to the present lawsuit.? It rather recognizes the distinction
marked out in Cates, in which an incident of the type that is at
issue in this litigation is contrasted with (for example) a
parent's negligent operation of an automobile, with suit on
behalf of a minor child being prohibited in the former situation
but permitted in the latter.

Cates' quite discursive discussion is not a model of clarity
in the respect that is relevant here. But a certification of the
issue to the Illinois Supreme Court, a vehicle that could
eliminate any uncertainty on the subject, is not available to
this federal District Court under Ill. §. Ct. Rule 20.
Accordingly this Court holds that the quoted language from the
seminal opinion in Cates calls for a determination that--at least
at present reading--the Dewick parents are not liable to their
infant child for any claimed lack of due care in the supervision
of their child, so that Maytag and Home Depot may not look to
them for contribution as and when either or both of those
defendants is or are found liable to the minor plaintiff in this
action.

This Court therefore denies defendants' motion for

reconsideration of its earlier dismissal of the Third Party

2 At this stage, of course, this Court has no information
ether than that contained in the parties' pleadings. That being
so, it neither makes nor expresses any judgment about the due
care or the lack of due care on the part of the Dewick parents,

4


contribution claim--the party seeking contribution and the party
from whom contribution is sought--is liable to the tort victim.

Therein lies the rub. Although the Illinois caselaw often
speaks of the ability or inability of a minor to sue his or her
parents in terms of parent-child immunity, that label is only
descriptive--what the cases hold is that an unemancipated minor
child cannot sue his or her parent for negligence where the
conduct at issue is “inherent to the parent-child relationship”
(Cates v. Cates, 156 Ill.2d 76, 104, 619 N.H.2d 715, 729 (1993)),
which is defined as encompassing “parental discretion in

discipline, supervision and care of the child” (id., emphasis

added). As Cates, id. at 105, 619 N.E.2d at 729 (emphasis again
added) went on to explain:

Our standard also allows a broader area of negligent
conduct to remain immunized. Thus, under our standard,
parental discretion in the provision of care includes
Maintenance of the family home, medical treatment, and
supervision of the child. A child may attempt to sue a
parent alleging that the child fell on a wet, freshly
mopped floor in the home, but the immunity would bar
such an action because the parent was exercising his
discretion in providing and maintaining housing for the
child,

This should not be misunderstood as somehow excusing any
lapse of proper supervision on the parents' part by failing to
keep a close watch over their infant at all times, something that

might have prevented the distressing injury that has given rise


Complaints for Contribution. It also denies defendants leave to
file an amended Third Party Complaint, which would appear to seek

an end run around the principle articulated in this opinion.

Milton I. Shadur
Senior United States District Judge

Date: June 10, 2003



indlib ter For (68097)

United States District Court, Northern District of IMinois

Name of Assigned Judge Milton I. Shadur Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 03 C 1548 DATE 6/10/2003
CASE Dewick vs, Maytag
TITLE

[la the following box (a) indicate the party filing the motion, e.g. plaintiti, defenuant, 3rd party plaintiff, and (b) stale brieily the nature

MOTION: of the motion being prosented.}

L

DOCKET ENTRY:
im as |

q) Qo Filed motion of [ usc listing in “Motion” box above.]

(2) a Brief in support of motion due __

(3) qa Answer brief to motion due__ __. Reply to answer brief due_

(4) qa Ruling/Hearing on_ eset for at

(5) Oo Status hearing|held/continued lo] [sct for/re-set for] on_ set for_ at

(6) Oo Pretrial contcrence[held/continued to) [set for/re-set for]on____setfor at

(7) im Trial[set for/re-set for] on _ cat

(8) qa [Bench/Jury trial] [Hearing] held/continuedto_ at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

QO FRCP4(m) =O Local Rule 41.1 OFRCP41(a)\(1) OO PRCP41(a)(2).

qo =f [Other docket entry) Enter Memorandum Opinion and Order. This Court therefore denies
defendants” motion for reconsideration of its carlier dismissal of the Third Party Complaints for
Contribution, Jt also denies defendants leave to file an amended Third Party Complaint, which would
appear to seek an end run around the principle articulated in this opinion. (22-1, 25-1)

qi) @ [For further detail see order attached to the original minute order.)

No notices required, advised in apen court Document.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MICHAEL A. DEWICK, SR., et al.,

DOCKETED

)
etc., )
) JUN 1 1 2003
Plaintiffs, )
)
Vv. ) No. 03 € 1548
)
MAYTAG CORPORATION, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

This pergonal injury action stems from a tragic occurrence
in which Michael Dewick Jr., the infant son of Michael Sr. and
Holly Dewick, was burned seriously after he crawled into the
broiler of a Maytag gas range in the Dewicks' kitchen. About a
month after Maytag Corporation (“Maytag”) and Home Depot U.8.A.,
Inc. (“Home Depot”) removed the action from the Circuit Court of
Cook County to this District Court on diversity of citizenship
grounds, Maytag sought leave to file what it mistakenly labeled
as a counterclaim against the Dewick parents (who are not
plaintiffs in their individual capacities), while Home Depot
filed a Third Party Complaint seeking contribution from the
parents.

After the Maytag procedural error waa cleared up, the
parents filed a motion to dismiss both defendants' Third Party
Complaints, and this Court granted that motion orally on
April 30. Maytag and Home Depot then promptly filed a motion to

reconsider that dismissal, coupled with a supporting memorandum,

ad


and shortly thereafter they sought leave to file an Amended Third
Party Complaint adding some allegations of lack of due care on
the part of the parents. Up to now this Court has taken hoth of
those Maytag-Home Depot motions under advisement.

Upon further consideration, though, this Court has now
determined that the appropriate course of action here is to deny
the Maytag and Home Depot motions, but without prejudice to their
potential reassertion if further developments in the law during
the pendency of this litigation were to indicate the viability of
their direct claims against the Dewick parents. This opinion
elaborates on that determination.

It is of course conventional wisdom that no rights of
contribution among joint tortfeasors existed at common law, so
that the Illinois Joint Tortfeasor Contribution Act (740 ILCS
100/0.01 through 100/5)' created rights where none had previously
existed. And the literal language of that statute is not only
limited to situations “where 2 or more persons are subject to
liability in tort arising out of the same injury to person or
property” (Section 2(a)), but it confirms that limitation by
speaking of such persons' “common liability” (Section 2(b)). Tt
would seem then that the Illinois General Assembly has created

contribution rights only where each of the parties to a

2 Citations to that statute will take the form “Section--,”
omitting the prefatory “740 ILCs 100.”

2