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Martin v. Kiendl Construction Co.

OPINION FILED MARCH 17, 1982.

EILEEN MARTIN, PLAINTIFF-APPELLANT,

v.

KIENDL CONSTRUCTION CO. ET AL., DEFENDANTS-APPELLEES. — GERALDINE SAUER, PLAINTIFF-APPELLANT,

v.

R.T. MILORD COMPANY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Louis J. Giliberto, Judge, presiding.

JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 26, 1982.

In these consolidated appeals we are asked to decide whether the wife of a living, injured workman, who himself brought an action for damages pursuant to the Structural Work Act, may recover for loss of consortium under the Act.

Plaintiffs' husbands brought actions against defendants under the Act for damages sustained when they fell from scaffolding. Plaintiff Sauer sought damages for loss of consortium premised on the Act and on a negligence theory. Plaintiff Martin sought damages for loss of consortium premised solely on the Act. The trial court held that the Act cannot provide the spouse of an injured worker with an action for loss of consortium. The court then dismissed those portions of plaintiffs' actions which were based on the Act. Plaintiffs appeal. Sauer originally contended that the Act is unconstitutional in failing to provide for an action for loss of consortium, but has expressly waived that argument.

• 1 Sauer now maintains that the spouse of an injured worker is a protected person under the terms of the Structural Work Act. We disagree. The purpose of the Act clearly is to compensate the worker for injuries sustained upon an unsafe workplace. (Crothers v. La Salle Institute (1977), 68 Ill.2d 399, 370 N.E.2d 213.) The title of the Act is as follows:

"An Act providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures, and to provide for the enforcement thereof." (Emphasis added.)

Section 1 (Ill. Rev. Stat. 1975, ch. 48, par. 60) provides:

"[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon." (Emphasis added.)

Section 9 (Ill. Rev. Stat. 1975, ch. 48, par. 69) recites in pertinent part:

"For any injury to person or property occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children; or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives."

Section 9 is to be read along with section 1 so that "any person" in section 9 means any person delineated in section 1. Hence, in the absence of an allegation that the present plaintiffs were injured while employed on or passing under scaffolding or that their spouses were killed while so employed, they are clearly outside the scope of the Act's protection. (Kelly v. Northwest Community Hospital (1978), 66 Ill. App.3d 679, 384 N.E.2d 102; Bitner v. Lester B. Knight & Associates, Inc. (1974), 16 Ill. App.3d 857, 307 N.E.2d 136; Lavery v. Ridgeway House, Inc. (1969), 117 Ill. App.2d 176, 254 N.E.2d 117.) The Act does not grant the spouse of a living, injured worker a right of action for loss of consortium.

Unlike Sauer, Martin contends that the Act neither confers nor bars her action for loss of consortium. She maintains that a common law action for loss of consortium automatically arises in a spouse whenever the other spouse suffers a bodily injury for which the latter may recover, even if the basis for the latter's recovery is statutory. A brief discussion of the common law remedy for impairment of consortium is necessary. When a spouse is intentionally or negligently injured, the physical injury may indirectly impact on the marriage relationship, depriving the noninjured spouse of the other's services, affection or companionship. In such a case, the deprived spouse may sue for loss of the injured spouse's consortium. The remedy clearly seeks a societal vindication of a wrong done to the family unit, and not compensation for an injury. (Cf. Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881.) In language pertinent to this issue, Roscoe Pound has stated:

"The actual pecuniary damages in these cases is relatively small, as we recognize in permitting large verdicts by way of punitive damage where there is a wanton injury. * * * Where specific redress and prevention are impossible and money redress will cover but a small part of the wrong, the infliction of a penalty, which tends in some measure to satisfy the feelings of the injured person and at the same time vindicates the social interest against such wrongs in general is the sole recourse left open to the law." Pound, Individual Interests in the Domestic Relations, 14 Mich. L. Rev. 177, 190 (1916).

The English common law recognized a loss of consortium action in the husband for loss of his injured wife's services, and based the right on the concept that the wife was the husband's chattel. Since historically the wife could not sue or be sued in her own name she was, for all legal purposes, merged into the entity of her husband. Hence, an injury to the wife, the husband's chattel, was for all purposes an injury to the husband. (See Dini v. Naiditch.) After passage of legislation which recognized the wife as a separate legal entity, and which necessarily ended the concept of the wife as the husband's property, some jurisdictions refused to recognize the efficacy of the husband's action for loss of consortium. See, e.g., Gallagher v. ...


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