Al-Hazmi v. City of Waukegan, 81 C 5444.

Decision Date07 February 1984
Docket NumberNo. 81 C 5444.,81 C 5444.
Citation579 F. Supp. 1441
PartiesSuliman D. AL-HAZMI, Plaintiff, v. CITY OF WAUKEGAN, Defendant and Third Party Plaintiff, v. Derek L. HASTY and Mary Woods, individually and d/b/a Mama Mia's Restaurant, Third Party Defendants.
CourtU.S. District Court — Northern District of Illinois

Gregory P. Guth, Law Offices of Marvin A. Brustin, Ltd., Chicago, Ill., for plaintiff Al-Hazmi.

John R. Garofalo, Kiesler & Berman, Ltd., Chicago, Ill., for defendant and third party plaintiff Waukegan.

Larry R. Wikoff, Brody, Gore, Fineberg & Wikoff, Ltd., Chicago, Ill., for third party defendant Woods.


SHADUR, District Judge.

Suliman D. Al-Hazmi ("Al-Hazmi") has filed this diversity action1 against the City of Waukegan ("Waukegan") for personal injuries arising out of an automobile accident. Waukegan has in turn filed two third-party complaints:

1. on November 6, 1981 against Derek L. Hasty ("Hasty") and
2. on May 11, 1983 against Mary Woods individually and doing business as Mama Mia's Restaurant ("Woods").

Woods now moves under Fed.R.Civ.P. ("Rule") 12(b)(6) to be dismissed for Waukegan's failure to state a claim upon which relief can be granted. For the reasons stated in this memorandum opinion and order, Woods's motion is denied.


At about 3 a.m. November 23, 1980 Al-Hazmi was driving north on Green Bay Road in Waukegan. Because Al-Hazmi's car lights were not working (apparently the electrical circuits were causing problems), a Waukegan police officer in a patrol car stopped Al-Hazmi and ordered him to get out of his car. While the two of them were standing (at the officer's direction) between Al-Hazmi's car and the police car parked just behind it on the road, Hasty's car came along and struck the rear of the police car, crashing it forward into Al-Hazmi and then into his car and causing grave injuries to Al-Hazmi's legs.

Both Waukegan's third-party complaints seek contribution for any amounts Waukegan may be found to be liable for to Al-Hazmi, based on (1) Hasty's negligent operation of his own vehicle and (2) Woods's having served Hasty alcoholic beverages so as to cause his intoxication and consequently Al-Hazmi's injuries.

Woods's Contentions

Woods raises three arguments3 against Waukegan's third-party action:

1. Illinois recognizes no common-law action for negligence against dram shops. Woods's liability must then be predicated solely on the Illinois Dram Shop Act, Ill.Rev.Stat. ch. 43, ¶ 135 ("Paragraph 135").
2. Woods is not subject to liability in tort within the meaning of the Illinois Contribution Act (Ill.Rev.Stat. ch. 70, ¶¶ 301-305) because Waukegan failed to file its action within the one-year time period specified in Paragraph 135. Timely filing is a precondition to Woods's liability.
3. Even if Waukegan's action is timely, Waukegan is not entitled to recover more than the liability limit specified in Paragraph 135.

Waukegan retorts with various more or less defensible responses, discussed later in this opinion.

Because the tort contribution concept has been so late in coming to Illinois law,4 this case falls in the uncharted interstices between the lines marked out by the statutes and case law. It would be an ideal candidate for asking definitive resolution by the Illinois courts (whose law, under Erie v. Tompkins principles, this Court must try to predict). Unfortunately the Illinois Supreme Court has seen fit to extend that privilege only to our Court Appeals and the United States Supreme Court (Ill.S.Ct. Rule 20, effective October 1, 1983), so this Court must venture into the unknown.

Common-Law Negligence

Waukegan brings its action against Woods under the Contribution Act, Ill.Rev. Stat. ch. 70, ¶ 302(a) ("Paragraph 302(a)"):

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, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.

Nothing in Paragraph 302(a) itself creates tort liability. It merely provides a way for co-tortfeasors to apportion, in accordance with their relative culpability (Ill.Rev.Stat. ch. 70, ¶ 303 ("Paragraph 303")), the damages they have caused plaintiff. To compel Woods to contribute, Waukegan must show Woods is or was (a question dealt with in the following section) "subject to liability in tort" to Al-Hazmi.5 Germann v. Pekow, 531 F.Supp. 355, 356 n. 3 (N.D.Ill.1981).

Woods's liability to Al-Hazmi can arise only out of Paragraph 135:

Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. Any person owning, renting, leasing or permitting the occupation of any building or premises with knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused the intoxication of any person, shall be liable, severally or jointly, with the person selling or giving the liquors. ... In no event shall the judgment or recovery under this Act for injury to the person or to the property of any person as aforesaid exceed $15,000, and recovery under this Act for loss of means of support resulting from the death or injury of any person, as aforesaid, shall not exceed $15,000 for each person so injured where such injury occurred prior to July 1, 1956, and not exceeding $20,000 for each person so injured after July 1, 1956. Every action hereunder shall be barred unless commenced within one year next after the cause of action accrued.

Illinois courts have consistently held no common-law cause of action for negligence exists against one serving intoxicating liquors to an adult person. Liability is created by statute or not at all. Demchuk v. Duplancich, 92 Ill.2d 1, 5, 64 Ill.Dec. 560, 562, 440 N.E.2d 112, 114 (1982).

Waukegan argues Morgan v. Kirk Bros., Inc., 111 Ill.App.3d 914, 67 Ill.Dec. 268, 444 N.E.2d 504 (2d Dist.1983) created a direct cause of action against dram shops under the Contribution Act independently of the Dram Shop Act. That contention mischaracterizes Morgan, which stated specifically (111 Ill.App.3d at 916, 67 Ill. Dec. at 270, 444 N.E.2d at 506):

The Dram Shop argues, and it is undisputed, that its liability is solely based on the Dram Shop Act.

All Morgan decided in that respect was:

1. Statutory tort liability to the injured plaintiff exists under the Dram Shop Act.
2. Even though a co-tortfeasor is liable to the same plaintiff on a different tort theory, that tortfeasor can obtain contribution from the dram shop owner under Paragraph 302(a)'s broad language.

Thus Morgan clearly did not overrule (as though it could) recent and controlling Illinois Supreme Court authority (Demchuk) by creating a common-law cause of action for negligence against dram shops. Woods accurately says her liability must find its source only in the Dram Shop Act—but Morgan emphasizes that means her liability to Al-Hazmi, not to Waukegan.6

Limitation of Actions

Woods next points to the final provision of Paragraph 135:

Every action hereunder shall be barred unless commenced within one year next after the cause of action accrued.

That, says Woods, is a precondition to her liability in tort. For that proposition she invokes Demchuk, 92 Ill.2d at 6-7, 64 Ill. Dec. at 563, 440 N.E.2d at 115:

A special limitation in a purely statutory cause of action, unlike a general statute of limitations, operates as a limitation of the liability itself and not the remedy alone. It is a condition attached to the right to bring the action, and plaintiffs must allege or state facts showing that the action is brought within the time prescribed or they have failed to bring themselves within the compass of the Act.

Accord, Shelton v. Woolsey, 20 Ill.App.2d 401, 404, 156 N.E.2d 241, 242 (3d Dist. 1959).

Unfortunately Woods's position is over-simplistic. Waukegan's right to sue her stems not from the Dram Shop Act but from the Contribution Act. And for that purpose the controlling question is when, in temporal terms, the Paragraph 302(a) determination must be made that Waukegan and Woods "are subject to liability in tort arising out of the same injury to Al-Hazmi": as of the date his injury occurred, or as of the later date Waukegan sought to inject Woods into this action.

Though that issue is one of first impression where one tortfeasor's ground for being "subject to liability in tort" is the Dram Shop Act, the identical question is always posed by the Contribution Act. It is scarcely news that one of the most sweeping (and controversial) aspects of the contribution doctrine (whether judge-made or legislative) is its impact on notions of repose embodied in limitations statutes. Together with its enactment of the statutory right of contribution, the Illinois legislature has created a special limitations period for assertion of that right, Ill.Rev.Stat. ch. 110, ¶ 13-204 ("Paragraph 13-204"):

No action for contribution among joint tortfeasors shall be commenced with respect to any payment made in excess of a party's pro rata share more than 2 years after the party seeking contribution has made such payment towards discharge of his or her liability.

And the legislature has also prescribed in the Contribution Act, Ill.Rev.Stat. ch. 70, ¶ 305 ("Paragraph 305") that the right may be asserted in a separate action as well as by a third-party complaint like Waukegan's:

A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.

Thus if a plaintiff injured by joint tortfeasors opts to sue only one of them, bringing the action (say) one day before...

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