The Toghers' appellate brief cited the federal district court's opinion in Lederman without citing the subsequent appellate court's opinion. In a footnote to their appellate briefs statement of facts, the Toghers argue that their expert's testimony would meet the requirements for admissibility set forth by the appellate court in Bodkin v. 5401 S.P., Inc., 329 Ill. App. 3d 620 (2002). In Bodkin, this court stated that Illinois courts in negligence cases have "consistently held that evidence of alcohol consumption is inadmissible absent a showing of intoxication resulting in impairment of mental or physical abilities and a corresponding diminution in the ability to act with ordinary care."

See, e.g., Fu v. State, 263 Neb. 848, 643 N.W.2d 659, 669 (2002); Haliw v. City of Sterling Heights, 464 Mich. 297, 627 N.W.2d 581, 588 (2001). Compare Bodkin v. 5401 S.P., Inc., 329 Ill.App.3d 620, 263 Ill.Dec. 434, 768 N.E.2d 194, 202 (2002) (attempting to identify different forms of foreseeability for the proximate cause and the existence of a duty inquiries). Kentucky's particular use of foreseeability in the duty inquiry finds its roots in perhaps the most famous application of the foreseeability principle.

However, addressing the distinction, the Supreme Court of Appeals of West Virginia captures the underlying rationale as follows:See, e.g., Bodkin v. 5401 S.P. Inc., 329 Ill.App.3d 620, 263 Ill.Dec. 434, 768 N.E.2d 194, 203 (2002) (“Although ‘reasonable foreseeability’ is crucial to both duty and proximate cause, courts must take care to keep duty and proximate cause analytically independent....”); Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 694 A.2d 1017, 1020–21 (1997) (“Foreseeability as a determinant of a business owner's duty of care to its customers is to be distinguished from foreseeability as a determinant of whether a breach of duty is a proximate cause of an ultimate injury.”); Delbrel v. Doenges Bros. Ford, Inc., 913 P.2d 1318, 1321–22 (Okla.1996) (Foreseeability in the context of a duty of care “must not be confused with the foreseeability element of proximate cause.”); McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992) ( “[F]oreseeability relates to duty and proximate causation in different ways and to different ends.”); Mack v. Altmans Stage Fighting Co. Inc., 98 A.D.2d 468, 470 N.Y.S.2d 664, 667 (1984) (“Foreseeability ... plays a role in the proximate cause equation, albeit q

Rather, the courts are simply ascertaining "whether [the] defendant was obligated to be vigilant of a certain sort of harm to the plaintiff."See, e.g., McCain v. Fla. Power Corp., 593 So.2d 500, 502-04 (Fla. 1992); Di Cosala v. Kay, 91 N.J. 159, 450 A.2d 508, 516 (1982); Bodkin v. 5401 S.P., Inc., 329 Ill.App.3d 620, 263 Ill.Dec. 434, 768 N.E.2d 194, 203 (2002) (quoting Colonial Inn Motor Lodge, Inc. v. Gay, 288 Ill.App.3d 32, 223 Ill.Dec. 674, 680 N.E.2d 407, 413 (1997)); Knoll v. Bd. of Regents of Univ. of Neb., 258 Neb. 1, 601 N.W.2d 757, 763 (1999); Mack v. Altmans Stage Lighting Co., 98 A.D.2d 468, 470 N.Y.S.2d 664, 667 (N.Y.App.Div. 1984); Goldberg Zipursky, 54 Vand. L.Rev. at 728 (noting that "[a]lthough foreseeability is invoked in both instances, the questions being asked are quite different.").See Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W.3d 151, 156 (Mo. 2000); Knoll v. Bd. of Regents of Univ. of Neb., 601 N.W.2d at 762-64.

Moreover, some of the cases cited in the subject footnote stand for the same or a similar proposition. SeeSatterfield , 266 S.W.3d at 366 n.41 (citing McCain v. Fla. Power Corp. , 593 So. 2d 500, 503 (Fla. 1992) (citing Restatement (Second) of Torts § 435 (1965) ) ("[I]t is immaterial that the defendant could not foresee the precise manner in which the injury occurred or its exact extent."); Bodkin v. 5401 S.P., Inc. , 329 Ill. App. 3d 620, 629, 768 N.E.2d 194, 203, 263 Ill.Dec. 434 (2002) (emphasis added) (internal citation omitted) ("[A] finding that a defendant owed a duty to a plaintiff depends on the reasonable foreseeability of an injury to the particular plaintiff. By contrast, a finding that a defendant's conduct proximately caused a plaintiff's injury depends on the reasonable foreseeability of the type of injury sustained by the plaintiff.")).

However, "argument which is not supported by facts in evidence is improper." Bodkin v. 5401 S.P., Inc., 329 Ill. App. 3d 620, 635 (2002). In this case, plaintiff testified that in late 2003, she was examined by Dr. Hanley, Dr. Olfers, and Dr. Cabrera and that none of those dentists were able to use the implants placed by defendant.

The cases plaintiff cites in support of this contention hold that evidence of alcohol consumption alone is inadmissible absent other supporting evidence of intoxication. See Sullivan-Coughlin v. Palos Country Club, Inc., 349 Ill. App. 3d 553, 561, 812 N.E.2d 496 (2004); People v. Barham, 337 Ill. App. 3d 1121, 1131-32, 788 N.E.2d 297 (2003); Bodkin v. 5401 S.P., Inc., 329 Ill. App. 3d 620, 633-34, 768 N.E.2d 194 (2002). In those cases, however, the only evidence of intoxication was evidence of the parties' consumption of alcohol.

Finally, defendant contends that during closing arguments, plaintiffs counsel made unfounded accusations that defendant hired investigators to look into plaintiff's health history and improperly referred to defendant's alleged wealth and size. We note that closing argument that is not supported by facts in evidence is improper (Bodkin v. 5401 S.E., Inc., 329 Ill. App. 3d 620, 635 (2002)), and that reference to the parties' financial condition is impermissible (LID Associates v. Dolan, 324 Ill. App. 3d 1047, 1064 (2001)). Upon retrial, improper and impermissible comments in closing argument should be avoided.