Matusak v. Chicago Transit Authority, 85-1169

• Decision Date: 27 January 1988
• Docket Number: No. 85-1169,85-1169
• Citation: 520 N.E.2d 925,117 Ill.Dec. 574,165 Ill.App.3d 1032
• Parties: , 117 Ill.Dec. 574 James J. MATUSAK, Plaintiff, v. CHICAGO TRANSIT AUTHORITY and Peter Gordon, Defendants and Third-Party Plaintiffs/Appellants (Mitchell Kaczmarek, Individually and d/b/a Belmont Tavern, Third-party Defendants/Appellees).
• Court: United States Appellate Court of Illinois

Page 925

520 N.E.2d 925

165 Ill.App.3d 1032, 117 Ill.Dec. 574

James J. MATUSAK, Plaintiff, v. CHICAGO TRANSIT AUTHORITY and Peter Gordon, Defendants and Third-Party Plaintiffs/Appellants (Mitchell

Kaczmarek, Individually and d/b/a

Belmont Tavern, Third-party

Defendants/Appellees).

No. 85-1169.

Appellate Court of Illinois,

First District, Third Division.

Jan. 27, 1988.

Donald J. O'Brien, Jr., Chicago (James M. Dower and Michael W. Rathsack, of counsel), for third-party plaintiffs-appellants.

Edward J. Berman, Chicago, for third-party defendants-appellees.

Justice FREEMAN delivered the opinion of the court:

Third-party plaintiffs, the Chicago Transit Authority and Peter Gordon (hereinafter the CTA), appeal the circuit court of Cook County's grant of the motion of third-party defendants, Edwin Kaczmarek and Mitchell Kaczmarek (the Kaczmareks), individually and d/b/a Belmont Tavern, to dismiss their third-party complaint for contribution. The issue presented is whether a defendant sued in tort for personal injuries suffered by an intoxicated plaintiff may maintain a contribution action against the dramshop which caused the plaintiff's intoxication.

We affirm.

Plaintiff, James Matusak, filed a complaint against the CTA for personal injuries allegedly sustained when he attempted to alight from a CTA bus, which Gordon was driving. Plaintiff alleged that, as he attempted to exit the bus, Gordon drove on, knocking him to the ground.

The CTA then filed a third-party complaint for contribution against the Kaczmareks. The CTA alleged that, on the date of plaintiff's accident, he had been served alcohol on the premises of the Belmont Tavern which caused his intoxication and that, as a proximate result thereof, plaintiff fell into the bus driven by Gordon and was injured. The CTA sought a judgment against the Kaczmareks, according to the relative culpability of the parties in causing plaintiff's injuries, under the Contribution Act (Ill.Rev.Stat.1981, ch. 70, par. 301 et seq.) and the Dramshop Act (Ill.Rev.Stat.1981, ch. 43, par. 135) if a judgment were entered against it in the underlying action.

The Kaczmareks' motion to dismiss the third-party complaint alleged, inter alia, that the CTA had no right of contribution against them because they were not liable in tort to plaintiff, James Matusak, under the Dramshop Act, which is restricted to situations where third parties suffer damages as a result of the actions of intoxicated individuals. The trial court dismissed the third-party complaint with prejudice.

The CTA contends on appeal that its third-party complaint stated a cause of action against the Kaczmareks because plaintiff's intoxication resulted, in whole or in part, in his injuries. It asserts that the Kaczmareks' culpability in contributing to plaintiff's injuries is therefore self-evident. Citing Monsen v. DeGroot (1985), 130 Ill.App.3d 735, 86 Ill.Dec. 199, 475 N.E.2d 5, the CTA notes that a contribution action generally may be maintained against a dramshop. Thus, it reasons, the only issue here is whether a dramshop is liable for contribution when the intoxicated individual is the plaintiff in the underlying suit. Monsen approved the right of an intoxicated person made a defendant in a personal injury suit to seek contribution from the dramshop which caused his intoxication. Monsen was impliedly overruled by Hopkins v. Powers (1986), 113 Ill.2d 206, 100 Ill.Dec. 579, 497 N.E.2d 757, in which the supreme court rendered a decision to the contrary. The CTA has cited Hopkins as additional authority for its position, apparently in reliance on the language that "[r]ecovery under the Dramshop Act is limited to innocent third persons who are injured as a result of the sale or gift of intoxicating beverages." Hopkins, 113 Ill.2d at 211, 100 Ill.Dec. 579, 497 N.E.2d 757.

At oral argument before this court, the parties conceded that our supreme court's decision in Jodelis v. Harris (1985), 138 Ill.App.3d 457, 92 Ill.Dec. 965, 485 N.E.2d 1208, leave to appeal allowed (1986), 111 Ill.2d 568, which was then before that court, involved the same issue as this appeal and would thus be controlling. The parties agreed to await the decision in Jodelis before we disposed of this appeal. An opinion having been filed by the supreme court in that case, 118 Ill.2d 482, 115 Ill.Dec. 369, 517 N.E.2d 1055, we now proceed to dispose of this appeal.

The third-party plaintiff in Jodelis argued, as the CTA generally does here, that he was entitled to contribution from the dramshop which caused the plaintiff's intoxication on equitable principles established in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, cert. denied (1978), 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787, and codified in the Contribution Act (Ill.Rev.Stat.1979, ch. 70, par. 301 et seq.). Skinner and the Contribution Act "provide that financial responsibility for damages will be divided between the persons causing" a personal injury. Jodelis, slip op. at 2.

The supreme court noted that the Contribution Act "recognizes only a restricted right of contribution, providing that there is a cause of action for contribution only 'where 2 or more persons are subject to liability in tort.' " (Emphasis added in original.) The court then held its decision in Hopkins v. Powers (1986), 113 Ill.2d 206, 100 Ill.Dec. 579, 497 N.E.2d 757, as dispositive. Hopkins held that a dramshop contributing to the intoxication of a person later causing injury to another is not " 'liable in tort' " under the Dramshop Act for purposes of an action by the intoxicated party under the Contribution Act. Rather, the Hopkins court reasoned, the Dramshop Act imposed " ' * * * exclusive, sui generis nontort liability.' " Therefore, the intoxicated party in Hopkins was prohibited from maintaining an action against the dramshop under the Contribution Act. Under Hopkins, the dramshop in Jodelis was "clearly not liable in tort for purposes of the Contribution Act." Jodelis, slip op. at 2-3.

The court then held Doyle v. Rhodes (1984), 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382, inapplicable to the situation in Jodelis. The CTA cites Doyle for, inter alia, its rejection of the Kaczmareks' argument that their culpability is irrelevant to their liability for contribution. Doyle was inapplicable, the court reasoned, because the employer found liable therein for contribution for injuries to his employee was, unlike a dramshop, " 'subject to liability in tort' " to an employee who it may have negligently injured until it established the affirmative defense to such an action provided by the Workers' Compensation Act. (Jodelis, slip op. at 3-4.) The court stated:

" * * * The Dramshop Act does not merely provide dramshops with immunity or an affirmative defense to an intoxicated patron's suit. Rather, dramshops are not exposed to any liability under the Dramshop Act to intoxicated patrons who suffer injuries as a result of their own intoxication.

* * * A dramshop, thus, is not subject to liability to such persons within the meaning of the Contribution Act." Jodelis, slip op. at 4.

This observation in Jodelis also answers the CTA's argument, relying on Doyle, that it is anomalous to allow a defendant in a tort action to seek complete indemnity from an otherwise immune third party while prohibiting the defendant from obtaining contribution from such third party. ( Doyle, 101 Ill.2d at 9, 77 Ill.Dec. 759, 461 N.E.2d 382.) The CTA asserts that, if prohibited from seeking contribution, it will seek indemnity from the Kaczmareks. Such litigation, it reasons, will erode the requirement of a pretort relationship between the parties to indemnity actions. This erosion will occur, it argues, because of the likelihood, given increasing public concern regarding the sale and consumption of alcohol, that dramshops will be forced to accept responsibility for their actions. The CTA's argument ignores that, as Jodelis holds, the Dramshop Act does not merely provide dramshops an immunity or affirmative defense to actions in which they might otherwise be held liable. Rather, under the Act, dramshops are not subject, in the first instance, to any tort liability whatsoever. As such, the concept of indemnity, which is based on a "showing of a pre-tort relationship between the guilty parties and a qualitative distinction between their conduct[ ]" (Heinrich v. Peabody International Corp. (1984), 99 Ill.2d 344, 349,...