Stephens v. McBride

• Decision Date: 12 April 1982
• Docket Number: No. 81-1406,81-1406
• Citation: 105 Ill.App.3d 880,435 N.E.2d 162,61 Ill.Dec. 673
• Parties: , 61 Ill.Dec. 673 Mack C. STEPHENS, Plaintiff, Counter Defendant, v. Thomas McBRIDE, Defendant, Counter Plaintiff, Third Party Plaintiff, v. CITY OF MAYWOOD, Third Party Defendant. Thomas McBRIDE, Third Party Plaintiff, Appellant, v. CITY OF MAYWOOD, Third Party Defendant, Appellee.
• Court: United States Appellate Court of Illinois

Page 162

435 N.E.2d 162

105 Ill.App.3d 880, 61 Ill.Dec. 673

Mack C. STEPHENS, Plaintiff, Counter Defendant, v. Thomas McBRIDE, Defendant, Counter Plaintiff, Third Party Plaintiff, v. CITY OF MAYWOOD, Third Party Defendant.

Thomas McBRIDE, Third Party Plaintiff, Appellant, v. CITY OF MAYWOOD, Third Party Defendant, Appellee.

No. 81-1406.

Appellate Court of Illinois, First District, First Division.

April 12, 1982.

Clausen, Miller, Gorman, Caffrey & Witous, P. C., Chicago (James T. Ferrini, Chicago, of counsel), for appellant.

Ancel, Glink, Diamond, Murphy & Cope, P. C., Chicago (John B. Murphey, Chicago, of counsel), for appellee.

O'CONNOR, Justice:

This is a third-party action for contribution. Thomas McBride, the defendant in a personal injury and property damage suit based on negligence brought against him by Mack C. Stephens, filed a third-party complaint for contribution against the City of Maywood. The latter moved successfully for summary judgment on the ground that no notice had been served on it within one year of the accident, as required by sections 8-101, 8-102 and 8-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act). (Ill.Rev.Stat.1979, ch. 85, pars. 8-101, 8-102, 8-103.) Thomas McBride appeals. He contends that the notice provision of the Tort Immunity Act does not apply to a claim for contribution, but that if it does timely notice was served.

The underlying factual background of this suit is an intersection collision between Stephens' motorcycle and McBride's automobile at Legion and Fourth Streets in Maywood, Illinois, on May 18, 1978. On October 5, 1978, McBride sent a letter to the City describing the accident and stating that shrubbery on one corner of the intersection constituted an obstruction to vision of motorists and that this hazardous condition was the responsibility of the City and contributed to the cause of the accident. It also stated that if suit was filed against McBride, he would join the City as a party based on the supreme court decision in the Skinner case (Skinner v. Reed-Prentice Division Package Machinery Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437). On December 10, 1979, Stephens filed suit against McBride alone. On April 1, 1980, the latter filed an answer which was a counterclaim against Stephens and a third-party complaint against the City. In the third-party complaint, McBride asked contribution from the City, alleging that the accident occurred upon public streets maintained and controlled by the City, which had negligently violated its own ordinances concerning the height and location of shrubbery near intersections, thus contributing to Stephens' injuries.

The pertinent parts of the Tort Immunity Act provide (Ill.Rev.Stat.1979, ch. 85, pars. 8-101, 8-102 and 8-103):

" § 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.

" § 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 * * * 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 * * * the action is contemplated a written statement * * * giving in substance (certain specified information).

" § 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 * * * shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing."

McBride contends that the Tort Immunity Act does not apply because it applies only to tort actions and contribution is not such an action. We find it unnecessary to consider whether contribution is or is not a tort action because, even if contribution were considered in this case to be a tort action because of the nature of the action between Stephens and McBride, the public policy underlying the right of contribution outweighs the public policy underlying the notice provision of the Tort Immunity Act.

The opinion of the supreme court in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, makes clear that the public policy behind the adoption of contribution was the justice of apportioning damages for tort injuries as equally as possible among those who were liable. The court said (70 Ill.2d at 13, 15 Ill.Dec. 829, 374 N.E.2d 437):

"We are of the opinion that there is no valid reason for the continued existence of the no-contribution rule and many compelling arguments against it. We agree with Dean Prosser that '(t)here is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiff's whim or spite, or his collision with the other wrongdoer, while the latter goes scot free.' Prosser, Torts sec. 50, at 307 (4th ed. 1971)."

The purpose of the notice requirement of the Tort Immunity Act has been succinctly stated in Helle v. Brush (1973), 53 Ill.2d 405, 407-408, 292 N.E.2d 372:

"The Tort Immunity Act, in part, is the legislative result of our decision in Molitor v. Kaneland Community Unit Dist. (1959), 18 Ill.2d 11 (163 N.E.2d 89). In general, it adopts the Molitor rule of liability of public entities but specifies certain exceptions and limitations to actions to enforce liability thereunder. The purposes of the statute requiring notice have been said to be: to permit early investigation and prompt settlement of meritorious claims; to avoid the expenses and costs of suit where settlement can be achieved; and to permit the public entity to determine its budget in advance, for taxing purposes. (Reynolds v. City of Tuscola (1971), 48 Ill.2d 339, 342 (270 N.E.2d 415); King v. Johnson (1970), 47 Ill.2d 247, 250-51 (265 N.E.2d 874); 56 Am.Jur.2d, Municipal Corporations, sec. 686.) The statement of these purposes elucidates the pragmatic reasons which underlie the notice and which are proper for our consideration in construing the statute. People ex rel. Cason v. Ring (1968), 41 Ill.2d 305, 310 (242 N.E.2d 267)."

Nine states which have considered the question have held that a tortfeasor's right to contribution is not barred by reason of the notice requirements of tort immunity acts. Those states are California, Delaware, Hawaii, Iowa, Kentucky, Maryland, New York, Tennessee and Wisconsin. People ex rel. Department of Transportation v. The Superior Court of Los Angeles County (1980), 26 Cal.3d 744, 163 Cal.Rptr. 585, 608 P.2d 673; Royal Car Wash Co., Inc. v. Mayor and Council of Wilmington (Del.1968), 240 A.2d 144; Albert v. Dietz (D.C.Hawaii 1968), 283 F.Supp. 854; Olsen v. Jones (Iowa 1973), 209 N.W.2d 64; Roehrig v. City of Louisville (Ky.1970), 454 S.W.2d 703; Cotham v. Board of County Commissioners for Prince George's County (1971), 260 Md. 556, 273 A.2d 115; Zillman v. Meadowbrook Hospital Co., Inc. (1973), 73 Misc.2d 726, 342 N.Y.S.2d 302, rev'd on other grounds, 45 A.D.2d 267, 358 N.Y.S.2d 466; Security Fire Protection Co., Inc. v. City of Ripley (Tenn.App.1980), 608 S.W.2d 874; Ainsworth v. Berg (1948), 253 Wis. 438, 34 N.W.2d 790, mandate vacated on other grounds, 35 N.W.2d 911; Minneapolis, St. Paul & Sault Ste. Marie R. R. Co. v. City of Fond du Lac (7th Cir. 1961), 297 F.2d 583; Geiger v. Calumet County (1962), 18 Wis.2d 151, 118 N.W.2d 197; annot. 93 A.L.R.2d 1385.

Colorado and Minnesota have held to the contrary. Brady v. The City and County of Denver (1973), 181 Colo. 218, 508 P.2d 1254; American Automobile Insurance Co. v. City of Minneapolis (1961), 259 Minn. 294, 107 N.W.2d 320.

The Appellate Court for the Second District has but recently considered the public policy underlying contribution vis-a-vis that underlying interspousal immunity. (Wirth v. The City of Highland Park (1981), 102 Ill.App.3d 1074, 58 Ill.Dec. 294, 430 N.E.2d 236, leave to appeal denied.) It found that the former should prevail. With reference to the status of the law of contribution in Illinois, the court said (102 Ill.App.3d at 1080-1082, 58 Ill.Dec. 294, 430 N.E.2d 236):

"The recent trend in Illinois has been to curtail common law tort doctrines to allow contribution among joint tortfeasors (Ill.Rev.Stat.1979, ch. 70, par. 302(a); Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, modified (1978), 70 Ill.2d 16, 15 Ill.Dec. 829, 374 N.E.2d 437) and comparative negligence (Alvis v. Ribar (1981), 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886). One commentator has noted that perhaps the Illinois contribution statute (Ill.Rev.Stat.1979, ch. 70, par. 302(a)) abolishes the traditional notion of common law tort immunities. (Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J.Mar.L.Rev. 173, 194 (1980).) In a parallel situation the Skinner decision balanced policy considerations which immunize an employer from direct suit by an employee with policy considerations which make people who cause an injury responsible for their degree of culpability and allowed contribution from an employer. (70 Ill.2d 1, 15-16, 15 Ill.Dec. 829, 374 N.E.2d 437.) In Alvis v. Ribar (1981), 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886, the Illinois Supreme Court abolished the long used rule of contributory negligence in favor of 'pure' comparative negligence on the basis that the 'pure' form of comparative negligence 'is the only system which truly...