Monsen v. DeGroot
| Decision Date | 04 February 1985 |
| Docket Number | No. 83-3053,83-3053 |
| Citation | 475 N.E.2d 5,130 Ill.App.3d 735,86 Ill.Dec. 199 |
| Parties | , 86 Ill.Dec. 199 William K. MONSEN, Plaintiff, v. Steven DeGROOT, Defendant, and Steven DeGROOT, Third Party Plaintiff-Appellee, v. AMERICAN LEGION POST NO. 1247 and Kenneth Monsen, Third Party Defendants- Appellants. |
| Court | United States Appellate Court of Illinois |
Sherwin Greenberg, Chicago, for third party defendants-appellants.
Jacobs, Williams & Montgomery, Ltd., Barry L. Kroll, Carol P. Woosley, Mark A. Miller and Lloyd E. Williams, Jr., Chicago, for third party plaintiff-appellee.
Third party defendants American Legion Post No. 1247 and Kenneth Monsen appeal the denial of a motion to dismiss an amended third-party complaint for contribution. We granted this interlocutory appeal pursuant to Supreme Court Rule 308 (Ill.Rev.Stat.1983, ch. 110A, par. 308; 87 Ill.2d R. 308.) Two issues were certified by the trial court. The first is whether an intoxicated person may seek contribution from a dram shop for injuries to another resulting from the intoxication. The second issue is whether the third-party complaint is governed by the one year limitation provision of the Dram Shop Act. Ill.Rev.Stat.1983, ch. 43, par. 135.
We affirm.
On April 29, 1982, William K. Monsen filed an action against Steven DeGroot for damages for injuries sustained in an automobile accident which occurred on March 21, 1981. Monsen was a passenger in a car driven by DeGroot. On September 22, 1982, DeGroot filed a third-party complaint against American Legion Post No. 1247 and Kenneth Monsen seeking contribution.
The pertinent part of the amended third-party complaint alleged that DeGroot became intoxicated as a result of consuming alcoholic beverages served to him by the American Legion and its employee Kenneth Monsen and that the auto accident was caused by DeGroot's intoxication. It further alleged that DeGroot was entitled to contribution under the Contribution Act (Ill.Rev.Stat.1983, ch. 70, par. 301 et seq.) and the Dram Shop Act (Ill.Rev.Stat.1983, ch. 43, par. 135.) The American Legion and Kenneth Monsen filed a motion to dismiss the amended third-party complaint. The motion was denied by the trial court.
The first question of law certified by the trial court is whether an intoxicated person may seek contribution from a dram shop. The American Legion contends section 6-21 of the Dram Shop Act (Ill.Rev.Stat.1983, ch. 43, par. 135) is the sole basis for an action against tavern owners and an intoxicated person is not included in the category of persons entitled to recover under the Act. The American Legion therefore concludes that a contribution action filed by an intoxicated person against a dram shop is also prohibited.
Our analysis of this issue begins with the pertinent provisions of the Contribution Among Joint Tortfeasors Act. Section 2 of the Act provides:
"[W]here 2 or more persons are subject to liability in tort arising out of the same injury to persons or property * * * there is a right of contribution among them * * *." (Ill.Rev.Stat.1983, ch. 70, par. 302(a).)
This statute allows a defendant to shift part of the liability to another who is partly responsible for the loss and whose wrongful conduct proximately caused injury. (Doyle v. Rhodes (1984), 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382; Morgan v Kirk Brothers, Inc. (1984), 111 Ill.App.3d 914, 67 Ill.Dec. 268, 444 N.E.2d 504.) The only requirement is that the same injury gives rise to liability in tort. Morgan.
In Morgan, the court addressed an issue similar to that presented in the case at bar. In Morgan, plaintiff sustained injuries when the car in which she was riding collided with a truck owned by defendant and driven by defendant's employee. Plaintiff filed a personal injury action against defendant Kirk Brothers, Inc. Defendant filed a third-party complaint against the dram shop which had allegedly served alcohol to the driver of the car in which plaintiff was riding and which allegedly caused the driver's intoxication. In reversing the dismissal of the third-party complaint, the appellate court held that the Contribution Act allows a third-party action against one whose violation of the Dram Shop gives rise to liability. The court found that the third-party action was allowed despite the fact that the third party plaintiff could not have recovered against the dram shop for his own injuries.
In this case, DeGroot is seeking contribution from the American Legion for the injuries suffered by plaintiff Monsen. Thus, the liability of DeGroot and the American Legion arises from the same injury. Unquestionably, the action filed by Monsen against DeGroot is a tort action. Additionally, a dram shop's liability under the Dram Shop Act is tort liability. (Morgan v. Kirk Brothers, Inc.) Based on the foregoing facts, we find that the third-party plaintiff DeGroot may seek contribution from the American Legion under the Contribution Act. Granted, DeGroot, the alleged intoxicated person, could not seek damages from the American Legion for his own injuries. (Holmes v. Rolando (1943), 320 Ill.App. 475, 51 N.E.2d 786.) However, as noted in Morgan, the fact that the third party plaintiff could not recover against the dram shop does not bar the action for contribution.
In arguing that an intoxicated person is prohibited from seeking contribution from a dram shop, the American Legion relies on Wessel v. Carmi Elks Home, Inc. (1973), 54 Ill.2d 127, 295 N.E.2d 718 and McDonald v. Trampf (1964), 49 Ill.App.2d 106, 198 N.E.2d 537. However, we find that neither of these cases is relevant to the issue presented for review. Wessel v. Carmi Elks Home, Inc. addressed the issue of whether a dram shop could seek indemnity from an intoxicated person. Unlike contribution, indemnity seeks to shift the entire burden of loss to another party. (See Doyle v. Rhodes (1984), 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382.) The issue presented in Trampf was similar to that presented in the case at bar; however, Trampf was decided prior to the decision 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 enactment of the Contribution Act. If Trampf had been decided under existing law, the result would have been different.
The American Legion further argues that allowing a contribution action by an intoxicated person against a dram shop violates...
To continue reading
Request your trial
-
A.H. Robins Co., Inc., In re
...rule regarding contribution can apply even where the liability of the parties rests on different grounds. Monsen v. DeGroot, 130 Ill.App.3d 735, 86 Ill.Dec. 199, 475 N.E.2d 5 (1985), aff'd, Hopkins v. Powers, 113 Ill.2d 206, 100 Ill.Dec. 579, 497 N.E.2d 757 (1986); Florida Farm Bureau Cas. ......
-
LaSalle Nat. Bank v. Edward M. Cohon & Associates, Ltd.
...340, 473 N.E.2d 939; Stephens v. McBride (1983), 97 Ill.2d 515, 74 Ill.Dec. 24, 455 N.E.2d 54; and Monsen v. DeGroot (1985), 130 Ill.App.3d 735, 86 Ill.Dec. 199, 475 N.E.2d 5. Our review of the three cited cases indicates, however, that each case is distinguishable from and not inconsistent......
-
Hopkins v. Powers
...Act is a tortfeasor and, therefore, is a person "liable in tort" for purposes of the Contribution Act. (Monsen v. DeGroot (1985), 130 Ill.App.3d 735, 738, 86 Ill.Dec. 199, 475 N.E.2d 5; Morgan v. Kirk Brothers, Inc. (1982), 111 Ill.App.3d 914, 917, 919, 67 Ill.Dec. 268, 444 N.E.2d 504; cf. ......
-
Matusak v. Chicago Transit Authority, 85-1169
...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, ......