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, v. CITY OF CHICAGO, a municipal corporation; GORDAN LOUNGE, INC., d/b/aBREWBAKERS; RUTH G., INC., d/b/a McNALLYS Defendants. 1:14-cv-09665 Honorable Harry D. Leinenweber

STATEMENT OF UNDISPUTED MATERIAL FACTS THAT SUPPORTMcNALLYS 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,adisabledperson,residesinCookCounty,IllinoislocatedintheNorthernDistrictof Illinois, Eastern Division. (See Plaintiffs Fifth Amended Complaint At Law, Docket 1).2. AllnamedDefendants:theCityofChicago,amunicipalcorporationorganized undertheStateofIllinois;GordonsLounge,d/b/aBrewbakers,anIllinoiscorporation;and McNallys, an Illinois corporation, are residents of the State of Illinois.(Id.) JURISDICTION AND VENUE Case: 1:14-cv-09665 Document #: 49 Filed: 06/08/15 Page 1 of 4 PageID #:5823.JurisdictionisproperbasedontheallegationsinPlaintiffsFifthAmended 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 28U.S.C.1331and28U.S.C.1343(a)(3)and(4).Further,thisCourthassupplemental jurisdictionoverPlaintiffsrelatedclaimsunderIllinoislawpursuantto28U.S.C1367(a). (Docket 1). 4. VenueintheNorthernDistrictofIllinoisisproperbecausethePlaintiffresides 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.OnMay4,2010,DefendantPatrickKellygavehisdepositioninthiscaseand providedtheonlytestimonyinthiscaseregardingwhatoccurredinhishouseonJanuary11, 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.KellytestifiedthatPlaintiffthendrovetoKellyshouse,pickedKellyupand drove them both to McNallys. (Ex. 3, pg. 52, ln 12-17).9. KellytestifiedthatpriortoarrivingatMcNallys,hehadnotconsumedany 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). Case: 1:14-cv-09665 Document #: 49 Filed: 06/08/15 Page 2 of 4 PageID #:58311.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 3-6).13. Kellytestifiedthatdidnotdrinkmorethantwo12-ouncebottlesofbeerat McNallys. (Ex. 3, pg. 64, ln 24 through pg. 65, ln 1-7). 14.KellytestifiedthatheandPlaintiffarrivedatMcNallystogetherandleft 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. 192-193, ln 22-24; 11-19) 16.KellytestifiedthatPlaintiffdrovehimtoBrewbakerswheretheycontinuedto drink inside the bar. (Ex. 3, pg. 193, ln 15-17). 17. KellytestifiedthatatBrewbakers,KellyandPlaintiffplayedbeanbagstogether and continued to drink together. (Ex. 3, pg. 183, ln 3-13; pg. 193-194, ln 20-24; 1).18. KellytestifiedthataftertheyleftBrewbakers,PlaintiffchosetogowithKelly 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. KellytestifiedthatthroughoutthenightofJanuary11,2009,Plaintiffwillingly drank alcohol and voluntarily accompanied Kelly to the bars and Kellys home. (Ex. 3 pg. 192, ln 15-18).Case: 1:14-cv-09665 Document #: 49 Filed: 06/08/15 Page 3 of 4 PageID #:58421. 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.Kellytestifiedthathewasnotimpairedorintoxicatedatthetimehestoredhis gun. (Ex. 3 pg. 57, 184). 27. Kellytestifiedthathehadnottouchedthegunsincestoringitinthenightstand 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.KellytestifiedthatPlaintiff,afrequentvisitortoKellyshome,hadseenKelly 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 Case: 1:14-cv-09665 Document #: 49 Filed: 06/08/15 Page 4 of 4 PageID #:585