*1 сourt could not find defendant contempt asserting his fifth right. Furthermore, amendment to in- properly voke the fifth amendment, defendant go must evalu- ation and invoke the fifth as are asked. At that questions time he must have more than a mere that his state- belief ments will him, incriminate increasing thereby potentially his sentence. If does fifth, defendant invoke the the circuit court must determine whether or not his fear is reason- able.
In conclusion, this court finds that the im- circuit court found defendant properly contempt asserting guilty his fifth amendment The circuit privilege. court is ordered proceed sentencing with or without defendant’s coop- eration and to sentence defendant according to the find- ings expressed this opinion.
For the foregoing reasons, the judgment the appel- late reversed, court is and the cause remanded to the circuit court of Cass for further County proceedings not in- consistent with this opinion. circuit court is reversed in part regarding judgment sentence for contempt. reversed; court
Appellate circuit court reversed in part; cause remanded. (No. 64 031.
DORIS FRAZER al., et v. A. Appellees, F. MUNSTER INC.,
MAN, Appellant. 20, 1988. Opinion July filed *3 J., STAMOS, part. took no
MILLER, J., specially concurring.
RYAN, J., dissenting. *4 Freerksen, of N. and Gregory B. Giampietro Wayne for counsel), appel- of & Giampietro, Chicago (Poltrock lant. Huntley S. Ltd., Chicago (John of Riman, &
Sweeney Beck Corpo- for appellee of Fogle, counsel), and L. Gary ration. Chartered, of Gibbons, &
Kralovec, Marquard, Doyle Arnold, Ring for counsel), appellee Jo of Chicago (Nancy Brothers, Inc. John, & Fadden, Phelan, Ltd., Pope
Griffin & John, counsel), of and Peter C. B. Falkof (Bradley Ltd. DICO, Inc. all for Chicago, appellee of F. John- Brook, Chicago (Richard & Lord, Bissell counsel), Jennings, Diane I. son, C. Griffin and Hugh Hitch Company. Croft Trailer c: appellee of the court: JUSTICE deliv ered opinion WARD The id on this whether appeal question present in a of negligence of a found product guilty distributor action third-party action can maintain personal injury manufacturer indemnity against for implied on grounds negligence, of a wholesaler of an implied warranty strict breach products of merchantability. in the Frazer, an action brought
The Doris plaintiff, injuries circuit Du Page County personal court of attached to back trailer, when a was sustained which and collided her, disengaged truck of a ahead pickup sued Keith driving. plaintiff with the car she was F. Munster- truck; A. Allen, the operator pickup Rental man, Inc., (Munsterman), Wheaton Center d/b/a hitch; the trailer Robert of the trailer and the owner alleg- who Sosnowski, employees one of Munsterman’s *5 edly Allen helped attach the trailer truck; to his the Beck Corporation (Beck), the manufacturer of trailer; Iris and the Dougherty George Trust, Croft d/b/a Croft Trailer and Hitch Company (Croft), the seller hitch; Munsterman of the trailer Ring Brothers, and Inc. (Ring Brothers), which sold the trailer company hitch to Croft. Munsterman filed a action third-party against Allen, Croft, Brothers, Beck, Ring Dico, and Inc. (Dico), which manufactured the trailer’s brake for con system, tribution under “An Act in relation to contribution among joint tortfeasors” (Contribution Act) (Ill. Rev. Stat. 1979, 70, 302) ch. and for par. indemnity predi cated on the common law doctrine of implied indemnity. asserted three for re third-party complaint grounds covery: negligence, strict and products breach the implied under section warranty merchantability 2—314 of the Uniform Commercial (Ill. Code Rev. Stat. 26, ch. 314). par. 2—
After had entered plaintiff into a settlement with the defendants, Croft, Brothers, Dico, Beck and Ring the trial court dismissed the counts Munsterman’s complaint claiming contribution pursuant 2(c) sections and (d) of the Contribution Act Rev. Stat. (Ill. ch. 70, pars. 302(c), (d)), and severed Munsterman’s third- party action, action from the primary is, the plain tiff’s personal suit. On injury action plaintiff’s against Allen, Munsterman, Sosnowski and the court di rected a verdict on against Munsterman the strict prod ucts liability count of the complaint, and found jury in favor of Allen Sosnowski, against Munster- man, on the count. The court then dismissed Munsterman’s third-party complaint, stating actions were implied indemnity abolished upon adoption among (See contribution tortfeasors. Ill. Rev. joint 301 et seq.; Skinner Reed- Stat. ch. par. Prentice Division Package Machinery 70 Ill. the dismissal of its claims 1.) 2d Munsterman appealed and Dico for indem Croft, Beck, Brothers against Ring affirmed Ill. nification, (145 App. and the court appellate Munsterman’s for leave 1092). granted petition We R. (107 315). under our Rule 315 Ill. 2d appeal Allen, 15, 1980, defendant, On Keith was April Center, given the use of a trailer Rental by Wheaton defendant, which is A. F. owned and operated by Munsterman, Inc. the use are not clear (The terms of from the trailer to the record.) Allen attached the bаck *6 of his truck hook/trailer hitch” and with pickup “pintle from chains,” two both of which he obtained “safety Munsterman. Allen also attached a third chain between the truck and the trailer which was to activate designed the brakes on the trailer in the event it became de- tached from the vehicle. towing Shortly leaving after Munsterman’s premises, the trailer broke free from Allen’s truck as a result of the trailer hitch and pickup chains’ from truck it safety disengaging as was being pulled along The detached trailer veered highway. into traffic, oncoming colliding with auto plaintiff’s and her causing injuries.
The had an plaintiff originally filed action the cir- cuit court of Munsterman, Du Page County against only Allen, Sosnowski and each with acts charging separate alia, inter of negligence. Frazer that Munster- alleged, man was negligent in Allen with a hook/ providing pintle knew, trailer hitch which it known, or should have was in an condition, unreasonably dangerous providing and Allen with a trailer with attached chains and “S” safety knew, hooks which it known, should have were inade- quate secure the trailer to the rear of Allen’s truck. The also set out a strict complaint products liability claim against Munsterman that defects in alleging both hitch, trailer trailer at the time left existing they control,
Munsterman’s rendered them dan- unreasonably gerous.
Munsterman brought action third-party against Allen; trailer, manufacturer Beck; the manu facturer of the Dico; trailer’s brake system, seller to hitch, Munsterman of the trailer Croft; and the seller of Croft, trailer hitch to Ring Brothers. The complaint sought both contribution under the Contribution Act (Ill. 301 et seq.), and indemnity Rev. Stat. ch. par. on predicated a common law theory implied indemnity. Allen, Against Munsterman sought under recovery negli gence and asserted three principles grounds recovery against other defendants: third-party negligence, strict products and breach of an liability, implied war ranty under sеction merchantability 2 — 314 of the Uniform Commercial Code (Ill. Rev. Stat. ch. par. 314). plaintiff amended her subsequently 2 — to make all of the complaint defendants, ex third-party Dico, direct cept defendants. She asserted and strict as products liability grounds recovery. Croft, Beck, Brothers,
When defendants Ring Dico entered into a settlement agreement with the plain tiff, under which she $60,000 was in return for a re paid lease of all claims them out of the against arising April *7 occurrence, to dismiss they moved Munsterman’s action. asserted third-party They Munsterman’s claims for contribution should be dismissed to pursuant sections and of the 2(c) (d) (Ill. Contribution Act Rev. 1979, 70, 302(c), Stat. ch. Section of the pars. (d)). 2(c) Act provides:
“When a release or covenant not to en- sue or not to judgment given good force is in per- faith one or more arising sons in tort out of injury liable the same or the death, same it not wrongful discharge any does of the othеr liability injury tortfeasors from for the or wrongful death provide unless its terms so but it reduces re- the extent of others to the the any against on claim covery covenant, in or stated in release any amount it, for actually paid of the consideration amount 70, par. ch. greater.” (Ill. Rev. Stat. whichever 302(c).) settles Act, a tortfeasor who of the 2(d)
Under section to section 2(c) faith” “good pursuant with the plaintiff contribution from of the Act is all discharged par. ch. Ill. Rev. Stat. other tortfeasors. 302(d). that Munster- argued
The also defendants third-party of action in man’s to state a cause failed complaint contri argued that after demnity. They adoption Reed-Prentice tortfeasors among bution Skinner 70 Ill. and Machinery Division Package Act, enactment of the Contribution subsequent longer recognized. actions for are no implied indemnity in “good The court that the settlement was trial held faith” defendants’ granted third-party and part counts Munster- motions, striking the contribution court, however, ruling man’s reserved on The complaint. counts and severed the motions dismiss the from the underlying Munsterman’s action third-party action by Frazer. brought Munsterman,
In the action plaintiff’s against Allen, and trial court directed verdict Sosnowski the strict count against Munsterman on the trailer hitch Mun- The court found that complaint. unreasonably danger- sterman Allen was in an provided control, time it Munsterman’s ous condition at the left plain- and cause of the proximate that the defect was Allen in favor of tiff’s found jury injuries. on the counts
against Munsterman complaint, plaintiff awarded plaintiff’s $365,338.03 in was dismissed after damages. Sosnowski he testified that he had to do with the nothing attaching
of the trailer to Allen’s truck. The trial court reduced the plaintiff’s award to $305,338.03 pursuant section 2(c) of the Contribution Act (Ill. Rev. Stat. 1979, ch. par. 302(c)), which, as above, shown provides any judgment paid by nonsettling dеfendants to the plaintiff is reduced the amount of an earlier settlement be tween the plaintiff and the other defendants. trial,
After the court dismissed the remaining counts of Munsterman’s third-party on the complaint ground that actions for implied regardless of the the- indemnity, ory presented are no recovery, longer recognized fol- lowing adoption contribution tort- among joint feasors in this State.
Munsterman of its appealed dismissal indemnity claims, appellate court affirmed (145 Ill. 3d App. 1092). The court concluded, too as see, we shall broadly, that all actions for indemnity, actions except predicated on a contract for were abolished indemnity, the rec upon ognition of a right of contribution. The court also held that Munsterman’s claims for based on indemnity breach of the implied warranty under section merchantability 2—314 of the Uniform Commercial Code were in essence for contribution which dis correctly “claim[s] [were] missed in light settlement plaintiff's Croft, with Ring and Beck.” Ill. (145 3d at As App. 1099.) stated, we granted Munsterman’s petition leave to appeal under our Rule 302 2d (107 Ill. R. 302(a)). and contribution are
Indemnity mutually exclusive remedies for allocating plaintiff’s damages among joint tortfeasors with to the plaintiff. al Indemnity lows a defendant who satisfies a for which he judgment and another tortfeasor or are tortfeasors and sev jointly erally liable recover from the other tortfeasor or tort feasors the entire amount he obligated was to pay. (Heinrich v. Peabody International 99 Ill. Corp. (1984), 344, 349; Gulf, Mobile & Ohio R.R. Co. v. Arthur To 152-54.) App. 343 Ill. Dixon Transfer have a pre there must been right have *9 the a guilty parties quali tort between relationship in the occurrence. Van in their conduct tative difference 105 Ill. 2d (1985), v. Baler Economy Co. Slambrouck Corp. v. International 462, 469; Peabody Heinrich 344, 99 Ill. 349. 2d (1984), from contract arise right to indemnification may Lav. Salle Mon Electric Elevator Co.
(see Westinghouse or from situa 429), 395 Ill. Building (1947), roe Corp. can to be indemnify implied tions in which a promise tortfeasors. & among Appel from the relationship Michael, in Illi Among Contribution Joint Tortfeasors Legislative Cooper nois: An & Judicial Opportunity for n.8 M. Po ation, Loy. (1979); 10 U. Chi. L.J. 171 & (1985). B. Illinois Tort 674-75 lelle & Law Ottley, is based on restitu “Implied indemnity” principles from the arising legal tion: “a law implied contract to by of an indemnitee caused obligation satisfy (Allison actions of his indemnitor.” v. Shell Oil Co. Woodward, 26, 28; Quasi 113 Ill. F. Contracts (1986), 2d §886B, Torts com Restatement (1913); (Second) §259 c, premise ment at The fundamental (1979).) indemnitee, although cause action is that without fact, fault has to because subjected solely been or a nondele with the legal relationship plaintiff statutory (See out common or law. gable duty arising §26.07, Tort Law at 651 For (1982).) 1 J. Modem Dooley, torts of his em an held liable for the example, employer superiоr gen under doctrine of respondeat ployee as employee, allowed indemnification from erally in the wrongful not participate did suming employer 49 Ill. (1964), v. DeKalb Co. (Embree Forge conduct. for fail Too, landowner held 85.) responsible 2d a App. his law maintain imposed ure to perform duty safe condition is allowed indem- in reasonably premises from the nity negligent party who created the dangerous condition. See Rovecamp Central Construction Co. (1964), 45 Ill. App. 441.
Different from contribution indemnity, distributes the loss among tortfeasors by each to requiring pay pro portionate share based on the relative fault of the par ties. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 624.) Although common law permitted certain situations, limited it prohibited contribution among joint tortfeasors. (Merryweather v. Nixan (1799), T.R. 101 Eng. Rep. 1337.) The prohibition was based on the notion primarily that courts should not be used to assist wrongdoers. Reese v. Chiсago, Burlington & R.R. Quincy 55 Ill. 2d 363-64.
As a reaction the common law’s prohibition of con tribution, right implied indemnity expanded be *10 yond the original notion of an indemnitee who himself was without fault. personal (Allison v. Shell Oil Co. 113 (1986), 26, 30; Ill. 2d Heinrich Peabody v. Interna tional Corp. 139 (1985), 289, Ill. 3d App. 292.) Under what became as known the doctrine of active/passive “ negligence, courts a of recognized right ‘equitable’ im plied based indemnity relative fault of the upon par (Allison ties.” v. Shell Co. (1986), Oil 113 Ill. 2d 30.) Where the conduct of one tortfeasor was considered to be cause primary of the of damages the plaintiff, is, where there “active” negligence, was and the conduct of the other was considered to a secondary be cause of the injury, where there was “passive” negli gence, the passively negligent was party permitted shift the entire burden of the plaintiff’s loss to the ac tively negligent tortfeasor. See v. Sargent Interstate Bakeries, 187; Inc. (1967), 86 Ill. 2d App. Reynolds v. Il linois Bell 51 Ill. Telephone (1964), App. Co. 2d 334.
Typically, it was “active” of one negligence party that created a condition which dangerous caused
257 negligence and the other party’s injury, plaintiff’s to discover and failure no more than the amounted to Co. v. Ry. Midland Illinois (See Chicago & correct it. 604; W. Co. 32 Ill. 2d Evans Construction (1965), 1984); 343 ed. Keeton, §51, (5th Torts at Prosser & W. Restatement (1937); Restatement Restitution §95 Thus, where (1979).) Torts §886B(1)(d) (Second) held vendee of a liable distributor was product gener it was in the product, caused defects injuries of the the manufacturer indemnity against allowed ally not dis held liable for if the had been distributor condition correcting the defective covering (1937); Restitution §93(1) Restatement of product. (See comment c §886B, (1979); (Second) Restatement Torts Schwartz, §16.9, (2d at Negligence Comparative V. Dixon & R.R. Co. Arthur Mobile Ohio ed. 1986); Gulf The ration (1951), 153.) Ill. App. Transfer ale for the manufacturer the causе action was de-_ was negligent creating considered “actively” fective and the of the distributor product, was re failing to and to discover defect inspect Schwartz, as garded “passive.” Comparative See V. §16.9, at 287 ed. 3A L. Furmer & Negligence (2d 1986); Friedman, §44.04, M. at 15—101. Liability Products under strict
Upon recognition products of actions first this court recognized by which was liability, Ill. Suvada v. White Motor Co. extended. In
doctrine of was further implied indemnity Suvada, strict this court under recognized of a in favor of the right negligent operator *11 of the of system tractor the manufacturer brake against used, re in Suvada a The a plaintiffs purchased tractor. defendant, Mo conditioned tractor unit from White its was being operated, tor tractor Company. While bus, it to with a in failed, collide causing brake system making neg After settlement juring passengers. ligence of claims the bus passengers, plaintiffs an action brought White and the indemnity against manufacturer of the tractor’s brake Benedix system, Westinghouse recognizing Automotive. In a cause of action in strict this products liability, court stated that where a defective in product condition makes it unrea dangerous user, to the hu sonably public interest man life and health required “imposing the loss upon one and creating risk 32 Ill. 2d reaping profit.” at 619.
The court also held that the plaintiffs stated properly a claim for their although indemnity, liability damage to bus and to the injuries passengers bus was based on their of the tractor. In negligent operation rejecting the contention the plaintiffs’ would bar negligence action, their the court said: indemnity *** “It not plaintiffs does follow [sic] *** will, law, aas matter of prevent seeking them from from indemnity Dean Prosser in the [the manufacturer]. chapter joint of his book covering (Prosser, tort-feasors Torts, out, chap. (1964),) points Law of 8. ed. ‘There is contribution, an distinctiоn important between which dis among by tributes the loss the tort-feasors each requiring share, his pay proportionate indemnity, which shifts the entire from one tort who been loss feasor has it of compelled pay to the shoulders another who confused, should it are bear instead. two often there are al many indemnity decisions which has been *** lowed under the of name “contribution.” The princi not, however, ple is limited personally to those who are free from fault. A similar has been applied rule indem nify against a supplier goods when a retailer or user goods incurs negligent upon reason reliance ” his care.’ Ill. proper 2d at 624. stated, The court however, that in the con- text actions in strict products did not involve the fault-weighing analysis that was used under ac-
259 that require proof “To doctrine: negligence tive/passive the would be negligent actively was manufacturer] [the Ill. 2d at 624. liability.” of striсt antithesis Ma v. Williams Co. Insurance Mutual Liberty In court ex 77, this 62 Ill. 2d chine Tool Co. & (1975), to members of Surada the holding reach of tended the who were product chain of a defective in the distributive anof the manufacturer liability. Liberty, In sued in strict settled strict having work adjustable platform, it, filed an against brought for personal injuries actions of a defective manufacturer the against action indemnity the work into incorporated that was component part it and the plat contended that The defendant platform. tortfeasors treated as joint should be form manufacturer al should be indemnity and no as to the injured party ac was negligence lowed, plaintiff’s as the third-party that the this court stated the argument, tive. Rejecting irrelevant, as the action was plaintiff on strict was based defendant against third-party a case in that such The court stated products liability. to a third-party plaintiff was except avаilable demnity the risk of its use. or assumes who misuses Thus, an 83.) “actively” negligent Ill. 2d at even (62 the manu against proceed tortfeasor could if the defend third-party facturer of a defective product under strict ant, manufacturer, had found liable been products liability. the rule contribu prohibiting
This court struck down
v. Reed-Prentice
Skinner
among joint
tion
tortfeasors
Ill. 2d
Package Machinery
Division
ex
there
“no
reason
was
valid
upon concluding
[its]
***
it”
against
many compelling arguments
istence
Skinner,
alleged
In
13).
complaint
Ill. 2d at
(70
injured
machine
molding
an
malfunctioned
injection
filed a third-
The
defendant manufacturer
plaintiff.
con-
seeking
against
plaintiff’s employer
action
party
tribution
such amount as would be commensurate
with the degree of misconduct attributable to the em
It was held
if
ployer.
had misused the
employer
machine
molding
or had assumed a known risk of the
use, and if
product’s
either factor
to cause
сontributed
the employee’s
injury,
manufacturer had a proper
claim for
contribution.
for the
third-party
*13
plaintiff’s damages was to be
on the basis of
apportioned
the “relative degree to which the defective
and
***
the employer’s
contributed to cause plain
[conduct]
tiff’s injuries.”
Following the decision in Skinner, the General As “An Act in sembly passed relation to contribution among par. 301 et tortfeasors” joint (Ill. 1979, Rev. Stat. 70, ch. seq.), which “codified and clarified” Skinner. (See Stephens v. McBride 515, 97 Ill. (1983), The 521-22.) Act provides: 2 or more persons subject are to in
“[W]here tort arising out of the same injury person or property, *** right there is a among of contribution them ***.” Ill. Rev. Stat. ch. par. 302(a). pro
“The rata share of each tortfeasor shall be deter mined in accordance with his relative Ill. culpability.” Rev. Stat. ch. par. 303. Skinner
It
after
was
deciding
that this court adopted
a form of pure comparative negligence and abolished the
common law rule that any
contributory negligence
(Alvis
plaintiff
as
bar to
operated
complete
recovery.
Ribar (1981),
1.)
85 Ill. 2d
The court
judged
of
more
concept
comparative negligence
just
“produces
desirable distribution of loss demanded
socially
by
Alvis was in Allison v. Shell Oil Co. (1986), recognized 113 Ill. that, 2d 26. There this court held light adoption fault, of contribution and comparative actions neg- of “active/passive on the notion based recognized: no ligence” longer should be distinction, like active-passive “[Ijndemnity implied by an *** itself, inequitable. the no-contribution rule [is] [T]he since, defi- justice by not complete doctrine does mete out one of two nition, only it shifts all costs Active-passive at fault parties actually more [citations]. governing not with the indemnity simply comport does accidental jurisdiction thаt costs of in this principle the rela- are to be in accordance with injury apportioned all in the action. tive fault of concerned [Citation.]
* * * 1, 27, de Ill. 2d the court In Alvis v. Ribar only total be where the justice termined that can attained fault of according the relative ‘apportions damages law *** Having adopted comparative the parties.’ li affixing rather than principles apportioning and the Alvis, only also Skinner and ability, not but Act, implied indemnity based the need Contribution *** evaporated.” has active-passive an distinction upon 31, 34. 113 Ill. 2d at Allison, however, it
This court in stated explicitly no on the opinion viability was continued expressing *14 one has actions for where been implied indemnity party another, liable the conduct of as in the held for vicariously an em held the act of employer being case of an there are claims for indemnity “prem or where ployee, a defective regarding an action underlying ised upon we here Ill. 2d at consider product” (113 27). What is claim for such an under indemnity upon whether a based in seeking the one action can be maintained where lying action. found in negligent underlying was demnity of liability derivative question involving vicarious not considered. will be claiming indemnity the one of ground claim on the indemnity Munsterman’s defendants third-party the claimed This court negligent. fail. Munsterman itself was must Allison v. Shell Oil Co. (1986), 113 Ill. 2d abol ishing on the indemnity basis active/passive negli gence, stated: “[Governing principle[s] in this jurisdiction [dictate]
the costs of injury accidental are to be apportioned in ac- cordance with the fault relative of all concerned in the action.”
Munsterman was found by jury be negligent that it knew or should have known of a dangerous defect in the product. It would be unfair for it to able, be through an action of implied to shift the en- indemnity, tire loss to other defendants whеn its own negligence contributed cause the plaintiffs injury.
Munsterman further that in argues event any implied should be retained as to a member or mem- bers in the distributive chain for actions it or them on by strict products liability. Munsterman that the says policy consideration which motivated the adoption of strict products was the protection of the from public defective products. This objective ac- accomplished, cording Munsterman, by the manufacturer requiring to bear full for losses caused responsibility defective by other though members of the distributive chain also may be held liable. Munsterman claims that placing the full burden of the loss on the manufacturer acts as an incentive for manufacturers to eliminate or correct defects in products, which are in the they best position to do. It says “upstream” actions for indem- implied based on nity strict this products liability implement pol- icy by ultimately tracing baсk to the manufac- turer so that it will bear the full burden of the loss caused a by defective product.
Munsterman claims that this will be policy objective thwarted application the settlement provisions of the Contribution Act. Munsterman asserts that under section 2(d) the Act Rev. Stat. ch. (Ill. par. *15 a can escape por liable manufacturer a 302(d)), strictly a settlement with by making tion of its potential liability that a defendant 2(d) the Section provides injured party. from all liabil the is plaintiff discharged who settles with If a manu to the other tortfeasors. contribution ity lower, downstream, or with the plaintiff, facturer settles to chain who are also be members distributive products liability held under the doctrine of strict liable the balance of the judg must bear the burden paying the re ment. This is the amount of settlement because to defend nonsettling duces the be judgment paid by of fault. Ill. ant, degree (See not the defendant’s settling An ch. par. 302(c).) unrеasonably Rev. Stat. settlement, therefore, results in an increase directly low defendant’s nonsettling liability, consequently, to the extent that the manufacturer is enriched unjustly is forced to nonsettling party satisfy judgment loss. Mun causing excess of the extent of its fault in to shift allowing sterman claims that a manufacturer any an intermediate distributor will portion of the incentive to safe produce reduce manufacturer’s thus strict products policy underlying undermine products liability.
It if the of an inter- argues also that even chain of mediate distribution contributes party loss, against cause the should be allowed it manufacturer. Munsterman says “conceptually acts of an weigh negligent impossible” compare intermediate of a liable manu- seller with those strictly does facturer because the manufacturer’s not fault, rest on the condition of the product. but on solely Without a common denominator to relative сompare argues, principles fault of the Munsterman parties, contribution, on a of de- comparison which are based fault, are grees inapplicable. *16 true,
This is it where the indem particularly says, in to a negligence failing inspect nitee’s consists solely its defect. Munsterman observes product and discover Industries, Coney v. J. L. Inc. G. this court in while 97 2d comparative Ill. did (1983), partially apply action, a strict it did not liability negligence principles full fault rule for strict liability adopt comparative court from conduct that reduces re excepted cases. The “ ‘discover,’ or a consumer’s failure to covery ‘inspect,’ 118.) Ill. 2d at ‘guard (97 a defective against’ product.” in a Munsterman contends that a defendant because strict action cannot reduce its responsibility by of the asserting contributory negligence injured in defend failing inspect product, party/plaintiff so to the ant should likewise unable to do by pointing be in the chain of such of a member distribution negligence as Munsterman here. short,
In
Munsterman’s contention is that
holding
should be allowed consistent with
this
v. Williams Ma
Liberty
Mutual Insurance Co.
court
Tool
chine &
is,
It should be borne Insur Mutual Liberty this court recognized by cation Ill. Tool Co. Machine & ance Co. v. Williams was liability, products of strict in the context of the rule the harshness to ameliorate part adopted court considered that contribution. prohibiting into ac not taken should be of the indemnitee manufacturer, held to of a defendant in the case count the manufac might the result be strict because liability, defective for the of responsibility turer’s total avoidance sued and if the injured person This is because product. of the defective the immediate seller recovered from then-existing manufacturer, because product, *17 if free from contribution, liability would be rule against Mutual Liberty indemnity. (See denied the seller were Tool Co. (1975), Machine & Insurance v. Williams Co. contribution, of the adoption With 82.) Ill. 2d of the intermediate conduct however, negligent if the the causing a in proximately plaintiff’s seller role played the conduct negligеnt is no reason that there injuries, of the man the conduct not with compared should be be shared. damages and the responsibility ufacturer a of between an apportionment Requiring of distributor negligent manufacturer and a liable strictly contends, undermine not, as Munsterman the will product of strict the adoption considerations underlying the policy liabil for strict products basis liability. policy products in the case recovery insure a consumer’s is to almost ity freeing fulfilled by This product. policy of a defective privity negli of proof from the of necessity plaintiff the liability upon and several by imposing joint gence v. (See Coney chain. in the defendants distributive Heinrich 104; Industries, Ill. 2d Inc. J. L. G. (1983), 289.) 139 Ill. 3d App. Corp. International (1985), Peabody on has imposed the user been loss of the economic “When consider- the policy action in a strict a defendant ations are and the of Suvada satisfied ordinary equitable of or contri principles governing concepts Divi bution are be Skinner v. Reed-Prentice applied.” 1,14. sion Co. 70 Ill. 2d Package Machinery (1977), however, this Munsterman observes correctly, Industries, court in v. J. L. Inc. 97 Ill. Coney (1983), G. action, concluded that involving strict liability if even failed to discover injured plaintiff negligently a defect in a his would not be reduced product, recovery fault; under the misuse or principles comparative only risk of would reduce assumption here, manufacturer’s liability. argues Munsterman like in not Coney, negligence its should be considered and then its But as we have bar recovery indemnity. li stated, considerations strict just policy underlying insure, is to for misuse and assumption ability except risk, a consumer’s full Different consid policy recovery. erations between underly apportionment damages than a defendant and the joint tortfeasors those between this court’s deci injured This was illustrated party. sion in J. I. Cаse v. McCartin & Plumbing McAuliffe Inc. 118 Ill. 2d which in its reason Heating, should ing Munsterman’s that we now rejects argument manufacturer, Coney. follow There court allowed a action, a con the defendant a strict liability bring on the of a third tribution claim based party, an had sued manufacturer employer. (Its employee *18 a strict This court suit.) rejected argument liability form of the risk could misuse and only assumption a co-tort against the basis for claim for contribution a this, the court stated: feasor. In concluding “ comparative and fault of contribution doctrines ‘[T]he pol- one another. The from in distinction must be viewed in com- applying reviewed are which icy considerations injured plaintiff and an between parative principles fault strict liability on premised is liability a defendant whose
267
rules
in the
are not the same as those embodied
Contribu
Act,
fault,
tion
which allows contribution based on
how
defined, among
ever
those whosе conduct contributed to
Pipes
Logging
Corp.
cause the
v. American
Tool
injury.’
269,
(1985),139 Ill.
3d
Ill. 2d at 463.
App.
273.” 118
in
illustrates that
strict
holding
Case
liability
actions the
fault
principle
comparative
applicable
Thus,
tortfeasors.
here the
of a
joint
product
distributor
who
failed to
negligently
inspect
prod-
defects
uct
cannot under strict
recover
liability
indemnity
from
manufacturer. We
would observe that major-
other
courts in
ity
jurisdictions
have consid-
ered
issue have held that a
failure to in-
negligent
spect
product
discover a
defect
an
intermediate
seller bars a claim for
from
manufacturer.
Mechanical,
Air,
State
Inc. v. Liquid
(Alaska
Inc.
1983),
15;
665 P.2d
Pearson Ford Co. v.
Motor
Ford
Co. (1969),
273 Cal.
269, 276,
279,
2d
78
App.
Rptr.
284;
Cal.
Products,
Rowland Truck
Inc.
Equipment,
v. Everware
Inc. (Fla.
1985),
394;
So.
App.
393,
2d
v.
Kennedy
City
Sawyer (1980),
228 Kan.
N.W.2d
367-68.
To
employ
hallowed
there is no
expression,
merit
to Munsterman’s
not
assertion that
it is
“conceptually
possible”
apportion
between
liable
liability
strictly
manufacturer of a
and a
negligent distributor.
This court has
this contention.
repeatedly rejected
(See
Skinner v.
Package
Reed-Prentice Division
Machinery
Co.
other See negligence. Duncan v. Cessna Aircraft (Tex. 1984), 665 414, 424; Industries, S.W.2d Houdaille Inc. Edwards (Fla. 1979), 493-94; So. *19 268 Stores, Inc. v. Nest-Kart 322, 21 Cal. 3d
Safeway (1978), Iowa 444; 328-29, 550, 553, 441, 146 Cal. 579 P.2d Rptr. v. Electric Co. Electric & Power Co. General Light Corp. Vertecs 231, 237; 352 N.W.2d (Iowa 1984), Chemicals, Inc. 619; Reichhold 1983), 661 P.2d (Alaska v. Fireco New Capital Jersey (1980), Cartel 81 Corp. 674, 683; also Heft & C. 548, 566, N.J. 410 A.2d see C. 4A, at §190, Manual ch. Heft, Comparative Negligence Woods, Fault Comparative 26 & H. (1971 1987); Supp. §13:12, 1987). at 272 ed. (2d Safeway it in put
As the court of California supreme Stores, Inc. v. Nest-Kart 322, 331, 21 Cal. 550, 441, P.2d 446: 551, Cal. Rptr. are more theoretical than suggested
“the difficulties in other demon- jurisdictions practical, experience fully competent apply compara- that are juries strates negligent strictly liable principles tive fault between defendants.” is indemnity required
Munsterman’s assertion of a manufacturer against possibility act as check thereby causing insufficient amount and settling for an a disproportionately tortfeasor to bear nonsettling A convincing. is not damages party share of the greater agreement pro not enter into a settlement who does Act (Ill. of the Contribution 2(d) tected under section which 302(d)), provides Rev. ch. par. Stat. claims for contribu faith” bar “good settlements only settling tion defendants. filed objections that Munsterman
The record shows the third- faith of the settlement by challenging good as to all objections It then defendants. withdrew party the trial defendants, Dico, whose settlement except does faith. Munsterman good court found to have been court, as nor did it in the appellate not raise question, any settlement here. Its of the specific faith” “good to the or hypothetical. in the here is abstract complaint we hold that the trial court was correct Finally, Munsterman’s claims for based on dismissing an asserted breach of the of mer implied warranty under section 2 — 314 of the Uniform Com chantability mercial Code ch. (Ill. 314). Rev. Stat. par. 2 — *20 Munsterman states that under section of the 2 — 715 Code a result buyer may damages recover consequential merchantability from the seller’s of the of ing warranty breach 1979, 26, Rev. Stat. ch. (Il par. 314), l. 2 — *** which includes incident to “any reasonable expense *** the 1979, 26, ch. 2— (Ill. breach.” Rev. Stat. par. 715(1).) 715, It that under section the defend says 2 — ants’ breach of warranty entitles merchantability it fees, to recover attorney court costs and the damages it was to the required pay plaintiff as a result of the April 15 aсcident. disagree. We
Section 2—715 of the Code defines “consequential damages” as including or “injury person property proximately resulting from any (Ill. breach warranty.” 1979, Rev. Stat. ch. 26, 715.) Committee par. com 2— ment 5 of section 2—715 provides following guide lines on proximate causation: question of ‘proximate’ cause turns on whether it
“[T]he was reasonable for the buyer goods to use the without inspection such as would have If revealed defects. it so, was not for reasonable him to do or if he did fact use, discover the defect prior injury his would not proximately result from the breach of warranty.” Ill. Stat., 26, Ann. ch. par. Uniform Commercial 2— Code (Smith-Hurd Comment at 588 1963).
The Code does not state that a or buyer’s negligence other fault will Rather, bar it recovery. has been held that the buyer’s negligence fault only mitigates or re duces the damages the buyer (See Signal recover. may Oil & Gas v. Universal Oil Products (Tex. 572 1978), S.W.2d 328; Kennedy v. City Sawyer (1980), Dodge Wilson 788, 797; 439, 450, Kan. 618 P.2d Trucks, Inc. 636, 637, Ga. 235 S.E.2d Thus, under section 2 — 715 of Code 144.) buyer damages proximately recover only consequential may he not recover caused the breach of by warranty; may negli for those caused own by buyer’s proximately or fault. gence
Here, plaintiff’s damages found that jury of a defect in caused by presence were proximately in failing and Munsterman’s by negligence the product Munsterman, to discover the defect. Upon analysis, counts, to recover seeks warranty the breach through it which damages by from the defendants for sustained the defect in its as well as were caused by im- as counts for Although stated breach product. the counts can as claims regarded be plied warranty, for Munsterman is recover seeking implied indemnity, its total loss. were dismissed. They properly contribution, as claims regarded
If the counts are *21 trial court’s them, the regarded as the court appellate that This supposition. them was correct on dismissal of Act that course, provides the Contribution is, because are not liable for contribution. the tortfeasors settling not err in Munster- dismissing trial court did The. warranty. for of implied man’s action breach third-party appellate the the judgment For the reasons given, court is affirmed.
Judgment affirmed. no in the consideration STAMOS took part JUSTICE or of this case. decision MILLER, specially concurring:
JUSTICE contained in the reasoning I result and concur the however, to empha- I separately, write majority opinion. to is with holding respect the size narrow how court’s defendants the third-party against action Munsterman’s indemnity. implied recounts, plaintiff the injured As the majority opinion supplied Munsterman, Inc., company the F. sued A. of negligence theories chains, on the hitch and trailer a verdict directed judge the trial liability; and strict the theory, on the strict Munsterman against the negligence оn favor found the jury plaintiff’s in this used the instructions According jury count. asserted of negligence case, allegations the plaintiff’s Allen, opera- codefendant had supplied that Munsterman combination, a pintle “with tor of the truck and trailer in an un- known was which it knew or should have hook a condition,” low-boy and “with reasonably dangerous ‘S’ hooks chains and trailer with attached safety type were inadequate, have known which it knew should trailer to the circumstances, said under the secure Moreover, Keith Allen.” rear operated by of the vehicle Mun- finding special interrogatory the answered a jury causing negligence proximately sterman guilty Munsterman’s It noted that injuries. may be plaintiff’s conduct, nonculpable found exceeded jury, as failure defect. to discover defend action against third-party
Munsterman’s Act was ants for contribution trader the Contribution claims of her own settlement plaintiff’s barrеd by ch. Stat. Ill. Rev. (see those against parties challenge makes no Munsterman pars. 302(c), (d)), Furthermore, I of the settlement. basis good-faith negligent Munsterman’s agree majority with case, jury, pre as determined by conduct in this action nonstatutory from bringing cluded Munsterman defendants. against third-party implied *22 form that the active/passive ruled previously We have de this court’s with implied indemnity incompatible adopting Ill. 2d cision Alvis Ribar (1981), comparative negligence (See doctrine. Allison v. Shell (1986), Oil Co. 113 Ill. 2d 32-34.) We have left open, however, the whether certain theories question other such as action implied an based on indemnity, vicarious or an action a “downstream” seller liability, brought by an against “upstream” manufacturer or product distrib utor, which is the form asserted Munsterman this case, survived the decision in Skinner v. Reed-Prentice Division 70 Ill. 2d Package Machinery enactment of the Act. See subsequent Contribution Allison, 35; 113 Ill. 2d at also see Heinrich v. Peabody 162,167-68. International 117 Ill. 2d Corp. (1987), demonstrates, As the we need not majority opinion decide here. An action for indem- question implied on the of a nity, predicated “upstream” liability distributor, manufacturer or an contemplates absence on the indemnitee. culpability part “downstream” (See, Chemicals, e.g., Corp. Vertecs v. Reichhold Inc. 619; (Alaska 1983), 661 P.2d Tolbert v. Indus- Gerber tries, Inc. (Minn. 1977), 362.) N.W.2d But jury found that Munsterman was and therefore negligent, cannot Munsterman be the blameless indemnitee that the reason, then, doctrine would For that we need require. not, not, and do decide here the whether an question action is with “upstream” implied indemnity compatible Assuming Contribution Act. “upstream” exists, action still that it is not we hold available simply in this case. Munsterman RYAN, JUSTICE dissenting:
I dissent in this case opinion because permits injuries, party primarily responsible plaintiffs’ to ef- manufacturer who created the defective prоduct, fect portion a settlement and thereby place major the financial on one who must be considered only burden act not liable. Our contribution should be ap- secondarily
273 I voted such an result. bring inequitable about plied v. Reed-Prentice Di in Skinner for the majority opinions Machinery vision Co. 1, 70 Ill. 2d Package (1977), Stevens v. Silver 70 Ill. 2d Manufacturing (1977), Harvester Co. and Robinson v. International (1977), the of contribution Ill. 2d which established principle I State, tortfeasors in this because that among believed it the in those cases made holdings possible place on the who caused responsibility parties actually However, in case this damage. holding permits who is party primarily responsible plaintiffs’ injuries Act (which Contribution manipulate supposedly Skinner) codifies the in so that the holding major burden is shifted to one who is not primarily responsible. Every Village Stewart that I stated in thing dissent my Summit (1986), J., dissenting) Ill. 2d 31 (Ryan, about the results from the inequitable arising аpplication of the Contribution Act to this case. applies equally that
not a joint tortfeasor concept and should not indemnity therefore be precluded of the Contri- by application bution Act.
The parties should not be to circumvent permitted right indemnity by playing games placing of one in the chain of liability distribution (Munsterman) in terms of failure “negligent the defect,” discover in stead of in terms of strict Such liability. tactics harken back to the era, when pre-1963 courts were casting around for different theories to for in support liability caused Greenman juries defective products. Finally, Products, v. Yuba Power Inc. 59 Cal. 2d Cal. Rptr. P.2d Justice cut Traynor the tortured through and said that reasoning we should call this cause of action is, what it tort really new on based strict See Prosser, §98, W. Torts liability. at 656-58 ed. (4th 1971).
Plaintiff’s cause action in this case is based on in- juries caused aby defective Munsterman’s al- product. leged negligence is that it failed to discover this defect. Whether Munsterman’s phrased terms of or negligence it, nonetheless, strict liability, stems from the defective This is a product. case, products whether it is on based concept strict Munsterman is, truth, not a case where It liability. in tort with the manufacturer was liable jointly not applied. Act should be and the Contribution product, should be right “upstream” Munsterman’s preserved.
(No. 64309. al., THATCHER et v. COMMON Appellees, PAUL al., et Appellants. WEALTH EDISON COMPANY 20, 1988. Opinion July filed *25 STAMOS,J., part. took no
MILLER, J., dissenting. notes found that Munster- opinion jury man was and held it negligent, would unfair to be permit Munsterman, an action for in- through implied to shift the entire to another. I demnity, agree loss would with if this conclusion Munsterman’s negligence were other than the failure to discover the defect something in the If product. Munsterman had negligent been manner in hitch, which it attached the trailer or if it had performed some act of from the negligence independent defective I product, agree prior holdings would this court and the Act Contribution would Munster- bar however, man’s to recover right Here, from others. Mun- sterman failed to discover a defect in the trailer simply hitch, which was manufactured and in the placed stream of commerce another. Industries, v. L. Inc. Coney J. G. In 97 Ill. 2d (1983), 104, 119, this court held consumer’s failure to dis that a guard against cover defect cannot be product in the compared apportionment then damages. Why should the failure to discover a defect in the product by one in the chain of distribution insulate the creator of the defective from an implied action? There is no logical reason court, this in an why attempt to follow the in Allison v. Shell Oil Co. holding 113 Ill. 2d should create this result. inequitable The rationale for permitting upstream indemnification in products cases was that the ultimate responsi- bility should be on placed person placing defec- tive product in the stream of commerce and on the one who profited from its sale. indemnification Upstream