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Martin v. Kiendl Construction Co.

ILLINOIS APPELLATE COURT — FIRST DISTRICT (3RD DIVISION) JUDGMENT AFFIRMED.


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. Pequot Spring Water Co. (1963), 2 Conn. Cir. 354, 199 A.2d 172; Helmstetler v. Duke Power Co. (1945), 224 N.C. 821, 32 S.E.2d 611; Rodgers v. Boynton (1943), 315 Mass. 279, 52 N.E.2d 576.

In 1958, the Illinois Supreme Court held that a surviving spouse and a minor child could not maintain a common law action for impairment of consortium caused when the defendant negligently and fatally injured the deceased. (Hall v. Gillins (1958), 13 Ill.2d 26, 30, 147 N.E.2d 352.) The court stated:

"But the common law has characteristically imposed close limits upon the parties entitled to sue. If the deceased in this case had survived, for example, his injuries might have been such as to inflict upon these plaintiffs deprivations of the same kind and of equal severity. Yet the only person entitled to recover would be the injured man himself." (Emphasis added.)

Yet, in 1960, responding to an equal protection type argument, our supreme court recognized the right of a wife to recover loss of consortium damages for the negligent infliction of injury to a living husband. (Dini v. Naiditch.) The Dini court expressly reserved the question, raised by the passage of the Married Women's Act, whether a husband's action for loss of consortium was viable in modern law. The court stated:

"Inasmuch as we are not called upon to adjudicate the husband's claim, we need not consider that novel theory which would remedy the arbitrary denial of a cause of action to one partner by denying it also to the other one; nor can we predicate our interpretation of the common law on the supposition that one day a court will be able to equalize the situation by striking down the husband's action. Nor do we find that in Illinois the concept of `consortium' is ready for the discard pile. On the contrary, its vitality was reaffirmed in Heck v. Schupp [citation], where we held unconstitutional a statute abolishing the action for alienation of affection, which involves this precise concept." (20 Ill.2d 406, 428.)

A dissent maintained that the remedy for loss of consortium for negligent injury to either spouse is insupportable in the law.

It is notable that the tort of alienation of affection, which the Dini court stated involves the concept of deprivation of consortium, requires an intentional interference with the family unit. Moreover, subsequent to the Heck v. Schupp holding, our legislature sharply curtailed the extent of a spouse's recovery for loss of consortium-type damages in an alienation of affection action. The statute was amended limiting recovery to actual damages; actual damages within the statute include pecuniary loss resulting from loss of services but exclude damages for loss of companionship, felicity and sexual intercourse. See Coulter v. Renshaw (1981), 94 Ill. App.3d 93, 418 N.E.2d 489.

The tort rationale for imposing liability on a defendant for loss of consortium damages is grounded on a duty and not a causation analysis. In the time-honored case of Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99, Judge Cardozo held that negligence as to one person which ultimately and in fact injures another to whom no duty is owed is not negligence as to the latter person. In his dissenting opinion, Judge Andrews argued for the imposition of liability based on a test of proximate cause. As illustration of this principle in the law, he cited the husband's remedy for loss of consortium against a negligent defendant. Our supreme court continues to reject Judge Andrews' strict causation approach, however, and continues to apply Judge Cardozo's analysis of duty to define the limits of tort liability. (See Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 367 N.E.2d 1250.) In Renslow, the court defined duty as "an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (67 Ill.2d 348, 356.) As illustration that duty and not causation underlies tort liability, the Renslow court reconciled Judge Andrews' use of the remedy for loss of consortium with a duty analysis. The court stated that a spouse's remedy for loss of consortium exemplifies the concept of "a limited area of transferred negligence," much like the transferred intent doctrine. (67 Ill.2d 348, 356.) Hence, a spouse may recover for deprivation of consortium in cases of negligence not because an injury is suffered in fact, but because courts> have made the policy decision that the duty to act with reasonable care should be transferred to the deprived spouse.

• 2 Applying these principles to the present case, we do not believe, as Martin suggests, that a spouse's right of action for impairment of consortium arises automatically whenever physical harm befalls the other spouse. Absent a duty owed by the defendant to plaintiff, there can be no recovery despite any adverse impact on the noninjured spouse's relational interests. We do not agree with the suggestion that duty is not the issue here and that the common law remedy for loss of consortium was never dependent on an additional duty owed the deprived spouse. Palsgraf and Renslow dictate the conclusion that duty is the bulwark of tort liability. And Renslow establishes that a single duty may supply the basis for tort liability to both the injured and the deprived spouse but only when, by judicial fiat, the duty owed the former is "transferred" to the latter. Hence, the issue before us is whether the duty created by the legislature in the Structural Work Act and owed to the injured worker ought to be transferred by judicial decision to the spouse of a living, injured worker.

• 3 We conclude that the duty created by the legislature in the Structural Work Act cannot be transferred by judicial decision to third persons outside the Act's protection despite the intimacy of their relationship to protected persons. In creating a statutory standard of care in derogation of the common law, the legislature was entitled to define the class of persons intended to be protected and to exclude others from protection. We have stated that the Act was intended to protect only those injured in and around the workplace and not to protect the spouse of an injured worker. The common law remedy for impairment of consortium reflects policy considerations so distinct from the purposes of the Structural Work Act that transferral of the duty under the latter to the former would be an impermissible extension of the Act to persons and interests outside its scope. (See Wright v. Synergistics, Inc. (1977), 52 Ill. App.3d 233, 367 N.E.2d 466.) Nestling the standards of the Act within a common-law action does not alter our conclusion that plaintiffs are outside the Act's protection. Plaintiffs cannot accomplish indirectly what cannot be done directly.

We believe that plaintiffs' attempt to utilize a statute is dispositive in the present case. Our courts> have repeatedly refused to permit recovery of loss of consortium damages when to do so would require a judicial extension of the terms of a statute. (Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157 (loss of consortium not recoverable under dram shop statute); Kaiserman v. Bright (1978), 61 Ill. App.3d 67, 377 N.E.2d 261 (loss of consortium damages not available under wrongful death statute); but see Elliott v. Willis (1980), 89 Ill. App.3d 1144, 412 N.E.2d 638.) Elliott merely involves the question whether loss of consortium is a "pecuniary injury" within the meaning of the Wrongful Death Act. Unlike the present case, it was undisputed in Elliott that plaintiff was a protected person under the statute, and indeed the Elliott plaintiff brought a statutory, not a common law, action. The case does not involve the issue presented here whether a plaintiff not protected by a statute may nevertheless invoke its standards in a common law action.

The New York case of Heil v. F & M Schaefer Brewing Co. (1975), 365 N.Y.S.2d 247, 47 App. Div.2d 754, aff'd without opinion (1976), 38 N.Y.2d 935, 382 N.Y.S.2d 986, 346 N.E.2d 824, relied upon by plaintiff Martin, is totally unpersuasive. Without opinions, judgments for plaintiffs husband and wife were affirmed in an action based on both a structural work statute and negligence. Since no opinions were issued, there is no indication that the judgments were predicated on the right to recover for loss of consortium under a structural work act. Indeed, language contained in a dissent indicates that the judgments were predicated on the negligence count.

For the reasons stated, the judgment of the circuit court of cook County is affirmed.

Judgment affirmed.

WHITE, P.J., concurs.

JUSTICE RIZZI dissenting:

I respectfully dissent from the conclusion of the majority that the plaintiffs do not have an action for loss of consortium. In my opinion, if a defendant's wilful violation of the Structural Work Act results in a tortious interference with the familial relationship between spouses, the spouse of the injured person has a common law cause of action against the defendant for loss of consortium. *fn1 I would reverse the dismissal of the loss of consortium actions in these two cases and remand the cases for trial.

An action for loss of consortium has always been recognized as a common law cause of action. (See Dini v. Naiditch (1960), 20 Ill.2d 406, 421-30, 170 N.E.2d 881, 888-93.) *fn2 Plainly, the existence of the action was never dependent upon the co-existence of any statutory right given to the spouse of the injured person. Nor has the existence of the action ever been dependent upon an "additional" duty other than the duty owed by the tortfeasor to the person injured by the tortfeasor. Rather, the action has always existed solely because of the defendant's tortious interference with the familial relationship between spouses. See Prosser, Torts secs. 124, 125, at 873-97 (4th ed. 1971).

Thus, to me, an action for loss of consortium should not be allowed or denied by determining whether the tortious interference with the familial relationship is premised upon the defendant's violation of a statute. For this reason, in my opinion, no words of the Structural Work Act are needed to give a spouse a right to recover for loss of consortium. The right to recover for loss of consortium exists by virtue of the defendant's tortious interference with the familial relationship. *fn3

In the present case, I do not find the reasoning of the majority persuasive, and I do not find the cases relied upon by the majority apposite. As an example, the majority states, "The tort rationale for imposing liability on the defendant for loss of consortium damages is grounded on a duty and not a causation analysis." In support of this statement, the majority cites and discusses Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99, and Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 367 N.E.2d 1250. I believe that the present case does not involve a conflict between a duty and a causation analysis. Moreover, in my opinion, the existence of a duty or causation is not the issue. *fn4 A loss of consortium action is based upon the traditional common law precept that the duty owed by a tortfeasor to the person injured includes a duty to the injured person's spouse, viz., not to tortiously interfere with the familial relationship. In this same regard, it has long been recognized that a duty may exist to one foreseeably harmed even though the person harmed may be unknown and remote in time and place. Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 357, 367 N.E.2d 1250, 1254-55; Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 103, 197 N.E. 578, 582.

On this same point, the majority cites Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157, for the statement that "loss of consortium [is] not recoverable under [the] dram shop statute." However, the fact that loss of consortium is not recoverable against a Dramshop Act defendant is not relevant here because, unlike the Structural Work Act, "[u]nder the Liquor Control Act * * * the defendant's liability is not based on fault." *fn5 (Knierim v. Izzo (1961), 22 Ill.2d 73, 78-79, 174 N.E.2d 157, 160-61.) This sharp contrast between the two statutes is made clear by what the court stated in Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., when it compared the statutes:

"In sharp contrast to the language in [the Structural Work Act] is the phraseology of the Liquor Control Act (Ill. Rev. Stat. 1959, chap. 43, par. 135,) in which the legislature, in order to effectuate a public purpose, imposed in unequivocal terms liability on the owner irrespective of his control over or participation in the tortious act. * * *

The Dram Shop Act was enacted prior to the Scaffold Act, and in the absence of such clear language in the Scaffold Act indicating an intention to impose a non-delegable duty on the owner, we do not believe that such a departure from recognized bases of liability can be inferred." 22 Ill.2d 305, 321, 175 N.E.2d 785, 793.

Together, the Knierim and Gannon cases manifest that, unlike the Dramshop Act, liability under the Structural Work Act is based on fault. Further, this critical difference between the two statutes demonstrates why a common law loss of consortium action can be premised on a defendant's violation of the Structural Work Act although it cannot be premised on a defendant's violation of the Dramshop Act. To me, if liability under a statute is based on fault which results in a tortious interference *fn6 with the familial relationship between spouses, the spouse of the injured person has a common law cause of action against the defendant for loss of consortium. However, if liability under a statute is not based on fault, then there would be no tortious interference with the familial relationship of the spouse.

The majority next cites Kaiserman v. Bright (1978), 61 Ill. App.3d 67, 377 N.E.2d 261, for the proposition that "loss of consortium [is] not available under [the] wrongful death statute." However, in Elliott v. Willis (1980), 89 Ill. App.3d 1144, 1148-49, 412 N.E.2d 638, 642, appeal allowed (1981), 83 Ill.2d 570, the court refused to accept the holding in Kaiserman and expressly declined to follow it. I agree with the court in Elliott. In Elliott, the court stated:

"Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881, held that a wife could maintain an action for lost consortium resulting from the nonfatal injuries to her husband. Thus, with recovery for consortium permitted when a spouse is merely injured, logic dictates that recovery be allowed when death occurs. The only basis in Illinois for excluding consortium as an element of loss when death occurs is that the suit must be brought under the Wrongful Death Act; the action approved in Dini was non-statutory. Yet in the case of death, the harm inflicted upon the marital relationship is more final and generally greater. Furthermore, the existence of the statute should not be viewed as an obstacle to compensation; the cases have emphasized its remedial nature and invite us to interpret it as permitting compensation for consortium." 89 Ill. App.3d 1144, 1146-47, 412 N.E.2d 638, 640.

Here, the Structural Work Act should not be viewed as an obstacle to a common law action for loss of consortium since the Act is not and never was intended to be an exclusive remedy. *fn7 (Illinois Pattern Jury Instructions, Civil, No. 180.00 (Structural Work Act), Introduction, at 466 (2d ed. 1972).) Moreover, unfair and illogical results would occur if recovery for loss of consortium is denied. To illustrate, if a worker is injured and dies months later as a result of a defendant's wilful violation of the Structural Work Act, his administrator could maintain an action under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1, 2) on behalf of the worker's surviving spouse and next of kin (Thomas v. Carroll Construction Co. (1957), 14 Ill. App.2d 205, 144 N.E.2d 461), and the worker's spouse could recover under the Wrongful Death Act for loss of consortium resulting from the worker's death (Elliott v. Willis (1980), 89 Ill. App.3d 1144, 1147, 412 N.E.2d 638, 641). With recovery for loss of consortium permitted when a worker is killed because of a defendant's wilful violation of the Structural Work Act, logic and fairness dictate that recovery be allowed for the spouse's loss of consortium prior to the time the worker died as a result of the accident, i.e., a spouse should be allowed to bring a common-law action for loss of consortium resulting from a worker's nonfatal injuries because of a defendant's wilful violation of the Structural Work Act.

Lastly, the majority also relies on Wright v. Synergistics, Inc. (1977), 52 Ill. App.3d 233, 367 N.E.2d 466. I do not find that case applicable. There was no loss of consortium or analogous action involved in Wright. In Wright, the sole issue was whether the injured plaintiff's activity at the time of the accident was covered under the Structural Work Act. Here, there is no issue as to whether the workmen's activities were covered under the Structural Work Act.

Accordingly, I believe that if a defendant's wilful violation of the Structural Work Act results in a tortious interference with the familial relationship between spouses, the spouse of the injured person has a common law action against the defendant for loss of consortium. Therefore, I would reverse the dismissal of the loss of consortium actions and remand the cases for trial.


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