APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
537 N.E.2d 933, 182 Ill. App. 3d 62, 130 Ill. Dec. 604 1989.IL.476
Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Plaintiff appeals from the dismissal of that portion of her amended complaint in which she sought damages for loss of her decedent's society and companionship, arguing that these damages are available under the Structural Work Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.).
Plaintiff's husband died as a result of injuries he sustained when he fell from a scaffold on which he had been working in connection with the construction and repair of a building in Northbrook, Illinois. Defendant was one of the construction contractors and is named in counts III and IV, which are pleaded under the Structural Work Act (Ill. Rev.
Section 9 of the Structural Work Act provides in pertinent part as follows:
"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 surviving spouse of the person so killed, the lineal heirs or adopted children of such person, 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." Ill. Rev. Stat. 1987, ch. 48, par. 69.
Plaintiff argues that section 9, in creating a cause of action in favor of the structural worker's surviving spouse, heirs, or dependents, focuses upon the damages suffered by them as a result of his having lost his life. Defendant maintains that the Act centers not upon the losses experienced by the widow, heirs or dependents of the decedent, but upon the damages that would have been incurred by the worker had he survived his injury.
Plaintiff contends that "direct damages" include the value of the decedent's society and companionship which she and her children lost as a result of his death, and cites the provisions as to damages contained in the Coal Mining Act (Ill. Rev. Stat. 1987, ch. 96 1/2, par. 1007), which, she claims are in pari materia with section 9 of the Structural Work Act (see Mitseff v. Acme Steel Co. (N.D. Ill. 1962), 208 F. Supp. 805, 807; Scully v. Otis Elevator Co. (1972), 2 Ill. App. 3d 185, 275 N.E.2d 905), pointing out that they have been interpreted to include the value of the decedent's society and companionship. (O'Fallon Coal Co. v. Laquet (1902), 198 Ill. 125, 64 N.E. 767.) Plaintiff adds that more recent decisions have made clear that the value of a decedent's society and companionship are elements of the pecuniary damages recoverable in a death action brought under the Structural Work Act. Fedt v. Oak Lawn Lodge, Inc. (1985), 132 Ill. App. 3d 1061, 478 N.E.2d 469; Scully v. Otis Elevator Co. (1972), 2 Ill. App. 3d 185, 275 N.E.2d 905.
In O'Fallon, plaintiff, the son of a deceased worker, was awarded damages under the Coal Miners Act (Ill. Rev. Stat. 1899, ch. 93 (Hurd)), which, provided for the recovery of direct damages by an injured worker and "in case of loss of life . . . a like recovery of damages" for dependents. (O'Fallon, 198 Ill. at 127.) On appeal, defendant challenged the following jury instruction:
"[If] you find a verdict in favor of the plaintiff, then, in assessing the plaintiff's damages, you may consider the pecuniary benefits which the plaintiff may have derived from the deceased had the deceased not been killed, at any age of deceased's life, provided you further find, from the evidence, that the plaintiff ...