The opinion of the court was delivered by: Stiehl, District Judge:
Before the Court is cross-defendant Westinghouse Elevator
Company's (Westinghouse) motion to dismiss Count II of
cross-plaintiff, May Centers, Inc.'s (May) crossclaim for
The original action was filed by Ezra Casey, Sr., as father and
next friend of Ezra Casey, Jr., a minor. The amended two-count
complaint is based on strict product liability against
defendants Westinghouse Elevator Company and May Centers, Inc.,
and alleges personal injuries to Ezra Casey, Jr. which resulted
when his right hand was caught in an open gap on an escalator
located in Alton Square Shopping Center (Alton Square). Alton
Square is owned and operated by May. Westinghouse is alleged to
have manufactured and installed the escalator.
May filed an amended two-count crossclaim against Westinghouse.
Count I is based on contribution. Count II sounds in "upstream"
implied indemnity. Only Count II is at issue in the motion to
This Court is faced with the task of determining whether the
common law principle of implied indemnity, in particular
"upstream" implied indemnity, is still viable in light of the
Illinois Contribution Among Joint Tortfeasors Act,
Ill.Rev.Stat. ch. 70 § 301 et seq. (1985). The Illinois Supreme
Court has raised the issue of whether implied indemnity exists
in view of the Act, however, the Court has ruled only to
abolish active-passive indemnity, and has refused to rule on
indemnity in general. Allison v. Shell Oil Company,
113 Ill.2d 26, 99 Ill.Dec. 115, 495 N.E.2d 496 (1986). See also
Van Slambrouck v. Economy Baler, 105 Ill.2d 462, 86 Ill.Dec.
488, 475 N.E.2d 867 (1985); Simmons v. Union Electric Co.,
104 Ill.2d 444, 85 Ill.Dec. 347, 473 N.E.2d 946 (1984);
Heinrich v. Peabody International Corp., 99 Ill.2d 344, 76
Ill.Dec. 800, 459 N.E.2d 935 (1984).
Indemnity has been defined as:
[A] common law doctrine providing for the complete shifting of
liability on a showing that there was a pretort [sic]
relationship between the guilty parties and a qualitative
distinction between their conduct.
Bristow v. Griffitts Construction Co., 140 Ill. App.3d 191, 94
Ill.Dec. 506, 510, 488 N.E.2d 332, 336 (1986) quoting
Heinrich, 76 Ill.Dec. at 803, 459 N.E.2d at 938.
The court also found the elements to be different, as well as
the measure of recovery. To assert a claim for contribution,
one only need show a "common injury which his acts and those of
the contributor combined to bring about and which makes them
subject to liability in tort." Id. Whereas, a party seeking
indemnity must show the pre-tort relationship with the
indemnitor, and "some significant difference in the nature of
their respective conduct which justifies a shifting of
liability." Id. This "shifting" factor necessarily results in
different recovery as "indemnity is all or nothing," whereas
under the Act ". . . no party is liable to make contribution
beyond his pro rata share of the common liability as measured
by the extent to which his acts or omissions . . . proximately
caused the injury." Id. Also, it is not necessary in
contribution to establish the "qualitative difference" in the
nature of the parties conduct, while, under the principles of
indemnity, failure to establish the difference will defeat a
claim for indemnification. Id.
The Supreme Court, however, in Heinrich did not rule on
whether indemnity survived contribution. In fact, the court
refused to rule on the propriety of the dismissal of the
indemnity count and found "it presupposes the continued
vitality of the traditional doctrine of indemnification." The
court remanded the case to the First Appellate District for a
finding as to the issue of the survival of implied indemnity in
light of the Contribution Act.
The First District, following the directives of the Illinois
Supreme Court, also reviewed the relationship of these two
doctrines. The court recognized that implied indemnity
"developed hand-in-hand with the rule against contribution."
Heinrich v. Peabody International Corp., 139 Ill. App.3d 289,
93 Ill.Dec. 544, 547, 486 N.E.2d 1379, 1382 (1985), leave to
appeal denied.*fn* The First District found that the
implied indemnity did not survive the Contribution Act. In
support, the court found the following:
First, contribution is a full and fair remedy among all parties
arguably liable for injuries to plaintiffs. Second, the purpose
of contribution would be defeated if courts continued to
recognize implied indemnity.
Id. 93 Ill.Dec. at 549, 486 N.E.2d at 1384. These purposes
have been recognized as "the equitable sharing of damages, and
the encouragement of settlement." Id. Heinrich ...