Morgan v. Kirk Bros., Inc.

• Decision Date: 09 December 1982
• Docket Number: No. 82-184,82-184
• Citation: 444 N.E.2d 504,111 Ill.App.3d 914,67 Ill.Dec. 268
• Parties: , 67 Ill.Dec. 268 Judy K. MORGAN and Jerry Lee Morgan, Plaintiffs, v. KIRK BROS., INC. and Paul K. Joyce, Defendants, and KIRK BROS., INC., Defendant, Third-Party Plaintiff and Appellant, v. BEGGS ENTERPRISES, INC., Recreation Services, Inc., and Varsity Inn, Third- Party Defendants and Appellees.
• Court: United States Appellate Court of Illinois

Page 504

444 N.E.2d 504

111 Ill.App.3d 914, 67 Ill.Dec. 268

Judy K. MORGAN and Jerry Lee Morgan, Plaintiffs, v. KIRK BROS., INC. and Paul K. Joyce, Defendants, and KIRK BROS., INC., Defendant, Third-Party Plaintiff and Appellant, v. BEGGS ENTERPRISES, INC., Recreation Services, Inc., and Varsity Inn, Third- Party Defendants and Appellees.

No. 82-184.

Appellate Court of Illinois Second District.

Dec. 9, 1982.

As Amended on Denial of Rehearing Feb. 10, 1983.

Gooding & Schroeder, Ltd., John L. Schroeder, Geneva, for plaintiffs.

Jacobs, Williams & Montgomery, Barry L. Kroll, Nunzio C. Radogno and C. Barry Montgomery, Chicago, for defendants.

SEIDENFELD, Presiding Justice:

Whether the Contribution Act (Ill.Rev.Stat.1981, ch. 70, par. 302) allows a cause of action for contribution against one whose liability arises from an alleged violation of the Dram Shop Act (Ill.Rev.Stat.1981, ch. 43, par. 135), is the question posed by this appeal.

Judy Morgan was injured as the result of a collision between the automobile in which she was a passenger, being driven by Bernard N. Bailey, Jr., and a truck owned by Kirk Bros., Inc. (Kirk) being driven by Paul Joyce, its employee. Kirk filed a third-party suit against Beggs Enterprises, Inc., Recreation Services, Inc., and Varsity Inn, Inc. (the Dram Shops). The third-party complaint contained allegations that the Dram Shops sold and served alcoholic liquor to Bailey, he became intoxicated, while intoxicated collided with the Kirk vehicle, and as a direct and proximate result of the acts of Bailey while intoxicated the original plaintiffs, Judy K. Morgan and Jerry Lee Morgan, her husband, sustained injury. The third-party plaintiff states that if judgment is entered against it in the Morgans' suit that judgment be entered against the Dram Shops "by virtue of the provisions of § 135 of Chapter 43 of the Illinois Revised Statutes," (the Dram Shop Act) and in favor of the third-party plaintiff "in such amount, by way of contribution, as would be commensurate with the Dram Shop Act."

The Dram Shops moved to dismiss the third-party complaint, contending that it did not state a cause of action either under the Dram Shop Act or under the Contribution Act. The trial court granted the motion of Recreation Services, Inc. and made final its ruling that Kirk, as a matter of law, could not obtain contribution from a party subject to potential dram shop liability.

Recreation Services (hereinafter referred to as the Dram Shop) is the only dram shop defending the appeal.

The contribution statute, as material, states:

"where 2 or more persons are subject to liability in tort arising out of the same injury * * * there is a right of contribution among them, * * *." Ill.Rev.Stat.1981, ch. 70, par. 302(a).

The "same injury," that to the plaintiffs in the original suit, is undeniably involved. Whether the Dram Shops are "subject to liability in tort" is the initial question raised. The Dram Shop argues, and it is undisputed, that its liability is solely based on the Dram Shop Act. ¹ The further refinement of that argument is that the Dram Shop Act requires the Dram Shop to respond in damages only to one who is injured in his person or property by an intoxicated person; and that Kirk is not claiming recovery for its own personal injury. The Dram Shops notes that a claim for pecuniary loss has been held not to constitute "property damages" under the Dram Shop Act. (Eager v. Nathan, 14 Ill.App.2d 418, 423, 144 N.E.2d 629 (1957).) We agree that Kirk could not have recovered against the Dram Shops under the Dram Shop Act. That, however, is not contested.

Kirk concedes that it cannot sue the Dram Shops directly under that statute and that prior to the enactment of the Contribution Act it could not have obtained indemnity or contribution from a dram shop. It contends, however, that the Dram Shops are joint tortfeasors under the Contribution Act. The Dram Shop contends that its liability is not based on tort but upon a purely statutory regulation of its status, which imposes liability without regard to fault, upon the sale of alcoholic liquor shown to cause the intoxication of the customer. Thus, that there is no common basis to compare the strict liability of a dram shop with the fault liability of the negligent motorist. Further, that the lawful sale of alcoholic liquor is not the proximate cause of the injuries to a passenger of an intoxicated motorist involved, as here, in a collision with a negligent motorist.

We cannot agree that the Dram Shops are not statutory tortfeasors. The action under the dram shop statute and its predecessors has long been considered an action in tort. (Pisa v. Holy, 114 Ill.App. 6, 7 (1904). See also Dworak v. Tempel, 17 Ill.2d 181, 191, 161 N.E.2d 258 (1959); Wanack v. Michels, 215 Ill. 87, 94-95, 74 N.E. 84 (1905); Coffey v. ABC Liquor Stores, 13 Ill.App.2d 510, 514, 142 N.E.2d 705 (1957).) Liability by statute is imposed on dram shops not merely because of their "status," which is a lawful but regulated business, but because, when they are shown to have caused the intoxication of persons who as a result of the intoxication cause injury to others, they are denominated as wrong-doers. Wessel v. Carmi Elks Home, Inc., 133 Ill.App.2d 902, 905, 272 N.E.2d 416 (1971), aff'd 54 Ill.2d 127, 295 N.E.2d 718 (1973).

The Dram Shop seeks to distinguish its liability from liability "which results from a breach of a duty imposed by statute" and argues that various statutes commonly said to impose "statutory liability" differ significantly from the Dram Shop Act in that each creates a tort law duty upon certain classes of defendants and the ensuing tort liability flows from a breach of that duty. It gives as examples the Scaffold Act imposing on persons engaged in construction activity certain duties towards workmen, the Road and Bridges Act imposing upon persons engaged in road and bridge construction certain duties towards workmen and members of the public and the Public Utilities Act imposing upon persons operating certain utility services duties towards workmen and members of the public. In contrast the Dram Shop argues that the Dram Shop Act does not impose any duty on the tavern operator with respect to his conduct. With this we cannot agree. The Dram Shop Act is but one example of legislation creating new rights founded on tortious conduct. (See Restatement (Second) of Torts, comment b § 874A (1979).) To the extent taverns' sale or gift of intoxicating liquors causes in fact the intoxication of persons and as the result of the intoxication causes injury to others requiring them to answer in damages, a standard of conduct is prescribed, a duty to which they are required to conform.

The Dram Shop's further argument that it cannot be considered a "joint tortfeasor" with the negligent motorist does not address the full scope of the contribution statute. Although the act is styled "An Act in Relation to Contribution Among Joint Tortfeasors," neither section 302(a) nor the published Legislative History requires that the tortfeasors be joint in the strict sense that their tortious acts be simultaneous, or that they act in concert, before contribution will lie. ² The only apparent requirement for contribution between co-tortfeasors is that recovery over be based on the same injury to person or property. Thus, the act permits contribution where co-tortfeasors are concurrent (Legislative History compiled by Chi. Bar Ass'n, 12-1-81 at 1; see Comment, "Comparative Contribution: The Legislative Enactment of the Skinner Doctrine," 14 J.Mar.L.Rev. 173, 182 (1980) ), or successive (see D. Horan, "Contribution in Illinois; Skinner v. Reed-Prentice and Senate Bill 308," 61 Chi. Bar Rec. 331 (1980) ) as long as the same injury is involved.

We consider the further contention that no-fault liability cannot be compared with the fault liability of Kirk, a negligent tortfeasor. The Dram Shop reads the supreme court's seminal decision in Skinner v. Reed-Prentice Div. Pack. Mach. Co., 70 Ill.2d 1, 13, 15 Ill.Dec. 829, 374 N.E.2d 437 (1977) as involving a contribution claim under which the manufacturer and plaintiff's employer downstream were subject to the same common law standard in products liability. The absence of a similar denominator in this case, it is argued, precludes the contribution claim.

In Skinner, the Illinois Supreme Court held that damages are to be equitably apportioned according to the "relative degree to which the defective product and the employer's conduct proximately caused them." (70 Ill.2d 1, 14, 15 Ill.Dec. 829, 374 N.E.2d 437.) This language avoids applying the principles of fault based upon negligence to defendants who are strictly liable, or, we believe, to defendants whose liability is based upon a form of wrongdoing defined by a statute such as the Dram Shop Act, which is not a common law tort. N. Appel & R. Michael, 10 Loy.Chi.L.J. 169, 182 (1979); see Note, "A Judicial Rule of Contribution Among Tortfeasors in Illinois," 1978 U.Ill.L.F. 633, 647.

Contrary to the Dram Shop's contention, the majority in Skinner did not apply the principle of comparative causation to tortfeasors subject to a "common standard of comparison." (See Skinner v. Reed-Prentice Div. Pack. Mach. Co., 70 Ill.2d 1, 19, 15 Ill.Dec. 829, 374 N.E.2d 437 (Ward, C.J.) (dissenting opinion); 12 J.Mar.L.Prac. & Proc. 165, 173-74 (1978).) Rather, the Skinner majority fashioned an equitable rule by which a strictly liable manufacturer may obtain contribution from a co-tortfeasor whose misuse of the defective product or assumption of an actually known risk diminishes, but does not extinguish, the strict liability of the manufacturer. Compared with the strict liability of the manufacturer, the downstream party's misuse of the product or assumption of the known risk involves conduct more culpable than passive negligence. See N. Appel & R. Michael, 10 Loy.Chi.L.J. 169, 183.

Thus,...