United States District Court, Northern District of Illinois, E. D
April 22, 1982
PAUL ZAWADZKI, ET AL., PLAINTIFFS,
CHECKER TAXI COMPANY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
This diversity action is in part a garden-variety personal
injury case arising out of an automobile accident in which
plaintiffs Paul Zawadzki ("Zawadzki") and Kenneth Cantor
("Cantor") were passengers in a taxicab owned by Checker Taxi
Company ("Checker"). What distinguishes it from the run of the
mill is that Counts III, IV and V are brought by three
corporations that employ Zawadzki and Cantor, claiming that
the negligence of Checker and its driver have injured the
employers by depriving them of the Zawadzki-Cantor services,
sales and hence profits. Checker has moved to dismiss those
counts for failure to state a cause of action.
Initially this Court, provided with no real assistance in
briefing or research by either side, denied Checker's motion.
Because neither side has provided the Court with
thoughtful analysis or controlling authority, it
will simply refer to the rule as stated in
Prosser, Handbook of the Law of Torts § 129, at 938
(4th ed. 1971):
. . . in general, liability has not been extended
to the various forms of negligence by which
performance of a contract may be prevented or
rendered more burdensome. There is one
conspicuous exception. The earlier rule under
which one who negligently injured a servant
became liable to his master for loss of his
services, apparently is still alive and good law;
and to the extent that there are services lost,
of value, the employer can recover damages.
Although Prosser says the rule "has, however, been under
considerable attack of late" (citing among other law review
articles one by Professor Seavey, Liability to Master for
Negligent Harm to Servant, 1956 Wn.U.L.Q. 309), defendants
have adduced nothing to show that the anciently-rooted common
law rule does not still apply in Illinois (the jurisdiction to
which this Court looks under Erie v. Tompkins principles).*fn2
*fn2 This case illustrates once again the deficiencies in the
Erie doctrine to which this Court has addressed itself on a
number of occasions. Were this Court in the state court system
and convinced that Professor Seavey's arguments are sound, it
could dismiss the employers' actions in full confidence that
the Illinois appellate courts would then speak to the issue in
definitive terms. But neither that assurance nor its equivalent
— the ability to certify a question to the state Supreme Court
— is available. This Court must therefore engage in the
predictive process with no input other than the existence of an
ancient common law rule and the fact that Illinois is a
Now Checker, apparently taking the matter with greater
seriousness, has renewed the motion. Each side has provided
Research by plaintiffs' counsel has still not turned up any
cases that allow an action in favor of a corporation for the
loss incurred as a result of the negligent injury of its
employees. Indeed Prosser is to some extent balanced by 1
Harper & James, Law of Torts § 6.10, at 506 (1956), which
states such an action cannot lie where defendant has acted only
negligently rather than intentionally.
As the earlier opinion indicated there is no Illinois case
in point, and under Erie Illinois law provides the substantive
rule of decision. But every recent case referred to in the
parties' rebriefing refuses to recognize the action the
plaintiff corporations seek to ground in Counts III, IV and V.
This Court's own research has disclosed additional authority
favorable to defendants and none to the plaintiff corporations.
Thus the following recent decisions, relying on either common
law or a related statute, have refused to allow corporations to
recover for losses occasioned by negligent injuries to their
employees: Phoenix Professional Hockey Club, Inc. v. Hirmer,
108 Ariz. 482, 502 P.2d 164 (1972); Nemo Foundations, Inc. v.
New River Co., 155 W. Va. 149, 181 S.E.2d 687 (1971); Snow v.
West, 250 Or. 114, 440 P.2d 864 (1968); Frank Horton & Co. v.
Diggs, 544 S.W.2d 313, 316-17 (Mo.App. 1976); Baughman Surgical
Associates, Ltd. v. Aetna Cas. & Surety Co., 302 So.2d 316
(La.App. 1974); Ferguson v. Green Island Contracting Corp.,
44 A.D.2d 358, 355 N.Y.S.2d 196 (App. Div. 1974); Steele v. J & S
Metals, Inc., 32 Conn. Sup. 17, 335 A.2d 629 (Super.Ct. 1974);
Preiser Scientific, Inc. v. Piedmont Aviation, Inc.,
432 F.2d 1002 (4th Cir. 1970) (West Virginia law); Standard Oil Co. v.
United States, 153 F.2d 958, 961-62 (9th Cir. 1946) (California
Absent any significant Illinois precedent, this Court's duty
under Erie is to engage in an Illinois-Supreme-Court-predictive
process that must look to the best available sources of
law.*fn1 It has no difficulty in predicting that Illinois
courts, faced with the issue, would follow the unanimous recent
trend of the cases elsewhere. There is no recent authority to
Plaintiff corporations can respond only that Illinois courts
have never explicitly overruled the common law rule as stated
by Prosser.*fn3 That argument is not persuasive. It only
demonstrates that (simply because no such actions have reached
the appellate level) Illinois law has not had the opportunity
or occasion to do so.
For the reasons stated in this memorandum opinion and order,
Checker's motion to dismiss Complaint Counts III, IV and V is
granted. This action will proceed solely on behalf of Zawadzki
and Cantor under Counts I and II.