DATE DOWNLOADED: Wed Aug 7 12:29:51 2024

SOURCE: Content Downloaded from HeinOnline

Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.

Bluebook 21st ed.

Nicholas J. Bua, Third Party Practice in Illinois: Express and Implied Indemnity, 25
DEPAUL L. REV. 287 (1976).

ALWD 7th ed.

Nicholas J. Bua, Third Party Practice in Illinois: Express and Implied Indemnity, 25
DePaul L. Rev. 287 (1976).

APA 7th ed.

Bua, N. J. (1976). Third party practice in illinois: express and implied indemnity.
DePaul Law Review, 25(2), 287-316.

Chicago 17th ed.

Nicholas J. Bua, "Third Party Practice in Illinois: Express and Implied Indemnity,"
DePaul Law Review 25, no. 2 (Winter 1976): 287-316

McGill Guide 9th ed.

Nicholas J. Bua, "Third Party Practice in Illinois: Express and Implied Indemnity"
(1976) 25:2 DePaul L Rev 287.

AGLC 4th ed.

Nicholas J. Bua, 'Third Party Practice in Illinois: Express and Implied Indemnity'
(1976) 25(2) DePaul Law Review 287

MLA 9th ed.

Bua, Nicholas J. "Third Party Practice in Illinois: Express and Implied Indemnity."
DePaul Law Review, vol. 25, no. 2, Winter 1976, pp. 287-316. HeinOnline.

OSCOLA 4th ed.

Nicholas J. Bua, 'Third Party Practice in Illinois: Express and Implied Indemnity'
(1976) 25 DePaul L Rev 287 Please note: citations are provided as a
general guideline. Users should consult their preferred citation format's style
manual for proper citation formatting.

Provided by:
Available Through: National Law School of India University

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
THIRD PARTY PRACTICE IN ILLINOIS: EXPRESS
AND IMPLIED INDEMNITY

Nicholas J. Bua*

To the Illinois practitioner,no area of law has proven more

illusive or incapable of lending itself to definitive standards
than indemnity. The following Article surveys the decisional law
arising under express and implied indemnity; attempts to bring
some semblance of order to the inconsistencies in the case law;
and projects future trends of indemnity law. The author's exam-
ination of express indemnity discloses judicial hostility towards
indemnification agreements, which has manifested itself in an
emerging trend which may render these agreements even more
difficult to sustain in the future. Similarly, the inconsistencies
and inequities disclosed by the decisional law arising under cir-
cumstances allowing implied indemnification, leads the author
to conclude that the present standardof comparing the qualita-
tive conduct of the parties is the source of confusion. To alle-
viate this problem, the Article concludes with a persuasive case
for allowing contribution among joint tortfeasors in Illinois.

INTRODUCTION'

Indemnity, despite periodic attempts to categorize and coordi-

nate its "rules of law," remains a subject of much confusion to
practitioners of Illinois law.' While for the most part the problems
associated with third party practice3 arise from the vagaries of the
active-passive negligence theory' used in implied indemnity, dif-
* Judge of the Circuit Court of Cook County, Illinois.
1. The author gratefully acknowledges the aid of Gregory Smith and Cynthia Sala-
mone, second year law students at De Paul University, in the compilation and develop-
ment of this article.
2. See, e.g., Drozdzik, Implied Indemnity as a Substitute for Contribution Between
Joint Tortfeasors, 63 ILL. B.J. 142 (1974); Kissel, Theories of Indemnity as Related to
Third Party Practice, 54 CH. BAR REC. 157 (1973).
3. The terms "third party practice" and "indemnity" are herein used interchangeably,
even though not all indemnity cases involve third parties. In some instances indemnity is
pleaded as a defense barring an action between the original plaintiff and defendant. See,
e.g., Halperin v. Darling & Co., 80 Ill. App. 2d. 353, 225 N.E. 2d 92 (1st Dist. 1967).
4. [W]here two or more parties are alleged to have been involved in causing
an injury to a third party, the one whose conduct was merely passive or second-
ary is entitled to indemnity from the party whose conduct was active or primary.
 DEPAUL LAW REVIEW [Vol. 25:287

ficulties also arise in the area of express indemnity. This Article

examines express and implied indemnity; outlines their respec-
tive major problem areas; uses both recent and historically signif-
icant case law to draw conclusions concerning the present status
of indemnity law in Illinois; and makes suggestions regarding the
future of indemnity law, where it may be and where it should be
headed.

EXPRESS INDEMNITY

Third party practice has special application where an express

contract of indemnification has been entered into by third party
plaintiffs and defendants. Cautious practitioners, however,
should avoid making generalizations about the decisional law in
Illinois which has interpreted and construed these indemnifica-
tion agreements. This is especially true where a third party plain-
tiff seeks indemnification for his own negligence.'
The basic groundwork for construction of such agreements was
laid in Westinghouse Electric Elevator Co. v. LaSalle Monroe
Building Corp.6 where the Supreme Court of Illinois held that,
"An indemnity contract will not be construed as indemnifying
one against his own negligence, unless such a construction is re-
quired by clear and explicit language of the contract." 7 Such
agreements, therefore, are strictly construed against the indemni-
tee. Consequently, the wording of the indemnity agreement is the
crucial factor in the ultimate outcome of third party cases.
In Westinghouse, a negligent employee of the LaSalle Monroe
Building Corporation caused the death of an employee of West-
inghouse Electric Elevator Company. An indemnity agreement
between these parties stated as follows:
The Contractor [Westinghouse] further agrees to indemnify
and hold the owner, [LaSalle Monroe Building Corporation]
• . .wholly harmless from any damages, claims, demands or
suit by any person or persons arising out of any acts or omissions

Drozdzik, supra note 2, at 142. See also Gulf, M. & O.R.R. v. Arthur Dixon Transfer Co.,
343 Il1. App. 148, 98 N.E. 2d 783 (1st Dist. 1951).
5. In the following materials on express indemnity it can be assumed, unless otherwise
stated, that the indemnitee was the negligent party.
6. 395 Il.429, 70 N.E. 2d 604 (1946).
7. Id. at 433, 70 N.E. 2d at 607.
19761 EXPRESS AND IMPLIED INDEMNITY

by the Contractor, his agents, servants, or employees in the

course of any work done in connection with any of the matters
set out in these specifications . 8

The supreme court found that there was no language in this

agreement which would provide for the indemnification of La-
Salle Monroe Building Corporation for its own negligence. Inas-
much as the contract specifically stated that Westinghouse in-
demnified only for its own negligence, the court refused to con-
strue the contract to include negligent acts of other parties as a
basis for indemnification. This case has been cited as authority
in subsequent cases which have denied indemnification
In Westinghouse the contractual provision which provided for
indemnification narrowly limited liability to negligent acts of the
indemnitor, yet broader indemnity provisions have suffered a
similar fate under appellate court interpretations of
Westinghouse. The case of Halperin v. Darling & Co.'" provides
an example. Plaintiff leased a truck from the defendant, L and L
Auto Rental. The lease provided that the defendant-lessor would
maintain and perform service upon the vehicle and that plaintiff-
lessee would indemnify the lessor "from any loss or liability what-
soever with respect to or arising out of or in the course of the
operation of any truck leased hereunder during the term that this
lease shall be applicable to any such truck."" The plaintiff, while
riding as a passenger in the leased truck, was injured in an acci-
dent, and brought suit against L and L Auto Rental. Defendant's
motion to dismiss was granted by the trial court on the basis of
the indemnity agreement. Irrespective of the broad wording of
this indemnity clause the appellate court reversed and re-
manded,' 2 indicating that the Westinghouse test is not satisfied

8. Id. at 432, 70 N.E. 2d at 606.

9. See, e.g., Ford Motor Co. v. Commissory, Inc., 286 F. Supp. 229 (N.D. Ill. 1968);
Davis v. Marathon Oil Co., 28 I1. App. 3d 525, 330 N.E. 2d 312 (4th Dist. 1975); Kaspar
v. Clinton-Jackson Corp., 118 Ill. App. 2d 364, 254 N.E. 2d 826 (1st Dist. 1969).
10. 80 Ill. App. 2d. 353, 225 N.E. 2d. 92 (1st Dist. 1967).
11. Id. at 356, 225 N.E. 2d. at 93.
12. The appellate court held that "Contracts of indemnity against one's own negligence
are generally regarded, as valid and enforceable. However, the unusual nature of such a
contract requires that the agreement be strictly construed against the indemnitee". Id.
 DEPAUL LA W REVIEW [Vol. 25:287

by the mere existence of a broadly worded agreement."3 The court

adhered to the Westinghouse requirement of strictly construing
the provisions of the agreement against the indemnitee. In this
instance, the lessee had only agreed to indemnify for injuries
arising out of the operationof the truck. If the parties had meant
to include brake failure within the scope of the indemnity agree-
ment, the clause should have stated that lessee would hold lessor
harmless for injuries arising out of the operation or maintenance
of the truck. 4
Leach v. Eychaner,5 another case on point, involved a lease
which contained an indemnity clause much broader than the one
in Westinghouse. The clause read, in part:
Arvidson [third party defendant] will at all times protect,
indemnify, and save and keep harmless Allied Warehouses
[third party plaintiff] . . . against and from any and all loss,
cost, damage, or expense, arising out of or from any accident or
other occurrence on or about said premises, causing injury to
any person or property whomsoever or whatsoever .... 11
Again'the appellate court was able to construe the agreement so
as to deny indemnity. The cause of action did not arise from the
operation of the warehouse involved in the lease but rather from
the use of a gasoline lift truck which third party defendant (les-
see) had rented separately from the third party plaintiff (lessor).
The appellate court indicated that had the cause of action arisen
from the actual operation of the warehouse itself, the agreement
would have been sufficient to indemnify the indemnitee for his
own negligent acts. Since the injury resulted from the use of a
vehicle which was not in the original lease, however, the agree-
ment was inapplicable. 7

13. Such a conclusion differs in one respect from that advanced by James W. Kissel.
If, however, one can come up with a general rule in this respect, it would be that
if the indemnity clause expressly mentions that the indemnitee is to be pro-
tected against his own negligence, or if the language used covers the broadest
possible situation that may confront the parties, then generally one will be
protected against his own negligence.
Kissel, supra note 2, at 164 (emphasis added).
14. 80 Ill. App. 2d at 357, 225 N.E. 2d at 93.
15. 1 111. App. 3d 327, 273 N.E. 2d 55 (2d Dist. 1971).
16. Id. at 328, 273 N.E. 2d at 56.
17. "[Njevertheless, we believe the verbiage used sufficient to indemnify plaintiffs
1976] EXPRESS AND IMPLIED INDEMNITY

More recently the Supreme Court of Illinois reaffirmed

Westinghouse in Tatar v. Maxon Construction Co. 8 Here, the
subcontractor's employee brought suit against the general con-
tractor who, in turn, filed a third party complaint against the
subcontractor, seeking indemnification. The court refused to
allow indemnification on the basis of a contract which provided
that:
The Subcontractor agrees to indemnify the General Contrac-
tor and the Principal and to hold each of them forever harmless
from and against all expenses, claims, suits, or judgments...
arising out of, or connected with, accidents, injuries, or dam-
ages, which may occur upon or about the Subcontractor's
work."9
Citing Westinghouse, the court again affirmed the need for ex-
plicit language in order to recover on an indemnity clause which
purports to save a party from the consequences of his own negli-
gence. Without further elaboration or analysis they found the
clause in question did not meet the Westinghouse standards. 0
The supreme court confronted the issue again in Zadak v.
Cannon,2 1 a case involving a purchase order containing an in-
demnity agreement. The purchase order called for the installa-
tion of certain equipment on the third party plaintiff's premises.
An employee of the third party defendant was injured while em-
ployed in the task of installing the equipment pursuant to the
purchase order. The purchase order provided that:
The seller [third party defendant] will insure its liability to

from their own negligence when such acts related to the leasing of the premises". Id. at
331, 273 N.E. 2d at 58. The court could, perhaps, afford to be more "liberal" in finding
that this clause might allow indemnity since it had this alternative analysis for ultimately
denying indemnity. It is an open question as to whether the interpretation would have
differed if the injury had resulted from the operation of the warehouse itself.
18. 54 Ill. 2d 64, 294 N.E. 2d 272 (1973).
19, Id. at 66, 294 N.E. 2d at 273.
20. The court admitted that any attempts to reconcile the varied decisions in indemnity
cases were futile.
The only guidance afforded is found in the accepted rule of interpretation which
requires that the agreement be given a fair and reasonable interpretation based
upon a consideration of all of its language and provisions.
Id. at 67, 294 N.E. 2d at 273-74. The court then proceeded to affirm dismissal of the claim
without elucidating its "fair and reasonable interpretation" of the questioned clause.
21. 59 Ill. 2d 118, 319 N.E. 2d 469 (1974).
 DEPAUL LAW REVIEW [Vol. 25:287

pay any compensation to employees engaged by seller in any

work covered by or necessitated by, or performed to fill this
order. . . seller also will indemnify and hold harmless the buyer
of and from any and all suits, claims, liens, damages, taxes or
demands whatsoever arising out of any such work covered by,
necessitated or performed under this order.22
The court in denying indemnity demonstrated its skills of strict
construction by concentrating upon the phrase "arising out of any
such work." They concluded that this only referred to injuries
arising directly from the work performed by the installers under
the contract, and not to injuries merely incurred during the in-
stallation work.2" Here, the injuries were not attributable to the
installation work, but instead to the negligence of one of indemni-
tee's employees while operating a forklift. It is true that the in-
jured party was present for installation work purposes, however,
that particular work per se did not cause his injuries.
The recent decision in Davis v. Marathon Oil Co.24 may be
indicative of appellate court interpretations of Tatar and Zadak.
The indemnity clause at issue read:
[Plaintiff] shall not be liable for and [defendant] shall save
and hold [plaintiff] harmless from all claims for injury to or
death of any person or persons and for damages to or loss of
property, attributal [sic], directly or indirectly to the opera-
tions of [plaintiff]."
Instead of construing the clause so as not to cover the injury-
causing event, the court simply stated, "[a]lthough each in-
demnity agreement must be construed according to its particular
terms and circumstances, we can see no material difference be-
tween the agreement in question and those in Tatar and Zadak.
The trial court properly struck this affirmative defense."2 6 Thus,
the court did not even bother to justify its interpretation of the
clause in question.
These foregoing decisions, however, tend to paint a one-sided

22. Id. at 119, 319 N.E. 2d at 470-71.

23. Id. at 121, 319 N.E. 2d at 472.
24. 28 Il. App. 3d 526, 330 N.E. 2d 312 (4th Dist. 1975).
25. Id. at 530, 330 N.E. 2d at 315.
26. Id. at 531, 330 N.E. 2d at 316.
19'761 EXPRESS AND IMPLIED INDEMNITY

picture of the law in Illinois. Indeed, there exists a second line of

cases which allow indemnification for injuries caused by the in-
demnitee's own negligence.27 These cases, for convenience's sake,
are divided into two categories.2"
The first category involves broadly-worded indemnity clauses,
but with the added dimension that both parties are negligent. In
Fosco v. Anthony R. Delisi, General Contractors,Inc.2 9 the third
party plaintiff was a general contractor engaged in the construc-
tion of a school in a residential area. The third party defendant
was a subcontractor who was responsible for the excavation and
installation of caissons to support the building. Due to the negli-
gence of both parties, these caissons were left open, resulting in
a number of open pits from which protruded steel bars. A twelve
year old girl fell into one of these and was injured.
The appellate court allowed for indemnification and based its
decision upon the following agreement:
The subcontractor must keep and save the contractor harm-
less from any and all claims, demands, suits which may be
brought against the contractor by the subcontractor, or subcon-
tractor's employees or by the public in connection with or on
account of any claim made by the public or employees, or any
terms or provisions of any compensation act or any common
law."o
While this clause differs little from those in which indemnity was
denied, there is less reason to strictly construe the indemnity
agreement. The court need not have qualms that in allowing
indemnification it is penalizing a totally innocent party; as may
be the case in a Westinghouse factual context. Thus, the court

27. See, e.g., Spurr v. La Salle Constr. Co., 385 F.2d 322 (7th Cir. 1967); Halverson v.
Campbell Soup Co., 374 F.2d 810 (7th Cir. 1967); Patent Scaffolding Co. v. Standard Oil
Co., 68 Ill. App. 2d 29, 215 N.E. 2d 1 (5th Dist. 1966); Haynes v. Montgomery Ward &
Co., 47 I1. App. 2d 340, 198 N.E. 2d 548 (1st Dist. 1964); DeTienne v. S. N. Nielson Co.,
45 Ill. App. 2d 231, 195 N.E. 2d 240 (1st Dist. 1963); Northern States Co., Inc. v. A. Finkl
& Sons Co., 8 Ill. App. 2d 419, 132 N.E. 2d 59 (1st Dist. 1956).
28. A third category, which needs no clarification, would include cases wherein the
contract or lease explicitly provides for indemnification, even where the indemnitee is
negligent. No principle of strict construction could avoid indemnification in such cases.
Cf. Schek- v. Chicago Transit Auth., 42 Ill. 2d 362, 247 N.E. 2d 886 (1969).
29. 103 Ill. App. 2d 457, 243 N.E. 2d 871 (1st Dist. 1968).
30. Id. at 459, 243 N.E. 2d at 872.
 DEPA UL LAW REVIEW [Vol. 25:287

can view the contract in a more "reasonable" light.

The second category includes those instances which are most
inconsistent with the Westinghouse line of cases.' In these cases
broadly worded clauses have been held to allow indemnity." Deel
v. United States Steel Corp.,33 for example, presents an interest-
ing problem. An employee of third party defendant, Swindell-
Dressler Corporation, was injured by a snapped cable while oper-
ating a forklift truck on the premises of third party plaintiff,
United States Steel. The primary plaintiff sued and recovered
from U.S. Steel the amount of $25,000, and on its third party
complaint, U.S. Steel was awarded $5,000 by the jury. The trial
court entered a judgment notwithstanding the verdict in favor of
the third party defendant, and U.S. Steel appealed. The
indemnity agreement between the third party plaintiff and defen-
dant provided:
Contractor [Swindell-Dressler] shall save Owner [U.S. Steel]
harmless from any and all claims, . . . growing out of injury to
• . . any of Contractor's employees . . . while on or about
Owner's premises in connection with any matters relating to the
performance of this contract. 4
The appellate court granted judgment against the third party
defendant for the full amount of plaintiff's award, $25,000, with-
out even attempting to strictly construe the clause.35
A similar result was obtained in Jeschke v. Mercury Builders,
Inc."e The appellate court allowed indemnification against third

31. As noted previously, supra note 20, even the Supreme Court of Illinois has despaired
of reconciling indemnity case law and espoused the case by case approach.
32. Note that the two example cases in this category precede the supreme court deci-
sions in Tatar and Zadak. Considered in light of these two cases their outcome might be
different. Courts might be more tempted to search for a construction which denies in-
demnity, or they might take the approach of Davis v. Marathon Oil Co., 28 11. App. 3d
526, 330 N.E. 2d 312 (4th Dist. 1975) discussed in text accompanying notes 24-26 supra.
33. 105 Ill. App. 2d 170, 245 N.E. 2d 109 (1st Dist. 1969).
34. Id. at 184, 245 N.E.2d at 116.
35. The court cited Spurr v. La Salle Constr. Co., 385 F. 2d 322, 330 (7th Cir. 1967) for
the proposition that:
The argument suggests that a specific reference to liability arising out of the
indemnitee's negligence is required. General inclusive language has, however,
been held sufficiently explicit in decisions of Illinois appellate courts and of this
court, applying Illinois law.
105 Ill. App. 2d at 184, 245 N.E. 2d at 116.
36. 122 Il. App. 2d 461, 259 N.E. 2d 342 (1st Dist. 1970).
 1976] EXPRESS AND IMPLIED INDEMNITY

party defendant Brule Incinerator Corporation after an injured

employee of Brule obtained a judgment against the third party
plaintiff Mercury Builders, Inc. The indemnity clause read, in
part:
The Subcontractor hereby agrees to indemnify and deem harm-
less the Contractor ... against all claims or demands for dam-
ages arising from accidents to the Subcontractor, his agents or
employees, whether occasioned by said Subcontractor or his
employees or by agents or employees of agents."
The court, in a brief opinion, interpreted this agreement as mean-
ing that whether or not the injuries were occasioned by the sub-
contractor, he had agreed to hold the contractor harmless.

CONCLUSIONS

One conclusion suggested by such contradictory case law is

that where possible, the Illinois courts will not allow indemnifica-
tion for one's own negligence. Lawyers and clients should be cog-
nizant of the fact that broad indemnity clauses will not be re-
viewed by courts in their most reasonable light. Only in those
instances where the indemnity clause clearly states that "X will
hold harmless Y for injuries resulting from Y's own negligence"
will a third party claim have a good chance of succeeding.3 8 While
it is possible that a court will confront a situation in which it may
feel obliged to grant indemnity, either because both parties were
found negligent at the trial level or because of a unique fact
pattern, these are likely to be few. The current trend, however,
seems to indicate that a court will deny indemnity without even
attempting to engage in a strict construction of the indemnity
clause in question." If this practice continues, the exceptional

37. Id. at 463, 259 N.E. 2d at 343. See also Chicago, R. I. & P. R. R. v. Chicago,
B. & Q. R. R., 437 F.2d 6, 9 (7th Cir. 1971), for a rationale rejecting exceedingly strict
construction of indemnity provisions.
38. Two legislative caveats should be noted. ILL. REV. STAT. ch. 80, § 91 (1973) declares
that such agreements in connection with the leasing of real property which holds harmless
the lessor shall be deemed void as against public policy and unenforceable. Similarly, ILL.
REV. STAT. ch. 29, § 61 (1973) declares such clauses in construction contracts, entered
into after. Sept. 21, 1971, void as against public policy. See Davis v. Commonwealth
Edison Co., Docket No. 47152 (Sup. Ct. Ill., Sept. 28, 1975), holding that the latter statute
is also applicable to indemnity agreements in claims arising under the Structural Work
Act.
39. See discussion of Davis v. Marathon Oil Co., 28 Ill. App. 3d 526, 330 N.E. 2d 312
 DEPAUL LAW REVIEW [Vol. 25:287

cases allowing indemnity will become even fewer.

IMPLIED INDEMNITY

Absent an express indemnity contract, a party may be indem-

nified if he is held liable for damages caused by the misconduct
of another. This derivative liability may result from a legal doc-
trine such as respondeat superior," a lease arrangement, or a
statutory tort. The indemnitee is liable to the injured party be-
cause of technicalities of legal doctrine or statute. The actual
injury is a result of the acts of the indemnitor.
In Illinois the "no contribution between joint tortfeasors" rule
has been applied to deny pro rata division of damages between
negligent defendants." The theory of the active party indemnify-
ing the passive-but-liable party has undergone expansion in re-
sponse to the inequities which result from the present application
of the no-contribution rule. In situations where one party's culpa-
bility is great in comparison to the other, the Illinois courts have
allowed the shifting of the entire burden from the latter to the
former. The use of this theory, however, has its own difficulties
and inequities. The boundaries of active-passive negligence are
elusive and the resulting decisions inconsistent. It precludes relief
in many situations where justice would dictate that the tortfea-
sors distribute the burden among themselves.

Extension of Active-Passive Negligence

The Relationship Requirement
It is generally stated that in order for an indemnity action to
succeed, the parties must have had a prior legal, or pre-tort,
relationship. As the allowable use of indemnity has been ex-
panded to ameliorate the harshness of the no-contribution rule,

(4th Dist. 1975) in text accompanying notes 24-26, supra.

40. In the recent case of Virginia Corp. v. Russ, 27 II. App. 3d 608, 327 N.E. 2d 403
(1st Dist. 1975), the court stated that an agent not guilty of illegal conduct may be
indemnified by his principal for the cost of defending actions brought by third persons
because of the agents authorized conduct.
41. But see Polelle, ContributionAmong Negligent Joint Tortfeasors in Illinois: A
Squeamish Damsel Comes of Age, 1 LoYoLA (CHI.) L.J. 267 (1970), arguing that case law
does not prohibit contribution.
1976] EXPRESS AND IMPLIED INDEMNITY

the requirement of a pre-tort legal relationship has similarly been

relaxed. In several much debated cases, active-passive indemnity
has been extended to strangers whose concurrent negligence
caused an injury.
This extension was questioned, yet affirmed, in Sargent v. In-
terstate Bakeries, Inc.4" where a defendant who was parked ille-
gally counterclaimed for indemnity from a defendant whose vehi-
cle struck and injured plaintiff. The appeal on dismissal of the
counterclaim centered on the validity of the decision in Reynolds
v. Illinois Bell Telephone Co. ,"3 involving a similar fact situation,
wherein the court reversed the dismissal of a third party action
between two parties who had had no pre-tort legal relationship.
In its opinion, the court cited the principle that everyone is re-
sponsible for the consequence of his own negligence.4 4 A pre-tort
relationship is not necessary to effectuate this principle, nor is it
necessary to prove that the co-defendants were not in pari delicto.
Since judicially urged legislative action to abrogate the no-
contribution rule had not been taken, the pre-tort relationship
requirements had to be further relaxed and the emphasis placed
upon determining the spectrum of blameworthiness. 5 Inequity
would be unavoidable, however, until liability was proportioned
to culpability. 6
The unequivocal language of Sargent did not settle the issue.
A year later, in Muhlbauer v. Kruzel,"' the supreme court af-
firmed dismissal of a third party action on pleadings which failed
to allege any relationship between the parties, or circumstances

42. 86 Ill. App. 2d 187, 229 N.E. 2d 769 (1st Dist. 1967).
43. 51 Ill. App. 2d 334, 201 N.E. 2d 322 (1st Dist. 1964).
44. 86 Ill. App. 2d at 190, 229 N.E. 2d at 771.
45. The Illinois Judicial Conference of 1964 unanimously adopted a resolution
favoring contribution between joint tortfeasors. The legislature has not acted
upon the conference recommendations and the rule remains in force. However,
the rule was court-made and can be court-changed. ...
If the rule is not abrogated it must be further relaxed.
Id. at 197-98, 229 N.E. 2d at 774-75.
46. Total indemnity may appear unjust. . . . The possibility of inequity is un-
avoidable until the rule against contribution yields to a more rational ap-
proach which will place upon each tortfeasor liability in proportion to his own
culpability.
Id. at 201-02, 229 N.E. 2d at 776-77.
47. 39 Ill. App. 2d 226, 234 N.E. 2d 790 (1st Dist. 1968).
 DEPAUL LAW REVIEW [Vol. 25:287

giving rise to a duty to indemnify. The original action in

Muhlbauer was against a store owner for personal injuries sus-
tained in a crowd gathering around a clown hired by the Wilson
Company to promote its meat products. The defendant-store
owner filed a third party complaint for indemnity, charging that
the acts alleged against him were committed by Wilson and con-
cluding that these acts were active negligence. The court sug-
gested that if the defendant had alleged that the clown was for
the benefit of both parties, rather than completely divorcing him-
self from any connection with Wilson, a relationship could have
been found on which to base indemnity. Yet the court cited
Reynolds and Sargent without disapproval!48
The Muhlbauer decision has caused confusion regarding the
requirement of a pre-tort relationship and has produced conflict-
ing interpretations. The relationship requirement of Muhlbauer
can be read not as an attempt to reinstate the previous require-
ment but as a recognition of the distinction between stating a
cause of action and tendering a new defendant.49 The latter is not
a function of third party practice and violates the principle that
the plaintiff may choose its own defendants. The store owner in
Muhlbauer denied any connection with Wilson and pleaded a
defense that the charges in the original complaint were really the
actions of another party.
Several courts have cited Muhlbauer for the bald proposition
that there must be a pre-tort legal relationship on which to predi-
cate indemnity. This was evidenced in the special concurrence to
Moody v. Silvercup Bakers, Inc.5 Justice Hallett felt that

48. Interestingly, if a Reynolds-Sargent analysis had been used in Muhlbauer, a

dismissal of the third-party complaint still would have resulted. Under such
an analysis, the food product manufacturer negligently brought about a condi-
tion (the crowd) and the store owner knew of this condition; however, neither
party acted upon the condition to perpetrate the wrong (the injury to the pedes-
trian). The only active wrongdoer was the one or more members of the crowd
who actually injured the pedestrian. Therefore, the passively negligent food
product manufacturer was under no duty to indemnify.
Drozdzik, supra note 2, at 145.
49. One may also conclude that Muhlbauer was simply a poorly pleaded case. See
Kissel, supra note 2, at 160.
50. 17 Ill. App. 3d 113, 118, 307 N.E. 2d 789, 793 (1st Dist. 1974) (Hallett, J., concur-
ring).
1976] EXPRESS AND IMPLIED INDEMNITY

Muhlbauer overruled Reynolds and Sargent by implication and

that the attempts by the courts in the latter cases to soften the
no-contribution rule caused "difficulties in the trial and review-
ing courts out of all proportion to the supposed 'harsh' rule it is
supposed to 'mitigate.' )951
The recent case of Young v. Gateway TransportationCo.5" in-
volved a fact situation quite similar to Sargent and Reynolds. A
car struck a semi-trailer truck which was parked along the high-
way. In dismissing the third party complaint against the car
driver, the court stated:
Additionally, a third-party complaint must disclose a pretort
relationship upon which a duty to indemnify may be predicated.
(See Muhlbauer v. Kruzel, 39 Ill. 2d 226, 234 N.E.2d 790) No
such relationship between defendants and Hammer [third-
party defendant] is alleged here. 3
The Muhlbauer precedent was viewed differently in Mullins v.
Crystal Lake Park District.4 In this case the minor third party
defendant had given stolen fireworks to the plaintiff. When the
plaintiff subsequently injured himself using the fireworks he sued
both the thief and the lessee operators of the fireworks display.
On appeal the court found that the minimal contact which took
place when the third party defendant stole the fireworks from
third party plaintiff's display established a sufficient pre-tort re-
lationship upon which to base an indemnity action.5
In Parrv. Great Lakes Express Co." the Court of Appeals for
the Seventh Circuit admitted to being uncertain regarding the
interpretation to be given Muhlbauer's prior relationship require-
ment, and turned to that offered by attorney James Kissel.
"[L]ogic and reason [seem] to suggest that such a relationship
• . . possibly might be nothing more than the involvement of

51. Id.
52. 26 Il. App. 3d 864, 326 N.E. 2d 222 (1st Dist. 1975).
53. Id. at 874, 326 N.E. 2d at 230. See also Warzynski v. Village of Dolton, 23 I1. App.
3d 50, 317 N.E. 2d 694 (1st Dist. 1974), rev'd on other grounds, Docket No. 47097 (Sup.
Ct. Ill., Sept. 28, 1975); Village of Lombard v. Jacobs, 2 Ill. App. 3d 826, 277 N.E. 2d 758
(2d Dist. 1972).
54. 129 Ill. App. 2d 228, 262 N.E. 2d 622 (2d Dist. 1970).
55. Id. at 232, 262 N.E. 2d at 625.
56. 484 F. 2d 767 (7th Cir. 1973).
 DEPAUL LAW REVIEW [Vol. 25:287

the two parties . . .in the causation of injury to the plaintiff

under circumstances that clearly indicated a clear distinction in
the quality of their misconduct."57
In short, the involvement of two parties in causation is a suffi-
cient relationship for indemnity.
The only legitimate conclusion to be drawn concerning the sta-
tus of the pre-tort relationship requirement is that it is, at pres-
ent, very nebulous. Whether the requirement will surface in a
given case depends on the interpretation given Muhlbauer by a
particular court.

The Definitional Dilemma

The second part of the implied indemnity equation creates as
much confusion as the pre-tort relationship requirement; namely
the struggle to develop a workable distinction between active and
passive negligence. The trend is to view active and passive as
"terms of art"5 and to apply them on an ad hoc basis. The result
is a myriad of anomalous decisions whose allocation of liability
defies predictability and offends equity. Nevertheless, an at-
tempt is made below to group together broad categories of actions
in hopes of lending at least some guidance to the legal com-
munity.
The term "active" negligence is initially misleading since ei-
ther an act or an omission may be characterized as "active".
Where liability is predicated on a physical act, or on the presence
of a mobile or supervising tortfeasor, the court will usually char-
acterize it as "obviously" active, regardless of the degree of culpa-
bility of the other party.
Thus, in Gillette v. Todd59 the plaintiff, a teacher, was struck
by a door opened by a workman. The workman filed a third party
complaint against the school for active negligence in designing
the door without windows or a warning device. The appellate
court affirmed dismissal of the complaint on the ground that the
workman's physical action in pushing the door could only be

57. Id. at 772, citing Kissel, supra note 2, at 160.

58. Moody v. Silvercup Bakers, Inc., 17 Ill. App. 3d 113, 117, 307 N.E. 2d 789, 792-93
(Ist Dist. 1974).
59. 106 I1. App. 2d 287, 245 N.E. 2d 923 (1st Dist. 1969).
19761 EXPRESS AND IMPLIED INDEMNITY

characterized as active negligence since the condition of the door

alone could not have injured the plaintiff. Similarly, the court in
Maas v. Ottawa Stockdale Fertilizer,Inc.," citing Gillette, char-
acterized the physical act of spraying toxic brushkiller as active
negligence and refused to grant indemnity from the party who
furnished the poisonous substance."1 Lastly, in Penzin v.
Stratton2 a speeding auto was denied indemnity for its active
negligence, even though the other tortfeasor had entered the in-
tersection against the light and had been pushed by the speeding
auto into a pedestrian. Though both parties were equally
negligent, one tortfeasor bore the economic burden. 3
The giving of directions has also been characterized as active
negligence. In United States v. Illinois64 the manager of a state
fairgrounds told Green Beret troops where to tie a rope used in a
traversing stunt. The manager misinformed them as to the type
of construction, refused to allow inspection, and failed to supply
them with blueprints. Injuries were sustained by onlookers when
a portion of the catwalk was pulled down by the rope. The state
was required to indemnify the United States for these injuries.
More recently, in St. Joseph Hospital v. Corbetta Construction
Co.,5 a general contractor, at the direction of the architects,
installed paneling which violated the building code. The archi-
tects' careless selection of the paneling and their ordering its
installation were deemed active negligence and they had to in-
demnify the general contractor. The architects, in turn, were de-
nied indemnity from the manufacturer, even though the latter

60. 9 Ill. App. 3d 33, 291 N.E. 2d 514 (3d Dist. 1972).
61. Note that while the court determined that they were concurrent causes of the injury,
the supplier escaped liability. Id. at 37-38, 291 N.E.2d at 517-18.
62. 26 II. App. 3d 475, 325 N.E. 2d 732 (1st Dist. 1974).
63. See also Parson v. Illinois Bell Tel. Co., 481 F.2d 458 (7th Cir. 1973), and Preston
v. National Broadcasting Co., 133 Ill. App. 2d, 272 N.E. 2d 700 (1st Dist. 1971), holding
the drivers of moving automobiles to be active tortfeasors and thus denying indemnity,
even where, as in Parson, the other party violated statutory guidelines.
64. 454 F.2d 297 (7th Cir. 1973). See also Parr v. Great Lakes Express Co., 484 F.2d
767 (7th Cir. 1973) where a truck driver, who was being directed by the third party
defendant, backed up and hit a pedestrian. The court suggested that evidence at the trial
could show that the supervision and control of the third party defendant was active
negligence and, by preempting the exercise of due care, the negligence of the driver could
be relegated to secondary status.
65. 21 111. App. 2d 925, 316 N.E. 2d 51 (1st Dist. 1974).
 DEPAUL LAW REVIEW [Vol. 25:287

was actively negligent in concealing test information on the sub-

standard paneling.
The conclusion to be drawn from these cases is that tortfeasors
are denied any relief from full liability under circumstances in
which they were mobile or acting in a supervisory capacity. Their
equally culpable co-tortfeasor, however, is free from any liability.
In contrast, in several cases where the negligent act of the tortfea-
sor was to remain in one place, the courts have allowed relief,"6
yet the courts have consistently stressed that motion or lack of
motion is not determinative of active or passive classification. 7
In what has become the classic situation, a plaintiff is injured
by a moving vehicle, but the accident is concurrently caused by
a negligently parked vehicle. This fact pattern, with minor varia-
tion, has produced different rulings. In both Reynolds v. Illinois
Bell Telephone Co." and Sargent v. InterstateBakeries, Inc.9 the
courts reversed dismissal of a third party complaint brought by
a parked vehicle against a moving vehicle, contending that after
hearing the evidence a jury might determine that the parked
vehicle was only passively negligent.
The Sargent court read Reynolds as departing from previous
fault-weighing standards in finding the parked vehicle passive
because it created a condition on which the independent act of
the motorist operated to cause the injury. The court recited the
cryptic maxim that:
"[O]ne is passively negligent if he merely fails to act in ful-
fillment of a duty of care which the law imposes on him ...
One is actively negligent if he participates in some manner in
the conduct or omission which caused the injury."7

66. See, e.g., Sargent v. Interstate Bakeries, Inc., 86 Ill.App. 2d 187, 229 N.E. 2d 769
(lst Dist. 1967); Reynolds v. Illinois Bell Tel. Co., 51 111. App. 2d 334, 201 N.E. 2d 322
(1st Dist. 1964).
67. See, e.g., Moody v. Chicago Transit Auth., 17 Ill. App. 3d 113, 307 N.E. 2d 789 (1st
Dist. 1974); Tzyros v. Berman Leasing Co., 86 I1. App. 2d 176, 229 N.E. 2d 787 (lst Dist.
1967); Gulf, M. & 0. R.R. v. Arthur Dixon Transfer Co., 343 Ill. App. 148, 98 N.E. 2d 783
(1st Dist. 1951).
68. 51 111. App. 2d 334, 201 N.E. 2d 322 (lst Dist. 1964).
69. 86 Ill. App. 2d 187, 229 N.E. 2d 769 (1st Dist. 1967).
70. Id. at 193, 229 N.E. 2d at 772, citing King v. Timber Structures, Inc. 240 Cal. App.
2d 178, 182, 49 Cal. Rptr. 414, 417 (1st Dist. 1966). Note, however, that if the third party
plaintiff had been in the act of parking rather than already parked, indemnity might have
19761 EXPRESS AND IMPLIED INDEMNITY

By contrast, in Moody v. Silvercup Bakers, Inc." a truck was

parked in a no parking area designated for buses and a pedestrian
was injured when the bus swerved around the truck. The court
held that inaction may be a primary cause of an event. Since each
tortfeasor's contribution to the cause of the mishap was equally
signficant, indemnity was denied to the parked vehicle. While
different in result, Moody is factually indistinguishable from the
Sargent or Reynolds cases.
Similarly, in the recent case of Young v. Gateway Transporta-
tion Co.," the operator and owner of a semi-trailer truck parked'
without warning lights or flares was denied indemnity when a
vehicle driving too close to another car struck the trailer and
injured its passenger. The court held that compared with the
automobile driver, the negligence of the semi-trailer operator
could not be characterized as passive and the degree of culpabil-
ity between the tortfeasors did not warrant shifting the burden.
Where an act is found to constitute "active" negligence, even
the gross culpability of the co-tortfeasor will not provide relief.
Even where the type of actions differ, the court will label a tort-
feasor "active" and deny him relief where his culpability is
considered equal to or greater than that of his co-tortfeasor. This
analysis also applies to liability based on omissions. It is possible
that a breach of duty, an omission, can create a condition upon
which an independent force can work to cause injury. Under a
Sargent analysis, the condition-creating negligence would be pas-
sive and the negligence that directly caused the injury would be
active. However, where joint tortfeasors breach the same duty
towards the plaintiff, neither can be indemnified. Thus, if a court
defines duty by painting with a broad brush, it will usually be
determined that the tortfeasors breached the same duty. The
courts hold that to allow indemnity to a tortfeasor who has
breached the same duty as the indemnitor would be to allow
contribution. There must be a clear difference in degree to shift
the burden.

been denied. In Stewart v. Mr. Softee, Inc., 75 Ill. App. 2d 328, 221 N.E. 2d 11 (1st Dist.
1966) the gloss on the fact situation was that the double-parked ice cream truck chimed
bells. The court determined that this was active negligence as the purpose was to entice
children and it was therefore the primary cause of the child being hit by the motorist.
71. 17 Ill. App. 3d 113, 307 N.E. 2d 789 (lst Dist. 1974).
72. 26 Il. App. 3d 864, 326 N.E. 2d 222 (1st Dist. 1975).
 DEPAUL LAW REVIEW [Vol. 25:287

In Carver v. Grossman73 an employee, while working on a car,

was injured when the owner turned on the ignition and the car
lurched forward. The gas station operator had left the car in drive
and without blocks. The court rejected the owner's argument that
his conduct was passive in nature because he merely created a
condition which the owner failed to discover. The court held the
owner knew or should have known the car would move and there-
fore, was the active catalyst which caused the injury. Since both
parties were held to the same duty to exercise due care in insuring
the plaintiff's safety, and since they both breached that duty,
neither was entitled to indemnity.74
In a more recent case,7" plaintiff was forced to stop quickly
when branches fell from an Illinois Bell truck. A speeding car
driving too close hit the plaintiff. The court rejected Illinois Bell's
contention that it had passively created a condition upon which
the speeding motorist acted. The court held that the charges in
the complaint that Illinois Bell negligently loaded the branches
were sufficient to permit a finding of active negligence.
In Warzynski v. Village of Dolton,76 the appellate court reversed
a judgment granting indemnity to the village, which negligently
maintained a water main. A passenger had been injured when a
speeding driver was forced to make a sudden stop by the main.
The court found that the village's failure to maintain the street
was the primary cause of the accident. Because of the length of
time the street had been in disrepair the village had constructive
notice and could have foreseen a driver hitting the sewer cover.
The supplemental opinion" attempted to clarify those situa-
tions in which a breach of duty which creates a condition will be
73. 55 II1. 2d 507, 305 N.E. 2d 161 (1973).
74. Where both parties breached a duty to warn employees that a crane transmitted
an electrical charge from an uninsulated power line there was no basis for indemnification
on either side. Harris v. Algonquin Ready Mix, Inc., 59 111. 2d 445, 322 N.E. 2d 59 (1974).
75. Loehr v. Illinois Bell Tel. Co., 21111. App. 3d 555, 216 N.E. 2d 251 (1st Dist. 1974).
76. 23 II. App. 3d 50, 317 N.E. 2d 694 (1st Dist. 1974), modified 23 II. App. 3d 60, 317
N.E. 2d 701 (1st Dist. 1974), rev'd on other grounds, Docket No. 47097 (Sup. Ct. Ill., Sept.
28, 1975). The supreme court noted that they had no occasion to consider the question of
the driver's obligation to indemnify the village. The court stated, however, that the fact
that it did not discuss the issue did not "indicate approval of the opinion of the appellate
court concerning it."
77. 23 II1. App. 3d 60, 317 N.E. 2d 701 (1st Dist. 1974), modifying 23 II. App. 3d 50,
317 N.E. 2d 694 (1st Dist. 1974).
1976] EXPRESS AND IMPLIED INDEMNITY

considered active negligence. It characterized such situations as

involving "affirmative duties" and indicated that among these
affirmative duties are:
a failure to discover an open and obvious condition, if there was
a duty to inspect. . . . an improper inspection which failed to
discover an obviously dangerous condition ...
. . . and failure to take some action regarding a peril known
him, [third party plaintiff] or which in the exercise of due care
should have been known to him."8
Under such a standard it is almost impossible to have one's ac-
tions characterized as passive in nature. In addition, not only
does this analysis conflict with the Sargent decision but it con-
flicts with numerous Structural Work Act cases wherein a failure
to fulfill a duty to inspect was deemed to be only passive negli-
gence. 7
A theory similar to that employed in Warzynski was applied in
the recent case of GarfieldPark Community Hospitalv. Vitacco. °
The plaintiff in the original action had to have a leg amputated
because of loss of circulation caused by a questionably effective
form of traction for a broken leg. The hospital sought indemnity
from the doctor who had placed the boy in traction. The court
denied indemnity based on what it termed the hospital's active
negligence. The nurses had failed to recognize symptoms of loss
of circulation and bring them to the attention of the doctor. This
lack of action by the hospital was held to be the primary cause
of the injury and a bar to indemnity.
The converse of this "passive condition-active cause" situation
is the theory of indemnity of Section 95, Restatement of Restitu-
tion:
Where a person has became [sic] liable with another for
harm caused to a third person because of his negligent failure
to make safe a dangerous condition of land or chattels, which
was created by the misconduct of the other or which, as between
the two, it was the other's duty to make safe, he is entitled to
restitution from the other for expenditures properly made in the

78. Id. at 61-62, 317 N.E. 2d at 702.

79. See text accompanying notes 99-101, infra.
80. 27 Il. App. 3d 741, 327 N.E. 2d 408 (1st Dist. 1975).
 DEPAUL LAW REVIEW [Vol. 25:287

discharge of such liability, unless after discovery of the danger,

he acquiesced in the continuation of the condition."1
This section was cited with approval but held inapplicable in
Chicago & Illinois Midland Railway Co. v. Evans Construction
Co. 2 An employee of the railway was injured on a tie which had
been placed on land owned by the third party defendant. The
railway settled the Federal Employers' Liability Act 3 claim and
brought an action for indemnification. It charged that the
landowner's placing or failing to remove the tie was active negli-
gence which caused the injury. The evidence, however, failed to
prove that the owner placed the tie on the land. The owner's
liability, therefore, could only be based on a breach of duty to
discover and remove the tie. This duty to inspect the premises
rested on both parties and, therefore, the court could find no
qualitative distinction on which to rationalize the shifting of the
damage burden.
In Peoria & Eastern Railway Co. v. Kenworthys4 the railway
sued the defendant who had obstructed the view of the tracks by
parking his trailer on railroad property, causing a collision be-
tween a train and an auto. Since the defendant clearly created
the condition and the railroad merely failed to discover the haz-
ard, indemnity was allowed.
Even in a situation where a railroad had knowledge of the
defective construction of a trestle, its failure to warn its employ-
ees and provide a safe place for them to work was held to be
passive. The owner of the property, who constructed and con-
trolled the trestle was held liable for indemnity. 5 In contrast, the
failure to provide the necessary and customary lookout to warn
employees of an impending collision with an engine parked on the
wrong side of the tracks has been held to be active negligence. 6
In reviewing the status of indemnity law in Illinois, this Article
has focused upon various applications of the qualitative standard
of active-passive negligence. These applications are by no means

81. RESTATEMENT OF RESTITUTION § 95 (1937).

82. 32 Il. 2d 600, 208 N.E. 2d 573 (1965).
83. 45 U.S.C. §§ 51-60 (1970).
84. 7 Il. App. 3d 350, 287 N.E. 2d 543 (4th Dist. 1972).
85. Hayes v. Illinois Terminal R.R., 15 Ill. App. 3d 92, 303 N.E. 2d 625 (5th Dist. 1973).
86. Doerge v. Wabash R.R., 4 Ill. App. 3d 914, 282 N.E. 2d 226 (5th Dist. 1972).
19761 EXPRESS AND IMPLIED INDEMNITY

exclusive, and consequently, no survey of indemnity law would be

complete without an examination of certain "specialized areas"
of law. These cases differ from the general framework insofar as
a particular statute or a different tort doctrine is involved; other-
wise, they confront the same difficulties with the active-passive
negligence standard of conduct as encountered above. The con-
cluding portion of this Article will focus upon the case for contri-
bution as a means of avoiding the inconsistencies and inequities
which prevail in the area of indemnification under the present
state of the law.

SPECIALIZED AREAS

Shifting the entire burden from one tortfeasor to another is

based on the principle that one should be responsible for his own
actions. In certain situations, however, statutes or case law have
embodied public policy and placed the burden on a specific party
often because that party had the economic resources to absorb the
damages. The following materials will deal briefly with three such
areas of law, summarizing their unique treatment of indemnity.
Problems in these areas arise chiefly as a result of the afore-
mentioned definitional dilemma of active-passive negligence.
This is because, for the most part, in cases arising in a Structural
Work Act or products liability framework, the parties to the
indemnity action usually have a pre-tort relationship, such as
contractor-subcontractor or manufacturer-distributor.
87
Structural Work Act
Liability for injuries under the Structural Work Act is placed
on those persons "having charge of' '" the work in progress. The
courts, in order to provide protection for the injured workman,
have construed "having charge of" broadly. Therefore, persons
who had no direct contact with the injury may be held liable for
damages because of their supervisory power in the general work
area.89 In such a situation it often happens that there is another

87. ILL. REV. STAT. ch. 48, §§ 60-69 (1973).

88. Id. § 69.
89. It often happens that it is the plaintiffs employer who has direct control and thus
the plaintiff is barred by the provisions of the Workmen's Compensation Act, ILL. REV.
 DEPAUL LAW REVIEW [Vol. 25:287

party, such as a subcontractor or the employer of the plaintiff,

whose negligence exposed the party to liability, and the court will
allow indemnity using the active-passive negligence concept."
While liability under the Structural Work Act does not rest on
negligence, there can be degrees of fault on which indemnity can
be predicated.9
The determination of degrees of fault in Structural Work Act
cases is a jury question and the courts are hesitant to overturn
the jury's determination. To the extent decisions under this Act
are inconsistent, it is at least in part explained by the wide lati-
tude given, and deference shown, to the jury and its findings.
For example, duty under the Structural Work Act is not limited
to ensuring the safety of a provided scaffold, but extends to pro-
viding a scaffold where one is needed. Thus, in Lambert v. D. J.
Velo & Co.," the subcontractor appealed a decision holding him
to indemnify the general contractor where a worker was injured
because of failure to provide scaffolding. The subcontractor
argued that since both had a duty to provide a scaffold, there was

STAT. ch. 48, § 138.5(a) (1973), from suing his employer directly. However, the employer
can be held liable to indemnify and be brought into a third party action. See Moroni v.
Intrusion-Prepakt, Inc., 24 Ill. App. 2d 534, 165 N.E. 2d 346 (lst Dist. 1960). However,
where an employer is held liable to indemnify another party the employer cannot file a
counterclaim against its employee as such action would destroy the blanket protection
afforded employees under the Structural Work Act. Palier v. Dreis & Krump Co., 81 111.
App. 2d 1, 225 N.E. 2d 67 (1st Dist. 1967).
90. Some indemnity actions under the Structural Work Act had been brought on an
implied indemnity theory known as the Ryan Doctrine, which developed from a line of
United States Supreme Court maritime cases, commencing with Ryan Stevedoring Co.,
Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124 (1956). This theory implied a duty to
perform the contract in a reasonably safe manner. In Wrobel v. Trapani, 129 Il1. App. 2d
306, 264 N.E. 2d 240 (1st Dist. 1970), the court found that this doctrine was inapplicable
to building contractor-subcontractor indemnity actions and, in the absence of express
indemnity language in the contract, indemnity would have to be based on the active-
passive theory.
91. See, e.g., Rovekamp v. Central Constr. Co., 45 Ill. App. 2d 441, 449, 195 N.E. 2d
756, 759-60 (1st Dist. 1964).
92. Where third party actions are dismissed on the pleadings, the appellate courts
generally have held that the active-passive question should go to the jury. In Wrobel v.
Trapani, 129 Ill. App. 2d 306, 264 N.E. 2d 240 (1st Dist. 1970), plaintiff, employee of the
subcontractor, placed and used a ladder leaning on the side of a building. The general
contractor's employee lowered the sash of a window on which plaintiff was balancing
himself causing the plaintiff to fall. The court held that the active-passive issue was to
be resolved by a jury, not by a directed verdict.
93. 131 Ill. App. 2d 30, 268 N.E. 2d 170 (1st Dist. 1971).
1976] EXPRESS AND IMPLIED INDEMNITY

no qualitative distinction between their negligent acts upon

which to base the verdict for indemnity. The court held that the
jury could have found that the subcontractor was doing the actual
work and was therefore primarily responsible, while the general
contractor was only technically liable because of "having charge
of" the work.
In Lindsey v. Harlan E. Moore & Co.,9" where employees of a
subcontractor borrowed a scaffold from the contractor and assem-
bled it, the contractor was allowed indemnity even though the
contractor's superintendent had seen the employees, failed to tell
them to put cleats on the scaffold, or warn them that they were
moving the scaffold improperly. The court held that the employ-
ees' failure to erect the scaffold without cleats was a jury ques-
tion, and a determination against them would constitute active
negligence.
Such court deference has resulted in the following characteriza-
tions of various types of conduct. Where a party furnishes or
erects the scaffold upon which the plaintiff is injured his negli-
gence is usually termed active. 5 Having direct control over the
operation and use of a scaffold,9 6 or having control of the specific
construction work where the injury took place,97 may also be char-
acterized as active conduct. Lastly, where a general contractor
leaves a materials hoist in an area where no other scaffolds or
ladders are available, knowing a roofer will soon be working in the
area, he is determined to have supplied the scaffold by invitation.
Indemnity is denied as he is exposed to liability under the Struc-
tural Work Act through his own acts. 8
A party may be found to have "charge of" the work if it had
the power and duty to inspect the area. However, more often than
not, a mere failure to inspect has been characterized as passive

94. 11 111. App. 3d 432, 297 N.E. 2d 8 (4th Dist. 1973). See also Gimmeson v. Illinois
Power Co., 18 Ill. App. 3d 736, 310 N.E. 2d 397 (5th Dist. 1974).
95. Jones v. McDougal-Hartmann Co., 115 Ill. App. 2d 403, 253 N.E. 2d 581 (3d Dist.
1969).
96. Isabelli v. Cowles Chem. Co., 7 Ill. App. 3d 888, 289 N.E. 2d 12 (1st Dist. 1974);
Jackson v. H.J. Frierdick & Sons, Inc., 1 Ill. App. 3d 381, 274 N.E.2d 189 (5th Dist. 1971).
97. Buehler v. Toynan Constr. Co., 133 Ill. App. 2d 44, 272 N.E. 2d 861 (1st Dist. 1971),
aff'd, 52 111.2d 214, 287 N.E. 2d 691 (1972). See also Mclnerney v. Hasbrook Constr. Co.,
Docket No. 46539 (Sup. Ct. Ill., Sept. 28, 1975).
98. Pantaleo v. Gamm, 106 Ill. App. 2d 116, 245 N.E. 2d 618 (1st Dist. 1969).
 DEPAUL LAW REVIEW [Vol. 25:287

conduct.99 Thus, in O'Leary v. Siegel,100 the plaintiff and a fellow

worker erected the scaffold from which plaintiff fell. Ownership
of the scaffold was not determined. Since the general contractor
had failed to inspect the scaffold, though it was on the job for at
least two months, the absence of safety pins, which caused the
accident, was not discovered. The court found that the failure to
inspect was passive. It noted that judicial decisions have read
"having charge of" liberally to effect the legislative intent behind
the Act, but felt a contractor who is exposed to "technical" liabil-
ity because of the actions of a subcontractor should be indemni-
fied.
In Gadd v. John Hancock Mutual Life Insurance Co.,"° ' a sub-
contractor's employee was injured when he tripped and fell while
walking on a plank upon which the general contractor's employ-
ees had placed a machine with cables. The floors below had not
been planked by the subcontractor. After the employee had re-
covered from the general contractor, the latter filed a third party
complaint against the subcontractor based on active-passive neg-
ligence. The court affirmed denial of a judgment n.o.v. in favor
of the subcontractor since the jury should determine if the general
contractor's negligence was active or passive. They could find
that placing the machine on the plank was not the proximate
cause of the injury. Thus, the general contractor's only negligence
would be the failure to discover and remedy the defect, which the
court held was passive conduct.
Architects may be held liable under the Structural Work Act
where they have both general supervisory power and the ability
to halt work. However, failure to stop work being performed in an
unsafe manner may be considered passive conduct, especially
where the contractor directly causes the injury by use of improper
construction methods.'"'
Finally, where the misconduct of both parties is equal, neither

99. See, e.g., Lindner v. Kelso Burnett Elect. Co., 133 Ill. App. 2d 303, 273 N.E. 2d 194
(1st Dist. 1971) (failure to inspect held passive in contrast to erection of scaffold). Contra,
Topel v. Porter, 95 Ill. App. 2d 315, 237 N.E. 2d 711 (1st Dist. 1968) (failure to check safety
device active negligence where party notified of necessity of safety test).
100. 120 Ill. App. 2d 12, 256 N.E. 2d 127 (1st Dist. 1970).
101. 5 Ill. App. 3d 152, 275 N.E. 2d 285 (1st Dist. 1971).
102. Miller v. DeWitt, 37 Ill. 2d 273, 226 N.E. 2d 630 (1967).
19'761 EXPRESS AND IMPLIED INDEMNITY

can be indemnified. In Scully v. Otis Elevator Co.,' 3 Otis in-

stalled elevators and dumbwaiters while another contractor, Sim-
mons, prepared the shafts. Otis directed Simmons to make holes
in its scaffolding and an employee of Otis was fatally injured
when a brick fell through one of the holes. The court held that
there was sufficient evidence upon which to conclude that Sim-
mons' negligence was equal to or greater than Otis', and thus
indemnity was denied.
This brief discussion of litigation arising under the Structural
Work Act discloses that the presence of a statutory cause of ac-
tion, at least in this instance, has not deterred the courts from
engaging in the same qualitative comparison of conduct as is
employed in the general indemnification cases. In fact, conduct-
comparison may be greater in the Structural Work Act area in
light of the courts' hesitancy to rule out indemnity as a matter of
law. The jury has great leeway, and wields more power than
usual, in determining indemnity in such cases.

Dram Shop Act °4

While the courts have liberally allowed indemnity in Structural

Work Act cases and have given the trier-of-fact permission to
weigh the relative faults of the parties, the courts have denied
such fault-weighing in actions brought under the Dram Shop Act.
In Wessel v. Carmi Elks Home, Inc.,'"5 a third party injured by
an intoxicant brought an action against the operator of the tavern
and owner of the building. The defendants brought a third party
action for indemnity, against the intoxicant. The trial court dis-
missed the complaint and the dismissal was affirmed by both the
appellate court and the Supreme Court of Illinois.
The supreme court stated that the purpose of the Dram Shop
Act was to place the ultimate cost burden on the liquor industry.
Since the statute was penal in nature, public policy would be
frustrated if the liquor industry could obtain indemnity from the
intoxicated tortfeasor. The court expressly overruled Geocaris v.

103. 2 I1. App. 3d 185, 275 N.E. 2d 905 (1st Dist. 1971).
104. ILL. REV. STAT. ch. 43, § 135 (1973).
105. 54 11. 2d 127, 295 N.E. 2d 718 (1973).
 DEPAUL LAW REVIEW [Vol. 25:287

Bangs'6 and Walker v. Service Liquor Store, Inc.'7 which had

allowed indemnity to the seller based on a qualitative comparison
of the tortfeasors' conduct.
The dissent, however, affirmed the principle of imposing liabil-
ity on the party principally at fault. Mr. Justice Ward noted that
the purpose of the act was to provide an additional remedy to a
person who is injured by an intoxicated person who may not have
the resources to pay a judgment; therefore it is similar to the
Structural Work Act, where the shifting of liability is allowed.',"
The dissent and the concurrence both noted that the Dram Shop
Act is not based on fault or negligence. In this respect it also
resembles the Structural Work Act, yet the Structural Work Act
decisions have reiterated that there are degrees of fault on which
indemnity can be based.
The distinction may well be in the moral opprobrium con-
nected with alcoholic beverages, since the Liquor Control Act is
designed to promote temperance in consumption of liquor by reg-
ulating its sale and distribution. Another consideration may be
that dram shop actions can be absorbed by insurance coverage
while the intoxicant may not have such resources. On the other
hand a subcontractor, under the Structural Work Act, is more
likely to be able to afford indemnity.

Products Liability
The fault-weighing concept upon which indemnity is based is
also precluded in actions based on strict liability. Active-passive
indemnity is based on a comparison of the respective negligence
of tortfeasors, but in strict liability the manufacturer's liability
is not based on negligence and fault-weighing is therefore inappl-
icable.'0 1 This is true even where the other party in the chain of
distribution is negligent."'
For example, where an employer fails to inspect, give
instructions, or warn an employee of an unreasonably dangerous

106. 91 111. App. 2d 81, 234 N.E. 2d 17 (lst Dist. 1968).

107. 120 Ill. App. 2d 112, 255 N.E. 2d 613 (4th Dist. 1970).
108. 54 Ill, 2d at 137, 295 N.E. 2d at 723.
109. Kossifos v. Louden Mach. Co., 22 111. App, 3d 587, 317 N.E. 2d 749 (1st Dist. 1974).
110. See Stanfield v. Medalist Indus. Inc., 17 Ill. App. 3d 996, 309 N.E. 2d 104 (2d Dist.
1974).
1976] EXPRESS AND IMPLIED INDEMNITY

machine, this conduct even if characterized as active negligence

will not shift liability from the manufacturer to the employer.
The essence of a strict liability action is that the item left the
manufacturer in a dangerously defective condition which caused
the injury."' If it is proven that the negligence of the employer,
not a defect in the product, caused the injury, such facts are a
defense, not a basis for indemnity."' However, if the product was
defective when it left the manufacturer, whether or not due to the
manufacturer's fault, the manufacturer will be held strictly liable
for damages and the active negligence of the employer will not be
a basis for indemnity.
Indemnity is possible within the context of products liability,
however, without resort to the active-passive theory. Courts have
allowed indemnity where, for example, a supplier in the distribu-
tive chain has been held strictly liable. For example, in Texaco,
Inc. v. McGrey Lumber Co."' the plaintiff had settled a claim
under the Structural Work Act when a plank in a scaffold they
had erected broke and injured a workman. Texaco filed a subse-
quent third party complaint against the supplier of the defective
plank, who in turn filed an indemnity action against his own
supplier. The court held that strict liability against a person in
the distributive chain who placed a product in the stream of
commerce with knowledge of its intended use eliminates active-
passive analysis and justifies indemnity from the supplier.
Similarly, in Krammer v. Edward Hines Lumber Co." 4 a scaf-
fold manufacturer made alterations in a board which he bought
from a lumber company. The plank, used for an outside railing
on a scaffold, broke and a tuckpointer was injured. The manufac-
turer sought indemnity claiming that the lumber supplier knew
the purpose for which the plank would be used. The court held
that a product is defective when it fails to properly perform when
used in a manner which is foreseeable, even if it is not the manner
intended by the supplier or the manufacturer. Whether the lum-
ber supplier could have foreseen the use to which the lumber

111. See RESTATEMENT (SECOND) OF TORTS § 402 A (1965).

112. Burke v. Sky Climber, Inc., 57 Il1. 2d 542, 316 N.E. 2d 516 (1974).
113. 117 Ill. App. 2d 351, 254 N.E. 2d 584 (1st Dist. 1969).
114. 16 Ill. App. 3d 763, 306 N.E. 2d 686 (1st Dist. 1974).
 DEPAUL LAW REVIEW [Vol. 25:287

would be put and whether the plaintiff's injuries were caused by

a defect in the lumber or by alteration of the manufacturer was
a jury question.

INDEMNITY V. CONTRIBUTION

All attempted definitions of active-passive negligence break

down in application, because they are being applied to situations
where an indemnity concept is improper. The theory provides no
relief to active tortfeasors, nor does it provide relief where the
court has determined that the same duty was breached. The situ-
ations where indemnity is granted are inconsistent and unpre-
dictable. Inequity results where relief is denied and where relief
is afforded, since the proper relief for two parties who are both
guilty of some type of negligence would be to prorate the damages
in proportion to culpability. The obstacles preventing the accept-
ance of the doctrine of contribution, however, are steeped in his-
tory and misunderstanding.
It is an accepted axiom of Illinois law that there is no contribu-
tion among joint tortfeasors. At its origins the rule applied to
tortfeasors acting in concert who committed a voluntary and in-
tentional tort. In that context, "joint" tortfeasors were joined as
defendants and held jointly and severally liable for the damage.
Consequently two guilty parties were forbidden to use the courts
to divide damages from an injury they had planned together.
As procedural rules were liberalized to allow joinder of negli-
gent and independent tortfeasors, the rule against contribution
was extended to them. However, they were in reality "joined" not
joint tortfeasors. 115 The inequity of forbidding contribution to
such tortfeasors was a catalyst to the expansion and development
of active-passive indemnity and the resultant lack of clarity sur-
rounding the concept.
The Supreme Court of Illinois used the original definition of
joint tortfeasor to afford relief in Gertz v. Campbell."6 A young
boy was hit by a car. His attending physician failed to perform
surgery in time and the boy's leg had to be amputated. The court
115. See Comment, Contribution Among Tortfeasors: The Need for Clarification, 8
JOHN MARSHALL J. PRAC. & PROC. 75 (1974).
116. 55 I1. 2d 84, 302 N.E. 2d 40 (1973).
19761 EXPRESS AND IMPLIED INDEMNITY

noted that these actions were not done in concert, were separated
in time, and neither party had control of the other's conduct.
While the motorist was liable to the plaintiff for the physician's
actions which were foreseeable results of his own negligence, he
was also entitled to an equitable apportionment of the dam-
ages-a hybrid of indemnity. The court awarded the motorist the
proportional share of damages caused by the physician's mal-
practice. The effect was to allow contribution. However, by char-
acterizing it as a type of indemnity, the distinction between in-
demnity and contribution and their application is further mud-
dled. The indication is, however, that the judiciary is attempting
to develop an equitable approach to damage apportionment.
Other jurisdictions who have similar problems with the active-
passive indemnity concept and the no-contribution rule are now
permitting contribution among concurrent and successive tort-
feasors.
For example, in Dole v. Dow Chemical Co.,"' the New York
Court of Appeals allowed a chemical company to obtain contribu-
tion from the employer of the plaintiff's decedent who died from
a poisonous fumigant manufactured by the chemical company.
The employer had directed the decedent to work in a bin which
had been sprayed with the fumigant. In reversing dismissal of the
third party complaint against the employer, the court noted the
inadequacy of the active-passive doctrine which was elusive and
difficult to apply. The New York statute which allowed a tortfea-
sor to compel equal contribution from a co-defendant where both
were subject to the same judgment was also inadequate since it
depended on whom the plaintiff chose to sue. Therefore, fairness
dictated that the court allowed contribution where the third
party is responsible for part but not all the negligence which
caused the damages.
The Seventh Circuit Court of Appeals has also taken the posi-
tion that contribution is the most equitable method for appor-
tioning damages. In Kohr v. Allegheny Airlines, Inc."' the court
decided to apply the federal doctrine of comparative negligence
in aviation cases resulting from mid-air collisions. The court

117. 30 N.Y. 2d 143, 282 N.E. 2d 288, 331 N.Y.S. 2d 382 (1972).
118. 504 F. 2d 400 (7th Cir. 1974).
 DEPAUL LAW REVIEW [Vol. 25:287

rejected the no-contribution rule, judging it better to have the

trier-of-fact determine, on a percentage basis, the degree of
negligence of each party and to distribute the loss in that pro-
portion. Under the Kohr doctrine, each defendant is held liable
to the plaintiff for the entire damages, so the plaintiff cannot be
denied full recovery. The liability between the defendants,
however, is in proportion to the negligence." 9
It is widely recognized that contribution is the most equitable
method of effecting the principle that each person is responsible
for the consequences of his negligent acts. The concept is manage-
able and definable, and allowing contribution will clear up the
confusion surrounding the indemnity concept, which has been
stretched to do a job for which it was not designed.
The present broad application of the no-contribution rule is a
product of judicial interpretation. No-contribution among joint
tortfeasors serves a limited purpose beyond which it should not
be applied. The judiciary should allow contribution where equity
and reasonableness demand its application. Without it the incon-
sistency in apportioning tort damages will continue.

119. For a discussion of the workability of the Kohr doctrine see Kennelly, Aviation
Law: Domestic Air Travel-A Brief Diagnosisand Prognosis,56 CI. BAR REc. 248 (1975).