Ill. Pattern Jury Instr. (Civil) 500.00

INTRODUCTION

History

The history of the Illinois version of implied indemnity or, as it is commonly known, the

doctrine of “active-passive” negligence is described in Ferrini, The Evolution From Indemnity to

Contribution--A Question Of The Future, If Any, Of Indemnity, 59 Chi. B. R ec. 254 (1978). The

common law did not per mit contribution, i.e. the sharing of the loss be tween tortfeasors and the

circumstances under which it per mitted inde mnity, the shif ting of the entire loss from one

tortfeasor to another, were quite restricted. The indemnitee could not have actively participated in

the wrongdoing. His liability could only be “t echnical” or “pa ssive” in na ture. Indemnity wa s

permitted only where such a par ty was exposed to liability by the misconduct of another . Gulf

Mobile & Ohio R. Co. v. Arthur Dix on Transfer Co., 343 Ill.App. 148, 98 N.E.2d 783 ( 1st

Dist.1951) summarized the circumstances in which indemnity was permitted:

(1) where a c ity was exposed to liability when a cont ractor or abutting owner breached his

duty with respect to the public way;

(2) where a party was injured by a subcontractor or tenant and the cont ractor or owner was

thereby exposed to liability;

(3) where one supply ing goods or services, by his active negligence caused the liability of

another;

(4) where one created a dang erous condition and the pa ssive tortfeasor was exposed to

liability upon his failure to discover and rectify that condition; and

(5) where the negligence of a third par ty caused the passive tortfeasor to be liable under the

F.E.L.A. or Workers Compensation Act.

The doctrine is quasi-contractual in nature. In other words, there is an implied-in-law, as

contrasted with an implied-in-fact, cont ract of inde mnity. The active or pr imary tortfeasor ha s

exposed the one who has not per sonally participated in the wrongdoing to liability and the la w

implies a contract of restitution. Przybylski v. Perkins & Will Architects, Inc., 95 Ill.App.3d 620,

623; 420 N.E.2d 524, 527; 51 Ill.Dec . 110, 113 (1st Dist.1981).

The paramet ers of the doctrine changed in the 1960's in an apparent reaction to the

prohibition against contribution. Inde mnity evolved into a m ere fault-weighing process. The

tortfeasor who was prohibited from obtaining contribution c ould obtain full indemnity upon the

theory that a stranger who happened to be a joint tortfeasor was guilty of conduct more culpable

than that of the party seeking indemnity. Indemnity was thus allowed where there was no pre-tort

relationship between the par ties--and where the par ty seeking indemnity was per sonally at fault.

Reynolds v. I llinois Bell Tel. Co., 51 Ill.App.2d 334, 201 N.E.2d 322 ( 1st Dist.1964); Sargent v.

Interstate Bakeries, Inc., 86 Ill.App.2d 187, 229 N.E.2d 769 (1st Dist.1967).

The Reimposition of the Pre-Tort Relationship Requirement

The Illinois Supreme Court has held there can be no indemnity in the absence of a pre-tort

relationship between the indemnitor and indemnitee. Van Slambrouck v. Economy Baler Co., 105

Ill.2d 462, 475 N.E.2d 867, 86 I ll.Dec. 488 (1985); Muhlbauer v. Kruze l, 39 Ill.2d 226, 234

N.E.2d 790 (1968). By so ruling, the Court in effect reinstituted the concept that the obligation of

restitution was to be imposed upon the indemnitor because he had, by breach of duty owed the

indemnitee, exposed the inde mnitee to liability to a third par ty. A summ ary of “pre -tort

relationships” or “conditions” from which a duty to indemnif y has been implied is set for th in

Feirich, Third Party Practice, 1967 U. Ill. L.F. 236, 242-243. The essential ingredient appears to

be a cont ractual or qua si-contractual relationship be tween the indemnitor and the inde mnitee

from which the courts imply a duty and a promise to indemnify.

The above-cited description of the circumstances under which indemnity would be

implied closely approximates the circumstances under which indemnity was permitted at the time

of Gulf Mobile & Ohio R. Co. v. Arthur Dixon Transfer Co., 343 Ill.App. 148, 98 N.E.2d 783

(1st Dist.1951). Nevertheless, Muhlbauer was not vi ewed as manda ting a return to the concept

that indemnity would be afforded only those who w ere t echnically liable and not per sonally at

fault; the doctrine continued to be applied under ci rcumstances where there was a m ere disparity

in the culpa bility of the par ties. Mullins v. Cry stal Lake Park Dist., 129 Ill.App.2d 228, 262

N.E.2d 622 (1970). Nev ertheless, the author ities empha sized that there had to be a qua litative

distinction between the conduct of the indemnitee and that of the inde mnitor. Harris v.

Algonquin Ready Mix, Inc., 59 Ill.2d 445, 322 N.E.2d 58 (1974); Chicago & Illinois Midland Ry.

v. Evans Constr. Co., 32 Ill.2d 600, 602; 208 N.E.2d 573, 574 (1965); Stach v. Sears, Roebuck &

Co., 102 Ill.App.3d 397, 429 N.E.2d 1242, 57 Ill.Dec. 879 (1st Dist.1981).

The Impact of Contribution

The Illinois Supre me Court' s decision in S kinner v. R eed-Prentice Div. Package

Machinery Co., 70 Ill.2d 1, 374 N.E.2d 437, 15 I ll.Dec. 829 (1977), certiorari denied 436 U.S.

946, 98 S.C t. 2849, 56 L.Ed.2d 787 (1978), adopting comparative contribution, pl aced the

continued ex istence of the doctr ine of “active-passive” inde mnity into question. Does

contribution supplant “active-passive” indemnity? In Heinrich v. Peabody Int'l Corp., 99 Ill.2d

344, 459 N.E.2d 935, 76 I ll.Dec. 800 (1984), the Court declin ed to decide the issue because the

parties had not taken an adversarial position on it. Appellate Court decisions reached conflicting

conclusions as to the viability of the doctrine. Compare Van Jacobs v. Parikh, 97 Ill.App.3d 610,

422 N.E.2d 979, 52 I ll. Dec. 770 (1st Dist.1981); Lowe v. Norfolk & Western Ry., 124 Ill.App.3d

80, 463 N.E.2d 792, 79 I ll.Dec. 238 (5th Dist.1984), appeal denied 101 Ill.2d 547, 467 N.E.2d

582, 81 I ll.Dec. 711 (1984); Allison v. She ll Oil Co., 133 Ill.App.3d 607, 479 N.E.2d 333, 88

Ill.Dec. 720 (5th Dist.1985); Jethroe v. Koehring Co., 603 F.S upp. 1200 (S .D.Ill.1985); and

LeMaster v. Amsted Industries, Inc., 110 Ill.App.3d 729, 442 N.E.2d 1367, 66 I ll.Dec. 454 (5th

Dist.1982) (“active-passive” indemnity survives) with Morizzo v. Laverdure, 127 Ill.App.3d 767,

469 N.E.2d 653, 83 I ll.Dec. 46 (1st Dist.1984), Heinrich v. Peabody Int'l Corp., 139 Ill.App.3d

289, 486 N.E.2d 1379, 93 I ll.Dec. 544 (1st Dist.1985), and Holmes v. Sahara Coal Co., 131

Ill.App.3d 666, 475 N.E.2d 1383, 86 I ll.Dec. 816 (5th Dist.1985) (“active-passive” inde mnity

does not survive).

Finally, in Allison v. Shell Oil Co., 113 Ill.2d 26, 495 N.E.2d 496, 99 I ll.Dec. 115 (1986),

the I llinois Supre me C ourt he ld that “active-passive” inde mnity would not longer be applied

when contribution is available. However, other forms of indemnity may continue to exist.

Although “active-passive” indemnity does not apply to causes of action arising on or after

March 1, 1978 ( see Introduction to IPI 600.00, Contribution, infra), the instructions in this

chapter have been retained and revised for use in cases arising prior to that date. In addition,

some of them may apply to other types of indemnity actions.

The Basis of Active-Passive Indemnity

In Miller v. DeW itt, 37 Ill.2d 273, 226 N.E.2d 630 (1967), which was reaffirmed by the

Supreme Court in Doyle v. Rhode s, 101 Ill.2d 1, 461 N.E.2d 382, 77 I ll.Dec. 759 (1984), the

Court described the ci rcumstances under which the jury could find that the third-par ty plaintiff

architect was a pa ssive tortfeasor and third-par ty defendant contractor was an active tortfeasor.

The architect would be e ntitled to indemnity if the injury had been di rectly caused by improper

construction methods used by the cont ractor and the architect's liability was bottomed sole ly

upon his failure to stop the work on the job. In other words, indemnity is permitted only where

the inde mnitee did not personally par ticipate in the wrongdoing --where he wa s e xposed to

liability by the indemnitor's breach of a duty owed the indemnitee.

This strict construction of the basis of indemnity is also supported by the Supreme Court's

analysis in Doyle v. Rhodes, supra, of the circumstances under which the third-party plaintiff was

entitled to complete rather than partial contribution. The third-party defendant had been char ged

with violating the Road Construc tion Injuries Ac t, a s afety statute. The Court stated that if the

evidence at trial showed that the third-par ty defendant's compliance with the statute would ha ve

prevented the third-party plaintiff from engaging in her negligence, the third-party plaintiff would

be e ntitled to c omplete contribution. Although the Court stated that c ontribution e nvisions a

sharing of liab ility by the culpable defendants even where the liability of one is grounded on the

special duties imposed by a safety statute, the Court further noted:

If the evidence that emerges at trial shows that compliance by the road builder with the

Road Construc tion Injuries Act would have pre vented Rhodes from engag ing in he r

“negligent” act or would have reduced its impact on Doyle to zero, Rhodes would not be

guilty of comparative negligence under the Act and, cont rary to what we understand was

the holding of the appe llate cour t, would be e ntitled to recover the entire aw ard from

Rein, Schultz & Dahl, as she urge s. If, on the othe r h and, it is found that Rhode s'

negligence would not have been deterred or prevented by compliance with the Act, or that

her conduct fell sufficiently far short of acceptable driving pr actices as to amount to a

misuse of the road under a ny condition, she would be e ntitled to recover in contribution

only to the extent that the injury to Doyle is found to be the result of the failure of Re in,

Schultz & Dahl to make its worksite safe rather than of her negligence.

The basis of indemnity was also described in Van Slambrouck v. Economy Baler Co., 105 Ill.2d

462, 475 N.E.2d 867, 86 I ll.Dec. 488 (1985); Van Jacobs v. Parikh, 97 Ill.App.3d 610, 422

N.E.2d 979, 52 Ill.Dec. 770 (1st Dist.1981); and LeMaster v. Amsted Industries, Inc., 110

Ill.App.3d 729, 442 N.E.2d 1367, 66 Ill.Dec. 454 (5th Dist.1982). A qualitative distinction alone

between the conduct of the parties does not pre sent a sufficient basis for inde mnity. There must

additionally be a duty to indemnify which arises not from the relative culpability of the par ties

but from their pre -tort relationship and responsibilities inter se . The shi ft of the entir e

responsibility for the payment of damages is based on the fact that the inde mnitee is only

technically liable for damages and the indemnitor is truly culpable.

The fore going decisions confirm that inde mnity cannot continue to be applied in the

unfettered fashion as was pre-Skinner indemnity. A mere disparity in the culpability of the parties

is a basis for contribution and not indemnity. The terminology previously used by this committee,

i.e. major-minor fault, has never been expre ssly approved by the courts and the c ommittee thus

uses the “active-passive” language which the courts have adopted.

The Instructions

In view of the foregoing, the committee has amended the instructions. Those instruc tions

follow the Supreme Court's analysis in Miller v. DeWitt, supra, and Doyle v. Rhodes, supra.

The subject matter of “pre-tort” relationship is not covered in these instructions since it is

a matter of law to be ruled upon by the court, not a que stion of fact to be decid ed by a jury. As

stated in Isabelli v. Cowles Che mical Co., 7 I ll.App.3d 888, 899; 289 N.E.2d 12, 19 (1st

Dist.1972): “The right to indemnification exists as a matter of law and because of the relationship

of the parties to the transaction.” It will be up to the trial judge to determine whether or not the

complaint contains sufficient allegations of the “requisite relationship.” See Muhlbauer v. Kruzel,

39 Ill.2d 226, 234 N.E.2d 790 (1968).

The inst ructions pre sented here ar e not intended f or use in cases involving cont ractual

indemnity. Of course, where there is a cont ract of inde mnity, the t erms of the cont ract will

govern the right to recovery. Jackson v. I llinois Central Gulf R. Co., 18 Ill.App.3d 680, 309

N.E.2d 680, 690 (1st Dist.1974). But see 740 ILCS 35/1 (1994), prohibiting ag reements holding

one harmless or indemnifying one from one's own negligence in construction contracts.

Active-passive implied indemnity is not per mitted in certain situations as a ma tter of

public policy. Wessel v. C armi, 54 Ill.2d 127, 295 N.E.2d 718 (1973) (one liable under D ram

Shop Act ma y not secure indemnity); McDonald v. Trampf, 49 Ill.App.2d 106, 198 N.E.2d 537

(1st Dist.1964) ( intoxicated dr iver may not s eek inde mnity from taver n operato rs); St. Jose ph

Hospital v. Corbetta Const. Co., 21 Ill.App.3d 925, 960; 316 N.E.2d 51, 75 (1st Dist.1974) (one

guilty of fraud may not seek indemnity from one that is careless).

Also, in the produc ts liability area the orig inal manufacturer may not recover indemnity

from those who are down the distributive chain. Burke v. Sky C limber, Inc., 57 Ill.2d 542, 316

N.E.2d 516 (1974) (indemnity not available to manufacturer against employer).

Costs and Attorney Fees

The court ma y add “proper ly t axable c osts” to a judgment for inde mnity. Gatto v.

Walgreen Drug Co., 23 I ll.App.3d 628, 320 N.E.2d 222 ( 1st Dist.1974), reversed on other

grounds, 61 Ill.2d 513, 337 N.E.2d 23 (1975), certiorari denied, 425 U.S. 936, 96 S.Ct. 1669, 48

L.Ed.2d 178 (1976). In the absence of statute or exp ress cont ract, a ttorneys fees, costs of

investigation and other costs ma y not be recovered in an action for indemnity. Reese v. Chicago,

B. & Q. R.R., 5 Ill.App.3d 450, 283 N.E.2d 517 (2d Dist.1972), affirmed, 55 Ill.2d 356, 303

N.E.2d 382 (1973).

Upstream Indemnity in a Products Case

The committee is of the opinion that upstream indemnity which a purveyor of a produc t

might seek from the party who sold him the product or its components is not properly part of the

“active-passive” doctrine, but rather may be based upon strict liability in tort, warranty, or other

applicable theory. Accordingly, the subject is not addressed here.