The Cafazza family, of Bethalto, filed an opposition to Stutz Excavating's motion to dismiss several counts from their wrongful death lawsuit following a fatal crash with an intoxicated driver they allege was involved in a hazing event and encouraged to then drive home.
Stutz Excavating filed its motion to dismiss, arguing that the plaintiffs failed to sufficiently plead their allegations.
In response to the motion, the Cafazzas argue that the motion to dismiss should be denied because the defendants allegedly encouraged Jones to drink enough alcohol to become intoxicated. Then they allegedly assisted and encouraged him to drive his vehicle in his intoxicated condition.
Circuit Judge Dennis Ruth scheduled a motion hearing for Jan. 19 at 9 a.m.
John Cafazza, 55, his wife Melissa "Missy" Cafazza, 52, and their son Dominic Cafazza, 12, were killed on Aug. 13, 2021, by an intoxicated teen who struck their BMW at the intersection of Bethalto and McCoy roads in Moro Township. The suit states that driver Blake A. Jones, of Worden, sped through the intersection in a GMC Sierra without slowing down or stopping, causing the fatal crash.
In February, Jones pled guilty to aggravated intoxicated driving in relation to the crash and was sentenced to 17 years in prison.
A lawsuit filed through attorney Benjamin Tobin of Pratt & Tobin PC in East Alton in the Madison County Circuit Court by the victims’ estate alleges Jones had been sold or given alcohol at the Stutz Excavating facility located on Fosterburg Road in Alton, while he was 18 years old and under the legal drinking age.
The lawsuit states that Jones’ actions caused the Cafazzas to “suffer grievous and mortal personal injuries, which included physical damage to [their] entire bodies, extreme pain and suffering and death.”
The plaintiffs seek damages for personal injury, property and loss of society under Illinois’ Dram Shop Act, which holds commercial sites liable for serving alcohol to underage or intoxicated persons.
Stutz Excavating denied liability in its answer to the complaint, arguing that the injuries to the Cafazza family were caused by the fault, negligent acts or omission of individuals over which it had no control.
The defendant filed a motion to dismiss on Sept. 1 through attorney Michael Cerulo of Baty Otto Coronado Scheer PC in St. Louis, seeking to strike 24 counts it argues are preempted by Dram Shop. This would strip the lawsuit down to its original eight counts. Cerulo argues that the allegations lack a factual basis.
In its motion to dismiss, Stutz is targeting the newest claims resulting from an amended complaint filed on Aug. 8. These new claims against Stutz include various allegations of negligence, as well as violations of the Illinois hazing statute. They also make allegations regarding wrongful death and the Illinois Survival Act, which enables an estate to gain damages a victim would have received if they survived.
In regards to the claim under the Illinois hazing statute, the defendant rejects the "theory that the consumption of alcohol was somehow required as a condition of employment with the defendant."
The defendant also argues that the plaintiffs failed to prove their claim that Jones was acting in the course and scope of his employment at the time of the crash.
It further argues that the plaintiffs lack adequate proof that Stutz "acted in concert with Jones at the business premises of Stutz to provide the location, the alcohol and the assistance and encouragement for Jones illegally to consume alcohol and then illegally to drive a vehicle away from Stutz’s place of business while intoxicated.”
Stutz argues that no special relationship between Stutz and Jones was alleged to substantiate a duty to prevent Jones from driving home while intoxicated.
The Cafazzas filed a response in opposition to the motion to dismiss on Oct. 6 through attorney Benjamin Tobin of Pratt & Tobin in East Alton.
Tobin explains that the counts the defendants want to dismiss "seek to expand upon the theory of liability imposed by the Illinois Supreme Court on fraternities and other college organizations which require the consumption of alcohol as a condition of membership."
"Plaintiffs contend that they have sufficiently alleged 'an alcohol-related hazing event' in the workplace," Tobin wrote.
The Cafazzas claim the defendants knew Jones was intoxicated, but they argue that the defendants encouraged him to illegally drink alcohol and then drive his vehicle while intoxicated.
"The degree of specificity required to sufficiently plead a cause of action in any case may be difficult to determine and is dependent on the individual circumstances of each case," the response states. "One factor to consider here is the plaintiff's access to evidence. Where the facts are within the defendant's knowledge and not within the plaintiff's knowledge, a complaint which is as complete as the nature of the case allows is sufficient."
Tobin argues that the defendants have made it "impossible" for the plaintiffs to ascertain the relevant facts because two unnamed employees of the defendant were charged with criminal offenses but refused to voluntarily sit for their depositions. If they had been subpoenaed, Tobin argues they would have asserted their Fifth Amendment rights.
"The plaintiffs' decedents were simply innocent motorists who had the misfortune to be in the wrong place at the wrong time and were not privy to any of the events leading up to the accident," Tobin wrote.
Madison County Circuit Court case number 22-LA-897