dissenting:
I must dissent from the judgment of the court in this cause and in Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, and Robinson v. International Harvester Co. (1977), 70 Ill. 2d 47, reversing the dismissal of the third-party complaints.
The situation in which the doctrine of contribution properly has been applied is that in which the independent acts of two or more tortfeasors (among whom there exists no antecedent express or implied agreement of indemnity) combine to produce a single, indivisible injury, and where each party, unlike the situation here, is liable to the plaintiff in tort on the ground of negligence or of strict liability. (Prosser, Torts 309 (4th ed. 1971).) The majority correctly observes that such cases do not lend themselves readily to a qualitative analysis of tortious conduct as “active” or “passive,” as the indemnity theory requires.
Yet in Skinner the majority predicates its proposal for allowance of contribution among tortfeasors on the theory that the “ultimate liability for plaintiff’s injuries be apportioned on the basis of the relative degree to which the defective product and the employer’s conduct proximately caused them.” (70 Ill. 2d at 14.) Although the majority opinion does not elaborate on its meaning, this standard suggests some quantitative comparison, such as 60 percent to 40 percent, instead of the qualitative comparison of active and passive made in the indemnity cases. The majority does not show that the determination of what percentage of the plaintiff’s damages should be attributable to each tortfeasor will prove any more manageable than the active-passive test used for indemnity.
There are a few jurisdictions in which the amount of the contribution between joint tortfeasors is based on the relative fault of each tortfeasor. (See, e.g., Bielski v. Schulze (1962), 16 Wis. 2d 1, 114 N.W.2d 105; Annot., 53 A.L.R.3d 184 (1973).) As Prosser observes, the usual method of distributing the loss, however, has been to divide the total damages pro rata without regard to comparative fault. That is the method adopted under the current provisions of the Uniform Contribution Among Tortfeasors Act as revised in 1955. (12 Uniform Laws Annotated secs. 1(b), (2).) Of the 18 jurisdictions which have adopted either the 1955 uniform act or its 1939 predecessor, some 13 appear to use the pro rata approach. (See 12 Uniform Laws Annotated 34 (1978). Cf. Annot., 53 A.L.R.3d 184, 191-92, 197-98 (1973). See also Commissioners’ Prefatory Note (1955 Revision), 12 Uniform Laws Annotated 59-60; Commissioners’ Prefatory Note (1939 Act), 12 Uniform Laws Annotated 60-62; Commissioners’ Comment to section 1(a), 12 Uniform Laws Annotated 64; Early Settlers Insurance Co. v. Schweid (D.C. 1966), 221 A.2d 920; Prosser, Torts 310 (4th ed. 1971).) The conceptual basis for pro rata contribution is of course that one tortfeasor has discharged an obligation for which the other tortfeasor was also liable.
In any event, the majority’s rule of apportionment should not have application in these cases. The plaintiffs are proceeding against the defendant manufacturers on the theory of strict liability, and of course negligence or its absence is not a factor in determining the liability of the defendants. These defendants thus may be without culpability in the sense that they were nonnegligent. The majority says that the extent of liability among tortfeasors should be determined by their relative roles in proximately causing the plaintiffs’ injuries, but it seems to me that this formula cannot properly be applied in the absence of a common standard of comparison. The plaintiffs seek to recover on the ground of strict liability; the defendants in their third-party complaints allege negligence by the employers. What will be the method of comparison, with negligence not a factor in determining the defendants’ liability?
As Mr. Justice Dooley details in his dissent, in the majority opinion there is a confusing of contribution and indemnity. Until now these terms had distinctive meanings.
Somewhat remarkably, I think, the majority does not mention Maki v. Frelk (1968), 40 Ill. 2d 193, in which this court declined to abandon our rule on contributory negligence in favor of a comparative negligence rule. I do not recede from the dissenting position which Mr. Justice Schaefer and I took in Maki. While a distinction may be drawn between the question of apportionment as it arises in the context of contribution and as it appears in the context of contributory negligence, the holding in Maki that any change in the law of contributory negligence should be left to the legislature has been, it seems, overruled sub silentio in Skinner and the companion cases.
Finally, the majority’s review of Merryweather v. Nixan (1799), 101 Eng. Rep. 1337, 8 Term R. 186, and of some of this court’s decisions suggests that the rule against contribution between joint tortfeasors where the tort was one of intentional misconduct or of concerted action has not been disturbed, but the opinion does not make an explicit pronouncement to this effect. Torts of this character do not come within the rationale of the doctrine of contribution, and the rule denying contribution in that situation should be preserved. I would state clearly that it is being retained.