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07/13/88 Donald Leaman, v. James Anderson

July 13, 1988

DONALD LEAMAN, PLAINTIFF

v.

JAMES ANDERSON, DEFENDANT AND THIRD-PARTY, PLAINTIFF-APPELLANT (FLORENE DUTKIEWICZ, THIRD-PARTY, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

526 N.E.2d 639, 172 Ill. App. 3d 62, 122 Ill. Dec. 380 1988.IL.1093

Appeal from the Circuit Court of Will County; the Hon. Rodney B. Lechwar, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. HEIPLE and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

This case comes on appeal from the trial court's order granting third-party defendant's motion for judgment on the pleadings, thereby denying third-party plaintiff's complaint for contribution pursuant to section 2-615(e) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615(e)).

Third-party plaintiff James Anderson (Anderson) was named as defendant in a two-count complaint filed by plaintiff Donald Leaman (Leaman). Anderson then brought a contribution action against third-party defendant Florene Dutkiewicz (Dutkiewicz). Anderson was the owner of a two-flat apartment house and Dutkiewicz was a tenant in the second-story apartment. One means of access of Dutkiewicz' apartment was by stairway leading to an exterior porch. Leaman, while a guest at Dutkiewicz' apartment, leaned against the porch railing, which collapsed, causing him to fall to the ground below and sustain injuries. Count I of Leaman's complaint was an action purely in tort alleging that Anderson, as owner of the property, was negligent. Count II of the complaint, however, was phrased as an action for breach of implied warranty. Anderson filed a motion to dismiss count II of the complaint, asserting that it did not set forth a cognizable separate theory of liability. That motion was denied.

Leaman and Anderson subsequently entered into a comprehensive settlement wherein Leaman executed a general release of his claim against all parties (including Anderson and Dutkiewicz) and dismissed his complaint (counts I and II) with prejudice.

The cause proceeded on Anderson's contribution claim against Dutkiewicz. Dutkiewicz then filed a motion for judgment on the pleadings and the court heard arguments on September 14, 1987. The court thereafter allowed Dutkiewicz' motion by order dated November 10, 1987. Although the order is nonspecific as to why Dutkiewicz prevailed, the briefs filed on appeal indicate the primary reason to be that the settlement agreement between Leaman and Anderson failed to allocate damages between count I and count II of Leaman's complaint.

Dutkiewicz argues that failure to allocate damages between the two counts was fatal because count I alleged a cause of action in tort and count II alleged a cause of action in contract. Therefore, since Anderson could only seek contribution against Dutkiewicz for tort liability, Anderson could not prove how much of the settlement was attributable to count I. Accordingly, he could not prove the amount to be contributed by Dutkiewicz for her pro-rata share of their joint tort liability.

Anderson has filed two motions on appeal; a motion for leave to cite supplemental authority and a motion for leave to cite subsequently promulgated authority. Both motions are granted at our discretion.

Section 2(a) of "An Act in relation to contribution among joint tort feasors" (the Contribution Act) provides:

"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, . . . there is a right of contribution among them, even though judgment has not been entered against any or all of them." Ill. Rev. Stat. 1987, ch. 70, par. 302(a).

Dutkiewicz relies primarily on the case of Houser v. Witt (1982), 111 Ill. App. 3d 123, 443 N.E.2d 725, as support for the trial court's granting of her motion on the pleadings. In that case, Judith and Dennis Houser sustained injuries when their van collided with a tractor being operated by Witt. The Housers jointly settled their personal injury claims against Witt for an unallocated sum. Witt then brought a counterclaim against Dennis Houser seeking contribution for the settlement amount attributable to the injuries sustained by Judith Houser. The appellate court, in affirming the trial court's directed verdict against Witt, held that the parties' failure to allocate the settlement proceeds between the ...


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