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Morgan v. Kirk Bros.

OPINION FILED DECEMBER 9, 1982.

JUDY K. MORGAN ET AL., PLAINTIFFS,

v.

KIRK BROS., INC., ET AL., DEFENDANTS. — (KIRK BROS., INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT,

v.

BEGGS ENTERPRISES, INC., ET AL., THIRD-PARTY DEFENDANTS-APPELLEES.)



Appeal from the Circuit Court of Kane County; the Hon. John A. Leifheit, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 10, 1983.

Whether "An Act in relation to contribution among joint tortfeasors" (hereinafter the Contribution Act) (Ill. Rev. Stat. 1981, ch. 70, par. 302) allows a cause of action for contribution against one whose liability arises from an alleged violation of the Dramshop Act (Ill. Rev. Stat. 1981, ch. 43, par. 135) is the question posed by this appeal.

Judy Morgan was injured as the result of a collision between the automobile in which she was a passenger, being driven by Bernard N. Bailey, Jr., and a truck owned by Kirk Bros., Inc. (Kirk), being driven by Paul Joyce, its employee. Kirk filed a third-party suit against Beggs Enterprises, Inc., Recreation Services, Inc., and Varsity Inn, Inc. (the Dramshops). The third-party complaint contained allegations that the dramshops sold and served alcoholic liquor to Bailey, he became intoxicated, while intoxicated collided with the Kirk vehicle, and as a direct and proximate result of the acts of Bailey while intoxicated the original plaintiffs, Judy K. Morgan and Jerry Lee Morgan, her husband, sustained injury. The third-party plaintiff states that if judgment is entered against it in the Morgans' suit that judgment be entered against the dramshops "by virtue of the provisions of § 135 of Chapter 43 of the Illinois Revised Statutes" (the Dramshop Act) and in favor of the third-party plaintiff "in such amount, by way of contribution, as would be commensurate with the Dram Shop Act."

The Dramshops moved to dismiss the third-party complaint, contending that it did not state a cause of action either under the Dramshop Act or under the Contribution Act. The trial court granted the motion of Recreation Services, Inc., and made final its ruling that Kirk, as a matter of law, could not obtain contribution from a party subject to potential dramshop liability.

Recreation Services (hereinafter referred to as the Dramshop) is the only dramshop defending the appeal.

The contribution statute, as material, states:

"where 2 or more persons are subject to liability in tort arising out of the same injury * * * there is a right of contribution among them * * *." Ill. Rev. Stat. 1981, ch. 70, par. 302(a).

The "same injury," that to the plaintiffs in the original suit, is undeniably involved. Whether the Dramshops are "subject to liability in tort" is the initial question raised. The Dramshop argues, and it is undisputed, that its liability is solely based on the Dramshop Act. *fn1 The further refinement of that argument is that the Dramshop Act requires the Dramshop to respond in damages only to one who is injured in his person or property by an intoxicated person; and that Kirk is not claiming for its own personal injury. The Dramshop notes that a claim for pecuniary loss has been held not to constitute "property damages" under the Dramshop Act. (Eager v. Nathan (1957), 14 Ill. App.2d 418, 423.) We agree that Kirk could not have recovered against the Dramshops under the Dramshop Act. That, however, is not contested.

Kirk concedes that it cannot sue the Dramshops directly under that statute and that prior to the enactment of the Contribution Act it could not have obtained indemnity or contribution from a Dramshop. It contends, however, that the Dramshops are joint tortfeasors under the Contribution Act. The Dramshop contends that its liability is not based on tort but upon a purely statutory regulation of its status, which imposes liability without regard to fault, upon the sale of alcoholic liquor shown to cause the intoxication of the customer. Thus, that there is no common basis to compare the strict liability of a dramshop with the fault liability of the negligent motorist. Further, that the lawful sale of alcoholic liquor is not the proximate cause of the injuries to a passenger of an intoxicated motorist involved, as here, in a collision with a negligent motorist.

• 1 We cannot agree that the Dramshops are not statutory tortfeasors. The action under the dramshop statute and its predecessors has long been considered an action in tort. (Pisa v. Holy (1904), 114 Ill. App. 6, 7. See also Dworak v. Tempel (1959), 17 Ill.2d 181, 191; Wanack v. Michels (1905), 215 Ill. 87, 94-95; Coffey v. ABC Liquor Stores, Inc. (1957), 13 Ill. App.2d 510, 514.) Liability by statute is imposed on dramshops not merely because of their "status," which is a lawful but regulated business, but because, when they are shown to have caused the intoxication of persons who as a result of the intoxication cause injury to others, they are denominated as wrongdoers. Wessel v. Carmi Elks Home, Inc. (1971), 133 Ill. App.2d 902, 905, aff'd (1973), 54 Ill.2d 127.

The Dramshop seeks to distinguish its liability from liability "which results from a breach of a duty imposed by statute" and argues that various statutes commonly said to impose "statutory liability" differ significantly from the Dramshop Act in that each creates a tort law duty upon certain classes of defendants and the ensuing tort liability flows from a breach of that duty. It gives as examples the Scaffold Act imposing on persons engaged in construction activity certain duties towards workmen, the Road and Bridges Act imposing upon persons engaged in road and bridge construction certain duties towards workmen and members of the public and the Public Utilities Act imposing upon persons operating certain utility services duties towards workmen and members of the public. In contrast the Dramshop argues that the Dramshop Act does not impose any duty on the tavern operator with respect to his conduct. With this we cannot agree. The Dramshop Act is but one example of legislation creating new rights founded on tortious conduct. (See Restatement (Second) of Torts Sec. 874A, Comment b, at 301 (1979).) To the extent taverns' sale or gift of intoxicating liquors causes in fact the intoxication of persons and as the result of the intoxication causes injury to others requiring them to answer in damages, a standard of conduct is prescribed, a duty to which they are required to conform.

• 2 The Dramshop's further argument that it cannot be considered a "joint tortfeasor" with the negligent motorist does not address the full scope of the contribution statute. Although the act is styled "An Act in relation to contribution among joint tortfeasors," neither section 302(a) nor the published Legislative History requires that the tortfeasors be joint in the strict sense, that their tortious acts be simultaneous, or that they act in concert before contribution will lie. *fn2 The only apparent requirement for contribution between co-tortfeasors is that recovery over be based on the same injury to person or property. Thus, the act permits contribution where co-tortfeasors are concurrent (Legislative History compiled by Chicago Bar Association, at 1 (12-1-81); see Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 182 (1980)) or successive (see Horan, Contribution In Illinois: Skinner v. Reed-Prentice and Senate Bill 308, 61 Chi. Bar Rec. 331 (1980)) as long as the same injury is involved.

We consider the further contention that no-fault liability cannot be compared with the fault liability of Kirk, a negligent tortfeasor. The Dramshop reads the supreme court's seminal decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 13, as involving a contribution claim under which the manufacturer and plaintiff's employer downstream were subject to the same common law standard in products ...


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