Petition — Hinckley Plastic, Inc. v. Reed-Prentice Division Package Machinery Co.

Supreme Court, U. 8.

FILED

1978

INx TRE

MICHAEL RODAK, IR., ed

Supreme Court of the United. States

Octroser TERM, 1977

No. 771494

RITA RAE SKINNER, a minor, by VIRGINIA SKINNER,

her mother and next friend,

Plaintiff,

vn.

REED-PRENTICE DIVISION PACKAGE MACHINERY Co.,

a foreign corporation,

Defendant.

HINCKLEY PLASTIC, INC., g

Petitioner,

vs.

REED-PRENTICE DIVISION PACKAGE MACHINERY Co.,

a foreign corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF ILLINOIS

PretzeL, Stourrer, Notan & Rooney,

CHARTERED

100 West Monroe Street

Chicago, Illinois 60603

FInancial 6-1973

Attorneys for Petitioner,

Hinckley Plastic, Inc.

JosePH B. LEDERLEITNER

Rosert Marc CHEMERS

Of Counsel

—

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

PAGE

OPINIONS BELOW — 2

. 2

QUESTIONS PRESENTED 3

SUMMARY OF POINTS AND AUTHORITIES ........ 3

STATEMENT OF FACTS 4

REASONS FOR GRANTING CERTIORARI:

The Opinion And Judgment Of The Illinois Su-

preme Court Violates Fundamental Constitutional

Concepts Of Due Process And re © Of

Powers“ 4

APPENDICES:

A—Opinion of the Supreme Court of IIlinois la

B—Opinion of the Appellate Court of IIlinois 39a

C—Decision of the Trial Court 47a

D—Order of the Supreme Court of Illinois Denying

r 51a

LIST OF AUTHORITIES CITED

Cases

Brinkerhof v. Hill, 281 U.S. 673 (1930) ee. 3, 4, 5

Great Northern Ry. v. Sunburst, 287 U.S. 358 (1932)

(certiorari to Supreme Court of Montana) 5

Constitutional Provisions

U.S. Constitution, XIV Amendment 3, 6

Sections 1 and 2, Article I, Illinois Constitution (1970) .. 3, 6

Section 12, Article I, Illinois Constitution (1970) 3, 5

In THE

Supreme Court of the United States

Octoser Term, 1977

No.

RITA RAE SKINNER, a minor, by VIRGINIA SKINNER,

her mother and next friend,

Plaintiff,

REED-PRENTICE DIVISION PACKAGE MACHINERY co.,

2 foreign corporation,

Defendant.

HINCKLEY PLASTIC, INC., g

Petitioner,

vs.

REED-PRENTICE DIVISION PACKAGE MACHINERY CO.,

a foreign corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

SUPREME COURT OF ILLINOIS

The Petitioner prays that a Writ of Certiorari issue to

review the judgment of the Supreme Court of Illinois which

reversed a judgment of the intermediate Appellate Court

that had affirmed a dismissal of a complaint for partial

--2—

indemnity (heretofore unrecognized under Illinois law) by

a manufacturer of a product from the employer of the

Plaintiff. The Supreme Court of Dinois in a Supplemental

Opinion, filed when Rehearing was denied, ordered the de-

cision to operate prospectively to causes of action arising

out of occurrences on and after March 1, 1978.

OPINIONS BELOW

The opinion of the Supreme Court of Illinois, as yet

unreported in the official Illinois Reporter appears in Ap-

pendix A. This opinion reversed the Appellate Court of

Illinois First District whose opinion is reported in Skin-

ner v. Reed-Prentice Div. Package Mach. Co., 351 N.E.2d

405, 40 Ill.App.3d 99 (1976), and is set forth in Appendix

B. This opinion of the Appellate Court affirmed the dis-

missal of a complaint for partial indemnity because no

such action is cognizable under Illinois law. The decision

of the Trial Court in dismissing the complaint is set forth

in Appendix C.

JURISDICTION

The judgment of the Supreme Court of Illinois was en-

tered on December 21, 1977. A Petition for Rehearing was

filed within the time allowed by Rules of Court and was

denied on January 26, 1978 (Appendix D). This Petition

for Certiorari was filed less than 90 days from said date.

The judgment of this Court is invoked under 28 U.S.C.

Section 1257(3).

@

*

QUESTIONS PRESENTED

L

May a decision of the Supreme Court of Illinois which

holds that ‘‘the decisions in this cause . . . will apply pro-

spectively to causes of action arising out of occurrences on

and after March 1, 1978’’ be constitutionally interpreted to

be prospective in application as to all other defendants but

to be of immediate application as to the instant defendant

without depriving the latter of substantive constitutional

rights?

II.

If the decision does not apply to others but only to this

defendant, may a State Supreme Court constitutionally

legislate by creating a new common law liability and or-

dering it to become effective as to all other defendants

prospectively as of a future date but ordering the new

liability to be imposed upon the instant defendant only in

the case before it, when such a liability never existed, and

could not have been adjudged when the complaint was filed

or judgment was rendered?

SUMMARY OF POINTS AND AUTHORITIES

THE OPINION AND JUDGMENT OF THE ILLINOIS so.

PREME COURT VIOLATES FUNDAMENTAL CONSTITU-

TIONAL CONCEPTS OF DUE PROCESS AND SARA

TION OF POWEBS.”’

Brinkerhof v. Hill, 281 U.S. 673 (1930).

Section 12, Article I, IIlinois Constitution (1970).

US. Constitution, XTV Amendment.

Sections 1 and 2, Article I, Illinois Constitition (1970).

wien

STATEMENT OF FACTS

The facts are set forth in the opinions of the reviewing

Courts in Appendices A and B, and need not be repeated

here. 7

The petition for rehearing filed in the Supreme Court of

Illinois raised constitutional and other objections to the

creation aud imposition of a new liability that could not

have been adjudged against the defendant when the com-

plaint was filed or judgment rendered. The constitutional

issues could not have been raised earlier because the dis-

missal which third party defendant obtained in the Trial

Court was affirmed in the Appellate Court and thereafter

the Supreme Court of Illinois granted leave to third party

plaintiff to appeal.

REASONS FOR GRANTING CERTIORARI

THE OPINION AND JUDGMENT OF THE ILLINOIS 8U-

PREME COURT VIOLATES FUNDAMENTAL CONSTITU-

TIONAL CONCEPTS OF DUE PROCESS AND ‘‘SEPARA-

TION OF POWERS.’’

The Supreme Court of the United States has held that

the federal guaranty of due process extends to state ac-

tion through its judicial branch. Brinkerhof v. Hill, 281

U.S. 673 (1930). In the cited case, this Court, upon grant-

ing certiorari to the Supreme Court of Missouri, held that

the State through its Judiciary may not destroy existing

remedies. There the record, referred to in a footnote, in-

*

dicated that part of the issue arose from the State Su-

preme Court’s doubting that evidence warranted a particu-

lar finding (page 677).

While the Supreme Court of Illinois states that it is

merely abolishing a remedy that it has previously created,

the Opinion goes on to decide that a new remedy is re-

quired, and creates it. It is submitted that upon abolition

of the old remedy, there is no law applicable for the instant

situation for the Court to enforce, and enforcement is a

judicial function. The qr estion of whether a remedy should

be created and, if so, what kind and when, is peculiarly the

enactment of legislation and is not a judicial function. This

constitutional question arose for the first time in the Su-

preme Court of Illinois upon rendition of its Opinion and

was raised on Petition for Rehearing, which was denied.

Section 12 of Article I of the Illinois Constitution re-

quires the preservation of rights recognized by the com-

mon law and does not permit or authorize the courts to

create a cause of action unknown to the common law. III.

Const. 1970, Art. I, $12. Under the separation of powers

doctrine, the fashioning of hitherto unknown remedies is

expressly a legislative function upon which the Supreme

Court of Illinois has infringed. See also Great Northern

Ry. v. Sunburst, 287 U.S. 358 (1932) (certiorari to Su-

preme Court of Montana).

It is further respectfully submitted that the Opinion of

the Supreme Court of Illinois invades substantial constitu-

tional rights of this defendant by depriving it of a defense

to the cause of action which existed at the time the Com-

plaint was filed and at the time the judgment was rendered

and substitutes in its place a liability wholly unknown at

the time of the filing of the Complaint and the entry of the

*

judgment, contrary to the due process clause and the equal

protection under the laws clause of the State and Federal

constitutions and this, too, is a constitutional deprivation

that occurred for the first time in the Supreme Court of

Illinois when the instant Opinion was rendered. U.S. Const.

XIV Amendment; III. Const. 1970, Art. I, §§1, 2.

It is respectfully submitted that the Opinion of the Su-

preme Court of IIlinois invades the constitutional rights of

the defendant because it singles out this defendant alone

and imposes upon it a newly created liability not imposed

on any other defendant as of trial date. It creates and im-

poses a liability retroactively, whereas no such liability

existed either at the time the Complaint was filed or judg-

ment rendered, and the defendant had no notice at the time

of the alleged acts that the alleged conduct would produce

the kind of liability that is now being established, and this, .

arose for the first time in the Supreme Court of Illinois by

the rendition of the instant Opinion.

Respectfully submitted,

Pretze., Stourrer, NolAN & Rooney,

CHARTERED

100 West Monroe Street

Chicago, Illinois 60603

FInancial 6-1973

Attorneys for Petitioner,

Hinckley Plastic, Inc.

Josy B. LEDERLEITNER

Rosert Marc CHEMERS

Of Counsel

APPENDIX

**

APPENDIX A

Opinion of the Supreme Court of Illinois

(Docket No. 48757—-Agenda 36— March 1977)

Rrra Raz Skixxxn, a Minor, v. Reep-Prentice Drvision

Packxace Macuinery Co., Appellant.—(Hinckley Plastic,

Inc., Appellee.)

Mr. Justice GotpenHeERsH delivered the opinion of the

court:

Plaintiff, Rita Rae Skinner, a minor, by Virginia Skin-

ner, her mother and next friend, filed this action in the eir-

cuit court of Cook County seeking to recover damages for

personal injuries suffered as the result of the alleged mal-

function of an injection molding machine manufactured by

defendant, Reed-Prentice Division Package Machinery Co.

(hereafter manufacturer). The manufacturer filed a third-

party complaint seeking contribution from the third-party

defendant, Hinckley Plastic, Inc. (hereafter employer), by

whom plaintiff was employed at the time of her injuries.

The circuit court allowed the employer’s motion to dismiss

the third party complaint, the appellate court affirmed (40

Ill. App. 3d 99), and we allowed the manufacturer’s peti-

tion for leave to appeal. The pleadings are adequately re-

viewed in the appellate court opinion, and it suffices here to

state that plaintiff seeks to recover on the basis of strict

liability in tort while the third-party complaint alleges neg-

ligence on the part of the employer. The relief asked by the

manufacturer in its third-party complaint is ‘‘that if judg-

ment be entered in favor of the plaintiff and against it that

judgment be entered against the third party defendant and

in favor of third party plaintiff in such amount, by way of

contribution, as would be commensurate with the degree of

misconduct attributable to the third party defendant in

causing plaintiff’s injuries.’’

*

Opinion of the Supreme Court of Illinois

In its dismissal order the circuit court observed that in

Gertz v. Campbell, 55 III. 2d 84, this court ‘‘indicated that

it might adopt the New York rule, because it stated, citing

the Dole case [Dole v. Dow Chemical Co. (1972), 30 N.Y.

2d 143, 282 N.E. 286, 331 N.Y.S.2d 382] ‘to illustrate, there

can and should be a continuing search for better solutions.

The Court of Appeals of New York has recently supplanted

this active-passive negligence criteria from indemnitee with

one founded on equitable principles.“ It concluded, how-

ever, ‘‘that there is no decision in this state allowing con-

tribution under the facts pleaded in the third party com-

plaint.’’ In affirming the judgment, the appellate court con-

cluded that ‘‘a decision to apply theories of contribution in

the instant case would require substantive and procedural

formulations beyond the authority of this court’’ and that

the issue presented was ‘‘the type of issue which should be

decided by the highest court of this State * * *.’’ 40 III. App.

3d 99, 104.

The manufacturer argues that no decision of this court

prohibits contribution between tortfeasors; that where the

tort was not intentionally committed, sound public policy

requires that contribution between tortfeasors be perluit-

ted; that a manufacturer held liable on the basis of strict

liability in tort should have a right of contribution against

others who contributed to cause the injuries; and that if

this court should adopt a rule of contribution, it should be

based on the relative degree of fault rather than on the

basis of equal apportionment among the number of wrong-

doers. The employer argues that the long-established rule

in this State is that there is no right of contribution among

tortfeasors; that the only exception to the general rule is

that a ‘‘passive’’ tortfeasor may obtain indemnity from an

‘‘active’’ tortfeasor; and that a manufacturer held strictly

liable in tort cannot seek indemnity from the employer for

the reason that public policy requires that the manufac-

turer’s liability be considered active.“

—3a—

(Opinion of the Supreme Court of Illinois)

This court’s holdings concerning indemnity and contribu-

tion and the allocation among tortfeasors of the economic

loss resulting from injuries have been much discussed by

the bench and bar. (See, e. g., Study Committee Report on

Indemnity, Third Party Actions and Equitable Contribu-

tions, 1976 Report of the Illinois Judicial Conference; Re-

port of Committee on Comparative Negligence, 1964 Re-

port of the Illinois Judicial Conference 110; Moroni v. In-

truston-Prepakt, Inc., 24 IIl. App. 2d 534; Sargent v. Inter-

state Bakeries, Inc., 86 III. App. 2d 187; Zaremski, Expan-

sion of Third Party Recovery: Common Law Indemnity,

Contribution, or ?, 63 III. B. J. 684 (1975); Kissel, Theories

of Indemnity As Related to Third Party Practice, 54 Chi.

B. Rec. 157 (1973); Polelle, Contribution Among Negligent

Joint Tortfeasors in Illinois: A Squeamish Damsel Comes

of Age, 1 Loy. Chi. L.J. 267 (1970); Feirich, Third-Party

Practice, 1967 U. Til. L.F. 236.) In its report submitted

at the 1976 Judicial Conference, the Study Committee on

Indemnity, Third Party Actions and Equitable Contribu-

tions presented a comprehensive review of the historic de-

velopment of the law and its application to various types of

litigation and concluded that the present rule ‘‘is harsh

and inequitable in operation and has resulted in a great

deal of judicial effort in expanding the concept of indem-

nity creatively in order to avoid the harsh result inherent

in the rule.’’ It unanimously recommended the adoption of

the principle of contribution among joint tortfeasors and

recommended that liability among joint tortfeasors ‘‘be ap-

portioned on the basis of their pure relative fault.“

As the court, quoting from Prosser, Torts 278 (3d ed.

1964), observed in Suvada v. White Motor Co., 32 Ill. 2d

612, 624: There is an important distinction between con-

tribution, which distributes the loss among the tortfeasors

by requiring each to pay his proportionate share, and in-

demnity, which shifts the entire loss from one tortfeasor

who has been compelled to pay it to the shoulders of an-

—4a—

(Opinion of the Supreme Court of Illinois)

other who should bear it instead.“ In Nelson v. Cook, 17 Tl.

443, an action by a sheriff against a judgment creditor to

recover the sum he was compelled to pay for the conver-

sion of another’s property, this court, considering the dis-

tinction for the first time, said: ‘‘The principle laid down

in Merryweather v. Nixan [(1799), 101 Eng. Rep. 1337],

8 Term R. 186, that there is no right of contribution as be-

tween tort-feasors, or trespassers, has been, and still is,

recognized as unquestionable law. But this does not affect

the right of indemnity where a right of indemnity exists.“

(17 Tll. 443, 449.) Based on the facts before it the court held

that the sheriff had no right of implied indemnity.

Concerning Merryweather, the English authority upon

which the court relied, the author of a frequently cited law

review article said:

„It is singularly unfortunate, and has led to mis-

understanding, that Merryweather v. Nixan should

have been continually treated as stating the ‘general

rule.’ As a matter of fact that case states not the rule,

but the exception. The general rule is that among per-

sons jointly liable the law implies an assumpsit either

for indemnity or contribution, and the exception is that

no assumpsit, either express or implied, will be en-

forced among wilful tort-feasors or wrongdoers.

In considering the facts in Merryweather v. Nixan,

and in applying that decision, it is important to bear

in mind that the meaning of the word ‘tort’ at the time

of the decision in 1799 was limited and narrow. None

of the early writers, such as Bacon, accurately defined

torts, but the actions which they treat as torts are

practically all actions such as batteries, slanders, ete.,

which were, of course, wilful or intentional wrongs. At

that time the word ‘tort’ had not come to be applied

to the vast number of quasi delicts now known and

—5a—

(Opinion of the Supreme Court of Illinois)

classified as actions sounding in tort and arising out

of mere negligence or unintentional injury. The clas-

sification of such actions as technical torts is of com-

paratively recent date. It is, therefore, vital to a cor-

rect understanding of the decision, that this limited

meaning of the word ‘tort’—.e., a wilful or intentional

wrong—be remembered.’’ Reath, Contribution Between

Persons Jointly Charged for Negligence-——Merryweath-

er v. Nixan, 12 Harv. L. Rev. 176, 177-78 (1898).

In Johnson v. Chicago d Pacific Elevator Co., 105 III.

462, in which it next considered contribution among tort-

feasors, the court affirmed the denial of an application to

be joined as a defendant made by an individual who alleged

an interest in the action because he would be liable to con-

tribute to the judgment if the defendant were held liable.

The court, without citation of authority, said: [There

be 2 of contribution between wrongdoers.’’ 105 III.

In Farwell v. Becker, 129 III. 261, the court was pre-

sented for the first time, and until this case the only time,

with the precise question whether there is a right of con-

tribution among tortfeasors. In Farwell a number of cred-

itors, by attachment, without knowledge of any wrongdoing,

converted the chattels of a third person. One creditor, who

was forced to pay the entire claim, was held entitled to

contribution in equal shares from the other creditors. In

its opinion the court reviewed Merryweather and the de-

cisions of other State courts and concluded that the rule

prohibiting contribution among tortfeasors was confined to

intentional wrongdoers, or wrongdoers presumed to know

that their act was unlawful. Farwell has not been cited,

followed or overruled in subsequent decisions of this court.

Dean Prosser, in discussing the application by courts in

this country of the rule of Merryweather v. Nizan states:

„The early American cases applied the rule against con-

—

(Opinion of the Supreme Court of Illinois)

tribution to cases of wilful misconduct, but refused to rec-

ognize it where the tort committed by the claimant was

a matter of negligence or mistake. But once the door was

thrown open to joinder in one action of those who had

merely caused the same damage, the origin of the rule and

the reason for it were lost to sight. The great majority of

our courts proceeded to apply it generally, and refused to

permit contribution even where independent, although con-

current, negligence had contributed to a single result.’’

Prosser, Torts sec. 50, at 306 (4th ed. 1971).

In Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481,

the court joined ‘‘the great majority’’ of courts described

by Dean Prosser that, while permitting joinder of alleged

joint tortfeasors, continued to proseribe contribution. In

Consolidated, hoiding that two corporations whose con-

current negligence had caused the death of a laborer were

properly joined as defendants, the court, without citation

of authority, said: ‘‘There can, in such case, be no appor-

tionment of damages as between the several parties whose

negligent acts and conduct have contributed to the injury.

Nor can one of the wrongdoers compel contribution from

the other.’’ (134 Ill. 481, 493.) Except for Wanack v.

Michels, 215 III. 87, and Skala v. Lehon, 343 III. 602, the

court has not qualified the statement that there is no right

of contribution among tortfeasors. (See John Griffiths d

Son Co. v. National Fireproofing Co., 310 III. 331, 339;

Chicago & Illinois Midland Ry. v. Evans Construction Co.,

32 III. 2d 600, 603; Miller v. DeWitt, 37 III. 2d 273, 289;

Muhlbauer v. Kruzel, 39 III. 2d 226; Reese v. Chicago,

Burlington d Quincy R.R. Co., 55 Ill. 2d 356; Carver v.

Grossman, 55 III. 2d 507, 510.) In Wanack, which involved

an intentional tort, the court stated that the noncontribu-

tion rule applied only to intentional wrongdoing. (215 III.

87, 94.) In Skala the court said: It is true, as a general

rule, that the right of contribution does not exist as be-

tween joint tort feasors where there is concerted action in

— — ꝙ¶.b)5..—

7 —

(Opinion of the Supreme Court of Illinois)

the commission of the wrong. Where, however, there is no

concerted action the rule does not apply, as the parties in

such case are not in pari delicto as to each other, and as

between themselves their rights may be adjusted in ac-

cordance with the principles of law applicable to the rela-

tion in fact existing between them.“ 343 III. 602, 605.

Distinguishable from the case before us in that the al-

leged misconduct of the third-party defendant was subse-

quent to, rather than concurrent with, that of the third-

party plaintiff, but illustrative of the ‘‘continuing search

for better solutions,’’ is the case of Gertz v. Campbell, 55

Ill. 2d 84. Plaintiff Gertz, a minor, filed suit against Camp-

bell alleging that he was injured by reason of Camp-

bell’s negligent operation of an automobile. Campbell filed

a third-party action against Dr. H. M. Snyder, the physi-

cian who treated Gertz, alleging malpractice in the treat-

ment and seeking indemnity for any damages which might

be assessed against Campbell under Gertz’ complaint but

which were attributable to the doctor’s malpractice. Relief

sought in the third-party action was ‘‘indemnity and judg-

ment against Dr. Snyder for the amount of damages caused

to the plaintiff as the result of the new injury or aggrava-

tion of the plaintiff’s existing injuries caused by the neg-

lect and failure of Dr. Snyder.’’ The court, after noting

the distinction between contribution and indemnity, and

recognizing that under Illinois case law there was no con-

tribution between tortfeasors, concluded that Campbell did

not seek indemnity for the total recovery for the plaintiff,

but sought indemnity for the damages attributable to the

fault of Snyder, and held that Campbell ‘‘had a right to

bring the action to be indemnified for the damages to the

plaintiff attributable to the malpractice.’’ 55 III. 2d 84, 92.

Although this court has earlier recognized that under

appropriate circumstances there existed the right of in-

demnification among tortfeasors (Nelson v. Cook, 17 III.

443), in John Griffiths d Son Co. v. National Fireproofing

— =

(Opinion of the Supreme Court of Illinois)

Co., 310 Til. 331, it was presented, for the first time, the

question whether a written indemnification agreement be-

tween two parties, both liable under the Structural Work

Act, was against public policy. In holding that the agree-

ment was not against public policy, the court, at some length,

discussed the concept of active-passive negligence as ap-

plied in other jurisdictions as the basis for the right of

implied indemnity between tortfeasors.

In Gulf, Mobile & Ohio R. R. Co. v. Arthur Dixon Trans-

fer Co., 343 III. App. 148, citing John Griffiths & Son Co.

as authority, the appellate court expanded the concept of

implied indemnification among tortfeasors by applying the

active-passive negligence doctrine. The rule as discus

and applied by many appellate court opinions was finally

recognized by this court in Chicago @ Illinois Midland Ry.

Co. v. Evans Construction Co., 32 Ill. 2d 600, and later in

Miller v. DeWitt, 37 IIl. 2d 273, Muhlbauer v. Kruzel, 39

III. 2d 226, Carver v. Grossman, 55 III. 2d 507, and Harris

v. Algonquin Ready Miz, Inc., 59 III. 2d 445.

This court has candidly recognized that the concept of

implied indemnity, based on the active-passive negligence

doctrine, ‘‘has been utilized to mitigate the harsh effects

that could result from an inflexible application of this judi-

cially created bar to contribution.“ (Muhlbauer v. Krugel,

39 III. 2d 226, 230.) The application of this all or nothing

liability based on terms of active-passive negligence, which

have not obtained precise judicial definition“ (see Carver

v. Grossman, 55 III. 2d 507, 511), to the every increasing

situations where there is some fault attributable to both

parties produces harsn effects without uniformity of re-

sult.

A technique recently employed by the bar to circumvent

the noncontribution rule has been the use of the loan re-

ceipt, approved by this court in Reese v. Chicago, Burling-

ton & Quincy R.R. Co., 55 Ill. 2d 356. This, too, involve

—9a—

(Opinion of the Supreme Court of Illinois)

the application of an all or nothing rule of liability to situ-

ations where some fault is attributable to both parties, and

also raises other problems. See Harris v. Algonquin Ready

Miz, Inc., 59 III. 2d 445; Gatto v. Walgreen Drug Co., 61

III. 2d 513; Michael, Mary Carter Agreements in Illi-

nois, 64 III. B. J. 514 (1976); Duree, Has The Loan Receipt

Agreement Established Reverse Comparative Negligence

Or Indemnity Among Active Tortfeasors In Illinois?, 64

III. B. J. 236 (1975); Freedman, The Expected Demise of

Mary Carter: She Never Was Well!, 1975 Ins. L.J. 502;

Note, The Mary Carter Agreement—Solving the Problems

of Collusive Settlements in Joint Tort Actions; 47 S. Cal.

Rev. 1393 (1974).

Having recognized that the application of the no-contribu-

tion rule causes unjust results and having stated that the

active-passive theory of indemnity was designed to miti-

gate the harsh effects of its application, the only reason

found in the opinions of this court for its continued ex-

istence appears in Reese, where it was said that ‘‘the prin-

cipal objection to contribution [is] use of the courts for

relief of wrongdoers’’ (55 III. 2d 356, 363-64). As noted

earlier in this opinion, when Merryweather was decided,

the term ‘‘tortfeasors’’ meant intentional wrongdoers, not

the negligent and ‘‘strict liability’’ tortfeasors of today.

One of the findings of the Study Committee on Indemnity,

Third Party Actions and Equitable Contributions in its

report presented to the 1976 Judicial Conference is that

the no-contribution rule does not save judicial time and

energy in defining the degree of culpability of joint tort-

feasors because the court must search for a ‘‘qualitative

distinction between the negligence of the two tortfeasors’’

(see Chicago d Illinois Midland Ry. Co. v. Evans Construc-

tion Oo., 32 III. 2d 600, 603) under the active-passive doc-

trine. It also presents opportunity for fraud and collusion

among the parties, necessitating further judicial efforts in

monitoring their out-of-court behavior. Other objections to

—10a—

(Opinion of the Supreme Court of Illinois)

contribution have been rejected by almost every writer on

the subject. See Comment, The Allocation of Loss Among

Joint Tortfeasors, 41 S. Cal. L. Rev. 728 (1968), and cases

and law review articles cited therein.

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 [there 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 shou.idered 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 collusion

with the other wrongdoer, while the latter goes scot free.’’

Prosser, Torts sec. 50, at 307 (4th ed. 1971).

The employer argues that the abolition of the no-con-

tribution rule would produce substantial change in the

fabric of tort law and substantial changes are best left to

the General Assembly. Where this court has created a rule

or doctrine which, under present conditions, we consider

unsound or unjust, we have not only the power, but the

duty, to modify or abolish it. For the purposes of the

motion to dismiss, the allegations of fact in the third-party

complaint must be taken as true (Acorn Auto Driving

School, Inc. v. Board of Education, 27 III. 2d 93, 96), and

on these facts the governing equitable principles require

that ultimate liability for plaintiff’s injuries be apportioned

on the basis of the relative degree to which the defective

product and the employer’s conduct proximately caused

them. Suvada v. White Motor Co., 32 III. 2d 612, 623;

Molitor v. Kaneland Community Unit District No. 302, 18

III. 2d 11, 25.

Citing Texaco, Inc. v. McGrew Lumber Co., 117 Ill. App.

2d 351, Kossifos v. Louden Machinery Co., 22 III. App. 3d

587, and Burke v. Sky Climber, Inc., 57 Ill. 2d 542, the

employer argues that a defendant held strictly liable in

—lla—

(Opinion of the Supreme Court o

tort is precluded from seeking contribution ‘‘because pub-

lic policy requires that its liability to an original plaintiff

be considered active’’ and that the duty imposed in strict

liability is more stringent than in cases involving negli-

gence. We do not agree. The public policy considerations

which motivated the adoption of strict liability (see Su-

vada v. White Motor Co., 32 III. 2d 612) were that the

economic loss suffered by the user should be imposed on

the one who created the risk and reaped the profit, includ-

ing everyone from the manufacturer on through to the

seller or any one of them. When the economic loss of the

user has been imposed on a defendant in a strict liability

action the policy considerations of Suvada are satisfied and

the ordinary equitable principles governing the concepts

of indemnity or contribution are to be applied. Thus, in

Tiberty Mutual Insurance Co. v. Williams Machine d Tool

Co., 62 III. 2d 77, where the assembler of the product, who

had settled strict liability actions against it, filed an in-

demnity action against the producer of the defective com-

ponent part, the court adopted a rule for indemnification

in the manufacturer-distributor-seller chain. After noting

that the policy reasons for adopting strict liability in Su-

vada were not the same as those determining the ultimate

liability in the manufacturer-distributor chain, the court, in

effect, put the assembler in the shoes of the user and the

producer into the shoes of the assembler in order for the

assembler to shift the full economic loss to the producer.

The court said: ‘‘In our judgment, the rule we are adopting

is a logical and necessary [and equitable] extension of the

principles enunciated in Suvada and Williams. It does not

impose an undue burden on defendant and those similarly

situated, for it is they who originated the defective prod-

uct. Nor does it make them absolute insurers of the safety

of their products. Plaintiffs in such indemnity actions

must still prove the necessary elements of a strict lia-

bility action—that the product contained a defective con-

dition which existed at the time it left defendant’s con-

—12a—

(Opinion of the Supreme Court of Illinois)

trol, rendering the product unreasonably dangerous and

proximately causing the injury resulting in plaintiff’s lia-

bility to the injured party. [Suvade theory of strict liability

from seller through manufacturer]. And while proof of an

indemnitee’s negligence will not serve to bar a strict lia-

bility indemnity claim, proof that he misused the product

or assumed the risk of the defect will be an effective bar

to recovery.“ 62 III. 2d 77, 84-85.

Misuse of the product or assumption of the risk by a

user will serve to bar his recovery (Williams v. Brown

Manufacturing Co., 45 III. 2d 418), and indemnity is not

available to one who misuses the product or assumes the

risk of its use (Liberty Mutual Insurance Co. v. Williams

Machine c Tool Co., 62 IIl. 2d 77). We are of the opinion

that if the manufacturer’s third-party complaint alleges

that the employer’s misuse of the product or assumption

of the risk of its use contributed to cause plaintiff’s in-

juries, the manufacturer has stated a cause of action for

contribution. The fact that the employee’s action against

the employer is barred by the Workmen’s Compensation

Act (Ill. Rev. Stat. 1975, ch. 48, pars. 138.5, 138.11) would

not preclude the manufacturer’s third-party action against

the employer for indemnification (Miller v. DeWitt, 37 Til.

2d 273) and should not serve to bar its action for contribu-

We hold that the third-party complaint, although pleaded

in terms of negligence, alleges misuse of the product and

assumption of risk on the part of the employer and states

a a cause of action for contribution based on the relative de-

gree to which the defective product and the employer’s

_ misuse of the product or its assumption of the risk contrib-

uted to cause plaintiff’s injuries. For the reasons stated,

the judgments of the appellate and circuit courts are re-

versed and the cause is remanded to the circuit court of

Cook County for further proceedings consistent with this

opinion.

Reversed and remanded.

attire.

(Opinion of the Supreme Court of Illinois)

SUPPLEMENTAL OPINION ON

DENIAL OF REHEARING

The employer has filed a petition for rehearing urging,

inter alia, that the holding in this case be given only prospec-

tive application. The Illinois Defense Counsel, as amicus

curiae, pursuant to leave granted, has filed a motion ‘‘to

invoke doctrine of prospective operation.’’ Although not

in agreement with either the employer or amicus as to the

manner in which the ‘‘prospective operation’’ should ap-

ply, the manufacturer has also filed — urging

prospective operation.“

We have considered the arguments and have unanimously

concluded that there are present here many of the problems

and conditions which compelled the prospective application

of the decisions in Molitor v. Kaneland Community Unit

District No. 302, 18 Ill. 2d 11, and Renslow v. Mennonite

Hospital, 67 Ill. 2d 348, and that this decision, too, should

be prospective in operation. We hold, therefore, that the

decisions in this cause, Stevens v. Silver Manufacturing Co.,

No. 48974, and Robinson v. International Harvester Co., No.

49205, will apply prospectively to causes of action arising

out of oceurrences on and after March 1, 1978.

Mn. Cr Justice Warp, dissenting:

I must dissent from the judgment of the court in this

cause and in cause No. 48974, Stevens v. Silver Manufac-

turing Co., and cause No. 49205, Robinson v. International

Harvester Co., reversing the dismissal of the third-party

complaints.

The situation in which the doctrine of contribution prop-

erly has been applied is that in which the independent acts

of two or more tortfeasors (among whom there exists no

antecedent express or implied agreement of indemnity)

combine to produce a single, indivisible injury, and where

—14a—

(Opinion of the Supreme Court of Illinois)

each party, unlike the situation here, is liable to the plain-

tiff in tort on the ground of negligence or of strict lia-

bility. (Prosser, Torts 309 (4th ed. 1971).) The majority

correctly observes that such cases do not lend themselves

readily to a qualitative analysis of tortious conduct as

„active“ or passive, as the indemnity theory requires.

Yet in Skinner the majority predicates its proposal for

allowance of contribution among tortfeasors on the theory

that the ‘‘ultimate liability for plaintiff’s injuries be ap-

portioned on the basis of the relative degree to which the

defective product and the employer’s conduct proximately

caused them.“ (Slip op. at 8.) Although the majority opin-

ion does not elaborate on its meaning, this standard sug-

gests some quantitative comparison, such as 60 percent

to 40 percent, instead of the qualitative comparison of ac-

tive and passive made in the indemnity cases. The majority

does not show that the determination of what percentage

of the plaintiff’s damages should be attributable to each

tortfeasor will prove any more manageable than the active-

passive test used for indemnity.

There are a few jurisdictions in which the amount of

the contribution between joint tortfeasors is based on the

relative fault of each tortfeasor. (See e.g., Bielski v. Schulze

(1962), 16 Wis. 2d 1, 114 N.W.2d 105; Annot., 53 A.L.R.

3d 184 (1973).) As Prosser observes, the usual method of

distributing the loss, however, has been to divide the total

damages pro rata without regard to comparative fault.

That is the method adopted under the current provisions

of the Uniform Contribution Among Tortfeasors Act as

revised in 1955. (12 Uniform Laws Annotated sees. 1(b),

(2).) Of the 18 jurisdictions which have adopted either the

1955 uniform act or its 1939 predecessor, some 13 appear

to use the pro rata approach. (See 12 Uniform Laws An-

notated 34 (1978). Cf. Annot., 53 A.L.R.3d 184, 191-92, 197-

98 (1973). See also. Commissioners’ Prefatory Note (1955

—l5a—

* (Opinion of the Supreme Court of Illinois

Revision), 12 Uniform Laws Annotated 59-60; Commis-

sioners’ Prefatory Note (1939 Act), 12 Uniform Laws An-

notated 60-62; Commissioners’ Comment to section 1(a),

12 Uniform Laws Annotated 64; Early Settlers Insurance

Co. v. Schweid (D.C. 1966), 221 A.2d 920; Prosser, Torts

310 (4th ed. 1971).) The conceptual basis for pro rata con-

tribution is of course that one tortfeasor has discharged an

obligation for which the other tortfeasor was also liable.

In any event, the majority’s rule of apportionment should

not have application in these cases. The plaintiffs are pro-

ceeding against the defendant manufacturers on the theory

of strict liability, and of course negligence or its absence

is not a factor in determining the liability of the defendants.

These defendants thus may be without culpability in the

sense that they were nonnegligent. The majority says that

the extent of liability among tortfeasors should be deter-

mined by their relative roles in proximately causing the

plaintiffs’ injuries, but it seems to me that this formula

cannot properly be applied in the absence of a common

standard of comparison. The plaintiffs seek to recover on

the ground of strict liability; the defendants in their third-

party complaints allege negligence by the employers. What

will be the method of comparison, with negligence not a

factor in determining the defendants’ liability?

As Mr. Justice Dooley details in his dissent, in the ma-

jority opinion there is a confusing of contribution and in-

demnity. Until now these terms had a distinctive meaning.

Somewhat remarkably, I think, the majority does not

mention Maki v. Frelk (1968), 40 Ill. 2d 193, in which this

court declined to abandon our rule on contributory negli-

gence in favor of a comparative negligence rule. I do not

recede from the dissenting position which Mr. Justice

Schaefer and I took in Maki. While a distinction may be

drawn between the question of apportionment as it arises

in the context of contribution and as it appears in the

—l6e—

(Opinion of the Supreme Court of Illinois)

context of contributory negligence, the holding in Maki

that any change in the law of contributory negligence should

be left to the legislature has been, it seems, overruled sub

silentio in Skinner and the companion cases.

Finally, the majority’s review of Merryweather v. Niæan

(1799), 101 Eng. Rep. 1337, 8 Term R. 186, and of some of

this court’s decisions suggests that the rule against con-

tribution between joint tortfeasors where the tort was one

of intentional misconduct or of concerted action has not

been disturbed, but the opinion does not make an explicit

pronouncement to this effect. Torts of this character do

not come within the rationale of this doctrine of cortribu-

tion, and the rule denying contribution in that situation

should be preserved. I would state clearly that it is being

retained.

—17a—

(Opinion of the Supreme Court of Illinois

Mr. Justice Unperwoon, dissenting:

I agree with much of what the Chief Justice and Mr.

Justice Dooley have written, but feel compelled to speak

to the majority’s citation of Miller v. DeWitt (1967), 37 III.

2d 273, as authority for the result it reaches here. Miller

involved an action by injured contractor’s employees

against, among others, the architects who had designed the

structure. The complaint alleged both negligence and Struc-

tural Work Act violations. The architects filed a third-

party action against the contractor-employer of the plain-

tiffs, seeking indemnity on the ground that the contractor-

employer’s negligence was active while any negligence by

the architects had been passive. The trial court dismissed

that third-party action and this court reversed, holding the

third-party complaint stated a cause of action.

The plaintiffs in Miller had been paid benefits under the

Workmen’s Compensation Act, and the third-party defend-

ant-employer argued that both the theory of the Act and

its language limited his liability to the payment of the em-

ployee benefits therein prescribed. He urged that to permit

recovery by the architects would allow indirectly that which

could not be done directly. Acknowledging some merit to

the employer’s position and conceding the question to be a

close one, this court concluded that indemnification should

be permitted because unless a third party who iias not

been guilty of active negligence can succeed in an action

against an employer who has been guilty of active negli-

gence, the third party will be made to bear the ultimate

burden of a loss which should fall on the employer.’’ (37

III. 2d 273, 289.) It was the fact that the employer in Miller

was more culpable than the architects which persuaded the

court to breach the limitations upon the employer’s lia-

bility. Because there is in this case no corresponding re-

quirement that the employer’s culpability be substantially

greater than that of the manufacturer before the employ-

— os

(Opinion of the Supreme Court of Illinois)

er’s limited liability is again breached, it seems to me that

the majority opinion repudiates, in a manner never con-

templated by Miller, the very theory upon which the Work-

men’s Compensation Act became law.

I must add to the comments of Mr. Justice Dooley the

observation that in a single sentence the majority has al-

tered beyond recognition the theory of strict product lia-

bility in Illinois. Heretofore in this State it has been in-

disputably clear, as acknowledged by the majority, that

misuse of a product or assumption of the risk of its use

precluded liability on the part of the manufacturer. The

manufacturer or supplier was liable to an injured plaintiff

only if no intervening cause, such as misuse, supplanted

the precedent causation of the defect. The identity of the

one responsible for the intervening cause, whether it be the

plaintiff, employer or a third party, was irrelevant, since

the fact remained that the defect was not the proximate

cause of the injury. (Prosser, Torts, sec. 102 (4th ed. 1971);

2 L. Frumer & M. Friedman, Products Liability, sec. 16A

(4) (d); see also Lewis v. Stran Steel Corp. (1974), 57 III.

2d 94, 102, where this court held the question whether an

employer had misused a manufacturer’s product, thus bar-

ring recovery by the plaintiff-employee from the manu-

facturer, was a jury question.) Now, in a sentence which

seems to me internally contradictory, the majority says,

‘*We are of the opinion that if the manufacturer’s third-

party complaint alleges that the employer’s misuse of the

product or assumption of the risk of its use contributed to

cause plaintiff’s injuries, the manufacturer has stated a

cause of action for contribution.’’ (Slip op. at 9.) If mis-

use and assumption of risk bar recovery, as they hereto-

fore have, what is there to contribute to? The only con-

clusion I can draw is that the manufacturer has now been

shorn of the sole protection he formerly had against strict

liability actions and has becom he insurer of the user. In

exchange the manufacturer is apparently given a cause of

—19a—

(Opinion of the Supreme Court of Illinois)

action for contribution from a third party (usually the em-

ployer) whose ‘‘misuse’’ or assumption of the risk’’ of

use of the product has injured the user (usually the em-

ployee-plaintiff). Nothing in product liability law supports

this result.

In my judgment the majority has erred for an additional

reason. The court’s opinion is obviously the forerunner of

other and equally substantial innovations in the tort law

of Illinois. It is far preferable, I believe, that new law as

significant as that here declared, and that presaged, be

enacted legislatively. (Maki v. Frelk (1968), 40 III. 2d 193.)

Such a course not only respects the separation of powers

principles incorporated in our State and Federal constitu-

tions, but affords the only means of simultaneously consid-

ering and acting upon all of the areas in which this new law

will require change. Instead of the comprehensive and con-

sistent changes which could thus be accomplished, we now

have a confusing merger of indemnity and contribution,

negligence and strict liability in a manner which creates

more problems than it resolves.

—20a—

(Opinion of the Supreme Court of Illinois)

Mn. Justice Dool xx, dissenting:

Today we have buried a great body of Illinois law. Su-

vada v. White Motor Co. (1965), 32 III. 2d 612, Dunham v.

Vaughan c Bushnell Manufacturing Co. (1969), 42 III. 2d

339, Williams v. Brown Manufacturing Co. (1970), 45 III.

2d 418, Sweeney v. Maz A. R. Matthews c Co. (1970), 46

III. 2d 64 aff’g 94 Ill. App. 2d 6, Rios v. Niagara Machine

& Tool Works (1974), 59 Ill. 2d 79, Peterson v. Lou

Bachrodt Chevrolet Co. (1975), 61 III. 2d 17, are but samples

of Illinois authorities expressing the doctrine of strict lia-

bility and its facets which have been implicitly overruled.

Also amongst the corpses are those decisions which, con-

sistent with the concept of strict liability, have refused to

allow a manufacturer liable under this teaching to pass on

its responsibility in whole or in part to a third party. Some

of those swept away—and again by implication—are Lib-

erty Mutual Insurance Co. v. Williams Machine c Tool Co.

(1975), 62 Ill. 2d 77, Sorrentino v. Waco Scaffolding c

Shoring Co. (1976), 44 Ill. App. 3d 1055, Vassolo v. Comet

Industries, Inc. (1975), 35 III. App. 3d 41, Kossifos v. Lou-

den Machinery Co. (1974), 22 III. App. 3d 587, Stanfield v.

Medalist Industries, Inc. (1974), 17 III. App. 3d 996, Burke

v. Sky Climber, Inc. (1973), 13 III. App. 3d 498, aff’d (1974),

57 III. 2d 542, and Texaco, Inc. v. McGrew Lumber Co.

(1969), 117 III. App. 2d 351.

Contribution and indemnity have been commingled as if

they were identical. Each is a precept wholly different from

the other. Gertz v. Campbell (1973), 55 III. 2d 84, and Su-

vada v. White Motor Co. (1965), 32 III. 2d 612, are illustra-

tive of this proposition. These and many other decisions

Mr. Justice Dooley’s dissent is addressed to the majority opin-

ion prior to its modification on March 1, 1978. Mr. Justice

Dooley’s untimely death precluded any revision of the dis-

sent.

— .

(Opinion of the Supreme Court of Illinois

which make up our entire body of law on contribution and

indemnity have likewise been overruled.

‘When established precedents are to be swept aside, it

should not be accomplished without at least referring to

them. Bold assertions which completely abandon well-estab-

lished doctrines are never a means of resolution of legal

issues.

The majority opinion raises such novel theories as ‘‘as-

sumption of risk’’ by plaintiff’s employer, a noninjured

party—a concept unknown to the law in the 140 years of

the existence of the doctrine of assumption of risk. The

majority’s position fails to face up to the meaning of as-

sumption of risk. It cannot be the basis of a third party

action. And the majority fails to show how it could be

employed in this context.

So also, misuse by an employer is erroneously termed

a defense. But it is part and parcel of plaintiff’s action in

strict liability in tort to plead and prove that the product

was being used for a reasonably ioreseeable purpose. Lib-

erty Mutual Insurance Co. uv. Williams Machine d Tool Co.

(1975), 62 III. 2d 77, 83; Dunham v. Vaughan d Bushnell

Manufacturing Co. (1969), 42 Ill. 2d 339, 344; Cronin v.

J.B.E. Olson Corp. (1972), 8 Cal. 3d 121, 134, 501 P.2d

1153, 1162, 104 Cal. Rptr. 433, 442; Higgins v. Paul Harde-

man Co. (Mo. App. 1970), 457 S.W.2d 943, 948; Restate-

ment (Second) of Torts sec. 402A, Comment h (1965); D.

Noel, Manufacturer’s Negligence of Design or Directions

for Use of a Product, 71 Yale L.J. 816, 858 (1962).

The majority opinion raises a question overshadowing

all others. Has Illinois adopted not a doctrine of compara-

tive negligence, but a doctrine of comparative fault? That

such is what the majority stands for is apparent from their

statement in Stevens v. Silver Manufacturing C. (1977),

— Til. 2d ......, , written by the same author as Skinner

v. Reed-Prentice Division Package Machinery Co. (1977),

—2a—

(Opinion of the Supreme Court of Illinois)

jail III. 2d ....... Referring to Skinner, the majority in Stevens

states: ‘‘We held, therefore, that the governing equitable

principles required that ultimate liability for plaintiff’s in-

juries be apportioned on the basis of the relative degree of

fault of those whose conduct proximately caused them.“

Slip op. at 2.

How can there be a comparison between the manufac-

turer’s fault and the employer’s fault, when fault is not the

question? If the unreasonably dangerous product is put in

commerce and is a proximate cause of injury, how can con-

tribution and indemnification on the basis of the employer’s

negligence be in proportion to the wrong of a manufacturer?

That strict liability is not based on fault is well recog-

nized. In Suvada v. White Motor Co. (1965), 32 III. 2d 612,

where this State adopted the doctrine as well as section

402A of the Restatement (Second) of Torts (1965), such

considerations as public interest in human life and health,

the manufacturer’s solicitations to purchase, and the jus-

tice of imposing liability on one who creates the risk and

reaps the profit, are described as the motivating forces for

the adoption of the doctrine. (See also Liberty Mutual In-

surance Co. v. Williams Machine c Tool Co. (1975), 62 III.

2d 77, 82; Greenman v. Yuba Power Products, Inc. (1963),

59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697.) Other pol-

icy considerations were the ability of the manufacturer to

anticipate some hazards and guard against their recur-

rence, which the consumer cannot do. (Brandenburger v.

Toyota Motor Sales, U.S. A., Inc. (1973), 162 Mont. 506,

513-14, 513 P.2d 268, 273; Santor v. A d M Karagheusian,

Inc. (1965), 44 N.J. 52, 60, 207 A.2d 305, 312; Restatement

(Second) of Torts sec. 402A, Comment c (1965).) Stated

otherwise, there was the incentive to the manufacturer to

enhance the safety of its product. (Dunham v. Vaughan c

Bushnell Manufacturing Co. (1969), 42 IIl. 2d 339, 344;

Vandermark v. Ford Motor Co. (1964), 61 Cal. 2d 256, 262,

391 P.2d 168, 171-72, 37 Cal. Rptr. 896, 899-900.) An im-

—Ba—

(Opinion of the Supreme Court of Illinois)

portant consideration was distribution of the cost of injury

amongst the public as the cost of doing business. See Green-

man v. Yuba Power Products, Inc. (1963), 59 Cal. 2d 57, 63,

377 P.2d 897, 901, 27 Cal. Rptr. 697, 701.

That negligence is not part of this doctrine is pointed

out by Suvada v. White Motor Co. (1965), 32 Ill. 2d 612.

There, defendant Bendix, strictly liable in tort as a manu-

facturer of a component part, the brake system, urged that

plaintiffs, truck owners, who had paid sums in settlements

of claims brought by injured persons as a result of this de-

fective brake system, were joint tortfeasors or actively neg-

ligent. This court, in rejecting that argument, took a posi-

tion directly contrary to that of the majority here, stating:

Indemnity here is not, however, premised on any the-

ory of active and passive negligence. (To require proof

that Bendix was actively negligent would be the anti-

thesis of strict liability.) 32 Ill. 2d 612, 624.

Under strict liability, responsibility is imposed because of

the character of the product, not because of fault. (Bachner

v. Pearson (Alaska 1970), 479 P.2d 319, 329; Bollmeier v.

Ford Motor Co. (1970), 130 Ill. App. 2d 844, 851.) Under

the Restatement of the Law of Torts, it is immaterial that

the manufacturer has ‘‘exercised all possible care in the

preparation and sale of his product.’’ Restatement (Sec-

ond) of Torts sec. 402A (2) (a) (1965); L at v. Brady Manu-

— Corp. (1970), 13 Ariz. App. 305, 307, 475 P. 2d

In Liberty Mutual Insurance Co. v. Williams Machine

@ Tool Co. (1975), 62 Tl. 2d 77, the insurance company,

as subrogee for its insured, Charles Machine Works, the

manufacturer of the finished product, sued the defendant,

the manufacturer of the defective component part, to re-

cover sums it paid in settlements of claims made against

Charles Machine Works. This court observed:

— —

(Opinion of the Supreme Court of Illinois)

The major purpose of strict liability is to place the

loss caused by defective products on those who create

the risk and reap the profit by placing a defective

product in the stream of commerce, regardless of

whether the defect resulted from the ‘negligence’ of

the manufacturer. We believe that this purpose is best

accomplished by eliminating negligence as an element

of any strict liability action, including indemnity ac-

tions in which the parties are all manufacturers or

sellers of the product.“ (62 III. 2d 77, 82.)

The court further quoted from Frumer’s and Friedman’s

excellent work on products liability (2 L. Frumer & M.

Friedman, Products Liability sec. 16A (4) (b) (i)):

As one authority has observed: In many jurisdic-

tions, the right of contribution between joint tortfeasors

is denied if they are at equal fault, but not denied if

the tortfeasor seeking contribution was only passively

negligent. The difficulty of applying this test to strict

liability cases is that negligence is irrelevant for de-

termining liability. It is a liability based upon the plac-

ing into commerce of a product which, if defective, is

likely to be unreasonably dangerous under normal

use.’’’ (Emphasis added.) 62 III. 2d 77, 82.

Contributory negligence on the part of the user is not

an issue. (Williams v. Brown Manufacturing Co. (1970), 45

III. 2d 418, 423.) It should be crystal clear that negligence

or any other concept of fault is anathematic to the tenets

of strict liability.

California, by judicial fiat, adopted comparative negli-

gence in Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 532

P.2d 1226, 119 Cal. Rptr. 858. In its modified opinion, the

California Supreme Court was careful to delimit the mean-

ing of the word ‘‘fault.’’ In a footnote it stated: ‘‘In em-

ploying the generic term ‘fault’ throughout this opinion, we

follow a usage common to the literature on the subject of

—25a—

(Opinion of the Supreme Court of Illinois)

comparative negligence. In all cases, however, we intended

the term to import nothing more than ‘negligence’ in the

accepted legal sense.’’ (13 Cal. 3d 804, 813 n.6a, 532 P.2d

1232 n.6a, 119 Cal. Rptr. 858, 864 n.6a.) The significance

of this was, according to one authority (V. Schwartz, Com-

parative Negligence in California, Li v. Yellow Cab Co.:

A Survey of California Practice Under Comparative Neg-

ligence, 7 Pac. L.J. 747, 756 (1976), that the court was

careful not to venture into the land of strict liability.“ We

agree that such could be the only meaning to be given the

modification by a court which not only pioneered but treated

more aspects of the doctrine of strict liability in tort than

any court.

It is clear that the objectives of the doctrine are to

protect the consumer and to make responsible the manu-

facturers who put in commerce unreasonably dangerous

products which cause injury. If these goals are to be ac-

complished, ultimate liability for injury from the defective

product must rest on the manufacturer. Thus, liability has

been permitted to flow from the retailer (Vandermark v.

Ford Motor Co. (1964), 61 Cal. 2d 256, 391 P.2d 168, 37 Cal.

Rptr. 896) to reach the manufacturer or from the manu-

facturer of the defective product to the manufacturer of

the component part which made the finished product de-

fective (Liberty Mutual Insurance Co. v. Williams Ma-

chine & Tool Co. (1975), 62 Ill. 2d 77).

These were the compelling reasons why the obligation to

produce a reasonably safe product was made nondelegable.

(Rios v. Niagara Machine & Tool Works (1974), 59 III. 2d

79, 85; Beriga v. Havir Manufacturing Corp. (1972), 60

N. J. 402, 410, 290 A.2d 281, 285; Vandermark v. Ford Motor

Co. (1964), 61 Cal. 2d 256, 262, 391 P.2d 168, 171, 37 Cal.

Rptr. 896, 899.) Nondelegable means that the obligation

cannot be transferred to others.

It would frustrate the intent of strict liability to permit

the manufacturer of the unreasonably dangerous, injury-

—%a—

(Opinion of the Supreme Court of Illinois)

causing product to pass on his liability to another so that the

maker might either be indemnified or obtain some contribu-

tion.

The majority opinion treats strict liability as if the manu-

facturer’s re. sonsibility were predicated upon negligence

concepts. All cases and surveys referred to in the majority

opinion to support its position involve negligent tortfeasors.

Dole v. Dow Chemical Co. (1972), 30 N.Y.2d 143, 282 N.E.

2d 288, 331 N.Y.S.2d 382, the only products case cited, was

an action predicated against the manufacturer on negli-

gence, not strict liability. Plaintiff’s action there was

against a chemical company for negligently labeling a

fumigant used by an employer. The manufacturer’s third-

party action against the employer was for breach of an

independent duty owed plaintiff.

The majority fails to address another threshold question.

How can the employer, who cannot be termed a tortfeasor,

be sued for apportionment of damages in the nature of con-

tribution or indemnity?

The employer has an absolute liability, irrespective of

negligence. The employee’s action against the employer is

for benefits fixed by section 5 of the Workmen’s Compen-

sation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.5). The

employee’s action against the third party is for common

law damages. It would appear obvious that the difference

in character between the two cannot result in a common

liability. Even the Uniform Contribution Among Tortfeas-

ors Act defines the joint tortfeasor as a person jointly or

severally ‘‘liable in tort.’’ (Uniform Contribution Among

Tortfeasors Act sec. 1(a).) Prosser states: The contribu-

tion defendant must be a tortfeasor, and originally liable

to the plaintiff. If there was never any such liability * * *

then he is not liable for contribution.’’ Prosser, Torts sec.

50, at 309 (4th ed. 1971).

—

— ee

— — 3 ̃ ̃ — — —

— 11 —

(Opinion of the Supreme Court of Illinois)

It is indispensable in the law of contribution that there

be a right of action in tort against both parties, the one

seeking contribution and the party from who contribu-

tion is sought. (William H. Field Co. v. Nuroco Woodwork,

Inc. (1975), 115 N.H. 632, 348 A.2d 716; Cacchillo v. H.

Leach Machinery Co. (1973), 111 R.I. 593, 305 A.2d 541;

Grove Manufacturing Co. v. Cardinal Construction Co.

(Tex. Civ. App. 1976), 534 S.W.2d 153; 2A A. Larson,

Workmen’s Compensation sec. 76.21 (1976 & Supp. 1977).)

Contribution is a derivative of the plaintiff’s cause of ac-

tion; it is not a new right of action. Grove Manufacturing

Co. v. Cardinal Construction Co. (Tex. Civ. App. 1976),

534 S.W.2d 153; William H. Field Co. v. Nuroco Wood-

work, Inc. (1975), 115 N.H. 632, 348 A.2d 716.

Since the employee under a workmen’s compensation act

has no tort action against his employer, the employer is not

a joint tortfeasor with the third party liable to the employee

in tort. He does not share a common liability. (William H.

Field Co. v. Nuroco Woodwork, Inc. (1975), 115 N.H. 632,

348 A.2d 716; Cacchillo v. H. Leach Machinery Co. (1973),

111 R.I. 593, 305 A.2d 541; Grove Manufacturing Co. v.

Cardinal Construction Co. (Tex. Civ. App. 1976), 534 S.W.

2d 153; Kessler v. Bowie Machine Works, Inc. (8th Cir.

1974), 501 F.2d 617 (applying South Dakota law); 2A

A. Larson, Workmen’s Compensation sec. 76.21 (1976 &

Supp. 1977).) In light of these well-established principles,

the employer cannot be subject to contribution. Yet the ma-

jority ignores these realities.

The majority’s opinion, whose vulnerability is evidenced

by the want of a single authority to support its position,

concludes thus:

„We hold that the third-party complaint, although

charging negligence, alleges misuse of the product and

assumption of risk and states a cause of action for

contribution based on the employer’s relative degree

—28a—

(Opinion of the Supreme Court of Illinois)

of fault which contributed to cause plaintiff’s injuries.“

Slip op. at 9.

As I have observed, this is a novel employment of what

the majority terms ‘‘assumption of risk.’’ In strict liability

actions, assumption of risk is an affirmative defense by the

manufacturer or retailer against the injured user only. To

assert such defense, the manufacturer must allege and prove

that the plaintiff was aware of the product’s dangerous

nature, that he continued to use the product despite such

knowledge, and that this assumption of risk was the proxi-

mate cause of his injuries. (Williams v. Brown Manufac-

turing Co. (1970), 45 III. 2d 418, 430; Sweeney v. Max A.R.

Matthews d Co. (1970), 46 III. 2d 64, 66 aff’g 94 III. App.

2d 6; see Scott v. Dries c Krump Manufacturing Co. (1975),

26 III. App. 3d 971, 990; Ferraro v. Ford Motor Co. (1966),

423 Pa. 324, 327, 223 A.2d 746, 748; Restatement (Second)

of Torts sec. 402A, Comment n (1965).) The test in true

assumption of risk cases is subjective. (Williams v. Brown

Manufacturing Co. (1970), 45 III. 2d 418, 430.) It is wheth-

er the particular person knew or ought to have known of

the defect, and nonetheless, having knowledge of the dan-

gers which would result from the use of the product, em-

barked upon its employment. Williams v. Brown Manu-

facturing Co. (1970), 45 III. 2d 418, 423.

Assumption of risk first developed in master and servant

cases. It has now been abrogated by the Workmen’s Com-

pensation Act (III. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.).

It appeared on the scene in 1837 in Priestly v. Fowler (Exch.

1837), 3 Mees. & W. 1, 150 Eng. Rep. 1030, 19 Eng. Rul.

Cas. 102. In 1953, Mr. Justice Black described it thus:

Perhaps the nature of the present problem can best

be seen against the background of one hundred years

of master-servant tort doctrine. Assumption of risk is

a judicially created rule which was developed in re-

sponse to the general impulse of common law courts at

the beginning of this period to insulate the employer

—29a—

(Opinion of the Supreme Court of Illinois)

as much as possible from bearing ‘human overhead’

which is an inevitable part of the cost—to someone—of

the doing of industrialized business. Tiller v. Atlantic

Coast Line R.R. Co. (1943), 318 U.S. 54, 58, 87 L. Ed.

610, 613, 63 S. Ct. 444, 447.

Assumption of risk is today limited in negligence actions

to situations where a contractual relationship exists. Bar-

rett v. Fritz (1969), 42 III. 2d 529, 533-34.

Yet, never since 1837 has assumption of risk been the

basis of an original action. Assumption of risk is by its na-

ture a defense in an action by an injured person, be it as-

sumption of risk as it is known in common law negligence

or in strict liability in tort. Nor are we told by the majority

opinion how assumption of risk can be the basis of an ac-

tion against a third party.

An examination of the third-party complaints in these

cases reveals much. In Skinner, the manufacturer alleged

that in 1959 it had fabricated the particular machine, and

that between that date and August 3, 1972, the date of the

occurrence, the machine had been sold and resold to suc-

cessive users. It further urged that the unreasonably dan-

gerous character of the machine was caused by the third-

party defendant, as well as the intervening owners. Obvi-

ously, these facts, if true, constituted a defense to the orig-

inal action. The product must be substantially in the same

condition at the time it causes injury as at the time it left

the manufacturer’s possession, and, at the time of the in-

jury, it must have been used for a reasonably foreseeable

purpose if liability is to attach to the manufacturer.

The third-party complaint alleges that plaintiff’s injuries

resulted from a combination of the conduct of both defend-

ants, so that they were co-tortfeasors. As we have seen, the

manufacturer’s liability arises not from his conduct but

from putting into commerce an unreasonably dangerous

=

(Opinion of the Supreme Court of Illinois)

product. Nor, as has been pointed out, can an employer be

a co-tortfeasor under the Workmen’s Compensation Act.

In Stevens v. Silver Manufacturing Co. (1977), ...... Til.

2d , the manufacturer urged that it was not liable to

the user because it was without knowledge of the use to

which the machine was put, and, specifically, that a mentally

retarded person might be employed to use it. It further al-

leged that it was the employer’s duty to use care in the

operation of the machine, and that its liability was sec-

ondary to that of the employer. Partial indemnification was

sought. Obviously, the manufacturer was chargeable with

all foreseeable uses of the product, and its liability cannot

be passive. Active and passive care concepts have no rele-

vaney here. When tortfeasors are each chargeable with

active or affirmative negligence, as is the case here, total

indemnification is never permissible. (41 Am. Jur. 2d In-

demnity sec. 21 (1968).) Under the theory of the majority,

the third-party complaint could not be maintained.

In Robinson v. International Harvester Co. (1977), ......

III. 2d ......, the manufacturer, which sold a product without

safety devices, sought indemnification from an employer

for purchasing a product in this condition. Obviously, put-

ting into commerce an article without safety devices is a

violation of the manufacturer’s nondelegable duty. (Beriga

v. Havir Manufacturing Co. (1972), 60 N.J. 402, 290 A.2d

281.) It is a classical violation of the duty imposed by the

strict liability teaching.

To arrive at its conclusion, the third-party complaints

have been rewritten by the majority so as to state the theme

of the opinions.

I am realistic enough to know that in every instance where

an employee is injured, the manufacturer of a defective in-

jury-causing product, to avoid liability or spread the risk,

will charge the employer with multiple aspects of negli-

gence. The negligence may be in failing to instruct the em-

—3la—

(Opinion of the Supreme Court of Illinois)

ployee as to the use of the product or in not having an

adequate number of persons engaged in the operation in

which the product was employed. Again, it may be in not

inspecting the product for defects, although such inspection

is not required under the doctrine of strict liability. (Re-

statement (Second) or Torts sec. 402A, Comment m (1965);

Sweeney v. Max A. R. Matthews Co. (1968), 94 III. App. 2d

6, 21, aff d (1970), 46 III. 2d 64.) Or it may be in buying

a machine which the manufacturer saw fit to sell without

protective components as was the case in Robinson v. In-

ternational Harvester Co. (1977), 12828 Vet this

is but an example of putting into commerce an unreason-

ably dangerous product. The aspects of negligence which

the fertile mind of the skilled trial lawyer will conjure are

countless.

It has been estimated that 85% of all products liability

suits come from products employed in work-related situa-

tions. (Insurance Co. of North America, Products Liabil-

ity: Some Professional Considerations, Booklet HH-8306-3

(1976), INA Corp., Philadelphia.) The manufacturer who

puts in commerce an unreasonably dangerous injury-caus-

ing product and who, under this strict liability doctrine,

was to bear the cost of injury, now has an escape hatch.

He is the employer. This is the party who is to contribute

or to indemnify. Indemnification, of course, means absorp-

tion of the entire loss. Yet how can transition to the em-

ployer of the manufacturer’s liability be consistent with

the compelling reasons for the teaching? I refer to imposi-

tion of liability on the profit-maker, distribution of the cost

of injury among the public as a cost of doing business, and

the incentive for safer products.

What about the Workmen’s Compensation Act, which,

in return for a guarantee of protection to the employee for

work-related injuries, immunized the employer against com-

mon law actions? Ill. Rev. Stat. 1975, ch. 48, par. 138.5(a).

eT . . Eee eRe TT

-—32a—

(Opinion of the Supreme Court of Illinois)

Section 5(a) of the Workmen’s Compensation Act (III.

Rev. Stat. 1975, ch. 48, par. 138.5(a)) provides:

„a) No common law or statutory right to recover

damages from the employer [or] his insurer * * * for

injury or death sustained by any employee while en-

gaged in the line of his duty as such employee, other

than the compensation herein provided, is available to

any employee who is covered by the provisions of this

Act * 2 2 0

Larson (2A A. Larson, Workmen’s Compensation sec.

76.21 (1976 & Supp. 1977) states: ‘‘The great majority of

jurisdictions have held that the employer whose concurring

negligence contributed to the employee’s injury cannot be

sued or joined by the third party as a joint tortfeasor,

whether under contribution statutes or at common law.’’

This proposition is found in many jurisdictions. Alaska:

Golden Valley Electric Association, Inc. v. City Electric

Service, Inc. (Alaska 1974), 518 P.2d 65; Connecticut: A.A.

Equipment, Inc. v. Farmoil, Inc. (Super. Ct. Hartford Coun-

ty 1974), 31 Conn. Supp. 322, 330 A.2d 99; Georgia: Georgia

Power Co. v. Diamond (1973), 130 Ga. App. 268, 202 S.E.

2d 704; Hawaii: Kamali v. Hawaiian Electric Co. (1972),

54 Hawaii 153, 504 P.2d 861; Iowa: Iowa Power d Light

Co. v. Abild Construction Co. (1966), 259 Iowa 314, 144

N.W.2d 303; Louisiana: LeJeune v. Highlands Insurance

Co. (La. App. 1973), 287 So. 2d 531, aff’d (1974), 290 So.

2d 903; Maryland: Baltimore Transit Co. v. State (1944),

183 Md. 674, 39 A.2d 858; Michigan: Husted v. Consumers

Power Co. (1965), 376 Mich. 41, 135 N.W.2d 370; New

Hampshire: William H. Field Co. v. Nuroco Woodwork,

Inc. (1975), 115 N.H. 632, 348 A.2d 716; New Jersey: Ruvolo

v. United States Steel Corp. (1975), 133 N.J. Super. 362,

336 A.2d 508; Nevada: Outboard Marine Corp. v. Schup-

bach (1977), ...... Nev. ......, 561 P.2d 450; North Carolina:

Hunsucker v. High Point Bending & Chair Co. (1953), 237

N.C. 559, 75 S.E.2d 768; Ohio: Bankers Indemnity Ins. Co.

—33a—

(Opinion of the Supreme Court of Illinois)

v. Cleveland Hardware d Forging Co. (1945), 77 Ohio App.

121, 62 N.E.2d 180, appeal dismissed (1945), 145 Ohio St.

615, 62 N.E.2d 251; Rhode Island: Cacchillo v. H. Leach

Machinery Co. (1973), 111 R.I. 593, 305 A.2d 541; South

Dakota: Kessler v. Bowie Machine Works, Inc. (8th Cir.

1974), 501 F.2d 617 (applying South Dakota law); Ten-

nessee: Dawn v. Essex Conveyors, Inc. (6th Cir. 1974), 498

F.2d 921 (applying Tennessee law); Washington: Montoya

v. Greenway Aluminum Co. (1974), 10 Wash. App. 630, 519

P.2d 22; Wisconsin: A. O. Smith Corp. v. Associated Sales

& Bag Co. (1962), 16 Wis. 2d 145, 113 N.W.2d 562.

It has been stated: ‘‘Products that don’t work as they

should, which now rival automobile accidents as the nation’s

No. 1 cause of litigation, were responsible for an estimated

500,000 court cases last year, compared with 100,000 five

years ago, and many expect the annual total to reach 1,

000,000 by 1985.’’ Wall Street Journal, Nov. 3, 1972, at 1,

col. 6.

Our workmen’s compensation rates are now the highest

in Illinois history. A claim for the death of a husband and

father earning $20,000 annually, leaving a widow and four

children under 16 years old, runs as high as $250,000 (III.

Rev. Stat. 1975, ch. 48, par. 138.7).

It is common knowledge that the high cost of workmen’s

compensation insurance is driving industry out of this State.

(Chicago Daily News, Feb. 25, 1977, at 5, col. 2; Chicago

Sun-Times, Feb. 3, 1977, at 115, col. 2; June 11, 1977, at

47, col. 1; June 20, 1977, at 62, col. 1; Chicago Tribune, Feb.

26, 1977, sec. 2, at 7, col. 5; June 11, 1977, at 5, col. 4.)

Under the majority concept, the workmen’s compensation

premium will be miniscule as compared to the cost of the

employer’s insurance for products coverage—if he can get

it. On him will be dumped the manufacturer’s liability. And

all because a majority of this court believed that the manu-

facturer should be permitted to pass on his liability to an-

other.

—34a—

(Opinion of the Supreme Court of Illinois)

While the majority’s position may appear to demonstrate

„kitchen equity,“ it clashes with those precepts which gov-

ern our actions, those of inferior courts, and last, but cer-

tainly not least, those of the litigants. Legal principles are

not mere hollow sounds. They create rights, define obliga-

tions, and determine the mechanics for the realization of

such rights and obligations. Principles, it must never be

forgotten, have a pragmatic effect on the law in action.

The admissibility of all evidence is determined by principles,

common law or statutory, which control the particular ac-

tion. So also the fact-finder, be it court or jury, is governed

by principles in arriving at its conclusion.

The underlying concept of the majority is that equity

and fairness dictate its conclusion. Apart from the fact that

principles must control, one court, in denying the manufac-

turer of a defective product indemnity against the employer

of injured employees, made these pithy observations:

It is argued that if indemnity is not allowed the

result is manifestly inequitable since the jury found

Outboard to be only twenty-five percent at fault while

the employers each were found to be thirty-seven and

one-half percent at fault. Consequently, as a matter of

fairness, the employers should not be insulated com-

pletely. Although this contention has some appeal, it is

one to be submitted to the legislature rather than to

us. To date, the legislature has insulated the contrib-

uting employer and has voided indemnity absent an

independent duty owing from the employer to the third

party.’’ (Outboard Marine Corp. v. Schupbach) (1977),

— Nev. ......, 561 P.2d 450, 454.

Many will undoubtedly urge that the contentions of the

majority are for the legislature. I only know they are not

for us. We must be governed by reason, not sentiment. We

have no license to experiment with novel concepts because

they might appeal to a personal sense of justice.

—35a—

(Opinion of the Supreme Court of Illinois)

The distinction between contribution and indemnity is

ignored by this trio, Skinner, Stevens and Robinson. In two

of the cases, Skinner and Stevens, the third-party com-

plaints are treated by this court as seeking contribution or

„partial indemnity,’’ whatever that is. In Robinson, the

third-party complaint sought total indemnification.

Contribution is the distribution or the spreading of a loss

between two or more persons who are jointly liable for hav-

ing committed a tort against a third party. In accordance

with the general rule, one who is compelled to pay the whole

or more than his just share of the loss, upon which several

persons are liable, is entitled to contribution against the

others from the payment of their respective shares. Phillips-

Jones Corp. v. Parmley (1937), 302 U.S. 233, 82 L. Ed. 221,

58 S. Ct. 197; Gottschalk v. Gottschalk (1921), 222 III. App.

56; Restatement of Restitution sec. 81 (1937).

Indemnity, on the other hand, shifts the entire loss from

one tortfeasor to another who, by express contract or by

operation of law, is deemed responsible for making full pay-

ment. Chicago d Illinois Midland Ry. Co. v. Evans Con-

struction Co. (1965), 32 Ill. 2d 600, 603; see also Karas v.

Snell (1957), 11 III. 2d 233, 248.

We have already noted how contribution and indemnity,

two distinct concepts, are often confused. See Gertz v.

Campbell (1973), 55 Ill. 2d 84, 87; Suvada v. White Motor

Co. (1965), 32 III. 2d 612, 624; W. Prosser, Torts sec. 51,

at 310 (4th ed 1971).

The apparent effect of the majority is to abolish indem-

nity. Total indemnification’’ (Robinson), partial indem-

nification’’ (Skinner and Stevens) and contribution“ are

all treated interchangeably.

Absent from the majority opinion is any definition of

what constitutes contribution or partial indemnity.’’

Wanting also are guidelines for what the court holds. Stand-

—$6a—

(Opinion of the Supreme Court of Illinois)

ards will be impossible to formulate in the absence of some

clear definition of the position of the majority other than

the abolition of the rule of no contribution. An opinion so

wide sweeping in character must offer something construc-

tive. Opened up, but unresolved, are a series of important

queries.

What is the status of the tortfeasor who had a right to

bona fide indemnity, not contribution? Has this right been

impaired? Has the active-passive criterion of implied in-

demnity been abolished?

What is the effect of the holding upon the Structural

Work Act (Ill. Rev. Stat. 1975, ch. 48, par. 60 et seq.)?

There are many areas of potential contribution there. To

list a few: between owner, general contractor, subcontrac-

tor, architect and employer; between general contractor,

subcontractor and employer; between owner and architect;

and between general contractor and architect. The combina-

tion is almost endless.

What about the Dramshop Act (Ill. Rev. Stat. 1975,

ch. 43, par. 94 et seq.)? Can there be contribution between

the dramshop keeper and the intoxicated person? Can there

be contribution between the dramshop operator and the

owner of the premises?

Suppose one tortfeasor enters into a settlement with the

plaintiff. Is he entitled to recover contribution from other

defendants whose liability remains vital, notwithstanding

the settlement? Or what about the insurer who discharges

the liability of its tortfeasor insured? Is it subrogated to

a right of contribution?

What will be the vehicle of apportionment of damages

between wrongdoers? Will it be by third-party action, by

counterclaim between defendants, by independent actions,

or by all such vehicles?

—37Ta—

(Opinion of the Supreme Court of Illinois)

What is the basis of contribution? Will it be according

to a payment of more than a pro rata share? Or will it be

on the basis of ‘‘pure’’ contribution with the amount of

fault being determined at 100% 7 The majority opinion has

an ethereal mystique so that neither judges nor lawyers can

know how to give it meaning.

When a court undertakes to announce a new doctrine

which is a departure from the past not only in principle

but in practice, it would seem it has the obligation to spell

out in detail how this new teaching shall be put into prac-

tice. See Hoffman v. Jones (Fla. 1973), 280 So. 2d 431, and

Li v. Yellow Cab Co. (1975), 13 Cal. 3d 804, 532 P.2d 1226,

119 Cal. Rptr. 858, where the Florida and California Su-

preme Court, in adopting by judicial fiat comparative neg-

ligence, spelled out in detail how the doctrine shall be ap-

plied.

I predict that this trio, Skinner, Stevens and Robinson,

will generate a proliferation of much meritless litigation.

Every action against the manufacturer or retailer in strict

liability in tort will mean another action whereby the manu-

facturer or retailer will seek ‘‘indemnity’’ or ‘‘contribu-

tion’’ against some third party outside the distributive

chain, so that the manufacturer’s responsibility may be

taken over or at least shared.

Proliferation of such litigation is unwholesome. The trial

of a lawsuit against the manufacturer in strict liability, with

the manufacturer focusing on the negligence of the em-

ployer, will be complex. The manufacturer will use the

employer’s negligence as a defense to the original action—

the objective of the third-party actions before us. More

than that, such litigation will fill the halls of justice with

obstacles, make litigation an even rarer luxury, and add

additional trial days to a docket already struggling under a

near fatal burden.

—38a—

(Opinion of the Supreme Court of Illinois)

Like Jefferson, I believe ‘‘law and institutions must go

hand in hand with the progress of the human mind.’’ Like

Jefferson, I do not believe in deviation from recognized

principles for expediency. This is far too violent a wrench

in the law.

The effect of the majority’s opinion will be far reaching

unless the General Assembly manifests greater wisdom than

this court. A statute insulating the employer from all lia-

bility to the employee other than for workmen’s compensa-

tion benefits, including third-party actions, is needed for the

preservation of the employer. He should not be saddled with

the responsibilities of the manufacturers.

For these reasons I would affirm the judgments of the

appellate courts in Skinner v. Reed-Prentice Division Pack-

age Machinery Co., Stevens v. Silver Manufacturing Co.,

and Robinson v. International Harvester Co.

—39a—

APPENDIX B

Opinion of the Appellate Court of Illinois

Mr. Presipine Justice Goutppere delivered the opinion of

the court:

Rita Rae Skinner (plaintiff) had been employed by

Hinckley Plastic, Inc. (Employer). She was injured in a

mishap involving an injection molding machine owned by

the Employer and originally manufactured by Reed-Pren-

tice Division Package Machinery Co., a corporation (Manu-

facturer). Plaintiff brought action against the Manufac-

turer on a strict tort liability theory. The Manufacturer in

turn filed an amended third-party complaint seeking con-

tribution from the Employer. The trial court granted the

motion of the Employer to strike and dismiss the amended

third-party complaint of the Manufacturer. The Manu-

facturer has appealed.

Since the issues are formed in connection with propriety

of the dismissal of the amended third-party complaint, we

will accept all properly pleaded facts therein as true. (Fan-

cil v. Q.S.E. Foods, Inc. (1975), 60 III. 2d 552, 554, 328

N.E. 2d 538.) Plaintiff’s complaint alieged that the Manu-

facturer had fabricated the press in question which had

been purchased or leased by the Employer. The press was

being used for the purpose for which it was intended.

Plaintiff was injured on August 3, 1972, while attempting

to assist another employee correct a malfunction in the

machine. When manufactured and sold, the machine was

defective and unreasonably dangerous when put to the use

for which it was intended. The complaint then specified 12

separate alleged instances in which the machine was defec-

tive, improperly designed and lacking in safety devices. It

alleged that these defects, or one or more of them, existed

when the machine was manufactured and delivered into

the stream of commerce and when acquired by the Em-

ployer and that plaintiff’s injuries were a direct and proxi-

mate result of one or more of the specified defects.

— —

(Opinion of the Appellate Court of Illinois

The answer of the Manufacturer to the complaint gen-

erally denied the allegations of fact except for an admis-

sion that the machine had been manufactured and sold by

it during 1951 and an admission of the employment of

plaintiff. The answer also contained additional defenses of

consistent misuse of the machine and assumption of risk

by plaintiff.

The Manufacturer then filed an amended third-party

complaint against the Employer. It alleged that in 1951

Manufacturer had fabricated and sold the specific machine

involved for approximately $15,000 to a different company.

Between that date and August 3, 1972, (date of the oc-

currence herein) this machine had been sold and resold

as used equipment to at least three successive purchasers.

The Employer had last purchased the machine in March

1972 for approximately $750. The Employer had then in-

stalled the machine and commenced to use it for manu-

facturing plastic products.

The third-party cor plaint further alleged that the Em-

ployer had hired plaintiff as a machine operator about

June 8, 1972. On August 3, 1972, while this machine was

being operated by a different employee, the safety gate be-

came disengaged from the rails. A different employee of

Employer was attempting to replace the gate with the

assistance of plaintiff when the mold closed and struck

plaintiff’s arm. It was further alleged that if the ma-

chine was unreasonably dangerous when it left the Manu-

facturer’s control and if it was unreasonably dangerous

when plaintiff was injured, this latter condition was sub-

stantially and proximately caused by the negligent acts and

omissions of the intervening owners of said machine and

of the Employer. It also alleged that the Employer negli-

gently purchased and put in operation a used machine which

had been poorly maintained, was in a state of bad repair

and had been modified, rewired and rebuilt so that it was

no longer in the same condition as when it left the Manu-

—_4la—

(Opinion of the Appellate Court of Illinois)

facturer’s possession and these changes caused the ma-

chine to be unreasonably dangerous when plaintiff was in-

jured.

The Manufacturer also alleged other specified negligent

acts or omissions by the Employer, such as allowing the

machine to be operated when it knew, or should have known,

that the machine was rewired so that safety devices initially

installed thereon by the Manufacturer had become inopera-

tive; knowingly allowing the machine to be operated with-

out the adequate guards originally furnished therewith and

other specified acts and omissions.

The Manufacturer then further alleged that if it was

guilty in any manner, its acts combined with the various

acts of the Employer as alleged resulted in plaintiff’s in-

juries which, in such case, were caused by a combination

of the conduct of both parties so that they were co-tort-

feasors. The Manufacturer concluded that it was entitled

to recover from the Employer ‘‘by way of contribution,

such amount as would be commensurate with the degree of

misconduct attributable to the [Employer] * * .“

The Employer filed a motion to strike the amended third-

party complaint on the ground that the acts.of negligence

alleged in plaintiff’s complaint dealt entirely with -defec-

tive manufacture of the machine and that the Manufac-

turer had charged the Employer with seven specific acts

of negligence in the maintenance and operation of the ma-

chine. It alleged that fault-weighing concepts could not be

applied as a basis for indemnity in strict liability cases

and that the negligence of a manufacturer in the active cre-

ation of a defect in the process of manufacture could not

be classified as passive negligence. It alleged that where

all of the charges in plaintiff’s complaint consisted of ac-

tive negligence, it follows that the Manufacturer would not

be entitled to indemnity against any third-party defendant

since where the negligence of a tort-feasor is active, he

—42a—

(Opinion of the Supreme Court of Illinois)

may not obtain indemnity whether the negligence of a third-

party defendant is active or passive. It set forth that the

Manufacturer claimed that the Employer was a co-tort-

feasor and thus sought contribution but that the law in

Illinois provides no contribution between co-tort-feasors.

In due course, the able and learned trial judge filed an

opinion and judgment order in which he concluded that

there is no decision in Illinois allowing contribution under

the facts pleaded in the third party complaint. The trial

court expressed sympathy with the position of the Manu-

facturer as third-party plaintiff and a desire to permit re-

lief by way of contribution if it had the power to do so“

as done in Dole v. Dow Chem. Co. (1972), 30 N.Y. 2d 143,

282 N.E. 2d 288. The trial court concluded, however, with

the statement that if the Manufacturer is to be granted

relief, this must necessarily emanate ‘‘from the reviewing

Courts of this state * * *.’’ The trial court accordingly dis-

missed the amended third-party complaint.

In this court the Manufacturer contends that Illinois law

does not actually prohibit contribution between tort-feasors

in all cases and sound public policy requires contribution

between tort-feasors under the circumstances presented here

where the tort was unintentional and the tort-feasors acted

independently ; cases involving indemnity, intentional torts

and tort-feasors acting in concert are not in point so that

the way is open for this court to uphold contribution as

required by sound public policy and reason instead of ap-

plying the active-passive test for indemnity. In response,

the Employer contends that contribution by a passive tort-

feasor from an active tort-feasor has been recognized in

Illinois for years as an exception to the general rule, par-

ticularly in situations where each of the tort-feasors

breached equally stringent duties or when public policy so

required. But, the Manufacturer is precluded from seeking

contribution because public policy requires that its strict

tort liability be considered active.

—

(Opinion of the Appellate Court of Illinois)

Before commencing to analyze the issues, we wish to

state that the briefs submitted by both sides of the con-

troversy are excellently and expertly done in a most lawyer-

like fashion. Reading these briefs has given us a privilege

which we sometimes lack.

The initial problem here involves consideration of ap-

plication of principles of common law indemnity in a strict

tort liability case. The situation is clarified and decided by

Liberty Mut. Ins. v. Williams Mach. & Tool (1975), 62 III.

2d 77, 82, 338 N.E. 2d 857, where the Supreme Court used

this language:

„The major purpose of strict liability is to place the

loss caused by defective products on those who create

the risk and reap the profit by placing a defective

product in the stream of commerce, regardless of wheth-

er the defect resulted from the ‘negligence’ of the

manufacturer. We believe that this purpose is best

accomplished by eliminating negligence as an element

of any strict liability action, including indemnity ac-

tions in which the parties are all manufacturers or

sellers of the produet.“

Liberty Mutual involved an attempt by the subrogee of

the manufacturer of an adjustable scaffold to obtain in-

demnity from the fabricator of a defective component part

installed in the machine. The subrogee had made settlement

of suits brought against its insured by injured users of

the scaffold. The Supreme Court refused to apply prin-

ciples of active or passive negligence and held that the

defense of contributory negligence was not available to the

manufacturer of the defective part. The court cited a num-

ber of decisions by the Appellate Courts of Illinois, ‘‘which

have refused to apply negligence concepts to strict liability

actions in situations similar to the present case. (62 III. 2d

77, 83.) Included among these citations is Burke v. Sky-

climber, Inc. (1973), 13 III. App. 3d 498, 301 N.E. 2d 41,

aff’d, 57 Ill. 2d 542, 316 N.E. 2d 516 in which this court

—

(Opinion of the Appellate Court of Illinois)

and the Supreme Court affirmed dismissal of a third-

complaint brought by the manufacturer of a scaffold in a

strict liability case against the employer of the injured

plaintiff. The third-party complaint was predicated upon

the theory of active negligence by the employer as con-

trasted with allegedly passive negligence of the manufac-

turer. In Peterson v. Lou Bachrodt Chevrolet Co. (1975),

61 III. 2d 17, 20, 329 N. E. 2d 785, the Supreme Court stated

the underlying public policy of imposing strict liability

upon the manufacturer who has ‘created the risk and

reaped the profit by placing the product in the stream of

commerce.’ (32 III. 2d 612, 619.)

Thus, if we are to build with logical consistency upon the

foundation of this policy, negligence must necessarily be

omitted as an element of any strict liability action and in

connection with claims for indemnity arising therefrom.

However, the Manufacturer as third-party plaintiff in

the case before us does not seek indemnity in its amended

third-party complaint. Drawn with obvious skill and care,

this pleading seeks judgment in favor of the Manufac-

turer and against the Employer, ‘‘in such amount, by way -

of contribution, as would be commensurate with the degree

of misconduct attributable to the third party defendant

[Employer] in causing plaintiff’s injuries.“ The distine-

tion between contribution and indemnity is readily found.

„There is an important distinction between contribution,

which distributes the loss among the tort-feasors by re-

quiring each to pay his proportionate share, and indemnity,

which shifts the entire loss from one tort feasor who has

been compelled to pay it to the shoulders of another who

should bear it instead.’’ Suvada v. White Motor Co. (1965),

32 Ill. 2d 612, 624, 210 N.E. 2d 182 citing Prosser, Law of

Torts, 3d ed. (1964), ch. 8.

The exact issue before us, therefore, is not concerned

with indemnity but requires us to decide whether, in a case

*

(Opinion of the Appellate Court of Illinois)

brought upon the theory of strict tort liability, the Manu-

facturer as defendant and third-party plaintiff may re-

cover contribution from the allegedly negligent Employer

in accordance with the degree of misconduct attributable

to such Employer. This precise issue has never been de-

cided by the Supreme Court of Illinois.

In our opinion, a decision to apply theories of contribu-

tion in the instant case would require substantive and pro-

cedural formulations beyond the authority of this court.

Whether contribution, which necessarily involves applica-

tion of principles of comparative negligence, should be

granted to a manufacturer in a suit brought upon the

theory of strict tort liability is the type of issue which

should be decided by the highest court of this State, or

by the legislature of this State, with subsequent formula-

tion of necessary guidelines by the Supreme Court in its

decision or under its ‘‘[g]eneral administrative and super-

visory authority over all courts * . (Til. Const. 1970,

art. VI, sec. 16.) In a rather similar situation, the Supreme

Court of Illinois has held that a change in the basic tort

theory of contributory negligence by adoption of a rule

of comparative negligence ‘‘should be made by the legis-

lature rather than by the court.“ (Maki v. Frelk (1968),

40 III. 2d 193, 196, 239 N.E. 2d 445.) We are bound also

to advert once more to the language of the Supreme Court

in Liberty Mutual: ‘‘[I]t seems to us that perpetuation of

ordinary negligence and indemnity concepts in the context

of strict liability actions does not recognize the unique na-

ture of such actions and the fundamental differences un-

derlying strict liability and negligence law.“ (62 Ill. 2d 77,

84.) We are therefore constrained to deny the plea of the

Manufacturer for third-party contribution against the Em-

ployer in this situation where an employee has instituted

the original action to enforce strict tort liability.

In the case before us no evidence has yet been heard.

However, the record shows allegations by the Manufacturer

—te—

(Opinion of the Appellate Court of Illinois)

in the amended third-party complaint that the product was

manufactured in 1951, sold and resold, purchased in 1972

by the Employer for a fraction of its original value and

then modified and misused in various respects. If these

facts are sustained by the evidence, and if any original

product defect did not cause plaintiff’s injury, the Manu-

facturer would have a successful defense in the original

action and no questions concerning indemnity or contribu-

tion would be presented. See Burke, 57 Til. 2d 542, 546.

The judgment of dismissal of the amended third-party

complaint is accordingly affirmed.

Judgment Affirmed.

Burke, J., and Smon, J., concur.

—47a—

APPENDIX C

Decision of the Trial Court

OPINION AND JUDGMENT ORDER

This is an action for personal injuries allegedly caused

by the unreasonably dangerous condition of an injection

molding machine which condition allegedly existed when

it left the control of the defendant. At the time of the

injury plaintiff was employed by Hinckley Plastic, Ine.

The defendant and manufacturer of the machine, Package

Machinery Company, has filed an amended third party com-

plaint against Hinckley Plastic, Inc. in which it has al-

leged, inter alia, that if the machine was in an unreason-

ably dangerous condition when it left defendant’s control,

as claimed by plaintiff, and if it was in an unreasonably

dangerous condition at the time of plaintiff’s injury, the

latter condition, if any, at the time of plaintiff’s injury,

was substantially and proximately caused by negligent acts

and omissions of intervening owners and Hinckley Plastic,

Ine.

Package Machinery Company prays that if judgment be

entered against it and in favor of the plaintiff then a judg-

ment be entered in favor of third party plaintiff and against

the third party defendant in such amount by way of con-

tribution ‘‘as would be commensurate with the degree of

misconduct attributable to the third party defendant in caus-

ing plaintiff’s injuries.“

Hinckley, Plastic, Inc. has filed a motion to 8 con-

tending that the amended third party complaint does not

allege a cause of action because the right of contribution,

under the facts pleaded, is not now recognized by the law

of Illinois.

It has long been the law of Illinois that there is no right

of contribution among joint tortfeasors. However, in 1951,

in the case of Gulf, Mobile d Ohio R. R. Co. v. Arthur Dizon

—

(Decision of the Trial Court)

Transfer Co., 343 Ill. App. 148, the Court held that a pas-

sive’’ tortfeasor was entitled to full indemnification from

an ‘‘active’’ tortfeasor. Since that decision there have been

numerous decisions in this state and elsewhere where the

Courts of review have grappled with the concept of ‘‘ac-

tive-passive.’’ Package Machinery concedes that, if it had

pleaded that it was only ‘‘passively’’ negligent, and that

Hinckley Plastic, Inc. was ‘‘actively’’ negligent, it would

not be entitled to complete indemnification under the ‘‘ac-

tive-passive’’ doctrine. See, e. g., Burke v. Sky Climber, Inc.,

13 III. App. 3rd 498, affirmed by Illinois Supreme Court,

July 1, 1974, Docket No. 46160.

However, it contends that where, as here, it has alleged

that, if it did manufacture a defective product, and if plain-

tiff’s employer was also guilty of negligence that proxi-

mately contributed to cause plaintiff’s injury, it should be

entitled to contribution from third party defendant in such

an amount as would be commensurate with the degree of

misconduct attributable to plaintiff’s employer in causing

plaintiff’s injuries. It strongly relies upon the decision of

the New York Court of Appeals in Dole v. Dow Chemical

Co., 30 N.Y.2d 143, 282 N.E.2d 288 (1972). In that case, the

administratrix of the estate of a deceased employee brought

an action against Dow, which filed a third party complaint

against the employer. Plaintiff’s decedent died while clear-

ing a storage bin which had been recently fumigated with

a poisonous fumigant manufactured by Dow, which was

allegedly negligent in not properly labeling the fumigant.

Dow’s third party complaint against plaintiff’s employer

alleged that the poison was properly labeled; that it fur-

nished the employer with printed material relating to its

use in fumigation; and that it had access to, and was aware

of, this material. It alleged that, if decedent’s death was

caused by negligence, it was the result of the ‘‘active and

primary’’ negligence of the employer and the negligence

of Dow, if any, was merely passive and secondary.“

— *

(Decision of the Trial Court)

The Court of Appeals noted that the negligence charged

against Dow was active negligence of a character which

would bar it from recovery against the user of the product,

even though the user was also negligent. It reviewed at

length its decisions under the ‘‘active-passive doctrine’’

and noted that this test purported to determine when in-

demnification should be allowed one party who was liable

for the negligent acts of another party and that the test

had proved to be ‘‘illusive and difficult of fair application’’

(p. 291). (Parenthetically, the same can be said of the

decisions in Illinois.) The New York Court proceeded to

abandon the ‘‘active-passive’’ doctrine and held ‘‘right to

apportionment of liability to full indemnification, then, as

among parties involved together in causing damage by neg-

ligence, should rest on relative responsibility and to be de-

termined on the facts.“

This Court heartily subscribes to the views of the New

York Court of Appeals. It, too, feels that the ‘‘active-pas-

sive doctrine’’ should be abandoned and indemnification or

contribution be made to turn on degree of fault. However,

this Court is cognizant of the fact that it is but a trial

Court and is bound by the decisions of the Courts of re-

view in this state. The ‘‘active-passive doctrine’’ has been

approved and applied by the Supreme Court of this state,

as well as by numerous Appellate Court decisions. This

Court has no power, of course, to overrule decisions of

Courts of review of this state. The Court does note, how-

ever, that in Gertz v. Campbell, 55 III. 2d 84, our Supreme

Court indicated that it might adopt the New York rule,

because it stated, in citing the Dole case ‘‘to illustrate,

there can and should be a continuing search for better solu-

tions. The Court of Appeals of New York has recently sup-

planted this active-passive negligence criteria from indem-

nitee with one founded on equitable principles.’’

The precise holding in the Gertz decision was that where

injuries caused by an original tortfeasor are negligently

treated by a physician, the original tortfeasor, although

—50a—

(Decision of the Trial Court)

liable to the injured for both the injury caused by him

and for the physician’s malpractice, may seek indemnity

from the physician for the injury occasioned by him. The

Court noted, among other things, that there was no con-

cert of action in the conduct of ‘the defendant and the doc-

tor.

In the Court’s view, the Gertz case is somewhat analo-

gous to the present case in that there was no concert of

action between defendant and plaintiff’s employer and, in

fact, about twenty years intervened between the alleged

wrong of the defendant and of the third party defendant.

They might be more appropriately described as ‘‘succes-

sive’’ tortfeasors rather than joint tortfeasors.’’ At the

same time, the Court is fully aware of the fact that there

is no decision in this state allowing contribution under the

facts pleaded in the third party complaint.

Although the Court is in sympathy with the third party

plaintiff’s position and if it had the power to do so would

adopt the rule laid down by the New York Court of Ap-

peals, it is of the view that the relief it seeks, if it is to

come at all, must come from the reviewing Courts of this

state, just as it came from the New York Court of Appeals

in the Dole case. Accordingly, the Court is ordering the

amended third party complaint dismissed so that a defini-

tive ruling on the validity of plaintiff’s third party com-

plaint may be obtained in a-Court of review.

Wherefore, It Is Hereby Ordered that the third party

action be, and the same is hereby, dismissed, at the costs

of the third party plaintiff.

In accordance with Rule 304 of the Rules of the Supreme

Court of Illinois, the Court expressly finds that there is no

just reason for delaying either enforcement or appeal of

this judgment order.

Enter: /s/ Mel R. Jiganti

Judge

—512—

APPENDIX D

Order of the Supreme Court of Illinois

Denying Petition for Rehearing

Orrice Or

CLERK OF THE SUPREME COURT

Strate Or ILLIxols

January 26, 1978

Mr. Gerald E. Grashorn

Attorney at Law

Winston & Strawn

One First National Plaza

Chicago, Illinois 60603

In re: Rita Rae Skinner, a minor, etc., vs. Reed-

Prentice Division Package Machinery Co.,

a foreign corporation (Reed-Prentice Di-

vision Package Machinery Co., a foreign

corporation, appellant, vs. Hinckley Plas-

tic, Inc., appellee) - No. 48757

Dear Mr. Grashorn:

The Supreme Court today denied the petition for re-

hearing in the above entitled cause.

Upon denial of petition for rehearing a supplemental

opinion was filed. The dissenting opinion of Mr. Justice

Dooley has been modified. I am enclosing a copy of the

above mentioned material.

Very truly yours,

CLW er Clerk of the Supreme Court

Enc.

ce—Pretzel, Stouffer, Nolan & Rooney

Mr. William H. Arpoia

Hon. Mel R. Jiganti

Appellate Court - First District