APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
ELWARD, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
These three consolidated appeals present the question of whether punitive damages can be recovered under the Survival Act (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 27-6) in a common law cause of action.
James Froud and John Friday were asbestos workers who allegedly contracted peritoneal mesothelioma from prolonged exposure to asbestos products which were manufactured and sold by the defendants. Wyatt Williamson was an asbestos worker who allegedly contracted bronchogenic carcinoma from prolonged exposure to the same asbestos products. After Froud and Friday filed actions against the defendants, they died, and administrators were appointed to prosecute the actions on behalf of their estates. Williamson died before filing an action, and his administrator brought an action on behalf of his estate.
In each of these actions, count one accuses the defendants of negligence, count two is based on strict liability in tort, and count three seeks recovery of punitive damages. The defendants moved to dismiss count three of each action on the grounds that these common law actions for punitive damages abated at the death of the injured parties. These motions were granted, and the trial court found that there was no just reason for delaying appeal of its dismissal orders. (73 Ill.2d R. 304(a).) In deference to the trial court, we note that the court stated that it is illogical and unjust to permit defendants to escape liability for punitive damages merely because they are lucky enough to injure people who die before trial. However, the trial court reluctantly concluded that it was obligated to dismiss the actions for punitive damages.
The common law rule is that actions for "personal torts" abate at the death of the injured person. (Prosser, Torts sec. 126, at 898 (4th ed. 1971).) This common law rule is the source of the old adage that it was cheaper to kill people rather than to merely injure them. To counter the injustice caused by this rule, the Survival Act keeps various causes of action from abating at the death of the injured party, including "actions to recover damages for an injury to the person (except slander and libel)" (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 27-6). But, despite the fact that the statute does not distinguish between punitive and compensatory damages for injury to the person, Illinois case law has, for more than 100 years, interpreted the Act as providing that actions for punitive damages abate at the death of the injured person. (Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill.2d 31, 33, 330 N.E.2d 509.) Thus, as far as liability for punitive damages is concerned, it continued to be cheaper to kill people rather than to merely injure them. 61 Ill.2d 31, 38 (Goldenhersh, J., dissenting).
Relying on National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 383 N.E.2d 919, the administrators in the present cases argue that the supreme court no longer construes the Survival Act as providing for the abatement of actions for punitive damages. In National Bank, the supreme court held that a statutory cause of action for punitive damages under section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) did not abate at the death of the injured person, even though section 73 does not contain any reference to the question of survivability. *fn1 The court explained that it reached this result because the goal of promoting public safety through the use of punitive damages would be perverted if a wrongdoer could escape liability for outrageous misconduct merely because the injured person died before trial. 73 Ill.2d 160, 174.
As interpreted by the supreme court in National Bank, "[t]he Survival Act itself neither authorizes nor prohibits punitive damages." (73 Ill.2d 160, 174.) The court further explained that "[p]unitive damages for injuries prior to death should be unaffected by the subsequent death of the injured person, for punitive recovery addresses only the nature and gravity of a defendant's wrongful and wilful act." 73 Ill.2d 160, 174.
The precise question presented by the present appeals is whether the holding of National Bank is limited to statutory actions, or whether the court really meant it when it declared that "[t]he Survival Act itself neither authorizes nor prohibits punitive damages." 73 Ill.2d 160, 174.
Justice Ryan, in dissenting from National Bank, pointed out that (1) there is nothing in section 73 of the Public Utilities Act which indicates that the legislature intended for this statutory cause of action for punitive damages to survive the death of the injured person; and (2) there is nothing in the Survival Act to indicate that the legislature intended to distinguish between statutory and common law punitive damages. (73 Ill.2d 160, 178.) Moreover, awarding punitive damages in common law actions is also intended to promote public safety by punishing outrageous misconduct, and this goal would be perverted in common law cases, as well as statutory actions, if wrongdoers could escape liability whenever an injured person dies before trial. Thus, Justice Ryan concluded that "if the Survival Act is a sufficient vehicle for preserving a cause of action for statutory punitive damages, it should also be capable of preserving a cause of action for common law punitive damages. 73 Ill.2d 160, 178.
• 1, 2 We agree that there is no apparent basis for distinguishing between statutory provisions for punitive damages, such as section 73 of the Public Utilities Act, and actions for punitive damages based on the common law. And we are persuaded that the holding in National Bank is based on an interpretation of the Survival Act as a neutral vehicle which "neither authorizes nor prohibits punitive damages" (73 Ill.2d 160, 174) in both statutory and common law actions. We therefore conclude that, under the binding precedent of National Bank, common law actions for punitive damages survive the death of injured persons.
• 3 We note, however, that defendants' brief contains a broad-based attack on the propriety of punitive damage awards in the context of mass tort litigation, such as the large number of asbestos cases which have been filed across the nation. It is feared that, in such mass tort cases, the possibility that each plaintiff could separately recover a substantial award of punitive damages might bankrupt even the richest defendants. The defendants therefore argue that public policy should prohibit punitive damages in mass tort cases. But we do not believe that defendants should be relieved of liability for punitive damages merely because, through outrageous misconduct, they may have managed to seriously injure a large number of persons. Such a rule would encourage wrongdoers to continue their misconduct because, if they kept it up long enough to injure a large number of people, they could escape all liability for punitive damages.
If the defendants believe that the multitude of asbestos cases filed against them may subject them to a large number of backbreaking awards of punitive damages, they may want to consider requesting that the trial court certify a class action of asbestos case claimants for the purpose of resolving the issue of punitive damages. See In re Northern District of California "Dalkon Shield" I.U.D. Products Liability Litigation (N.D. Calif. 1981), 526 F. Supp. 887 (Appeal docketed, No. ___, 9th Cir.).
In the Dalkon Shield case, the defendant faced claims of $2.3 billion in punitive damages arising out of a large number of injuries allegedly caused through the use of its product, but the defendant itself had a net worth of only $280,394,000. Recognizing the danger of punitive "overkill," the trial court granted defendant's motion to certify a class action of plaintiffs for the purpose of resolving, in a single trial, the question of punitive damages in all Dalkon Shield cases. As contemplated by the district court, the jury — if it found for the named plaintiffs on the issue of liability, and found for the class on the issue of punitive damages — would be asked to award a single sum as punitive damages on behalf of all potential claimants. (526 F. Supp. 887, 920.) This procedure would permit each claimant ...