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Bednar v. Venture Stores

OPINION FILED MAY 14, 1982.

EMILY A. BEDNAR, PLAINTIFF,

v.

VENTURE STORES, INC., ET AL., DEFENDANTS AND THIRD-PARTY PLAINTIFFS. — (VENTURE STORES, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT,

v.

KENNETH BALK & ASSOCIATES ET AL., THIRD-PARTY DEFENDANTS — (READY PAVING AND CONSTRUCTION COMPANY, THIRD-PARTY DEFENDANT-APPELLEE).)



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

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

The sole question in this appeal is whether the trial court erred in dismissing plaintiff's second amended third-party complaint against this defendant for failure to state a cause of action for implied indemnity.

This action arose out of a personal injury suit filed by Emily Bednar against defendants and third-party plaintiffs, Venture Stores, Inc. (Venture), a division of May Department Stores Co., and May Properties, Inc. (May). In April of 1976, Bednar was departing from a Venture store in Oak Lawn, Illinois, when she slipped and fell on a ramp-like exit and entranceway, sustaining injuries.

Bednar filed a two-count complaint against Venture and May, alleging that defendants had negligently designed the ramp on which she fell with a higher angled grade which was unreasonably unsafe for use as an entrance or exit ramp-way to the store.

May and Venture then filed a third-party complaint seeking indemnity from the architectural firm that designed the ramp, Kenneth Balk and Associates, and subsequently amended this complaint to include the third-party defendant in the case at bar, Ready Paving & Construction Co. (Ready).

The second amended third-party complaint contained these general allegations against Ready: (1) Ready was the party responsible for supplying the materials and labor for the installation of the ramp-like entrance and exit upon which Bednar fell; and (2) Ready was actively negligent in designing and/or negligently constructing the ramp at an unreasonably unsafe grade. The complaint further alleged that third-party plaintiffs, as owners of the store, were, if negligent, only passively negligent in that they had merely engaged Ready to install the ramp-like entrance and exit and were therefore entitled to indemnification from Ready.

Ready moved to dismiss the second amended third-party complaint, relying on the rule in Hunt v. Blasius (1978), 74 Ill.2d 203, 384 N.E.2d 368, which holds that an independent contractor is not liable if it carefully carries out the specifications provided to it, unless they are so obviously dangerous that no competent contractor would follow them.

The trial court allowed Ready's motion to dismiss as to both Venture and May. The dismissal order provided that both third-party plaintiffs were granted leave to file a motion for rehearing supported by an amended count II.

Pursuant to that order, a motion for rehearing was filed, supported by an amendment to count II of the third-party complaint.

That amendment alleged, in pertinent part, that:

"6. Ready * * * constructed the exterior walkway and ramp-like entrance in a careless and negligent manner in that it:

A. deviated from the plans and specifications so substantially that it knew or should have known that the configuration of the exterior walkway and ramp-like entrance was hazardous to persons walking on it, or,

B. complied with plans and specifications which were so defective and dangerous that a reasonably well qualified paving and construction company would or in the exercise of reasonable care should have recognized them to be dangerous and defective * * *."

The trial court allowed only May to vacate the dismissal and to file this amendment to count II, but ...


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