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Bell v. Hutsell: Voluntary Undertaking Remains a Narrowly Construed Avenue to Negligence

By Michael J. Mersot

In the recent case of Bell v. Hutsell, the Illinois Supreme Court reiterated that the voluntary undertaking theory of duty is not a plaintiff’s cure-all in cases where absence of duty is an issue. Rather, a plaintiff left without a recognized duty must specifically plead either substantial conduct supporting an affirmative undertaking or detrimental reliance upon a promise by the defendant.

In Bell, a mother brought a negligence action against two homeowners following her son’s death in an alcohol-related single vehicle accident. The eighteen-year-old decedent allegedly consumed alcohol at a party hosted at the homeowners’ residence by their son. The decedent left the party intoxicated and drove his vehicle into a tree. Despite the abolition of social-host liability in Illinois, the plaintiff alleged that the defendants voluntarily undertook a duty to prevent the decedent from consuming alcohol or driving while intoxicated. The trial court dismissed the case and the appellate court reversed. The Illinois Supreme Court reversed the appellate court, holding that the plaintiffs did not properly allege an affirmative undertaking or reliance upon a promise to keep the decedent from consuming alcohol.

The voluntary undertaking analysis centered on the plaintiff’s allegation that, prior to the party, defendants admonished their son that underage consumption of alcohol would not be allowed. The defendants also sporadically monitored the party, at which alcohol was apparently being openly served. Additionally, the plaintiff alleged that the defendants requested that if anyone did drink at the party, that they not drive.

The Court, interpreting the Restatement (Second) of Torts § 323, explained that the voluntary undertaking theory contemplates two separate and distinct avenues to duty and breach: those concerning misfeasance and those concerning nonfeasance. Though the line between the two has been blurred recently, the Court emphasized that in Illinois each requires its own pleading and evidentiary requirements.

A misfeasance theory of voluntary undertaking is an assertion that the defendant, though initially having no duty to the plaintiff, affirmatively undertook a duty, whether gratuitously or for compensation. Hence, in order to maintain an action based on misfeasance, a plaintiff must allege and prove that the defendant took specific and substantial actions in performing a duty, and that in doing so the plaintiff was proximately harmed. The Court found that merely monitoring the party, whether or not the defendants knew of the underage drinking, was not affirmative action to prohibit alcohol consumption.

Such a failure to act is more properly classified under the nonfeasance branch of voluntary undertaking. In order to maintain a claim for nonfeasance, a plaintiff must allege and prove that the defendant made a promise to perform a duty and that plaintiff detrimentally relied on said promise. Thus, as distinguished from claims based on misfeasance, nonfeasance claims require the essential element of reliance. The Court found that, even if true, the statement by the homeowners that drinking would not be allowed and the request that patrons not drink and drive were not promises to prohibit drinking. Moreover, there was no allegation that the decedent even knew about said statements, and so could not have acted in reliance.

Bell v. Hutsell will be of paramount importance in any case attempting to raise a claim based on a voluntary undertaking theory. The Court has reasserted that the theory is narrowly construed. A plaintiff may not blandly assert a duty voluntarily undertaken; such a claim must be supported by substantive facts with at least some modicum of specificity, or it will be dismissed.

Originally published in the Summer 2011 edition of Quinn Quarterly.