United States District Court, Northern District of Illinois, E.D
August 29, 1969
MARGARITA LOPEZ, PLAINTIFF,
BRACKETT STRIPPING MACHINE COMPANY, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF, V. BROCK AND RANKIN, A CORPORATION, THIRD-PARTY DEFENDANT.
The opinion of the court was delivered by: Napoli, District Judge.
On July 5, 1967, the plaintiff Lopez while attempting to clean
a book trimming machine manufactured by the defendant Brackett
Stripping Machine Co. had four fingers severed from her hand. In
her amended complaint she alleged that the defendant had designed
and manufactured an unsafe machine and had failed to add safety
devices, to give due warning and to provide instruction as to the
safe use of the machine. The defendant Brackett has filed a third
party complaint against Brock and Rankin, plaintiff's employer,
for indemnification of any judgment against Brackett on the
theory that any such judgment would be based on Brackett's
passive negligence, whereas active negligence can only be
attributed to Brock and Rankin. The third party complaint alleges
that Brock and Rankin failed to provide the tools as prescribed
by Brackett to clean the machine, failed to add safety devices,
to give due warning and to provide instruction as to the safe use
of the machine. Brock and Rankin was also described as an
independent intervening agent. Brock and Rankin moved to dismiss
the third party complaint for failure to state a claim upon which
relief can be granted.
Both parties agree that there must be a qualitative distinction
between the negligence of the two tortfeasors in order to support
an action for indemnity in Illinois, a state in which
contribution among joint tortfeasors is not allowed. Chicago &
Illinois Midland Ry. v. Evans Construction Co., 32 Ill.2d 600,
208 N.E.2d 573, 19 A.L.R.3d 921 (1965); Muhlbauer v. Kruzel,
39 Ill.2d 226, 234 N.E.2d 790 (1968). However, the third party
complaint does not allege any more active negligence than that
which would support a judgment against Brackett on plaintiff's
claim. Brackett advances the theory that any judgment against it
would be based on strict liability without any proof of
affirmative acts on Brackett's part. If that were the basis of
judgment, there would necessarily be a finding that Brackett's
product was defective when it left its control, either because it
continues to run after being shut off or for some other reason.
We would not characterize a judgment of that kind
as a finding of only passive, secondary or merely technical
negligence so as to allow an action for indemnity in Illinois.
See Board of Education of High School Dist. No. 88 v. Joseph J.
Duffy Co., 97 Ill. App.2d 158, 240 N.E.2d 5 (1968); Chicago
Burlington & Quincy Ry. v. Admiral-Merchants Motor Freight Inc.,
397 F.2d 472 (7th Cir. 1968).
In accordance with the foregoing, the motion of the third party
defendant, Brock and Rankin, to dismiss the third party complaint
should be and the same is hereby granted. The third party
complaint is dismissed.
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