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02/13/97 JOHN MCNAMEE v. FEDERATED EQUIPMENT &

February 13, 1997

JOHN MCNAMEE, INDEPENDENT EXECUTOR OF THE ESTATE OF STEVEN MCNAMEE, DECEASED, PLAINTIFF-APPELLEE,
v.
FEDERATED EQUIPMENT & SUPPLY COMPANY, A CORPORATION, AND DEUTSCHE SCHLAUCHBOOT FABRIK HANS SCHEIBERT GMBH & CO., K.G., DEFENDANTS/THIRD PARTY PLAINTIFFS-APPELLEES, V. CITY OF CHICAGO, THIRD-PARTY DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JULIA M. NOWICKI, JUDGE PRESIDING.

Released for Publication March 31, 1997.

Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Burke, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

In Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155, 585 N.E.2d 1023, 166 Ill. Dec. 1 (1991), the Supreme Court held that an employer's liability in contribution was limited to that employer's liability to its employee under the provisions of the Workers' Compensation Act. Kotecki involved a private employer. The question in this case is whether the Kotecki doctrine applies to a public employer under the provisions of the Pension Code. We conclude it does not.

BACKGROUND

Steven McNamee, a Chicago fireman, his life when he attempted to jump into a "Life Cube" during a training exercise at the Chicago Fire Academy.

The Life Cube was an inflatable rescue device. Its German manufacturer had placed a German language label on the device warning that it was to be used only to catch jumping or falling persons in emergency rescue situations, and was not to be used for exercise, training, or sport-jumping. The American distributor replaced the German language warning label with a warning, in English, that the product was to be used only in emergency rescue situations.

McNamee, a 36-year-old candidate for a firefighter position, had been ordered to jump into the inflatable rescue device during a training program. His estate brought suit against the manufacturers and distributors of the Life Cube--Deutsche Schlauchboot Fabrik Hans Scheibert GMBH & Co. (DSB), Federated Equipment & Supply (Federated), Emetko, Inc., and Amkus, Inc. DSB and Federated then brought a third-party action for contribution against the City of Chicago under the Joint Tortfeasors Contribution Act (740 ILCS 100/5 (West 1994)), alleging wilful and wanton misconduct by the City.

The City moved to dismiss the third-party claims for unlimited contribution, arguing that its liability was limited to the medical and death benefits it had provided pursuant to section 22-307 of the Pension Code. 40 ILCS 5/22-307 (West 1994).

The trial court denied the City's motion in an order dated June 7, 1995. A motion to reconsider was denied on April 3, 1996. On May 13, 1996, the trial court certified a question of law for immediate appeal under Supreme Court Rule 308(a). We granted the City's application for leave to appeal.

The question certified for review is:

"What limits, if any, are there on the City of Chicago where it is sued as a third-party defendant under the Contribution Act, 740 ILCS 100/1 et seq., where the City has paid and continues to pay benefits pursuant to the Pension Code, 40 ILCS 5/6-101 et seq., to the plaintiff whose decedent was a firefighter?"

The City admits it has "some liability in contribution." City's reply brief, page 5, note 2. Because of the City's concession, we will assume, without deciding, that a contribution action may be brought against the City under these circumstances. We also will assume, without deciding, that the City can assert its statutory lien (section 22-308) in cases where its wilful and wanton conduct has been found to be a proximate cause of its employee's injury. In short, we confine ourselves to consideration of the certified ...


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