Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. David A. Canel, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 28, 1980.
The parents of a minor child brought this action to recover damages for injuries suffered by the child during the fetal stage, the injuries having allegedly been caused by a drug, administered to the mother during delivery of the child. In the first three counts, Parke Davis & Co., the manufacturer of the drug in question, was named as defendant. Counts I and II, sounding in strict liability in tort, sought, respectively, recovery on behalf of the child for his injuries and recovery for plaintiffs' mental anguish and distress. Count III sought the same recovery as count I, but was based on breach of warranty. Defendant's motion to dismiss all three counts was granted by the circuit court of Cook County. The appellate court affirmed that portion of the order which dismissed counts I and II and reversed that portion of the order which dismissed count III. (58 Ill. App.3d 349.) We granted plaintiffs leave to appeal.
The facts as stated by plaintiffs' first amended complaint are accepted as true for purposes of this appeal (Court v. Grzelinski (1978), 72 Ill.2d 141, 146; Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 460; Gertz v. Campbell (1973), 55 Ill.2d 84, 87), and are, substantially, as follows.
Ellen Woodill, the minor child's mother, entered Central Du Page Hospital as an obstetrical patient on or about November 22, 1973, at a time when the fetus was in high station. Pursuant to her physician's order for the inducement of uterine contractions, she was infused intravenously with the prescription drug, Pitocin. The product information disseminated to the medical profession by the defendant did not contraindicate the use of Pitocin for this purpose. On or about the same date, the child, delivered by the vaginal route, was born with brain damage, permanent blindness and quadriplegia. The complaint alleges that the use of Pitocin was the proximate cause of the child's injuries, and, with regard to the counts sounding in strict liability in tort, that defendant's failure to warn physicians and patients of the danger in using Pitocin while a fetus is in high station rendered the drug "not reasonably safe."
The issue of primary concern in this appeal is whether, in an action seeking to hold a defendant strictly liable for failure to warn of a danger attendant to the use of a product, the plaintiff must allege and prove that the defendant knew or should have known of the danger.
It is well recognized that a failure to warn of a product's dangerous propensities may serve as the basis for holding a manufacturer or seller strictly liable in tort. (Lawson v. G.D. Searle & Co. (1976), 64 Ill.2d 543, 551; see Annot., 53 A.L.R.3d 239 (1973); Noel, Products Defective Because of Inadequate Directions or Warnings, 23 Sw. L.J. 256 (1969).) The product is in a "defective condition unreasonably dangerous" (Restatement (Second) of Torts, sec. 402A (1965)), not because of some defect inherent in the product itself, but because of the absence of an adequate warning accompanying the product.
The plaintiffs particularly rely upon Lawson v. G.D. Searle & Co. (1976), 64 Ill.2d 543, to support their position that the defendant may be held strictly liable for failure to warn, even absent knowledge or reason to know of the danger. In Lawson, the plaintiffs sued, under strict tort liability, to recover damages for death and injuries allegedly resulting from the use of defendant's contraceptive drug. This court upheld jury verdicts in favor of the defendant. It is true, as plaintiffs point out, that the jury instructions on the theory of strict liability which the court quoted with approval (64 Ill.2d 543, 547) did not contain any requirement that the defendant have knowledge or reason to know of the danger before it could be held liable for failure to warn. The warning-related issue decided by the court, however, was not whether the defendant was required to issue a warning absent knowledge or reason to know of the danger, but whether a warning was, in fact, given and whether it was, in fact, sufficient. The court held simply that there was sufficient evidence from which the jury could have decided these two questions in defendant's favor. (64 Ill.2d 543, 553.) Inasmuch as the court was not confronted with the knowledge issue, the case is not dispositive of that issue.
In Suvada v. White Motor Co. (1965), 32 Ill.2d 612, this court joined the growing trend of decisions to remove the last vestiges of the privity requirement in products liability actions. The court further expressed its agreement with the view that liability in such cases is governed by the law of strict liability in tort, and not by the law of contract warranties. (32 Ill.2d 612, 621.) The arguments advanced to support the imposition of strict liability in food cases were cited by the Suvada court as reasons for extending strict liability to products other than food. These arguments include the public interest in human life and health, the manufacturer's invitations and solicitations to use the product, its representations that the product is safe and suitable for use, and the justice of imposing the loss on the one creating the risk and reaping the profit. (32 Ill.2d 612, 619.) If, as the court thought then, the foregoing arguments justified extending strict liability beyond food to a used reconditioned tractor, the product involved in Suvada, certainly they justify the application of strict liability to drugs.
In Suvada the court set forth the elements of an action sounding in strict liability in tort.
"The plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control." 32 Ill.2d 612, 623.
Also, in connection therewith, the court quoted with approval section 402A of the Restatement (Second) of Torts (1965), which provides:
"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the ...