Batteast v. St. Bernard's Hosp.

• Decision Date: 03 July 1985
• Docket Number: No. 83-2298,83-2298
• Citation: 480 N.E.2d 1304,89 Ill.Dec. 561,134 Ill.App.3d 843
• Parties: , 89 Ill.Dec. 561, Prod.Liab.Rep. (CCH) P 10,649 Marcus BATTEAST, et al., Plaintiffs, v. ST. BERNARD'S HOSPITAL, et al., Defendants. WYETH LABORATORIES, INC., and Wyeth Division of American Home Products Corporation, Third Party Plaintiffs-Counter Plaintiffs-Appellants, v. ST. BERNARD'S HOSPITAL, Third Party Defendant-Appellee, and E. Dela Cruz, M.D., Counter Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1304

480 N.E.2d 1304

134 Ill.App.3d 843, 89 Ill.Dec. 561,

Prod.Liab.Rep. (CCH) P 10,649

Marcus BATTEAST, et al., Plaintiffs, v. ST. BERNARD'S HOSPITAL, et al., Defendants.

WYETH LABORATORIES, INC., and Wyeth Division of American

Home Products Corporation, Third Party Plaintiffs-Counter Plaintiffs-Appellants, v. ST. BERNARD'S HOSPITAL, Third Party Defendant-Appellee, and E. Dela Cruz, M.D., Counter Defendant-Appellee.

No. 83-2298.

Appellate Court of Illinois First District, Fourth Division.

July 3, 1985.

Crooks & Gilligan, Ltd., Chicago (John W. Gilligan & John P. Prusik, Chicago, of counsel), for third party plaintiffs-counter plaintiffs-appellants.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (John G. Langhenry, Stephen R. Swofford and Joanna C. New, Chicago, of counsel), for third party defendant-appellee.

Pretzel & Stouffer, Chartered, Chicago (Robert Marc Chemers, Chicago, of counsel), for counter defendant-appellee.

LINN, Justice:

Wyeth Laboratories, Inc. (Wyeth) appeals from the orders of the Cook County circuit court which dismissed with prejudice its counterclaim against St. Bernard's Hospital (St. Bernard) for failure to state a claim for indemnification, denied its motion for leave to file an amended counterclaim against St. Bernard, and denied its motion for leave to file a counterclaim against Dr. Dela Cruz (Dela Cruz). Wyeth raises three issues for review.

First, Wyeth contends that its counterclaims against St. Bernard and Dela Cruz stated a claim for partial indemnification based upon the doctrine of equitable apportionment.

In addition, although Wyeth concedes in this appeal that it cannot seek contribution from St. Bernard and Dela Cruz since the plaintiff's alleged injury occurred prior to March 1, 1978, the applicable date of Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, and the Contribution Among Joint Tortfeasors Act (the Contribution Act) (Ill.Rev.Stat.1983, ch. 70, par. 301 et seq.), Wyeth contends that in light of recent Illinois Supreme Court decisions it nevertheless should be permitted to apply the principles of comparative fault on which Skinner and the Act are founded to its indemnity claims. As we understand Wyeth's argument, it seeks, essentially, neither contribution per se nor indemnity per se, but rather a hybrid of these two. For purposes of differentiation and clarity, we will characterize this theory as one of "comparative indemnification."

In that context, then, Wyeth's second contention is that its counterclaims against St. Bernard and Dela Cruz stated a claim for such "comparative indemnification" to the extent that St. Bernard and Dela Cruz allegedly engaged in actively negligent and careless conduct for which Wyeth might be held liable under a theory of strict product liability or negligence.

Wyeth's final argument is that its counterclaims against St. Bernard and Dela Cruz stated a claim for "comparative indemnification" to the extent that St. Bernard and Dela Cruz allegedly engaged in willful and wanton misconduct for which Wyeth might be held liable under a theory of strict product liability or negligence.

We affirm.

BACKGROUND:

This action began when the parents of Marcus Batteast filed a complaint in several counts on his behalf. The pleading sought recovery for severe and irreparable brain damage he allegedly sustained as a result of his ingestion of the drug aminophylline (manufactured by Wyeth) while he was a patient at St. Bernard and under the care of Dela Cruz. It alleged that Marcus was two and a half years old at the time of his stay in the hospital, from approximately February 5 through February 10, 1976. According to the complaint, his ingestion of the drug by suppository caused him to go into convulsions and eventually slip into a coma; this in turn resulted in brain damage such that he would never develop beyond his capacity at the time the injury was sustained.

Marcus' parents first filed suit against St. Bernard and Dela Cruz (and others not parties to this appeal) on June 29, 1977. As subsequently amended on June 11, 1982, the complaint alleged inter alia that the hospital's mistreatment of Marcus was willful and wanton (count I) and negligent and careless (count II), and that Dela Cruz's mistreatment of Marcus was negligent and careless (count III).

The Batteasts' complaint against Wyeth (and others not parties to this appeal) was filed on July 18, 1980. As amended on November 5, 1982, it sought damages from Wyeth based on strict product liability for inadequate product packaging and marking (count I), willful and wanton failure to adequately warn of adverse side effects (count II), and negligent failure to adequately warn of adverse side effects (count III).

Wyeth filed a third-party complaint against St. Bernard on February 9, 1981. In it Wyeth requested full or partial indemnification for any damages assessed against Wyeth on the ground that the hospital negligently administered the drug aminophylline to Marcus and negligently cared for him when he began to have adverse reactions to the drug. Subsequent to Wyeth's filing of this complaint the trial court consolidated the Batteasts' claims against Wyeth, St. Bernard, and Dela Cruz. Wyeth's third-party action essentially became a counterclaim by virtue of this consolidation and it will be referred to as such throughout this opinion for the sake of clarity.

St. Bernard filed a motion to dismiss the counterclaim for failure to state a claim on May 26, 1983. The trial court granted the motion and dismissed the counterclaim with prejudice on August 22. The court determined that Wyeth could not recover from St. Bernard based on a theory of contribution because the child's injury occurred before March 1, 1978 and thus did not fall within the purview of Skinner and the Contribution Act. It further found that Wyeth could not recover under the doctrine of equitable apportionment because the injury sustained was indivisible. Lastly it held that Wyeth could not recover based upon indemnification because its negligent acts, if any, would be active as a matter of law and because its liability based on strict product liability, if any, would preclude its recovery from a downstream user of its products as a matter of law.

A few weeks later Wyeth sought leave to file an amended counterclaim against St. Bernard and a counterclaim against Dela Cruz. In both of these documents Wyeth sought indemnification based upon contribution (count I), equitable apportionment (count II), and "comparative indemnification" (as we have denominated the theory) for the parties' negligent or willful and wanton misconduct as compared to Wyeth's liability, if any, based upon strict product liability or negligence (count III). Although Wyeth stated in greater detail the conduct of St. Bernard and Dela Cruz which it claimed to amount to either negligent or willful and wanton behavior, it did not otherwise substantially deviate from the counterclaim which the trial court had dismissed with prejudice. The trial court denied leave to file both documents in separate orders. The court's findings and conclusions were substantially similar to those in support of its dismissal with prejudice of Wyeth's original counterclaim. Wyeth's timely appeal followed.

OPINION:

Since this appeal is taken from orders which granted the defendants' motions to dismiss or deny leave to amend, all well-pleaded facts are assumed to be true for the purposes of determining whether Wyeth's counterclaims failed to state a claim. (Curtis v. Birch (1983), 114 Ill.App.3d 127, 129-30, 69 N.E.2d 873, 448 N.E.2d 591.) Additionally, dismissal on this basis will be deemed appropriate only if it is manifest that no set of facts could be proven upon which relief could be granted. (People ex rel. Scott v. College Hills Corp. (1982), 91 Ill.2d 138, 157-58, 61 Ill.Dec. 766, 435 N.E.2d 463.) Further, the trial court will be determined to have abused its discretion if it denied leave to file an amended counterclaim which would state a claim under these standards. McErlean v. Union National Bank of Chicago (1980), 90 Ill.App.3d 1141, 1149, 46 Ill.Dec. 406, 414 N.E.2d 128.

Equitable Apportionment

Wyeth argues that the trial court committed reversible error in dismissing its counterclaim against St. Bernard and denying it leave to file a similar counterclaim against Dela Cruz. Wyeth urges that the trial court erred in concluding that the doctrine of equitable apportionment did not apply because Marcus' injuries were indivisible.

Equitable apportionment stands upon the "principle that everyone is responsible for the consequences of his own wrong, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer, they may recover from him." (Gertz v. Campbell (1973), 55 Ill.2d 84, 90, 302 N.E.2d 40.) Nevertheless, the doctrine applies only where the defendants have committed independent and successive torts. Gertz v. Campbell.

Several factors are generally required in order for equitable apportionment to apply, including (1) the original tortfeasor is liable at law for the subsequent negligence of the other; (2) the parties are not joint tortfeasors; (3) they did not act in concert; (4) the wrongful conduct and injuries were sustained at different times; and (5) the original tortfeasor lacked control over the acts of the subsequent tortfeasor. Neuman v. City of Chicago (1982), 110 Ill.App.3d 907, 911, 66 Ill.Dec. 700, 443 N.E.2d 626; see Gertz v. Campbell (1973), 55 Ill.2d 84, 91-92, 302 N.E.2d 40, 44.

Thus partial indemnification based upon equitable apportionment does not obtain where the defendants stand in relation to each other as joint tortfeasors. (Old Second National Bank v. Bynal Products, Inc. (1979), 79 Ill.App.3d 432, 435, 34 Ill.Dec. 803, 398 N.E.2d 626.) "Indivisibility of the resultant injury is the test of jointness." (...