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AL-HAZMI v. CITY OF WAUKEGAN

February 7, 1984

SULIMAN D. AL-HAZMI, PLAINTIFF,
v.
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
  ("Hasty") and
    2. on May 11, 1983 against Mary Woods individually
  and doing business as Mama Mia's Restaurant
  ("Woods").

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.

Facts*fn2

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's Contentions

Woods raises three arguments*fn3 against Waukegan's third-party action:

    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.

Common-Law Negligence

Waukegan brings its action against Woods under the Contribution Act, Ill.Rev. Stat. ch. 70, ΒΆ ...


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