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Pitler v. Michael Reese Hospital





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


Plaintiff appeals from an order which dismissed counts I, II and IV of her complaint for damages because of personal injury, said counts sounding respectively in breach of warranty, innocent misrepresentation, and strict liability in tort; and which also granted summary judgment to defendant as to count III, predicated on negligence. These four counts were directed against Michael Reese Hospital (hereafter defendant). Count V, against Dr. Julius Hess, is not involved in this appeal and remains pending in the trial court.

In all four counts, plaintiff alleges that she was one year old in 1947 when she was brought by her parents to defendant for "radiation treatment" *fn1 of an enlarged thymus; that she first learned in April 1975 of this treatment; and that in June of 1976 she underwent surgery for a cancerous thyroid which she alleges was caused by the radiation treatment.


Plaintiff initially contends that counts I, II and IV stated causes of action and were improperly dismissed. We note that the record does not inform us as to the reasoning of the trial court for these dismissals. The briefs of the parties, however, consider them as having been on the basis that radiation treatment was the rendition of professional medical services which was neither the "sale of goods" under the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1977, ch. 26, pars. 1-101 et seq.) (count I), the "sale of a chattel" under section 402B of the Restatement (Second) of Torts (1965) (count II), or the "sale of a product" under the strict liability doctrine (count IV).

• 1 Defendant's motion to dismiss was brought under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 45), and subsection 1 thereof requires that all objections to pleadings must be raised by a motion which "shall point out specifically the defects complained of." The motion, however, specified no particular defects in the complaint, stating only generalities, as follows: "The facts as alleged failed to support a theory of any implied or expressed warranty" (count I); "[t]he facts as alleged failed to support any legal theory upon which the plaintiff can base a cause of action" (count II); and that "[t]he facts as alleged in Count IV fail to state a cause of action upon which a theory of strict liability could be premised." Thus, because defects are not specifically pointed out, in determining the propriety of the dismissals of counts I, II and IV, we are concerned only with questions of law presented by the pleadings. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538.

We will first consider the dismissal of count IV, in which plaintiff maintains that she stated a cause of action under the doctrine of strict liability in tort. This doctrine, as expressed in section 402A of the Restatement (Second) of Torts (1965), was adopted in this State by Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182, and pertinent to the issue here, provides that "[o]ne 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 * * *."

• 2 The single issue raised by the parties as to count IV is whether the administration of the radiation treatment was the sale of a product under that doctrine. We hold it was not in view of two recent decisions of the Illinois Supreme Court, in both of which, as in the instant case, the plaintiffs were children who had received radiation therapy treatments by defendant which allegedly resulted in cancerous conditions. In Greenberg v. Michael Reese Hospital (1980), 83 Ill.2d 282, 291, 415 N.E.2d 390, 395, the court held "that public policy dictates against the imposition of strict liability in tort for injuries resulting from the administration of X-radiation treatments by a hospital." In Dubin v. Michael Reese Hospital (1980), 83 Ill.2d 277, 281, 415 N.E.2d 350, 352, the court held "that the appellate court erred in finding X-radiation to be a product subject to the doctrine of strict liability in tort." In the light thereof, we conclude that the trial court properly dismissed count IV.

• 3 We turn then to the contention of plaintiff that count I stated a cause of action under the warranty provisions of article 2, sections 2-313 to 2-315 of the Code. (Ill. Rev. Stat. 1977, ch. 26, pars. 2-313 to 2-315.) Article 2 of the Code is limited in its application to "transactions in goods" (Ill. Rev. Stat. 1977, ch. 26, par. 2-102), and it is established that a contract which is predominantly for the rendition of services, even though it involves the furnishing of equipment, is not a transaction in goods and therefore is not governed by article 2 (e.g., Executive Centers of America, Inc. v. Bannon (1978), 62 Ill. App.3d 738, 379 N.E.2d 364; Bonebrake v. Cox (8th Cir. 1974), 499 F.2d 951; Field v. Golden Triangle Broadcasting, Inc. (1973), 451 Pa. 410, 305 A.2d 689, cert. denied (1974), 414 U.S. 1158, 39 L.Ed.2d 110, 94 S.Ct. 916; DeMatteo v. White (1975), 233 Pa. Super. 339, 336 A.2d 355; see also J. White & E. Summers, Uniform Commercial Code 51 (2d ed. 1980)).

In this regard, we note that the allegations of count I are directed solely to the conduct of defendant with respect to treatment. Plaintiff asserts only that defendant "represented and warranted" (a) that radiation treatment would eliminate her enlarged thymus without side effects; (b) that the treatment was properly investigated and researched and would cause no side effects; and (c) that the treatment was standard in the medical community at that time. She concludes that her "cancerous condition was caused by the radiation treatment administered by Defendant." She does not, however, mention the Code anywhere in count I or elsewhere in the complaint, and she makes no allegations either that there was a sale of goods or that the stated warranties were breached in any manner.

• 4 In Greenberg v. Michael Reese Hospital, which involved six children who had been given radiation treatments by defendant in the 1940's, the court had this to say:

"Here, the plaintiffs' emphasis is not on the X-radiation but rather on the results of treatment. As such, plaintiffs' allegations go not so much to the defective nature of the particular X-radiation treatments in question as to the appropriateness of X-radiation treatment for plaintiffs' complaints. Indeed, plaintiffs do not allege any distinction between the X-radiation they received and all other X-radiation. Accordingly, we must conclude that the plaintiffs are concerned with the conduct of defendant rather than the nature of a particular product." (83 Ill.2d 282, 289.)

While we are concerned with "goods" under the Code rather than a "product" under strict liability as was the case in Greenberg, we think the above quoted language is appropriate here, also. Thus, we believe that the transaction between plaintiff's parents and defendant was predominately, if not entirely, for the rendition of services by defendant and, in view thereof, we find the Code has no application and that the court properly dismissed count I.

• 5 Concerning count II, we see again that defendant did not contest the sufficiency of the complaint in the trial court, and the sole question presented is one of law; namely, whether the administration of the radiation treatment was the sale of a "chattel" as that term is used in the innocent misrepresentation theory of liability set ...

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