Stephens v. McBride

• Decision Date: 04 October 1983
• Docket Number: No. 56665,56665
• Citation: 74 Ill.Dec. 24,455 N.E.2d 54,97 Ill.2d 515
• Parties: , 74 Ill.Dec. 24 Mack C. STEPHENS v. Thomas McBRIDE. (Thomas McBRIDE, Appellee, v. The CITY OF MAYWOOD, Appellant).
• Court: Illinois Supreme Court

Page 54

455 N.E.2d 54

97 Ill.2d 515, 74 Ill.Dec. 24

Mack C. STEPHENS v. Thomas McBRIDE.

(Thomas McBRIDE, Appellee, v. The CITY OF MAYWOOD, Appellant).

No. 56665.

Supreme Court of Illinois.

Oct. 4, 1983.

Ancel, Glink, Diamond, Murphy & Cope, P.C., Chicago, for Village of Maywood; John B. Murphey, Ronald S. Cope, Chicago, of counsel.

Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago, for Thomas McBride; James T. Ferrini, Chicago, of counsel.

Richard M. Daley, States Atty., Cook County, Chicago, for Cook County, amicus curiae; Jane Clark Casey, Deputy State's Atty., Chief, Civ. Actions Bureau, Myra J. Brown, Asst. State's Atty., Chicago, of counsel.

GOLDENHERSH, Justice:

Mack C. Stephens, plaintiff, filed an action in the circuit court of Cook County against defendant, Thomas McBride, alleging that he sustained injuries as the result of defendant's negligent operation of his motor vehicle. Defendant filed a third-party complaint for contribution against the third-party defendant, the city of Maywood. (The third-party defendant states that it is a village, not a city, and therefore will be referred to as "the village.") The circuit court allowed the village's motion for summary judgment, the appellate court reversed (105 Ill.App.3d 880, 61 Ill.Dec. 673, 435 N.E.2d 162), and we allowed the village's petition for leave to appeal (87 Ill.2d R. 315).

On May 18, 1978, plaintiff's motorcycle and defendant's automobile collided at the intersection of Legion Street and Fourth Avenue in Maywood. Defendant's insurer sent a letter, dated October 3, 1978, to Maywood's village clerk. The letter, which bears the stamp "Received Oct. 4, 1978--Village Clerk," states:

"A vehicular accident occurred at the intersection of Fourth Avenue and Legion Street, Maywood, on or about May 5, 1978. An automobile heading in a southerly direction on Fourth Avenue was struck by a motorcycle heading in an easterly direction on Legion Street. The automobile was operated by Mr. T.G. McBride of Maywood and the motorcycle was operated by Mack C. Stephens of Broadview.

Inspection of the accident scene reveals that shrubbery located on the northwest corner of the intersection is an obvious obstruction to the vision of motorists. Inspection reveals that the hazardous condition which has been maintained by the village at the corner, has been in existence for a considerable length of time.

The visual obstruction which exists at the described corner contributed in part to the cause of the accident described. Therefore, should suit be filed against our insured, as a result of the captioned accident, we would be obliged to join the Village of Maywood in any action based on the decision of Skinner vs. Reed--Prentice Division Package Machinery Co.

Please acknowledge."

Plaintiff's complaint, filed on December 10, 1979, alleged, inter alia, that defendant's automobile had struck plaintiff's motorcycle in an intersection and that defendant was traveling too fast, failed to observe plaintiff's motorcycle, and failed to stop for a stop sign controlling defendant's lane of traffic.

Defendant filed a "counterclaim and third-party complaint." Count II was directed against the village of Maywood and alleged that the village was liable as a joint tortfeasor because it violated its own ordinances by permitting bushes and shrubs within 12 feet of an intersection to exceed 3 feet in height. The village moved for summary judgment against both plaintiff and defendant. Its motion states that although plaintiff's complaint in its caption named the village as a defendant, it contained neither allegations of negligence on its part nor a prayer for any relief against it. It also stated that since neither the complaint nor the third-party complaint was filed within one year from the date that plaintiff sustained the injuries, neither party could maintain an action against the village because sections 8-102 and 8-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1979, ch. 85, pars. 8-102, 8-103) precluded such a suit. The circuit court allowed the village's motion for summary judgment against defendant and entered a finding that there was no just reason to delay enforcement or appeal of the order (87 Ill.2d R. 304(a)).

The pertinent sections of the Tort Immunity Act (Ill.Rev.Stat.1979, ch. 85, pars. 8-101 through 8-103) provide:

"Sec. 8-101. No civil action may be commenced in any court against a local entity for any injury unless it is commenced within 2 years from the date that the injury was received or the cause of action accrued."

"Sec. 8-102. Within 1 year from the date that the injury or cause of action, referred to in Sections 8-101, 8-102 and 8-103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must serve, either by personal service or by registered or certified mail, return receipt requested, a written notice on the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, giving in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any."

"Sec. 8-103. If the notice under Section 8-102 is not served as provided therein, any such civil action commenced against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing."

The appellate court found it unnecessary to address the question whether an action for contribution could be considered a "tort" action because it believed that even if it were so considered "the public policy underlying the right of contribution outweighs the public policy underlying the notice provision of the Tort Immunity Act." (105 Ill.App.3d 880, 882, 61 Ill.Dec. 673, 435 N.E.2d 162.) The appellate court also held that the notice sent to the village by defendant's insurer substantially complied with the requirements of the Tort Immunity Act. Additionally, the appellate court noted that section 8-102 requires that notice must be served within one year "from the date that the injury or cause of action * * * was received or accrued * * *," and that since under section 2(b) of the Contribution Among Joint Tortfeasors Act (Ill.Rev.Stat.1979, ch. 70, par. 302(b)) a cause of action for contribution does not accrue until a tortfeasor pays more than his pro rata share, defendant's filing of his action constituted timely notice under the Tort Immunity Act.

The village asserts that the central issue in this case involves the construction of two statutes whose purposes conflict when applied to these facts. The village first argues that because both the Contribution Act and the Tort Immunity Act appear to apply in this case, the policies of each act should be examined and balanced against each other. The village also argues that the Contribution Act, by its terms, precludes defendant from asserting a contribution claim. If the village is correct on its second assertion, there would be no need to balance the policies underlying each statute. Because of this, we examine the village's second assertion first.

The village points out that it is undisputed that plaintiff was precluded from bringing an action against it. Section 2(a) of the Contribution Act provides for contribution where "2 or more persons are subject to liability in tort arising out of the same injury * * *." (Ill.Rev.Stat.1979, ch. 70, par. 302(a).) Citing American Automobile Insurance Co. v. City of Minneapolis (1961), 259 Minn. 294, 107 N.W.2d 320, the village argues that it cannot be liable for contribution because plaintiff's failure to give the village notice of his injuries precludes its being "subject to liability." This argument has been rejected by the vast majority of courts which have considered the question. The rationale of these decisions is that "liability" is determined at the time of the injury out of which the right to contribution arises, and not at the time the action for contribution is brought (see, e.g., New Amsterdam Casualty Co. v. Holmes (1st Cir.1970), 435 F.2d 1232, 1234; Keleket X-Ray Corp. v. United States (D.C.Cir.1960), 275 F.2d 167, 169; Ainsworth v. Berg (1948), 253 Wis. 438, 444, 34 N.W.2d 790, 792; Zarrella v. Miller (1966), 100 R.I. 545, 548, 217 A.2d 673, 675; Security Fire Protection Co. v. City of Ripley (Tenn.App.1980), 608 S.W.2d 874, 878; Markey v. Skog (1974), 129 N.J.Super. 192, 204, 322 A.2d 513, 519-20) or "that a tort defendant's indemnity action against a governmental entity is separate and distinct from the injured plaintiff's action against the governmental entity and is not barred by failure to file a timely claim measured from the time of the accident." (People ex rel. Department of Transportation v. Superior Court (1980), 26 Cal.3d 744, 754, 608 P.2d 673, 679, 163 Cal.Rptr. 585, 591; see cases collected therein (26 Cal.3d 744, 752-55, 608 P.2d 673, 678-80, 163 Cal.Rptr. 585, 590-92); see also Horan, Contribution In Illinois: Skinner v. Reed-Prentice and Senate Bill 308, 61 Chi.B.Rec. 331, 332-33 (1980).) We agree with both these rationales and reject the contention that defendant is precluded from seeking contribution under the Contribution...