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Hopkins v. Powers

OPINION FILED SEPTEMBER 11, 1985.

BART A. HOPKINS, PLAINTIFF-APPELLANT,

v.

FRANCIS P. POWERS, JR., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of La Salle County; the Hon. William P. Denny, Judge, presiding.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

The plaintiff, Bart A. Hopkins, while he was intoxicated, lost control of his automobile and caused property damage to several individuals. He responded by paying for the property damage. He then filed the instant lawsuit in the circuit court of La Salle County against the dramshop which caused his intoxication, seeking, pursuant to the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.), to have the dramshop share his liability to the injured parties. The defendant dramshop filed a motion to dismiss the complaint, and the circuit court granted the motion. The only issue raised on this appeal is whether a right of contribution exists under the Contribution Act against a dramshop by the intoxicated person.

In a recent case, the Illinois Appellate Court, First District, considered this very question and concluded that the intoxicated person could seek contribution against the dramshop. (Monsen v. DeGroot (1985), 130 Ill. App.3d 735, 475 N.E.2d 5.) The Monsen court relied on provisions of the Contribution Act which provide:

"[W]here 2 or more persons are subject to liability in tort arising out of the same injury to person or property * * * there is a right of contribution among them * * *." (Ill. Rev. Stat. 1983, ch. 70, par. 302(a).)

The same court concluded that dramshops are persons subject to liability in tort on the authority of Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App.3d 914, 444 N.E.2d 504. In Morgan, it was said:

"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, 295 N.E.2d 718." (Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App.3d 914, 917, 444 N.E.2d 504, 506.)

While it is true that in each of the cases cited by the Morgan court the tavern owners and operators were labeled "tortfeasors," other Illinois reviewing courts take what is arguably a contrary view. In Nelson v. Araiza (1978), 69 Ill.2d 534, 538, 372 N.E.2d 637, 638, the supreme court wrote:

"The remedy afforded by the Dramshop Act is a creature of legislation. The statute imposes no-fault liability."

Similarly, in Lichter v. Scher (1956), 11 Ill. App.2d 441, 452, 138 N.E.2d 66, 71, the court noted:

"The Dram Shop Act is unique. * * * [I]t is designed to discipline a legal but ill-favored trade. While it applies a remedy to mitigate the evils and dangers that flow from the liquor traffic, it is a remedy not necessarily based on fault or negligence."

Another court observed:

"The common law gave no right of action either on the theory that the sale of liquor was a direct wrong or on the ground that it was negligence, which under any circumstance might impose liability on the seller for damages resulting from intoxication. [Citation.] The Dramshop Act is designed to fulfill a need for discipline of traffic in liquor and to provide a remedy for the evils and dangers which flow from such traffic. The remedy is not necessarily based on fault or negligence. A dramshop keeper who has sold liquor to one not intoxicated at the time and a landlord wholly innocent may be liable." (Osinger v. Christian (1963), 43 Ill. App.2d 480, 485, 193 N.E.2d 872, 875.)

Indeed, on review by the supreme court of a decision relied on by the Morgan court, Justice Davis, concurring with the majority opinion, emphasized:

"Liability under the Dramshop Act is not premised upon fault [or] negligence." (Wessel v. Carmi Elks Home, Inc. (1973), 54 ...


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