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03/20/89 Robert Rathke, v. Jerry Albekier Et Al.

March 20, 1989

ROBERT RATHKE, PLAINTIFF-APPELLANT

v.

JERRY ALBEKIER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

536 N.E.2d 864, 181 Ill. App. 3d 63, 129 Ill. Dec. 814 1989.IL.362

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. BUCKLEY and QUINLAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

This is an appeal from the dismissal of an action to recover damages pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619). At issue is whether a release given to a dramshop also releases an allegedly intoxicated motorist with respect to injuries caused by the motorist, pursuant to the common law rule that a release of one joint tortfeasor releases all, where the cause of action arose prior to the effective date of "An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.) (Contribution Act). We reverse.

Plaintiff, Robert Rathke, was born May 24, 1967. The parental rights of his natural parents were terminated under docket No. 67 -- J -- 4767, and he was adopted on September 2, 1981.

On October 6, 1977, during a visit to his natural mother, Marie Albekier, he was a passenger in a car driven by her husband, Jerry Albekier, which collided with a car driven by defendant Carol Fanning.

On December 2, 1977, a lawsuit was filed against Carol Fanning by Jerry Albekier, Marie Albekier and Robert Turza [now Rathke], a minor, by Marie Albekier as his mother and next friend. That suit was terminated by a stipulation to dismiss entered on January 10, 1980.

In 1978, a lawsuit was filed on behalf of the plaintiff against the Howard Johnson Company, the Ground Round, Inc., and various employees under "An Act relating to alcoholic liquors" (Ill. Rev. Stat. 1977, ch. 43, par. 135) (Dramshop Act). In that action it was alleged that those defendants had sold, served or given alcoholic beverages to Carol Fanning and they were therefore liable for injuries sustained by Rathke in the October 16, 1977, accident.

In 1985, after reaching the age of majority, plaintiff settled the dramshop action and signed a release for a money settlement to the Howard Johnson Company and the Ground Round, Inc., of all claims for injuries resulting from the 1977 accident.

On November 14, 1985, Rathke filed the present lawsuit against Jerry Albekier, Marie Albekier and Carol Fanning. The counts against the Albekiers were dismissed after failure to obtain service. Defendant Fanning's motion to dismiss was granted on the basis of the release given in the dramshop case. Plaintiff now appeals.

The plaintiff contends that the release given to the dramshop cannot release Carol Fanning because a release given to a nontortfeasor does not discharge a tortfeasor. Plaintiff cites Hopkins v. Powers (1986), 113 Ill. 2d 206, 211, 497 N.E.2d 757, in which the Illinois Supreme Court stated that a tavern's "liability is limited to the exclusive, sui generis nontort liability of the Dramshop Act." Plaintiff also relies on Clear-Vu Packaging, Inc. v. National Union Fire Insurance Co. (1982), 105 Ill. App. 3d 671, 434 N.E.2d 365, in which the court noted that "a release given a nontortfeasor does not release another who may be a tortfeasor." Clear-Vu, 105 Ill. App. 3d at 675.

The defendant contends that as this case arose prior to the Contribution Act, which applies only to causes of action arising on or after March 1, 1978 (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.), it is governed by the common law rule of releases under which "a full release of one indivisible injury to any of those Concurring in its cause releases both joint and independent concurrent tortfeasors." (See Porter v. Ford Motor Co. (1981), 103 Ill. App. 3d 848, 850, 431 N.E.2d 1261, aff'd (1983), 96 Ill. 2d 190.) The defendant also relies on Schrempf v. New England Mutual Life Insurance Co. (1982), 103 Ill. App. 3d 408, 412, 431 N.E.2d 402, in which the court ...


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