dissenting:
I agree with much of what the Chief Justice and Mr. Justice Dooley have written, but feel compelled to speak to the majority’s citation oí Miller v. DeWitt (1967), 37 Ill. 2d 273, as authority for the result it reaches here. Miller involved an action by injured contractor’s employees against, among others, the architects who had designed the structure. The complaint alleged both negligence and Structural Work Act violations. The architects filed a third-party action against the contractor-employer of the plaintiffs, seeking indemnity on the ground that the contractor-employer’s negligence was active while any negligence by the architects had been passive. The trial court dismissed that third-party action and this court reversed, holding the third-party complaint stated a cause of action.
The plaintiffs in Miller had been paid benefits under the Workmen’s Compensation Act, and the third-party defendant-employer argued that both the theory of the Act and its language limited his liability to the payment of the employee benefits therein prescribed. He urged that to permit recovery by the architects would allow indirectly that which could not be done directly. Acknowledging some merit to the employer’s position and conceding the question to be a close one, this court concluded that indemnification should be permitted because “unless a third party who has not been guilty of active negligence can succeed in an action against an employer who has been guilty of active negligence, the third party will be made to bear the ultimate burden of a loss which should fall on the employer.” (37 Ill. 2d 273, 289.) It was the fact that the employer in Miller was more culpable than the architects which persuaded the court to breach the limitations upon the employer’s liability. Because there is in this case no corresponding requirement that the employer’s culpability be substantially greater than that of the manufacturer before the employer’s limited liability is again breached, it seems to me that the majority opinion repudiates, in a manner never contemplated by Miller, the very theory upon which the Workmen’s Compensation Act became law.
I must add to the comments of Mr. Justice Dooley the observation that in a single sentence the majority has altered beyond recognition the theory of strict product liability in Illinois. Heretofore in this State it has been indisputably clear, as acknowledged by the majority, that misuse of a product or assumption of the risk of its use precluded liability on the part of the manufacturer. The manufacturer or supplier was liable to an injured plaintiff only if no intervening cause, such as misuse, supplanted the precedent causation of the defect. The identity of the one responsible for the intervening cause, whether it be the plaintiff, employer or a third party, was irrelevant, since the fact remained that the defect was not the proximate cause of the injury. (Prosser, Torts, sec. 102 (4th ed. 1971); 2 L. Frumer & M. Friedman, Products Liability sec. 16A(4)(d); see also Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94, 102, where this court held the question whether an employer had misused a manufacturer’s product, thus barring recovery by the plaintiff-employee from the manufacturer, was a jury question.) Now, in a sentence which seems to me internally contradictory, the majority says, “We are of the opinion that if the manufacturer’s third-party complaint alleges that the employer’s misuse of the product or assumption of the risk of its use contributed to cause plaintiff’s injuries, the manufacturer has stated a cause of action for contribution.” (70 Ill. 2d at 15.) If misuse and assumption of risk bar recovery, as they heretofore have, what is there to contribute to? The only conclusion I can draw is that the manufacturer has now been shorn of the sole protection he formerly had against strict liability actions and has become the insurer of the user. In exchange the manufacturer is apparently given a cause of action for contribution from a third party (usually the employer) whose “misuse” or “assumption of the risk” of use of the product has injured the user (usually the employee-plaintiff). Nothing in product liability law supports this result.
In my judgment the majority has erred for an additional reason. The court’s opinion is obviously the forerunner of other and equally substantial innovations in the tort law of Illinois. It is far preferable, I believe, that new law as significant as that here declared, and that, presaged, be enacted legislatively. (Maki v. Frelk (1968), 40 Ill. 2d 193.) Such a course not only respects the separation of powers principles incorporated in our State and Federal constitutions, but affords the only means of simultaneously considering and acting upon all of the areas in which this new law will require change. Instead of the comprehensive and consistent changes which could thus be accomplished, we now have a confusing merger of indemnity and contribution, negligence and strict liability in a manner which creates more problems than it resolves.