Appeal from the Circuit Court of Cook County; the Hon. Brian
B. Duff, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
In June 1982, Mildred Raisl, a former employee of defendant corporation, filed a complaint in the circuit court of Cook County alleging that defendant was guilty of retaliatory discharge in that it had dismissed her because she had filed a workers' compensation claim. Count I of the complaint sought compensatory damages; count II sought punitive damages. Mildred Raisl died in 1983, and her sister Betty Raisl (plaintiff) was appointed special administrator to prosecute this action.
Following Mildred Raisl's death, defendant moved to dismiss this action, claiming that both counts of the complaint abated upon the death of the plaintiff employee. Following written and oral arguments, the trial court granted defendant's motion and dismissed both counts of the complaint.
The two issues presented in this appeal are: (1) whether an action for retaliatory discharge seeking compensatory damages abates upon the death of the employee; and (2) whether an action for retaliatory discharge seeking punitive damages abates upon the death of the employee.
• 1 The cause of action for retaliatory discharge was first recognized by our supreme court in Kelsay v. Motorola, Inc. (1979), 74 Ill.2d 172, 384 N.E.2d 358. Although the court acknowledged that the Workers' Compensation Act provided only for criminal, not civil, penalties for employers who fired workers for exercising their rights under the Act, the court held that a tort cause of action for retaliatory discharge was necessary to uphold and implement the significant public policy underlying the Act. The court found that the "fundamental purpose of the Act" was:
"to afford protection to employees by providing them with prompt and equitable compensation for their injuries. [Citation.]
The Workmen's Compensation Act, in light of its beneficent purpose, is a humane law of a remedial nature. [Citation.] It provides for efficient remedies for and protection of employees and, as such, promotes the general welfare of the State. Consequently, its enactment by the legislature was in furtherance of sound public policy. [Citation.] We are convinced that to uphold and implement this public policy a cause of action should exist for retaliatory discharge." (74 Ill.2d 172, 180-81.)
The court observed that this cause of action was not akin to a contract action but was a "separate and independent tort." 74 Ill.2d 172, 187.
In Illinois, the determination of whether an action abates upon the plaintiff's death is governed by common law rules and the statutory provisions changing the common law. Such decision depends upon the nature of the cause of action involved. See McGill v. Lazzaro (1978), 62 Ill. App.3d 151, 379 N.E.2d 16.
The common law distinguished between those actions which survive and those which abate based upon the type of injury the deceased plaintiff had suffered. "If the interest to be protected was primarily a property interest, then the action survived; however, if the interest was primarily personal, the action was held to abate. [Citation.]" (Shapiro v. Chernoff (1972), 3 Ill. App.3d 396, 403, 279 N.E.2d 454.) At common law, the death of either party abated tort actions. Butterman v. Chamales (1966), 73 Ill. App.2d 399, 220 N.E.2d 84.
The Illinois survival statute changed the common law to allow representatives of the deceased to maintain an action which had accrued during the deceased's lifetime. (Merrihew v. Chicago City Ry. Co. (1900), 92 Ill. App. 346.) The statute does not create a statutory cause of action. It merely permits a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died. National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 383 N.E.2d 919.
In relevant part, the Illinois survival statute provides:
"In addition to the actions which survive by the common law, the following also survive: * * * actions to recover damages for an injury to real or personal property * * *." (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 27-6.)
Early interpretations of the survival statute were very restrictive. (See, e.g., Holton v. Daly (1882), 106 Ill. 131.) Beginning with Saunders v. Schultz (1960), 20 Ill.2d 301, 170 N.E.2d 163, our supreme ...