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01/27/88 James J. Matusak, v. Chicago Transit Authority

January 27, 1988

JAMES J. MATUSAK, PLAINTIFF

v.

CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS (MITCHELL

KACZMAREK, INDI

v.

AND D/B/A BELMONT TAVERN, THIRD-PARTY DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

520 N.E.2d 925, 165 Ill. App. 3d 1032, 117 Ill. Dec. 574 1988.IL.83

Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Third-party plaintiffs, the Chicago Transit Authority and Peter Gordon (hereinafter the CTA), appeal the circuit court of Cook County's grant of the motion of third-party defendants, Edwin Kaczmarek and Mitchell Kaczmarek (the Kaczmareks), individually and d/b/a Belmont Tavern, to dismiss their third-party complaint for contribution. The issue presented is whether a defendant sued in tort for personal injuries suffered by an intoxicated plaintiff may maintain a contribution action against the dramshop which caused the plaintiff's intoxication.

We affirm.

Plaintiff, James Matusak, filed a complaint against the CTA for personal injuries allegedly sustained when he attempted to alight from a CTA bus, which Gordon was driving. Plaintiff alleged that, as he attempted to exit the bus, Gordon drove on, knocking him to the ground.

The CTA then filed a third-party complaint for contribution against the Kaczmareks. The CTA alleged that, on the date of plaintiff's accident, he had been served alcohol on the premises of the Belmont Tavern, which caused his intoxication, and that, as a proximate result thereof, plaintiff fell into the bus driven by Gordon and was injured. The CTA sought a judgment against the Kaczmareks, according to the relative culpability of the parties in causing plaintiff's injuries, under the Contribution Act (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.) and the Dramshop Act (Ill. Rev. Stat. 1981, ch. 43, par. 135) if a judgment were entered against it in the underlying action.

The Kaczmarek's motion to dismiss the third-party complaint alleged, inter alia, that the CTA had no right of contribution against them because they were not liable in tort to plaintiff, James Matusak, under the Dramshop Act, which is restricted to situations where third parties suffer damages as a result of the actions of intoxicated individuals. The trial court dismissed the third-party complaint with prejudice.

The CTA contends on appeal that its third-party complaint stated a cause of action against the Kaczmareks because plaintiff's intoxication resulted, in whole or in part, in his injuries. It asserts that the Kaczmareks' culpability in contributing to plaintiff's injuries is therefore self-evident. Citing Monsen v. DeGroot (1985), 130 Ill. App. 3d 735, 475 N.E.2d 5, the CTA notes that a contribution action generally may be maintained against a dramshop. Thus, it reasons, the only issue here is whether a dramshop is liable for contribution when the intoxicated individual is the plaintiff in the underlying suit. Monsen approved the right of an intoxicated person made a defendant in a personal injury suit to seek contribution from the dramshop which caused his intoxication. Monsen was impliedly overruled by Hopkins v. Powers (1986), 113 Ill. 2d 206, 497 N.E.2d 757, in which the supreme court rendered a decision to the contrary. The CTA has cited Hopkins as additional authority for its position, apparently in reliance on the language that "[recovery] under the Dramshop Act is limited to innocent third persons who are injured as a result of the sale or gift of intoxicating beverages." Hopkins, 113 Ill. 2d at 211.

At oral argument before this court, the parties conceded that our supreme court's decision in Jodelis v. Harris (1985), 138 Ill. App. 3d 457, 485 N.E.2d 1208, appeal allowed (1986), 111 Ill. 2d 568, which was then before that court, involved the same issue as this appeal and would thus be controlling. The parties agreed to await the decision in Jodelis before we disposed of this appeal. An opinion having been filed by the supreme court in that case, we now proceed to dispose of this appeal.

The third-party plaintiff in Jodelis argued, as the CTA generally does here, that he was entitled to contribution from the dramshop which caused the plaintiff's intoxication on equitable principles established in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 371 N.E.2d 437, cert. denied (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849, and codified in the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.). Skinner and the Contribution Act "provide that financial responsibility for damages will be divided between the persons causing" a personal injury. Jodelis v. Harris (1987), 118 Ill. 2d 482, 485.

The supreme court noted that the Contribution Act "recognizes only a restricted right of contribution, providing that there is a cause of action for contribution only 'where 2 or more persons are subject to liability in tort.'" (Emphasis added.) (118 Ill. 2d at 485.) The court then held its decision in Hopkins v. Powers (1986), 113 Ill. 2d 206, 497 N.E.2d 757, as dispositive. Hopkins held that a dramshop contributing to the intoxication of a person later causing injury to another is not "'liable in tort'" under the Dramshop Act for purposes of an action by the intoxicated party under the Contribution Act. (Jodelis, 118 Ill. 2d at 486.) Rather, the Hopkins court reasoned, the Dramshop Act imposed "'exclusive, sui generis nontort liability.'" (118 Ill. 2d at 486.) Therefore, the intoxicated party in Hopkins was prohibited from ...


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