dissenting:
I dissent. I cannot agree that the provisions of section 6 — 21 of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1983, ch. 43, par. 135) do not render a seller or donor of liquor to an intoxicated person “subject to liability in tort” within the contemplation of section 2(a) of the Contribution Act (Ill. Rev. Stat. 1983, ch. 70, par. 302(a)). To so hold would require that this court ignore the basic rule of statutory construction that the words used in the statute be given their plain and ordinary meaning. (Conner v. Copley Press (1984), 99 Ill. 2d 382.) A tort has been defined as a breach of a noncontractual legal duty owed to the plaintiff, the source of which may be a statute as well as the common law. (Overby v. Johnson (E.D. Mich. 1976), 418 E Supp. 471.) To the same effect are countless definitions contained in Black’s Law Dictionary (4th ed. 1957) and Words and Phrases. The majority’s conclusion that the plaintiff, as the intoxicated person, may not recover from the defendant because of the complicity rule (see Nelson v. Araiza (1978), 69 Ill. 2d 534, 538-39) flies in the face of the only reasonable construction of the Contribution Act. Section 3 of the Contribution Act (Ill. Rev. ¿Stat. 1983, ch. 70, par. 303) contemplates culpability on the part of the plaintiff; without culpability there would be no payment for which to seek contribution.
The Contribution Act does not require that the persons be subject to liability under the same legal theory, but that they be subject to liability in tort arising out of the same injury to person or property. Here, there was only one injury, and the fact that the liability of plaintiff and defendant is based on different breaches of legal duty does not serve to defeat plaintiff’s claim. Furthermore, we have held that the legislative policy decision underlying the enactment of the Contribution Act is that the right to contribution prevail over immunities and defenses created by other statutes (Stephens v. McBride (1983), 97 Ill. 2d 515 (holding that the notice provisions of the Local Governmental and Governmental Employees Tort Immunity Act did not apply in a contribution action); Doyle v. Rhodes (1984), 101 Ill. 2d 1 (holding that worker’s compensation immunity does not immunize an employer from a suit for contribution by a third party sued by an injured employee)).
In a well-reasoned opinion in Monsen v. DeGroot (1985), 130 Ill. App. 3d 735, the appellate court held that contribution could be sought under facts identical to those alleged here. I agree with that decision and would reverse the judgment here.
JUSTICE SIMON joins in this dissent.