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Dubin v. Michael Reese Hospital





APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.


Rehearing denied September 5, 1979.

Is X-ray radiation when administered by a hospital a service, or is it a product under the concept of strict tort liability as set forth by Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182, and its progeny? This is the sole question raised on these consolidated appeals by plaintiffs, Richard Dubin, Carla Gifford, and Joan Debra Kurlan, who appeal the orders of the circuit court of Cook County dismissing the strict product liability counts of their complaints against defendant Michael Reese Hospital and Medical Center.

On April 19, 1976, August 13, 1976, and January 5, 1978, respectively, plaintiffs Gifford, Dubin, and Kurlan filed complaints alleging, inter alia, that they had developed malignancies as a result of doses of X-ray radiation *fn1 they had received at the defendant hospital during the years 1947 (Dubin) and 1951 (Gifford and Kurlan). The first counts of each complaint were based on a negligence theory of recovery. The defendant was granted summary judgment on these counts in each case. No issue is raised in this appeal with respect to this action.

Count II of plaintiffs Gifford and Dubin's complaints and count III of plaintiff Kurlan's complaint alleged that the defendant prepared, manufactured, distributed, supplied, and/or sold certain X-radiation and caused it to enter their bodies. Each plaintiff further alleged that such X-radiation was in a condition not reasonably safe for its acknowledged and intended purposes in that the defendant failed to warn him that the product is a carcinogen which generates and causes lesions, tumors, and other cellular abnormalities in human beings. The defendant's motions to dismiss the foregoing strict liability counts asserted that no product was involved, but rather the rendering of a hospital service to which the doctrine of strict liability in tort had allegedly not been extended. The trial court dismissed count II of plaintiffs Gifford and Dubin's complaints and count III of plaintiff Kurlan's complaint. *fn2 It is from these dismissals that the plaintiffs appeal.


The evolution of the doctrine of strict liability in tort has been arduous. (See Suvada, 32 Ill.2d 612, 615-21.) Those responsible for its development have not been a little influenced by the nature of the injury-causing product involved. Thus, the first cases to abolish the privity requirement of Winterbottom v. Wright (Exch. 1842), 10 M. & W. 109, 152 Eng. Rep. 402, *fn3 involved "imminently" or "inherently" dangerous articles such as poisons which in their normal operation were implements of destruction. (See W.L. Prosser, The Assault Upon The Citadel (Strict Liability To The Consumer), 69 Yale L.J. 1099, 1100 (1960); Thomas v. Winchester (1852), 6 N.Y. 397, 57 Am. Dec. 455.) Later, this exception to the privity requirement was extended to include any article which if negligently manufactured was reasonably certain to place life and limb in danger. (MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 389, 111 N.E. 1050.) The first decisions to depart from the general rule of no liability in the absence of both negligence and privity of contract involved the sale of food and drink. These were for the most part premised on implied warranty theories. (See, e.g., Patargias v. Coca-Cola Bottling Co. (1st Dist. 1947), 332 Ill. App. 117, 127-33, 74 N.E.2d 162; Prosser, at 1103-10.) The first draft of section 402A of the Restatement (Second) of Torts recognized strict liability in tort only for the sale of food. (Tentative Draft No. 6, section 402A, Restatement (Second) of Torts (April 1961).) Some jurisdictions extended such implied warranties to products intended for intimate bodily use such as hair dye (see, e.g., Graham v. Bottenfield's, Inc. (1954), 176 Kan. 68, 269 P.2d 413), and the next tentative draft of section 402A extended its coverage to such products (Tentative Draft No. 7, section 402A, Restatement (Second) of Torts (April 1962)). Finally, noting the judicial extension of the rule of strict liability "to cover the sale of any product which, if it should prove to be defective, may be expected to cause physical harm to the consumer or his property" (comment b, section 402A, Restatement (Second) of Torts (1965)), the drafters of section 402A extended the rule to "any product sold in the condition, or substantially the same condition, in which it is expected to reach the ultimate user or consumer" (emphasis added) (comment d, section 402A, Restatement (Second) of Torts (1965)).

A "product" has been defined as "a thing produced by labor" or "anything obtained as a result of some operation of work, as by generation, growth, labor, chemical reaction, study, or skill" (State v. Steenhoek (Iowa 1970), 182 N.W.2d 377, 379, citing Random House Dictionary of the English Language 1148 (1966), and Funk and Wagnalls 1977 (1933)); something "`produced by nature or the natural processes * * *'" (State ex rel. Spillman v. Interstate Power Co. (1929), 118 Neb. 756, 770, 226 N.W. 427); and "`something produced by physical labor or intellectual effort'" (In re Answer of Minnesota Power & Light Co. (1970), 289 Minn. 64, 73, 182 N.W.2d 685, 691, citing Webster's Third New International Dictionary 1810 (1961)). Although the framers of section 402A gave no indication that a meaning of the word "product" other than its general meaning would limit the application of the doctrine of strict liability in tort, a few Illinois courts> considering the issue of what is or is not a product for strict liability purposes have so limited section 402A's application.

Noting Dean Prosser's observation that "all types of products are obviously to be included" (Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791, 805 (1966)), the court in Housman v. C.A. Dawson & Co. (4th Dist. 1969), 106 Ill. App.2d 225, 245 N.E.2d 886, had no difficulty in holding that lumber was a product for purposes of a products liability case (Housman, 106 Ill. App.2d 225, 229). This case was subsequently followed in Texaco, Inc. v. McGrew Lumber Co. (1st Dist. 1969), 117 Ill. App.2d 351, 356-57, 254 N.E.2d 584, and Krammer v. Edward Hines Lumber Co. (1st Dist. 1974), 16 Ill. App.3d 763, 765-66, 306 N.E.2d 686, in which lumber was also held to be a product within the meaning of section 402A despite its multipurpose nature.

Thereafter followed Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill.2d 443, 447, 266 N.E.2d 897, in which our supreme court stated:

"Comment e to the above Restatement section [402A] provides that `Normally the rule stated in this Section will be applied to articles which already have undergone some processing before sale, since there is today little in the way of consumer products which will reach the consumer without such processing. The rule is not, however, so limited, and the supplier of poisonous mushrooms which are neither cooked, canned, packaged, nor otherwise treated is subject to liability here stated.' (Emphasis supplied.) [Citation.] While whole blood may well be viable, human tissue, and thus not a manufactured article of commerce, we believe that it must in this instance be considered a `product' in much the same way as other articles wholly unchanged from their natural state which are distributed for human consumption. [Citations.]"

The next case to consider this issue was Whitmer v. Schneble (2d Dist. 1975), 29 Ill. App.3d 659, 331 N.E.2d 115, in which a dog was found not to be a product within the meaning of section 402A. There the court found:

"* * * [B]efore the doctrine of Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182, may be applied, its nature must be fixed when it leaves the manufacturer's or seller's control. * * * The purpose of imposing strict liability is to insure that the costs of injuries resulting from defective products are borne by those who market such products rather than by the injured persons, who are powerless to protect themselves [citations]. This purpose would be defeated if Suvada were to be applied to products whose character is shaped by the purchaser rather than the seller. Yet quite obviously, a dog's character is affected by its owner's personality, their treatment of it, the affection, indifference or even brutality shown to it. The dog also changes with maturity, with maternity, and as a result of outside events." Whitmer, 29 Ill. App.3d 659, 663.

In Lowrie v. City of Evanston (1st Dist. 1977), 50 Ill. App.3d 376, 365 N.E.2d 923, the issues were whether a multilevel open air garage and a parking space within that garage were products within the meaning of section 402A. In that case, the court rejected the dictionary definition of the word "product" in favor of a definition based on the policy considerations underlying the strict liability concept as expressed in comment c of section 402A:

"`On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.' (Restatement (Second) of Torts, Explanatory Notes § 402A, comment c, at 349-50 (1965).)" Lowrie, 50 Ill. App.3d 376, 383.

Upon a consideration of these policy reasons, this court held that neither the building nor the parking space was a product within the meaning of section 402A. (Lowrie, 50 Ill. App.3d 376, 384-85.) These conclusions were also based on the framer's failure to include buildings on the list of products set forth in comment d of section 402A and on the availability of remedies against those responsible for defective construction on negligence and implied warranty theories. Moreover, the court reasoned that "if structures and their builders were to be held to strict liability the framers of the Restatement would not have included the standard of ...

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