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Should Contribution Among Tortfeasors Be Permitted in Actions Arising Under the Illinois Dram Shop Act

INTRODUCTION For more than a century, Illinois prohibited contribution among joint tortfeasors. 1 In 1978, the Illinois Supreme Court abandoned the no-contribution rule with the landmark decision 1. Contribution is an apportionment of liability among culpable parties. LeMaster v. The primary purpose of contribution is to "take the sting out of the common-law rules" that permit an injured person to sue and collect the judgment solely from whom she pleases. Gregory, supra, at 367. For example, if a plaintiff were injured by two joint tort-feasors, A and B, she could place the entire loss on A alone, B alone, or both A and B in any proportion she wished. The rule was an anachronism dating back to a time when tortfeasors had been considered criminals and had therefore not been permitted to use the courts for their own relief. Ambiguity surrounds the term "joint tortfeasor." Historically, its meaning depended upon the context in which it was used. In this article, joint tortfeasors means those persons whose conduct or status subjects them to tort liability for the same injury. The Illinois legislature codified the decision by enacting the Contribution Among Joint Tortfeasors Act (Contribution Act). 3 Uncertainty still exists, however, as to whether the Contribution Act should be applied to all types of tort actions, or whether public policy should bar its use in certain situations. 4 In particular, courts and commentators have questioned whether policy considerations should prohibit contribution among tortfeasors in actions arising under the Illinois Dram Shop Act. 5 Five years before Illinois adopted contribution principles, the underlying purposes of the Dram Shop Act were examined by the Illinois Supreme Court in Wessel v. Carmi Elks Home, Inc. 6 This case asked whether a dramshop defendant could use the doctrine of active-passive indemnity 7 to shift the entire judgment for damages onto a drinker who has directly caused a plaintiffs injury. 8 The court held that indemnity was improper because it would frustrate the public policy goal of disciplining dramshop owners and operators for their indiscriminate sale of liquor. 9 This article will consider whether the policy considerations that precluded the use of active-passive indemnity in dramshop actions should preclude contribution as well. 10 After a brief dis-Skinner held that a manufacturer of a defective product who was strictly liable for the plaintiff's injury could obtain contribution from the plaintiffs negligent employer. The contribution issue in a dramshop …