Case: 1:14-cv-09665 Document #: 49 Filed: 06/08/15 Page 1 of 4 PageID #:582

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL L. LAPORTA, as Guardian of the
estate of Michael D. LaPorta, a disabled person,
Plaintiff,
1:14-cv-09665
v.
Honorable Harry D. Leinenweber
CITY OF CHICAGO, a municipal corporation;
GORDAN LOUNGE, INC., d/b/a
BREWBAKERS; RUTH G., INC., d/b/a
McNALLYS
Defendants.
STATEMENT OF UNDISPUTED MATERIAL FACTS THAT SUPPORT
McNALLYS MOTION FOR SUMMARY JUDGMENT
In support of its Motion for Summary Judgment filed this date, Defendant Ruth G. Inc.,
d/b/a McNallys (McNallys) submits its Local Rule 56.1(a)(3) Statement of Material Facts for
which there is no genuine issue and which entitle McNallys to summary judgment as a matter of
law. The undisputed facts are as follows:
PARTIES
1.

Plaintiff Michael A. LaPorta, as Guardian of the estate and person of Michael D.

LaPorta, a disabled person, resides in Cook County, Illinois located in the Northern District of
Illinois, Eastern Division. (See Plaintiffs Fifth Amended Complaint At Law, Docket 1).
2.

All named Defendants: the City of Chicago, a municipal corporation organized

under the State of Illinois; Gordons Lounge, d/b/a Brewbakers, an Illinois corporation; and
McNallys, an Illinois corporation, are residents of the State of Illinois. (Id.)
JURISDICTION AND VENUE

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3.

Jurisdiction is proper based on the allegations in Plaintiffs Fifth Amended

Complaint that Defendant City of Chicago violated Plaintiffs rights as guaranteed by the United
States Constitution and 42 U.S.C. 1983, and original jurisdiction exists in this Court pursuant to
28 U.S.C. 1331 and 28 U.S.C. 1343(a)(3) and (4). Further, this Court has supplemental
jurisdiction over Plaintiffs related claims under Illinois law pursuant to 28 U.S.C 1367(a).
(Docket 1).
4.

Venue in the Northern District of Illinois is proper because the Plaintiff resides

within the courts geographic region. 28 U.S.C. 1391(e) and 1402(a). (Docket 1).
UNDISPUTED MATERIAL FACTS THAT SUPPORT
McNALLYS MOTION FOR SUMMARY JUDGMENT
5.

On May 4, 2010, Defendant Patrick Kelly gave his deposition in this case and

provided the only testimony in this case regarding what occurred in his house on January 11,
2010. (Ex.A).
6.

Kelly, an off-duty police officer, testified that on January 11, 2010 he received a

phone call from Plaintiff. (Ex. A, pg. 44, ln 3-7; pg. 51, ln 7-23).
7.

Kelly testified that in that phone call he informed Plaintiff that he was going to a

bar with some friends and that Plaintiff asked to come along. (Ex. A, pg. 52, ln 8-15).
8.

Kelly testified that Plaintiff then drove to Kellys house, picked Kelly up and

drove them both to McNallys. (Ex. 3, pg. 52, ln 12-17).

9.

Kelly testified that prior to arriving at McNallys, he had not consumed any

alcoholic beverages that night. (Ex. 3, pg. 68, ln 8-15).

10.

Kelly testified that he and Plaintiff arrived at McNallys sometime after 11:00 p.m.

(Ex. 3, pg. 64, ln 14-20).

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11.

Kelly testified that while they were at McNallys, Kelly and Plaintiff sat together,

conversed with each other, and drank together. (Ex. 3, pg. 192, ln 1-24).
12.

Kelly testified that he and Plaintiff left McNallys around 2 a.m. (Ex. 3, pg. 64, ln

13.

Kelly testified that did not drink more than two 12-ounce bottles of beer at

3-6).

McNallys. (Ex. 3, pg. 64, ln 24 through pg. 65, ln 1-7).

14.

Kelly testified that he and Plaintiff arrived at McNallys together and left

McNallys together. (Ex 3, pg. 185, ln, 14-16; pg. 193. ln 13-19).
15.

Kelly testified that at our around the time of McNallys closing time, Plaintiff and

Kelly left McNallys and decided to go to Brewbakers, a bar eight blocks away. (Ex. 3, pg. 192193, ln 22-24; 11-19)
16.

Kelly testified that Plaintiff drove him to Brewbakers where they continued to

drink inside the bar. (Ex. 3, pg. 193, ln 15-17).

17.

Kelly testified that at Brewbakers, Kelly and Plaintiff played beanbags together

and continued to drink together. (Ex. 3, pg. 183, ln 3-13; pg. 193-194, ln 20-24; 1).
18.

Kelly testified that after they left Brewbakers, Plaintiff chose to go with Kelly

back to Kellys house. (Ex. 3 pg. 69, ln 1-19).

19.

Kelly testified that while they were at Kellys house, Plaintiff accepted beers from

Kelly. (Ex. 3 pg. 69, ln 1-19).

20.

Kelly testified that throughout the night of January 11, 2009, Plaintiff willingly

drank alcohol and voluntarily accompanied Kelly to the bars and Kellys home. (Ex. 3 pg. 192,
ln 15-18).

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21.

Kelly testified that Plaintiff and Kelly drank at the same level and same pace the

entire night. (Ex. 3, pg. 203, ln 6-10).

22.

Kelly testified that at Kelly's home, Plaintiff went into Kelly's bedroom and took

Kelly's gun out of the nightstand drawer. (Ex. 3 pg. 138-140).

23.

Kelly testified that Plaintiff held the gun to his head. (Ex. 3 pg. 138-140).

24.

Kelly testified that he was unable to stop Plaintiff. (Ex. 3, pg. 140, 146, and 148).

25.

Kelly testified that he watched Plaintiff fire the gun into his own head and fall to

the floor. (Ex. 3, pg. 140, 146, and 148).

26.

Kelly testified that he was not impaired or intoxicated at the time he stored his

gun. (Ex. 3 pg. 57, 184).

27.

Kelly testified that he had not touched the gun since storing it in the nightstand

prior to going to McNallys that night. (Ex. 3 pg. 57, 184).

28.

Kelly testified that he always stored his gun in the nightstand. (Ex. 3 pg. 100).

29.

Kelly testified that Plaintiff, a frequent visitor to Kellys home, had seen Kelly

store the gun in the nightstand on previous occasions. (Ex. 3 pg. 100).

Respectfully submitted,

__________________________________
Daniel P. Costello, Esq.
DANIEL P. COSTELLO & ASSOCIATES, LLC
221 N. LaSalle St., Suite 1300
Chicago, IL 60601
PH: (312) 850-2651
FX: (312) 893-7395
dcostello@costellolegal.com