Burgdorff v. International Business Machines

• Decision Date: 23 December 1975
• Docket Number: No. 61780,61780
• Citation: 35 Ill.App.3d 192,341 N.E.2d 122
• Parties: Alden R. BURGDORFF, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES, a Foreign Corporation, and Michael Albrecht, Defendants. INTERNATIONAL BUSINESS MACHINES, a Foreign Corporation, and Michael Albrecht, Third-Party Plaintiffs-Appellants, v. John A. DANTICO, Third-Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 122

341 N.E.2d 122

35 Ill.App.3d 192

Alden R. BURGDORFF, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES, a Foreign Corporation, and Michael Albrecht, Defendants.

INTERNATIONAL BUSINESS MACHINES, a Foreign Corporation, and Michael Albrecht, Third-Party Plaintiffs-Appellants, v. John A. DANTICO, Third-Party Defendant-Appellee.

No. 61780.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 23, 1975.

Pretzel, Stouffer, Nolan & Rooney, Chartered, Chicago, for third-party plaintiffs-appellants; Joseph B. Lederleitner, Chicago, of counsel.

Taylor, Miller, Magner, Sprowl & Hutchings, Chicago, for third-party defendant-appellee; James J. Hoffnagle, Chicago, of counsel.

LORENZ, Justice.

Plaintiff sued defendants for personal injuries. Thereafter defendants, as third party plaintiffs, brought an action for common law indemnification against the third party defendant. Their third party complaint was dismissed, and they appeal, contending that the court erred in ruling that their complaint did not state a cause of action.

The following facts pertinent to this appeal are not in dispute.

On July 25, 1972, plaintiff was driving on the Stevenson Expressway. Defendant Albrecht, an employee of defendant International Business Machines (hereinafter I.B.M.R.) was also driving on the expressway and rammed the front of his car into the rear of plaintiff's car. At the time of the accident Albrecht was allegedly acting within the scope of his employment for I.B.M. Plaintiff sustained personal injuries and brought an action against Albrecht and I.B.M. as codefendants. Thereafter I.B.M. and Albrecht filed a third party complaint for common law indemnity against the third party defendant, John A. Dantico, who was not a party to the original action, alleging that Dantico 'cut in front of' plaintiff's Burgdorff's vehicle, causing it to stop suddenly, and, as a further consequence, causing Albrecht's vehicle to strike Burgdorff's from the rear. The third party plaintiffs then alleged that the third party defendant's negligence was active and primary while theirs, if any, was only passive and secondary and that hence they were not actively and primarily liable for the injuries plaintiff sustained as a result of the accident.

The third party defendant moved to dismiss the complaint for failure to state a cause of action. He alleged that the third party plaintiffs were guilty as a matter of law of active negligence and could not, therefore, obtain indemnity because they had admitted in their complaint to having hit the rear of Burgdorff's vehicle. On this basis the trial court granted the third party defendant's motion.

The only evidence before the court concerning the adequacy of the third party plaintiffs' complaint was plaintiff Burgdorff's deposition.

Alden R. Burgdorff

He is a sales vice-president for a food ingredient company. At about 4:00 P.M. on the day of the accident, he was driving west on the Stevenson Expressway moving with the traffic at a speed of 35--40 miles per hour. The road surface was dry. The weather was clear. His car was in the far left lane at a point where the expressway has three westbound lanes, and he was maintaining an interval of three to five car lengths from the car ahead. Suddenly, a car later identified by its license plate as that of the third party defendant pulled alongside Burgdorff's car and veered sharply from the middle lane into the far left lane, causing Burgdorff to brake. The car had given directional signals, but Burgdorff did not see them until the car passed in front of him. Only two car lengths separated the front of his car from the rear of the third party defendant's car when he applied his brakes, reducing his speed 'considerably.' A few seconds later, the front of the third party plaintiffs' car rammed into the rear of his car. He could not estimate his speed at the moment of impact.

OPINION

The third party plaintiffs' only contention on appeal is that their third party complaint seeking indemnification was improperly dismissed for failure to state a cause of action. Illinois has long adhered to the rule that there can be no contribution among joint tortfeasors. (Nelson v. Cook,17 Ill. 443.) The theory of implied indemnity has been developed judicially in order to attenuate the harsh effect which an inflexible application of this rule could produce. (Muhlbauer v. Kruzel, 39 Ill.2d 226, 234 N.E.2d 790.) Section 25(2) of the Civil Practice Act concerning third party proceedings provides: 'Nothing herein * * * creates any substantive right to contribution among tortfeasors * * * which has not heretofore existed.' (Ill.Rev.Stat.1969, ch. 110, par. 25(2).) In light of the rule against contribution among joint tortfeasors and the statutory restriction against judicial expansion of the contribution doctrine, the invocation of implied indemnity must be clearly justified by the facts of each case. Carver v. Grossman, 55 Ill.2d 507, 305 N.E.2d 161.

Generally, a valid third party complaint, to justify invocation of the remedy of implied indemnity, must show either a pre-existing relationship between the third party plaintiff and the third party defendant or a qualitative difference between the negligence of the two third parties. (...