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Hopkins v. Powers

OPINION FILED JUNE 20, 1986.

BART A. HOPKINS, APPELLANT,

v.

FRANCIS P. POWERS, JR., APPELLEE.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of La Salle County, the Hon. William P. Denny, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 26, 1986.

Plaintiff, Bart A. Hopkins, filed a complaint in the circuit court of La Salle County against defendant, Francis P. Powers, Jr., licensee and operator of the Hall of Fame tavern, seeking contribution for damages. Defendant filed a motion to dismiss the complaint. At the conclusion of a hearing on defendant's motion, the court entered an order dismissing the complaint which plaintiff appealed. The appellate court affirmed, holding that dramshop liability is not tort liability and, therefore, a dramshop cannot be "liable in tort" for purposes of contribution. (136 Ill. App.3d 501, 504.) We allowed plaintiff's petition for leave to appeal in order to resolve a conflict between appellate court districts as to the status of a dramshop for purposes of contribution.

Specifically, we are asked to decide whether or not a dramshop which contributes to the intoxication of a person who later causes injury is thereby "liable in tort" for purposes of an action for contribution brought by the intoxicated party.

Plaintiff had been drinking intoxicating beverages at the Hall of Fame tavern located in Mendota. He then left the tavern with a companion and drove away in an automobile owned by Dorothy Hopkins. Subsequently, plaintiff lost control of the vehicle and it left the roadway, damaging property as follows: (1) real and personal property owned by Edwards Sales and Services (Edwards) in the amount of $14,562; (2) an automobile owned by Gilberto Polonares, valued at $1,438, which was parked on the Edwards' property; (3) a power pole and accouterments owned by Commonwealth Edison Company, valued at $617.14, which was situated on the Edwards' property. In addition, the vehicle plaintiff was driving was damaged in the amount of $3,965. Plaintiff's passenger at the time of the accident suffered personal injuries in the amount of $375.89.

Plaintiff settled with all claimants in the amounts indicated. He then filed suit seeking contribution for that portion of the total settlement proportionate to the relative culpability of himself and defendant.

The statutory provisions relevant to resolution of the issue before us are: section 6-21 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1983, ch. 43, par. 135 (Dramshop Act)); and section 2(a) of "An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1983, ch. 70, par. 302(a) (Contribution Act)). The Dramshop Act provides in pertinent part:

"Every person who is injured in person or property by any intoxicated person, has a right of action in his or her own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. * * *" (Ill. Rev. Stat. 1983, ch. 43, par. 135.)

Section 2(a) of the Contribution Act provides in pertinent part:

"[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, even though judgment has not been entered against any or all of them." (Emphasis added.) Ill. Rev. Stat. 1983, ch. 70, par. 302(a).

Plaintiff premises his right to contribution on recent appellate court cases which held that a person liable under the Dramshop Act is a tortfeasor and, therefore, is a person "liable in tort" for purposes of the Contribution Act. (Monsen v. DeGroot (1985), 130 Ill. App.3d 735, 738; Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App.3d 914, 917, 919; cf. Jodelis v. Harris (1985), 138 Ill. App.3d 457, 458, appeal allowed (1986), 111 Ill.2d 568.) On the basis of this line of authority, plaintiff maintains that he stated a cause of action for contribution. Defendant responds that the Dramshop Act does not create tort liability for purposes of the Contribution Act. Defendant contends that the Dramshop Act does not create a statutory duty in tort for the benefit of either innocent parties or the plaintiff. Further, defendant points out that in Illinois there is no common law tort duty to this effect. In the absence of either a statutory or common law duty, defendant concludes that he cannot be "liable in tort" as required under the Contribution Act. We agree.

Our recent decision in Wimmer v. Koenigseder (1985), 108 Ill.2d 435, is dispositive of the issue before us. In Wimmer, this court was asked to decide whether or not the sale of intoxicating beverages in Wisconsin, causing the intoxication of a person who later drove his car into Illinois and in such a manner as to cause the death of his passenger, plaintiff's decedent, constituted either a statutory or common law tort sufficient to confer jurisdiction over the Wisconsin taverns under the Illinois long-arm statute (Ill. Rev. Stat. 1981, ch. 110, par. 2-209(a)(2)). After a thorough analysis of the possible basis of dramshop liability, this court concluded that "there is no statutory or common law duty in Wisconsin or Illinois" to refrain from serving intoxicating beverages to a person who then becomes intoxicated and, as a result, injures innocent third persons. (108 Ill.2d 435, 444.) In support of this holding, the court cited consistent authority that the Dramshop Act is the sole remedy against a dramshop for injuries caused by intoxicated patrons. (108 Ill.2d 435, 443.) Under Wimmer, insofar as the serving of intoxicating beverages imposes liability on the purveyor, that liability is not grounded in tort but in the Dramshop Act. Wimmer reaffirmed the long-standing rule in Illinois that the purveyor of intoxicating beverages may be held liable only under the provisions of the Dramshop Act and that the liability so imposed is sui generis and exclusive. Demchuk v. Duplancich (1982), 92 Ill.2d 1, 5; Cunningham v. Brown (1961), 22 Ill.2d 23, 29-31; Howlett v. Doglio (1949), 402 Ill. 311, 318.

Applying this consistent line of authority to the instant case, it is clear that, under Illinois law, the defendant is not "liable in tort" for purposes of the Contribution Act. Defendant's liability is limited to the exclusive, sui generis nontort liability of the Dramshop Act. Because defendant is not "liable in tort," plaintiff, as a ...


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