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Devore v. Peoria Industrial Piping Co.

OPINION FILED AUGUST 14, 1985.

BENJAMIN R. DEVORE, PLAINTIFF,

v.

PEORIA INDUSTRIAL PIPING COMPANY, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (JACK T. MURPHY, THIRD PARTY DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Peoria County; the Hon. Calvin R. Stone, Judge, presiding.

JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 25, 1985.

This is an appeal from a judgment of the circuit court of Peoria County dismissing the third-party complaint of Peoria Industrial Piping Company, Inc. (hereinafter PIPCO), seeking indemnification from Jack Murphy for his pro rata share of any liability for injuries suffered by the plaintiff, Benjamin DeVore.

This action began when DeVore filed a one-count complaint against PIPCO seeking recovery of damages for personal injuries arising out of a violation of section 16 of the Animal Control Act (Ill. Rev. Stat. 1981, ch. 8, par. 366), more commonly known as the Illinois "dog-bite" statute. This complaint alleged DeVore, on September 27, 1981, was peaceably conducting himself as a business invitee at PIPCO's place of business, where he had a lawful right to be, when German Sheperd dogs, without provocation, attacked and bit him. Further, as a direct and proximate result of the dog bites, DeVore became infected with a bacterial organism which caused him to suffer bacterial endocarditis, which destroyed an aortic valve, requiring a surgical operation to replace. PIPCO filed its answer denying the essential allegations of DeVore's complaint and thereafter filed a motion for leave to file a third-party complaint, which was allowed.

PIPCO's third-party complaint sought indemnity from Murphy for his pro rata share of any liability for DeVore's injuries. PIPCO alleged that Murphy brought his friend DeVore onto PIPCO's premises so Murphy could pick up a truck and take it home with him. The complaint further alleged that Murphy was utilizing the truck at the time and place for personal as opposed to business purposes and that if the dogs attacked and bit DeVore as he alleged, it was because Murphy failed to properly close a gate separating the driveway on which DeVore was situated from that part of PIPCO's premises on which the dogs were situated. Murphy filed a motion to dismiss third-party complaint, which the court allowed, dismissing the third-party complaint with prejudice. PIPCO subsequently filed a motion to reconsider and further to allow PIPCO leave to file another third-party complaint against Murphy for both contribution and indemnification or, in the alternative, to certify the appropriate question of law for interlocutory appeal. This motion was denied. Thereafter, PIPCO moved for leave to file a four-count third-party complaint against Murphy for principal-agent indemnification, active-passive indemnification, equitable apportionment, and contribution.

This proposed third-party complaint alleged Murphy arrived with DeVore at PIPCO's premises when such business was closed; that Murphy was one of the keepers responsible for feeding the security guard dogs and was aware the dogs freely roamed after business hours on the premises to protect the premises from intruders; that Murphy, as an employee of PIPCO, owed a duty to properly open and close the gate so the guard dogs could not get out and cause injury to strangers, such as DeVore, located outside the enclosed area of the premises; and that Murphy was negligent in that he failed to properly close the gate, failed to lock up the guard dogs before opening the gate, failed to warn there were guard dogs and that the gate would be unlocked or opened, and failed to instruct DeVore to maintain a position so the dogs could not attack or injure him. The court denied PIPCO's motion for leave to file this revised third-party complaint.

A jury trial commenced as to the original action, and on the second day of trial the court declared a mistrial. DeVore and PIPCO subsequently entered into a settlement agreement. An order of dismissal with prejudice of the original action was entered pursuant to a written stipulation of those parties. PIPCO now appeals from the judgment of the circuit court allowing Murphy's motion to dismiss third-party complaint with prejudice, denying the motion to reconsider and denying the motion for leave to file the revised four-count third-party complaint.

The issue we are asked to decide on appeal is whether PIPCO is entitled to seek principal-agent indemnification, active-passive indemnification, equitable apportionment, and/or contribution from Murphy. Initially, PIPCO contends the trial court improperly refused to allow it to seek contribution against Murphy. PIPCO argues both itself and Murphy were "subject to liability" in tort for the same injury and that public policy favors making him who is culpable liable for his acts.

Section 2(a) of the Contribution Among Joint Tortfeasors Act states:

"Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them." (Ill. Rev. Stat. 1983, ch. 70, par. 302(a).)

PIPCO maintains Murphy was "subject to liability in tort" to DeVore for negligence by allegedly failing to properly close the gate, failing to lock up the guard dogs before opening the gate, failing to warn DeVore that there were guard dogs and that the gate would be unlocked or opened, and for failing to instruct DeVore to maintain a position so the dogs could not attack or injure him. PIPCO further maintains that it was "subject to liability in tort" to DeVore under a vicarious liability theory for the alleged acts of its employee, Murphy, if those events were found to fall within the scope of his employment, and it was also subject to liability in tort to DeVore under separate common law negligence and statutory dogbite theories. PIPCO seeks a 100% right of contribution from Murphy for the damages it paid to DeVore.

Section 2(b) of the Act provides in relevant part that "[t]he right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability" (Ill. Rev. Stat. 1983, ch. 70, par. 302(b)). Section 2(e) further provides that "[a] tortfeasor who settles with a claimant * * * is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement." Ill. Rev. Stat. 1983, ch. 70, par. 302(e).

• 1, 2 Murphy argues that there is no showing that the settlement effected by PIPCO and DeVore exonerated Murphy of liability for his alleged breach and that as the burden of establishing the requisites of the claim in the record rests with the appellant, it can be assumed that the settlement reached reflected ...


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