Hopkins v. Powers

JUSTICE SIMON, also dissenting:

I join in Justice Goldenhersh’s dissent and add the following observations.

The majority attempts to disengage dramshop liability from the definition of tort by declaring that the dramshop statute (Ill. Rev. Stat. 1981, ch. 43, par. 135) (the Act) places no duty on Illinois dramshops. (113 Ill. 2d at 209-11.) In supporting that exclusion, the majority misreads our holding in Wimmer v. Koenigseder (1985), 108 Ill. 2d 435 , wherein the court decided that a Wisconsin tavernkeeper owed no duty — -and was therefore not subject to damages — under the Act when he sold beer in Wisconsin to an Illinois resident who became intoxicated and who caused the death of another when he wrecked his car in Illinois.

The thrust of Wimmer is that the Act imposes a duty only on Illinois dramshops, and since Wisconsin dramshops are not “subject to the Act” ( 108 Ill. 2d 435, 443 ), the Act imposed no duty on the Wisconsin defendant and therefore no liability. Here, the majority reads Wimmer to conclude that no duty is imposed on Illinois tavernkeepers either, even when they dispense liquor to a person in Illinois who becomes intoxicated and causes property damage. Wimmer does disclaim the existence of a common law duty in Illinois with regard to serving liquor. It in no way says, however, that there is no duty imposed by the Act on Illinois tavernkeepers who dispense liquor in Illinois, and there is nothing in the facts or the language of Wimmer to support that interpretation of the opinion. Moreover, the majority misconstrues Wimmer in describing that opinion as holding that “insofar as the serving of intoxicating beverages imposes liability on the purveyor, that liability is not grounded in tort but in the Dramshop Act.” (113 Ill. 2d at 211.) There was no occasion in Wimmer to address the question of whether liability under the Act is tort liability, and the opinion did not deal with that question. Nonetheless, the opinion did employ tort-law analysis in deciding that liability would not lie because duty was not imposed by the Act on purveyors of liquor outside Illinois. See Restatement (Second) of Torts sec. 4 (1965).

The majority’s decision is said to be mandated by a “consistent line of authority” that dramshop liability is sui generis and exclusive and not “grounded in tort” (113 Ill. 2d at 211). However, the majority’s conclusion represents a clear departure from earlier decisions by this court that dramshop liability sounds in tort. In Dworak v. Tempel (1959), 17 Ill. 2d 181, 191 , this court determined that dramshop owners and operators liable under the Act are “made statutory tortfeasors.” (See Wanack v. Michels (1905), 215 Ill. 87, 94-95 (violation of the dramshop statute is a “tortious act”).) That determination is consistent with the Restatement view that “[ejxamples of legislative provisions creating new tort rights are civil rights acts, dramshop statutes and dog-bite statutes.” (Restatement (Second) of Torts sec. 874A, comment b (1979).) Furthermore, liability imposed by the Act clearly falls within the definition of tort as set forth by this court: a private injury caused by breach of legal duty; “the commission or omission of an act by one, without right, whereby another receives some injury.” Gillman v. Chicago Rys. Co. (1915), 268 Ill. 305, 309 ; Hayes v. Massachusetts Life Insurance Co. (1888), 125 Ill. 626, 634 .

Prior to the court’s decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1 (adopting contribution among tortfeasors), this court concluded that contribution could not be obtained from a party liable under the Act because “there [was] no right of contribution as between tort feasors” and the “owner, under the circumstances mentioned in the [dramshop] statute, must be regarded as committing [a] tortious act.” (Wanack v. Michels (1905), 215 Ill. 87, 94-95 .) Now that contribution among parties liable in tort is allowed by statute (Ill. Rev. Stat. 1981, ch. 70, par. 302), the majority veers in the opposite direction and says here that parties liable under the Act are not tortfeasors since the Act is sui generis and, consequently, such parties may neither sue nor be sued for contribution. The fallacy lies in the majority’s belief that “tort” and “sui generis” are mutually exclusive labels. If liability imposed by the Act is sui generis, that means only that it was unknown at common law and did not develop from a common law cause of action. (See Howlett v. Doglio (1949), 402 Ill. 311, 318 (dramshop liability “was not an actionable tort at common law”) (emphasis added).) Thus, a statutory or recently formulated cause of action can be sui generis while nonetheless sounding in tort (see, e.g., Norman M. Morris Corp. v. Weinstein (5th Cir. 1972), 466 F.2d 137, 141 ; Colligan v. Activities Club of New York, Ltd. (2d Cir. 1971), 442 F.2d 686 , 691), and Skinner adopted contribution in a case of product liability, also a tort sui generis. I therefore regard liability under the dramshop statute to be “liability in tort” within the meaning of the contribution statute.

Contribution is also denied in this case because the “plaintiff is not among the class of persons who may bring actions under the Dramshop Act.” (113 Ill. 2d at 211.) Plaintiff’s action is “barred,” according to the majority, because plaintiff’s complicity "bars” him from seeking damages under the Act. (113 Ill. 2d at 212.) Of course, the plaintiff here has no cause of action under the Act since he is not a “person who is injured in person or property by any intoxicated person” (Ill. Rev. Stat. 1983, ch. 43, par. 135; Gora v. 7-11 Food Stores (1982), 109 Ill. App. 3d 109, 110 (plaintiff inebriate “conceded that he has no cause of action under the Dramshop Act” for injuries suffered as a result of his intoxication)), and it is not precisely accurate to consider a cause of action “barred” which never existed in the first instance.

To reach its conclusion that “because plaintiff is barred from direct recovery under the Dramshop Act, he is barred as well from recovery under the Contribution Act” (113 Ill. 2d at 212), the majority relies upon the complicity cases of Nelson v. Araiza (1978), 69 Ill. 2d 534 , and Holcomb v. Hornback (1964), 51 Ill. App. 2d 84 , which the majority characterizes as “analogous.” I do not, however, regard Nelson and Holcomb as analogous to this case: even if recovery under the Dramshop Act is limited to “innocent suitors,” recovery by contribution is not precluded in the absence of an innocent suitor since the very purpose of contribution is to allocate damages among parties whose tortious conduct has caused injury to another. Innocent suitors have no need to resort to actions for contribution; indeed, the creation of an “innocent suitor” requirement for contribution would resurrect the recently discarded law of contributory negligence.

The majority, in focusing upon and then denying a cause of action under the Dramshop Act, overlooks the cause of action that the plaintiff is asserting under the contribution statute, which grants a “cause of action for contribution.” (Ill. Rev. Stat. 1981, ch. 70, par. 305.) The majority’s view that a party may not recover under the contribution statute unless that party also has a cause of action for the tort which originally made the party liable to an innocent third party is inconsistent with Doyle v. Rhodes (1984), 101 Ill. 2d 1 (person liable under Road Construction Injuries Act may be sued for contribution although the party seeking contribution had no cause of action under that statute). It renders the contribution statute meaningless since the right to contribution is superfluous if the person seeking contribution also has a cause of action for the underlying tort.

In Doyle the court said that “the Contribution Act envisions a sharing of liability between two culpable defendants even where the liability of one is grounded in the special duties imposed by a safety statute such as the Road Construction Injuries Act and does not depend on a theory of common law negligence. (See Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App. 3d 914 (contribution possible under the Dramshop Act ***).)” (Emphasis added.) ( 101 Ill. 2d 1, 17 .) Thus a negligent driver may receive contribution from the injured party’s employer who violated a safety statute, even though the employer could not have been held directly liable by the injured employee. A fortiori a defendant dramshop operator should be answerable for contribution to the inebriated tortfeasor where the operator could have been held directly liable for the injured party’s damages. In denying contribution, and by allowing the licensee and operator of the Hall of Fame tavern to avoid paying any damages caused by his violations of the Act, the majority has undercut a legislative policy which places the loss on dramshops in order to promote responsible conduct by tavernkeepers and which places the costs of liquor consumption upon persons in a position to spread the cost among all liquor consumers; it is only liquor-selling establishments which will benefit by the court’s decision in this case.

The majority’s conclusions are not supported by the law, but are perhaps motivated by the majority’s desire to deal harshly with those individuals who drink and drive. In any event, the majority’s selective exercise of stare decisis regarding the tortious character of Dram-shop Act violations resulting in civil liability has blurred the law of contribution, and I dissent.