxicated person or
claiming the society of such person.
Id. Liability is thus limited to “instances where a third person suffers
damages as a result of the sale or gift of intoxicating liquors,” and “dramshops are
not exposed to any liability under the Dramshop Act to intoxicated patrons who
suffer injuries as a result of their own intoxication.” Jodelis v. Harris, 118 Ill. 2d
482, 487 (1987); Matter v. Sedam, 191 Ill. App. 3d 369, 369 (1989) (administrator of
the decedent’s estate barred from recovering for loss to decedent’s property where
the decedent was the intoxicated person).
Applying the principles above, plaintiff can recover from the bars only if
(1) the bars caused Deering—as opposed to Falcon—to become intoxicated, and
(2) Deering injured Falcon. On the second point, VPEN argues there is no evidence
that Deering caused Falcon’s death. 4 Plaintiff’s response brief contains no
argument to the contrary, and plaintiff’s Local Rule 56.1 statements do not cite any
facts in the record that could support any such argument. 5 See Pl.’s Resp. VSOF,
[130] at 1–4; Pl.’s SOF Re. VSOF [130] at 4–5; Pl.’s SOF Re. ASOF, [132]. This
alone is grounds to grant the motions for summary judgment. Alioto, 651 F.3d at
721; Bonte, 624 F.3d at 466.
Even considering the broader factual record and the facts cited in response to
Deering’s motion, summary judgment in favor of the bars is warranted. For the
reasons discussed above, the record would not allow a reasonable factfinder to
While Alsip’s separate motion for summary judgment does not raise this argument, the
point applies with equal force to both bars.

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Plaintiff did argue that the motion was premature and requested additional discovery.
However, plaintiff subsequently filed a supplemental response brief that also does not raise
any argument in response to VPEN’s argument. See [157]. Plaintiff has now represented
that the parties “have completed the depositions necessary for the resolution of Defendants
Alsip Restaurant and Lounge, Inc., VPEN, Inc., and Deering’s respective motions for
summary judgment,” and that briefing “is completed and submitted for Defendants Alsip
Restaurant and Lounge, Inc.’s and VPEN, Inc.’s respective Motions for Summary
Judgment.” [168] at 1–2.

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conclude that Deering caused Falcon’s death. Accordingly, Alsip and VPEN cannot
be held liable under the Illinois Dram Shop Act.
Applying Indiana’s analogous dram shop law, the Seventh Circuit has
affirmed summary judgment in favor of defendants where it was “pure speculation
whether any injury was caused by the defendants’ actions or the criminal
intervention of a third party.” Spierer v. Rossman, 798 F.3d 502, 510 (7th Cir.
2015). The court reasoned that summary judgment was appropriate “because the
plaintiffs carried the burden of proving that the defendants (and not other causes)
were the proximate cause of any injury . . . and speculation cannot support a finding
of proximate cause.” Id. The same is true in this case. Since plaintiff has not put
forward in response to the motions facts that would allow a reasonable jury to
decide that Deering was the proximate cause of Falcon’s death, the court grants
summary judgment on the Dram Shop Act claims against Alsip and VPEN (Counts
6 and 7). 6
Conclusion
The motions for summary judgment by defendants Deering, Alsip, and
VPEN, [116], [121], [141], are granted.
Date: March 31, 2021

/s/ Martha M. Pacold

The court does not reach the additional arguments raised by Alsip and VPEN in support
of their motions for summary judgment about whether the bars caused Deering to become
intoxicated.

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