                           ILLINOIS OFFICIAL REPORTS
                                        Supreme Court




                                 Bell v. Hutsell, 2011 IL 110724




Caption in Supreme         JANET BELL, Indiv. and as Special Adm’r of the Estate of Daniel Bell,
Court:                     Appellee, v. JEFFREY HUTSELL et al., Appellants.


Docket No.                 110724
Filed                      May 19, 2011
Rehearing denied           September 26, 2011
Held                       Where defendants owed plaintiff’s minor decedent no duty to prohibit his
(Note: This syllabus       voluntary possession or consumption of alcohol at a teen party held on
constitutes no part of     defendants’ property where, contrary to their instructions to their son,
the opinion of the court   alcoholic beverages allegedly were served, but defendants otherwise took
but has been prepared      no actions pursuant to their verbalized intent, there was no voluntary
by the Reporter of         undertaking sufficient to impose liability under sections 323 through
Decisions for the          324A of the Restatement (Second) of Torts.
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the Second District, reported at 402
Review                     Ill. App. 3d 654; heard in that court on appeal from the Circuit Court of
                           Lake County, the Hon. David M. Hall, Judge, presiding.


Judgment                   Appellate court judgment reversed in part.
Counsel on               John W. Patton, Jr., Dale L. Schlafer, Jessica K.T. Ohlson, David F. Ryan
Appeal                   and David W. Lewarchik, of Patton & Ryan LLC, of Chicago, for
                         appellants.

                         Jeffrey S. Deutschman, of Chicago, for appellee.

                         C. William Busse, Jr., and Christopher D. Willis, of Busse, Busse &
                         Grasse, PC, of Chicago, for amicus curiae Illinois Association of Defense
                         Trial Counsel.

                         Francis K. Tennant, of Wolf & Tennant, of Chicago, for amicus curiae
                         Illinois Trial Lawyers Association.


Justices                 JUSTICE KARMEIER delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke,
                         and Theis concurred in the judgment and opinion.



                                           OPINION

¶1        Plaintiff, Janet Bell, individually and as special administrator of the estate of her son,
      Daniel Bell, filed an action in the circuit court of Lake County seeking damages from the
      defendants, Jeffrey and Sara Hutsell, as a result of Daniel’s death. Daniel died in an
      automobile accident after allegedly consuming alcoholic beverages at defendants’ residence.
      Ultimately, defendants filed a motion to dismiss pursuant to section 2-615 of the Code of
      Civil Procedure (735 ILCS 5/2-615 (West 2006)) and plaintiff’s second amended complaint
      (hereafter, complaint) was dismissed, with prejudice, in its entirety. Plaintiff appealed the
      dismissal of six counts of her nine-count complaint. The appellate court upheld the dismissal
      of counts IV through VI of plaintiff’s complaint, but reversed and remanded as to counts I
      through III, which were based on a theory of voluntary undertaking. 402 Ill. App. 3d 654. We
      granted defendants leave to appeal pursuant to Supreme Court Rule 315(a) (Ill. S. Ct. R.
      315(a) (eff. Feb. 26, 2010)), and now reverse the judgment of the appellate court as to counts
      I through III.

¶2                                       BACKGROUND
¶3        This case arises out of the death of Daniel Bell, age 18, who died in a single-car accident
      after he had allegedly consumed alcoholic beverages at the residence of defendants in the
      course of a party organized and hosted by the defendants’ son, Jonathan. Plaintiff’s second
      amended complaint implicitly acknowledges that the defendants did not provide alcohol for

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     underage consumption, and in fact alleges that defendants informed Jonathan both that
     alcohol consumption would not be tolerated and that they would monitor the party to see that
     underage partygoers did not possess or imbibe alcoholic beverages. Plaintiff alleges,
     however, that the Hutsells were aware of underage consumption on their premises at prior
     parties; that their son, Jonathan, had previously pled guilty to underage consumption; that
     alcohol was brought to the party in question and underage guests drank, excessively, with the
     Hutsells’ knowledge–in some instances in their presence–without objection or consequence;
     and that Jerry Hutsell “on multiple occasions spoke to a number of underage partygoers who
     had been drinking alcohol and requested that if they had been drinking at the party not to
     drive a vehicle when leaving.” The complaint states that Daniel Bell drank alcohol “in full
     and open view of the defendants,”and that he later walked to his car, “began driving,” and
     “crashed his car into a tree,” resulting in his death.
¶4        With respect to plaintiff’s theory of a voluntary undertaking, advanced in counts I
     through III of the complaint, it was alleged generally, without additional factual reference,
     that defendants “voluntarily undertook the duty” to prohibit underage drinking and
     possession of alcoholic beverages on their premises and to inspect, monitor, and supervise
     partygoers under the age of 21 to those ends.
¶5        The complaint then recites various respects in which defendants were “negligent,” most
     of which mirror the general allegations of the complaint, without additional factual
     elaboration, with the exception of a statement in paragraph 50(I) of the complaint, which
     includes an allegation that defendants were negligent in “failing to comply with their own
     verbal directions to the party guests to ensure that underage drinking and driving thereafter
     from their home not occur.” (Emphasis added.) Language with respect to the preclusion of
     driving after the party does not appear in any statements attributed to defendants when the
     alleged voluntary undertaking was communicated to their son. If the allegation is a reference
     to the complaint’s recitation that Jerry Hutsell “on multiple occasions spoke to a number of
     underage partygoers who had been drinking alcohol and requested that if they had been
     drinking at the party not to drive a vehicle when leaving,” then it inappropriately equates a
     “request” with “verbal directions” aimed at ensuring compliance.
¶6        Defendants moved to dismiss the complaint pursuant to section 2-615 of the Code (735
     ILCS 5/2-615 (West 2006)). Pertinent to this appeal, defendants moved to dismiss counts I,
     II, and III, the voluntary undertaking counts, on the basis that defendants owed Daniel no
     duty because there is no social host liability in Illinois and the voluntary undertaking theory
     was simply a way of trying to circumvent the rule against social host liability. The trial court
     granted the motion to dismiss with prejudice, dismissing plaintiff’s nine-count complaint in
     its entirety. With respect to counts I through III, the court stated:
                   “As to Counts I, II, and III, which alleges [sic] a voluntary undertaking, the court
              is familiar with [Wakulich v. Mraz, 203 Ill. 2d 223 (2003)], the new allegations that
              have been added to this Second Amended Complaint do not bring it under the rule
              as stated in Wakulich. The new allegations don’t support a finding that the defendant
              owed any duty to the plaintiff that was breached under a voluntary undertaking.”
     Plaintiff filed a timely appeal challenging the dismissal of the first six counts of her


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       complaint.
¶7         The appellate court affirmed the judgment of the circuit court as to counts IV through VI
       of the complaint, but reversed the dismissal of counts I though III. With respect to the latter,
       the appellate court first acknowledged the applicability of section 323 of the Restatement
       (Second) of Torts (Restatement (Second) of Torts § 323 (1965)), which addresses an
       undertaking voluntarily assumed for the protection of another and the bases for liability
       attendant to such an undertaking. The court then discussed, principally, our decisions in
       Charles v. Seigfried, 165 Ill. 2d 482 (1995) (no social host liability in Illinois based on
       provision of alcohol), and Wakulich v. Mraz, 203 Ill. 2d 223 (2003) (recognizing liability of
       hosts on a theory of voluntary undertaking where defendants allegedly exerted control over
       a helpless, inebriated 16-year-old to her detriment) and concluded on these facts:
                   “The instant complaint alleged something different from the direct or indirect
               giving, selling, or delivery of alcohol. It alleged that defendants voluntarily undertook
               the duty to prevent the consumption of alcohol on their premises and that they
               negligently performed that duty. Because defendants did not supply the alcohol, store
               the alcohol, or affirmatively permit its consumption, they were not social hosts.
               Defendants repeat the rationale for the rule against social host liability, that it is ‘the
               drinking of the intoxicant, not the furnishing of it, [that] is the proximate cause of the
               intoxication and the resulting injury.’ Charles, 165 Ill. 2d at 486. Defendants did not
               furnish the alcohol, and we offer no opinion on whether the complaint adequately
               pleaded all of the elements of a voluntary undertaking. Accordingly, the trial court
               erred in dismissing counts I, II, and III of the complaint.” 402 Ill. App. 3d at 662.
       The appellate court remanded for further proceedings on counts I through III.

¶8                                             ANALYSIS
¶9         A motion to dismiss, pursuant to section 2-615 of the Code, challenges the legal
       sufficiency of a complaint based on defects apparent on its face. Marshall v. Burger King
       Corp., 222 Ill. 2d 422, 429 (2006). We review de novo an order granting a section 2-615
       motion. Heastie v. Roberts, 226 Ill. 2d 515, 531 (2007). In reviewing the sufficiency of a
       complaint, we accept as true all well-pleaded facts and all reasonable inferences that may be
       drawn from those facts. Ferguson v. City of Chicago, 213 Ill. 2d 94, 96-97 (2004). We
       construe the allegations in the complaint in the light most favorable to the plaintiff (King v.
       First Capital Financial Services Corp., 215 Ill. 2d 1, 11-12 (2005)); however, the plaintiff
       must allege facts sufficient to bring a claim within a legally recognized cause of action
       (Marshall, 222 Ill. 2d at 429-30).
¶ 10       Plaintiff in this case alleges that defendants voluntarily undertook the duty to prevent the
       underage consumption of alcoholic beverages on their premises and that they negligently
       performed that duty.
¶ 11       In order to prevail in an action for negligence, the plaintiff must prove that the defendant
       owed a duty, that the defendant breached that duty, and that defendant’s breach was the
       proximate cause of injury to the plaintiff. Krywin v. Chicago Transit Authority, 238 Ill. 2d
       215, 225 (2010). Unless a duty is owed, there can be no recovery in tort for negligence.

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       American National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14,
       26 (1992); Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 208 (1979). Whether a duty
       exists is a question of law for the court to decide via de novo review. Krywin, 238 Ill. 2d at
       226.
¶ 12        Under a voluntary undertaking theory of liability, the duty of care to be imposed upon a
       defendant is limited to the extent of the undertaking. Frye v. Medicare-Glaser Corp., 153 Ill.
       2d 26, 32 (1992); Pippin, 78 Ill. 2d at 210. The theory is narrowly construed. Frye, 153 Ill.
       2d at 33. We have looked to the Restatement (Second) of Torts (Restatement (Second) of
       Torts §§ 323 through 324A (1965)) in defining the parameters of liability pursuant to this
       theory. See Wakulich, 203 Ill. 2d at 242-46; Frye, 153 Ill. 2d at 32; Vesey v. Chicago
       Housing Authority, 145 Ill. 2d 404, 415-19 (1991); Pippin, 78 Ill. 2d at 210-11.
¶ 13        The relevant sections of the Restatement, as identified by the plaintiff, provide as follow:
                    “§ 323. Negligent Performance of Undertaking to Render Services
                    One who undertakes, gratuitously or for consideration, to render services to
                another which he should recognize as necessary for the protection of the other’s
                person or things, is subject to liability to the other for physical harm resulting from
                his failure to exercise reasonable care to perform his undertaking, if
                    (a) his failure to exercise such care increases the risk of such harm, or
                    (b) the harm is suffered because of the other’s reliance upon the undertaking.”
                    “§ 324A. Liability to Third Person for Negligent Performance of Undertaking
                    One who undertakes, gratuitously or for consideration, to render services to
                another which he should recognize as necessary for the protection of a third person
                or his things, is subject to liability to the third person for physical harm resulting
                from his failure to exercise reasonable care to protect his undertaking, if:
                    (a) his failure to exercise reasonable care increases the risk of such harm, or
                    (b) he has undertaken to perform a duty owed by the other to the third person, or
                    (c) the harm is suffered because of reliance on the other or the third person upon
                the undertaking.” Restatement (Second) of Torts §§ 323, 324A (1965).
¶ 14        Plaintiff contends that section 323 or 324A of the Restatement could reasonably apply
       to these facts. Plaintiff argues that the allegations of her complaint, “[r]easonably construed,
       *** show that defendants did not only voluntary [sic] undertake to monitor, inspect and
       supervise their son, but also the party guests, including Daniel. Daniel and other party guests
       were ‘another’ within the meaning of Section 323.” Alternatively, plaintiff submits: “[I]f the
       undertaking was to render services to their son as defendants argue, defendants should have
       recognized that the undertaking was necessary for the protection of third persons, the party
       guests, including Daniel.”
¶ 15        As for defendants, two of their four arguments appear to be mere variations of their
       principal argument below, i.e., that plaintiff’s voluntary undertaking theory is simply a way
       to circumvent the rule against social host liability set forth in Charles v. Seigfried, 165 Ill.
       2d 482, 491 (1995) (“Legislative preemption in the field of alcohol-related liability extends
       to social hosts who provide alcoholic beverages to another person, whether that person be

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       an adult, an underage person, or a minor.”). Additionally, defendants contend that plaintiff
       has failed to allege the requisites for liability based on voluntary undertaking, and that the
       failure of the appellate court to “hold that a cause of action for voluntary undertaking was
       stated invalidates its opinion.”
¶ 16       Plaintiff responds that defendants raise several issues for the first time in this court,
       among them: “that plaintiff has failed to allege a number of matters which are purportedly
       necessary to state a cause of action based on a voluntary undertaking”; and that “the alleged
       injuries were proximately caused by Daniel’s voluntary intoxication.” Plaintiff contends that
       defendants have forfeited those arguments.
¶ 17       We acknowledge–and reject–defendants’ persistent argument that plaintiff’s attempt to
       state a cause of action based on a voluntary undertaking is foreclosed by the rule against
       social host liability. It is clear enough, from even a casual reading of this court’s decision in
       Wakulich, that such a contention is meritless. In Wakulich, the plaintiff alleged that a pair of
       brothers, social hosts, provided alcohol to the plaintiff’s 16-year-old daughter, Elizabeth,
       who became intoxicated as a result and lost consciousness. She began “vomiting profusely
       and making gurgling sounds.” Wakulich, 203 Ill. 2d at 227. The hosts removed her soiled
       blouse and provided a pillow under her head to prevent aspiration, but they did not drive her
       home or contact her parents, and they prevented others at the home from calling 911 or
       seeking medical attention. Elizabeth died the following day, after the brothers’ father
       allegedly ordered them to remove her from the house. Wakulich, 203 Ill. 2d at 227. In
       Wakulich, this court made clear that the defendants’ liability, if any, was not contingent upon
       their status as social hosts: “Indeed, it is irrelevant for purposes of plaintiff’s voluntary
       undertaking counts ***.” Wakulich, 203 Ill. 2d at 242. The court specifically rejected the
       argument that “plaintiff’s voluntary undertaking theory [was] simply an attempt to
       circumvent the rule against social host liability set forth in Charles.” Wakulich, 203 Ill. 2d
       at 241-42.
¶ 18       What the court found significant in Wakulich were allegations that defendants, after
       Elizabeth had lost consciousness and become helpless, had “placed [Elizabeth] in the family
       room; checked on her periodically; took measures to prevent aspiration; removed her soiled
       blouse; and prevented other persons present in the home from intervening in Elizabeth’s
       behalf.” Wakulich, 203 Ill. 2d at 243. What was critical to this court’s disposition in
       Wakulich were allegations that “defendants effectively took complete and exclusive charge
       of Elizabeth’s care after she became unconscious.” Wakulich, 203 Ill. 2d at 243. In Wakulich,
       this court agreed with the “general proposition” that “where *** a host merely permits an
       intoxicated guest to ‘sleep it off’ on the host’s floor, the host does not thereby assume an
       open-ended duty to care for the guest and assess the guest’s medical condition” (Wakulich,
       203 Ill. 2d at 243); however, the court found that defendants had done more, assuming a duty
       to the helpless Elizabeth, pursuant to section 324 of the Restatement (Second) of Torts
       (Restatement (Second) of Torts § 324 (1965)), by their affirmative actions, taking “complete
       and exclusive charge of [her] care after she became unconscious.” Wakulich, 203 Ill. 2d at
       243.
¶ 19       Turning to this case, we note that the circuit court’s comments in rendering its ruling on
       counts I through III of the complaint evince an understanding that the principles applicable

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       to voluntary undertakings, as discussed in Wakulich, controlled the result here and that the
       factual allegations of plaintiff’s complaint had to establish a duty that would support a cause
       of action based on voluntary undertaking. The court obviously found they did not.
¶ 20       Plaintiff cites Marshall in support of her forfeiture argument. Unlike Marshall, where
       lack of proximate cause was not a matter addressed or encompassed in the circuit court’s
       dismissal of the complaint, and where this court thus found that issue was “not properly
       presented by the record” (Marshall, 222 Ill. 2d at 430-31), the circuit court’s ruling in this
       case took into account and specifically addressed both this court’s decision in Wakulich and
       the issue of duty. In Wakulich, the defendants–like the defendants in this case–had moved
       to dismiss “principally argu[ing] that under this court’s decision in Charles, there is no
       common law social host liability in Illinois.” Wakulich, 203 Ill. 2d at 227. As previously
       noted, this court rejected that argument, and then went on to discuss factors bearing upon
       both duty and liability for purposes of plaintiff’s voluntary undertaking theory. See Wakulich,
       203 Ill. 2d at 243-46.
¶ 21       Given the circuit court’s consideration, in this case, of the elements underpinning this
       court’s decision in Wakulich, and the circuit court’s specific reference to duty in its ruling,
       we believe, as defendants suggest, that the principle acknowledged in Marshall and In re
       R.L.S., 218 Ill. 2d 428, 437 (2006), applies here: “It is well settled that where the appellate
       court reverses the judgment of the circuit court, and the appellee in that court brings the case
       before this court as an appellant, that party may raise any issues properly presented by the
       record to sustain the judgment of the circuit court.” Marshall, 222 Ill. 2d at 430-31 (citing
       R.L.S., 218 Ill. 2d at 437). We will therefore consider whether the facts alleged by the
       plaintiff in her complaint could, pursuant to a voluntary undertaking theory founded upon
       sections 323 or 324A of the Restatement, support a duty and/or liability on the part of the
       defendants with respect to people to whom no statements of intent were even communicated
       and with respect to whom no affirmative action appears to have been taken.
¶ 22       According to plaintiff’s complaint, on the date of the party the defendants “voluntarily
       undertook a duty to prohibit their son and his party guests who were under the age of 21 from
       drinking alcoholic beverages of any kind at their residence” and to that end also undertook
       to “monitor and supervise *** to ensure that none of the party guests who were under the age
       of 21 would consume alcoholic beverages.” The complaint recites that the alleged
       undertaking was communicated to defendants’ son Jonathan, but there is no claim that the
       defendants’ intent was communicated to anyone else. It is alleged that defendants were
       present, at times, in the portion of their residence where the party was ongoing, and where
       plaintiff alleges that underage consumption of alcohol was obviously taking place, that
       defendants witnessed underage possession and consumption of alcohol; yet, they took no
       actions to prohibit it in furtherance of the aim of their alleged undertaking.
¶ 23       “ ‘By undertaking to act’ ” a defendant becomes “ ‘subject to a duty with respect to the
       manner of performance.’ ” Wakulich, 203 Ill. 2d at 242 (quoting Nelson v. Union Wire Rope
       Corp., 31 Ill. 2d 69, 85 (1964)). Although the cited sections of the Restatement do not
       address a situation like this, where there is a narrowly disseminated statement of intent to
       engage in a course of conduct, the aim of which might be as much the protection of the
       defendants’ perceived legal interests, as the physical welfare of others who are guests on the

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       premises, comments to section 323 of the Restatement (Second) of Torts do address
       circumstances under which a mere promise, without entering upon performance, might
       qualify as a sufficient undertaking within the rule stated in that section. Comment a to section
       323 references comment d thereof. See Restatement (Second) of Torts § 323, cmt. a, at 136
       (1965). There, the distinction between “misfeasance” (negligent performance of a voluntary
       undertaking, as alleged in Wakulich) and “nonfeasance” (omission to perform a voluntary
       undertaking) is discussed as it pertains to tort liability. The commentators observe that the
       “modern law has *** witnessed a considerable weakening and blurring of the distinction, in
       situations where the plaintiff’s reliance upon the defendant’s promise has resulted in harm
       to him.” (Emphasis added.) Restatement (Second) of Torts § 323, cmt. d, at 138 (1965).
       Decisions of our appellate court have also underscored the necessity of reliance if a
       defendant is to be held responsible for nonfeasance: “ ‘Under Illinois law, a plaintiff’s
       reliance on the defendant’s promise is an independent, essential element in cases of
       nonfeasance.’ ” Buerkett v. Illinois Power Co., 384 Ill. App. 3d 418, 428 (2008) (quoting
       Bourgonje v. Machev, 362 Ill. App. 3d 984, 997 (2005)); see also Lewis v. Chica Trucking,
       Inc., 409 Ill. App. 3d 240 (2011).
¶ 24       The alleged recipient’s change of position, or lack thereof, may also be a factor affecting
       duty and liability when an actor terminates services voluntarily undertaken. Comment c of
       section 323 addresses an actor’s ability to terminate services voluntarily undertaken:
               “The fact that the actor gratuitously starts in to aid another does not necessarily
               require him to continue his services. He is not required to continue them indefinitely,
               or even until he has done everything in his power to aid and protect the other. The
               actor may normally abandon his efforts at any time unless, by giving the aid, he has
               put the other in a worse position than he was in before the actor attempted to aid
               him.” Restatement (Second) of Torts § 323, cmt. c, at 137 (1965).
¶ 25       With these principles in mind, we first look to the factual allegations of plaintiff’s
       complaint to ascertain the scope of the duty plaintiff may reasonably claim defendants
       intended to undertake, and to determine whether performance was commenced.
¶ 26       The facts alleged by plaintiff in this case suggest that defendants expressed an intention
       to prohibit underage possession and consumption of alcoholic beverages at the party hosted
       by their son at their residence. Although plaintiff states that monitoring the possession and
       consumption of alcohol at the party was part of the duty voluntarily undertaken by
       defendants, monitoring alone obviously did nothing to ensure “the protection of the other’s
       person,” or “the protection of a third person,” pursuant to the requisites of sections 323 and
       324A of the Restatement. Restatement (Second) of Torts §§ 323, 324A (1965). Monitoring
       was not, as in some of the cases cited by the plaintiff, the duty itself. Given the facts alleged
       by plaintiff, it was not even a substantial step in the undertaking. Plaintiff alleges that
       defendants were aware of underage drinking, and took no action.1 Given these facts, for there


               1
                 We note, plaintiff’s complaint contains summary allegations that defendants were
       “negligent” in inspecting and monitoring the activities on the premises; however, the factual
       recitations of plaintiff’s complaint would actually refute that allegation as plaintiff repeatedly states

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       to be a substantial step in pursuit of the alleged undertaking, there must have been some
       affirmative action taken in an attempt to prohibit possession and consumption of alcohol, the
       ultimate objective of the undertaking. No affirmative action is alleged here. Defendants did
       not attempt to confiscate alcoholic beverages in the possession of underage partygoers; they
       did not ask offenders to leave; they did not call a halt to the party–they did nothing. In our
       view, the facts alleged do not support an inference that defendants commenced substantive
       performance of their intended undertaking; however, even if we were to assume, arguendo,
       such an inference could be reasonably drawn, the alleged circumstances indicate the intent
       to perform was abandoned.
¶ 27       Moreover, even if we were to find sufficient allegations of a duty voluntarily assumed,
       pursuant to which performance was commenced, the facts alleged do not provide a basis for
       liability. The factual allegations of plaintiff’s complaint do not support an inference that
       defendants’ stated intent and subsequent inaction increased the risk of harm to Daniel or
       other partygoers (see Restatement (Second) of Torts §§ 323(a), 324A(a) (1965)), nor does
       it evince reliance or change of position on the basis of defendants’ expressed intent.
       According to the facts set forth in plaintiff’s complaint, defendants’ intention to prohibit
       underage possession and consumption of alcoholic beverages was expressed only to their
       son, Jonathan. There is no allegation that Jonathan communicated defendants’ intention to
       anyone else. Thus, there are no facts alleged in the complaint that would support an inference
       of reliance or change of position on the part of any guests attending the party or, for that
       matter, any “other” person owing them some unarticulated, undefined duty. See Restatement
       (Second) of Torts § 324A(b), cmt. d, at 143 (1965) (addressing a situation where the actor
       “has undertaken a duty which the other owes to the third person”). Plaintiff’s undeveloped
       suggestion that Jonathan might be the “other” for purposes of section 324(b) liability fails
       to account for the fact that the extent of Jonathan’s innate liability to the guests–having
       undertaken no additional duty–is no greater than any other host in this situation. He owed
       Daniel no duty to prevent Daniel’s possession or consumption of alcohol.
¶ 28       Because defendants in this case took no affirmative acts to effect the aim of their
       expressed intention, i.e., prohibition, and no one changed position as a result of their
       statement, relied upon it, or was put at “increase[d] *** risk of *** harm” or “in a worse
       position” because of it (see Restatement (Second) of Torts § 323 (1965)), the factual
       allegations of this case do not support a basis for finding a duty undertaken or liability for
       violation of any such duty. Indeed, under these circumstances, it would be illogical, and
       unsound policy, to hold that defendants could be liable: illogical, because defendants’ failure
       to act on their stated intention did not in any way affect the events as they would have
       unfolded had the intent to act not been verbalized; unsound policy, because the imposition
       of a duty and liability in this situation would only serve as a deterrent to those who would
       consider volunteering assistance to others, in effect punishing people for thinking out loud.
       At most, the allegations of plaintiff’s complaint suggest that defendants failed to follow



       in her complaint that defendants witnessed and were aware of underage possession and consumption
       of alcoholic beverages on the premises.

                                                 -9-
       through on an expressed intent to act that might have protected Daniel–who was legally
       underage for the consumption of alcohol, but an adult for most other purposes–against his
       own volitional acts, or that defendants simply abandoned their original undertaking, whether
       it was intended for their own protection from the perceived potential of liability, or a genuine
       concern for the safety of Daniel and other partygoers. We conclude the allegations of
       plaintiff’s complaint are insufficient to state a legal duty and a basis for liability on the part
       of defendants under either section 323 or 324A of the Restatement.
¶ 29       We note that the facts alleged in this case bear little similarity to those this court
       addressed in Wakulich and Simmons v. Homatas, 236 Ill. 2d 459 (2010) (employees of club
       ejected highly intoxicated individual, placed him in his vehicle, and directed him to drive
       away), both of which were discussed in the parties’ briefs to a greater or lesser extent for
       diverse reasons. In those cases, this court applied Restatement principles, as we have done
       here. However, in each of those cases defendants’ affirmative conduct, amounting to an
       assertion of control over an inebriated and significantly impaired person, increased the risk
       of harm to that person and/or created a risk of harm to others. Thus, different considerations
       applied. Here, where defendants owed Daniel no duty to prohibit his voluntary possession
       or consumption of alcohol, and took no action to do so pursuant to their verbalized intent,
       which was communicated only to their son, we have a case of true nonfeasance. We think
       the facts and analysis of this case point up the continuing significance of a distinction
       between misfeasance and nonfeasance.
¶ 30       For the reasons stated, we reverse that part of the appellate court’s judgment that reversed
       the circuit court’s dismissal of counts I through III of plaintiff’s second amended complaint.

¶ 31       Appellate court judgment reversed in part.




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