APPEAL from the Circuit Court of Cook County; the Hon. ALLEN
HARTMAN, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
This appeal arises out of a wrongful death action brought by the personal representative of the decedent, Marion L. Evans. Plaintiff sought a judgment against defendants Control Products Corporation (hereinafter Control Products) and others, based on strict liability in tort. Control Products thereafter filed a third-party complaint against CPC International (hereinafter CPC), decedent's employer, seeking indemnity based on strict liability in tort. CPC's motion to dismiss the third-party complaint was granted by the trial court. The primary action is still pending below. The sole issue for review is whether the fabricator of a product, suing in a third-party action based on strict liability in tort for an alleged defective design, has stated a cause of action sufficient to warrant indemnity from the entity that designed the product. We reverse and remand. The pertinent facts follow.
In 1964 and 1965, Control Products contracted with CPC to fabricate certain control panels designed by CPC. The control panels were to be installed into a "Mor Sweet" production system in a plant operated by CPC in Argo, Illinois. On April 21, 1974, Marion Evans, an employee of CPC, was cleaning a neutralizing tank when steam entered the tank due to an alleged malfunction of certain control panels. As a result, Evans was severely burned and he died several days later. Subsequently, his personal representative, Inell Evans, filed suit against 17 defendants, including Control Products.
Plaintiff's third amended complaint, based on strict liability in tort, alleged that the control panels regulated the entry of steam into the neutralizing tank of the "Mor Sweet" production system and that these panels were designed, manufactured, produced, fabricated and/or sold by Control Products. It further alleged that the control panels were not reasonably safe as they were designed, manufactured and installed without emergency shutoff valves, or adequate safety valves, and/or instructions; that the control panels allowed steam to enter the tank cleaning system without warning; and that such design defect was the proximate cause of death of plaintiff's decedent. Control Products filed an answer denying the material allegations of plaintiff's complaint and admitting only that it fabricated the control panels.
Thereafter, Control Products filed a third-party complaint against CPC which set forth the following: Count I sought indemnity under a strict liability theory; count II alleged an active/passive negligence theory; count III based liability on a breach of implied warranty; count IV alleged misuse by third-party defendant; and count V sought equitable contribution. CPC filed a motion to dismiss on the basis that if the allegations of Control Products were in fact true, it would have an absolute defense to plaintiff's complaint and therefore there would be no legal basis for an indemnity action; that the theories of active/passive negligence and misuse cannot be maintained where plaintiff's complaint was based on strict liability; that a breach of warranty theory was insufficient because third-party plaintiff was the seller and third-party defendant was the buyer; and that Illinois did not recognize contribution among joint tortfeasors.
On May 12, 1977, the trial court ordered the dismissal of counts II, III, and IV with prejudice; the dismissal of count V without prejudice to refiling at a later date pending the outcome of Skinner v. Reed-Prentice Division Package Machinery Co. (1976), 40 Ill. App.3d 99, 351 N.E.2d 405, on appeal to the Illinois Supreme Court; and leave was granted to amend count I.
In its second amended third-party complaint, Control Products alleged strict liability for defective design in count I and strict liability for supplying defective component parts in count II. Specifically, Control Products alleged that CPC designed the control panels; completely supervised its activities in regards to the product; determined and controlled the designation of all functions which the control panels were to perform; and that Control Products justifiably relied on the skill and expertise of CPC in regards to the creation and design of the product. Control Products further alleged that any liability incurred by it is solely predicated on the unreasonably dangerous and defective design of CPC, which existed at the time it left CPC's control.
Based on a motion to dismiss filed by CPC, count I was stricken. Count II was dismissed on a motion for summary judgment and is not a subject of this appeal. Thereafter, Control Products filed motions to vacate the final order dismissing the second amended third-party complaint and to reinstate count I of that complaint, and for leave to file a third amended third-party complaint including a count II seeking equitable contribution in light of the decision in Skinner. However, this motion was subsequently withdrawn when the Skinner case was given prospective application only and the motion to vacate the final order was denied. Control Products now appeals from that order.
Control Products contends that count I of the second amended third-party complaint states a cause of action for indemnity and therefore it was improperly dismissed by the trial court. In support of this contention, Control Products argues that a properly pleaded third-party complaint states a cause of action for indemnity when it alleges that the third-party defendant is responsible for a design defect which would make it strictly liable in tort to the third-party plaintiff. We agree.
1 Third-party practice in Illinois is governed by section 25 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 25). Section 25(2) provides, in part, that:
"* * * [A] defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him."
In considering a motion to dismiss all well-pleaded facts must be taken as true as well as reasonable inferences which can be drawn from those facts. (Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App.3d 623, 379 N.E.2d 1206; Ill. Rev. Stat. 1975, ch. 110, par. 45.) The function of a reviewing court is to determine whether the facts alleged in the complaint, uncontested and standing alone, evidence any possibility of recovery. (Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill.2d 128, 361 N.E.2d 575.) Should such a possibility appear, the order of dismissal must be vacated.
2 In order to withstand a motion to dismiss, a third-party complaint seeking indemnity must allege some relationship between the third-party plaintiff and third-party defendant sufficient to warrant application of indemnity principles. (Muhlbauer v. Kruzel (1968), 39 Ill.2d 226, 234 N.E.2d 790; see also Burke v. Sky Climber, Inc. (1974), 57 Ill.2d 542, 316 N.E.2d 516.) In analyzing the sufficiency of the third-party complaint before us, we must, therefore, determine whether or not the pleadings allege facts showing a ...