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Solar v. Dominick's Finer Foods

OPINION FILED OCTOBER 23, 1978.

GERALDINE SOLAR, PLAINTIFF,

v.

DOMINICK'S FINER FOODS, INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLANT. — (S.A. BARNES COMPANY, INC., DEFENDANT AND COUNTERDEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 20, 1978.

This record raises an issue of implied indemnity which will soon become of historic value only. (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 16-17, 374 N.E.2d 437.) The point arises on the sufficiency of pleadings after the trial court struck and dismissed a counterclaim which sought co-defendant indemnity. The counterplaintiff has appealed.

Geraldine Solar (plaintiff) filed her third amended complaint against Dominick's Finer Foods, Inc. (Dominick's), and S.A. Barnes Company, Inc. (Barnes). Banker's Life & Casualty Company also appears as a defendant to the third amended complaint but its rights and liabilities are not material to this appeal.

Count I of the plaintiff's third amended complaint alleged that Dominick's owned and operated a building used for sale of groceries. Plaintiff entered the premises in the exercise of due care and was injured when a tile fell from the ceiling and struck her. It was alleged that Dominick's "carelessly and negligently" violated its duty to maintain the ceiling in good repair and safe condition as it:

(a) Permitted the ceiling tile to become and remain worn, defective and dangerous;

(b) Permitted the ceiling and tile to remain broken, loose and cracked;

(c) Failed to make reasonable and necessary repairs although they knew, or should reasonably have known, of the dangerous condition;

(d) Neglected to barricade or otherwise warn persons who might be exposed to the dangerous condition; and

(e) Failed to warn plaintiff of the dangerous condition.

Count II also alleged that, on a date unknown to plaintiff, Barnes constructed and installed the interior ceiling and tile. Barnes violated its duty to plaintiff and was guilty of one or more careless and negligent acts or omissions:

(a) Attached the ceiling tiles so they would not remain in place but would fall; and

(b) Failed to secure the ceiling tiles so they would not fall.

Dominick's filed a counterclaim in two counts seeking indemnity from Barnes. Count I alleged the filing of plaintiff's complaint and referred to an appended copy thereof. Dominick's entered into an agreement with Barnes to install acoustical tile on the ceiling. Any judgment in favor of plaintiff and against Dominick's would establish only secondary and passive fault on the part of Dominick's and any such judgment would be due to the "real and active conduct" of Barnes in negligent installation of the acoustical ...


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