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AL-HAZMI v. CITY OF WAUKEGAN
February 7, 1984
SULIMAN D. AL-HAZMI, PLAINTIFF,
CITY OF WAUKEGAN, DEFENDANT AND THIRD PARTY PLAINTIFF, V. DEREK L. HASTY AND MARY WOODS, INDIVIDUALLY AND D/B/A MAMA MIA'S RESTAURANT, THIRD PARTY DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Suliman D. Al-Hazmi ("Al-Hazmi") has filed this diversity
action*fn1 against the City of Waukegan ("Waukegan") for
personal injuries arising out of an automobile accident. Waukegan
has in turn filed two third-party complaints:
1. on November 6, 1981 against Derek L. Hasty
2. on May 11, 1983 against Mary Woods individually
and doing business as Mama Mia's Restaurant
Woods now moves under Fed.R.Civ.P. ("Rule") 12(b)(6) to be
dismissed for Waukegan's failure to state a claim upon which
relief can be granted. For the reasons stated in this memorandum
opinion and order, Woods's motion is denied.
At about 3 a.m. November 23, 1980 Al-Hazmi was driving north on
Green Bay Road in Waukegan. Because Al-Hazmi's car lights were
not working (apparently the electrical circuits were causing
problems), a Waukegan police officer in a patrol car stopped
Al-Hazmi and ordered him to get out of his car. While the two of
them were standing (at the officer's direction) between
Al-Hazmi's car and the police car parked just behind it on the
road, Hasty's car came along and struck the rear of the police
car, crashing it forward into Al-Hazmi and then into his car and
causing grave injuries to Al-Hazmi's legs.
Both Waukegan's third-party complaints seek contribution for
any amounts Waukegan may be found to be liable for to Al-Hazmi,
based on (1) Hasty's negligent operation of his own vehicle and
(2) Woods's having served Hasty alcoholic beverages so as to
cause his intoxication and consequently Al-Hazmi's injuries.
Woods raises three arguments*fn3 against Waukegan's
1. Illinois recognizes no common-law action for
negligence against dram shops. Woods's liability must
then be predicated solely on the Illinois Dram Shop
Act, Ill.Rev.Stat. ch. 43, ¶ 135 ("Paragraph 135").
2. Woods is not subject to liability in tort within
the meaning of the Illinois Contribution Act
(Ill.Rev.Stat. ch. 70, ¶¶ 301-305) because Waukegan
failed to file its action within the one-year time
period specified in Paragraph 135. Timely filing is a
precondition to Woods's liability.
3. Even if Waukegan's action is timely, Waukegan is
not entitled to recover more than the liability limit
specified in Paragraph 135.
Waukegan retorts with various more or less defensible responses,
discussed later in this opinion.
Waukegan brings its action against Woods under the Contribution
Act, Ill.Rev. Stat. ch. 70, ¶ ...
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