due to Kevin Coley and Michael Perino. Next they argue that, even if the NRC regulations are determinative, ComEd owed directly to the children of its workers a duty which is defined by those regulations setting the maximum permissible dose limits for minors or for the general population.
Under the Federal Rule of Civil Procedure 56 summary judgment is warranted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). This rule mandates summary judgment against a party who, after adequate time for discovery, "fails to make a showing sufficient to establish the existence of an element essential to that party's case and upon which the party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Moreover, the "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id.
In requesting summary judgment the moving party bears the initial burden of establishing the absence of a material issue of fact. Once that burden is met, the plaintiff must produce specific facts and documentary evidence showing a genuine issue of material fact still exists and justifies trial. Randle v. La Salle Telecommunications, Inc., 876 F.2d 563, 567 (7th Cir. 1989). At all times, reasonable inferences are drawn and the facts are viewed in the light most favorable to the nonmovant. Matsushita Electric Industrial Company v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Only if it is beyond doubt that a reasonable jury could not find in favor of the nonmovant may summary judgment be granted.
This case was removed to federal court in accordance with the Price-Anderson Amendments Act of 1988, 42 U.S.C. § 2014(hh). That act provides a federal forum for nuclear incident cases. However, instead of providing a federal tort law for deciding such cases, Congress stated that cases covered by the act should be decided pursuant to the law of the state in which the nuclear incident occurred, "unless such law is inconsistent with the provisions of [§ 2210]." 42 U.S.C. § 2014(hh).
A claim for negligence under Illinois law has three elements: the existence of a duty, the breach of that duty, and an injury proximately caused by the breach. Kirk v. M. Reese Hospital & Medical Center, 117 Ill. 2d 507, 111 Ill. Dec. 944, 513 N.E.2d 387, 395-6 (1987) (citations omitted). The inability to prove any one of these elements justifies summary judgment in favor of the defendant. See Celotex Corp., 106 S. Ct. at 2552.
A. NRC regulation determinative of the standard of care
1. Applicable Regulations
Pursuant to the NRC regulations, a licensee such as ComEd may permit a worker in restricted areas to receive "a total occupational dose to the whole body" of 3 rems per quarter or 5 rems per year. 10 C.F.R. § 20.102(b)(1). The phrase "whole body" is defined to include the gonads. 10 C.F.R. § 20.102(b)(3). This is clearly the regulation applicable to the allegedly injurious exposure in this case. The NRC has also set a separate dose limit for persons under 18 years of age, see 10 C.F.R. § 20.104, the NRC Regulatory Guide interpreting this regulation states that it does not relate to embryos or fetuses. Regulatory Guide 8.13 (1977). The ICRP has prescribed a third limit for the general, non-radiation worker population. This regulation is also inapplicable since the doses at issue in this case were received in the course of employment in restricted areas.
2. Standard of Care
Two courts in this district have held that the NRC regulations are determinative of the standard of care in occupational exposure cases. Jurka v. Commonwealth Edison Company, No. 88 C 7852, Transcript of Proceedings at 4 (N.D. Ill. August 9, 1990); O'Conner v. Commonwealth Edison Company, 748 F. Supp. 672, 676 (C. D. Ill. 1990). Both courts supported their decisions with reference to the Restatement (2nd) of Torts § 286, which has been cited with approval by Illinois courts. See O'Conner, 748 F. Supp. at 677, Jurka, Transcript at 4.
Section 286 provides:
The court may adopt as a standard of conduct of a reasonable man the requirements of a legislative enactment or administrative regulation whose purpose is found to be exclusively or in part (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect a particular interest which is invaded, and (c) to protect that interest against the kind of harm that has resulted, and (d) to protect that interest against the particular hazard from which the harm results.
Restatement (2d) of Torts, § 286 (1965). The NRC safety regulations fall squarely within this section. The purpose of the regulations is to protect radiation workers including Kevin Coley and Michael Perino; the interest allegedly invaded is the right to be free from unreasonably high doses of radiation; the regulations at issue were enacted to protect that interest from the appreciable bodily injury that has allegedly resulted; and the regulations seek to protect that interest by guarding against excess exposure, the cause alleged in this case. O'Conner, 748 F. Supp. at 677.
The O'Conner Court also noted policy reasons for adopting the regulations as the applicable standard of the case. The regulations expressly recognize that some exposure of radiation workers to radiation is unavoidable, and therefore prescribe the permissible dose limits. Compliance with these dose limits is mandatory. 10 C.F.R. § 50.57 (a)(2). Finally, in the highly technical field of radiation there is a need for clear statements of how to "limit a worker's dose without exposing the worker to injury or itself to liability." O'Conner, 748 F. Supp. at 678. In this context, a state rule setting a broader standard of care could disturb the regulatory scheme established to balance the need for protection and clarity. Since the regulatory scheme governing the nuclear power industry indicates a paramount federal interest, such a state rule must be rejected as contrary to the Price-Anderson Act. See O'Conner, 748 F. Supp. at 678.
The plaintiffs have not persuasively argued for a departure from the Jurka and O'Conner holdings nor proposed an alternative standard of care. Accordingly, because we find adoption of the regulations is to be at once reasonable and not inconsistent with state law, this Court will adhere to the approach taken by the Jurka and O'Conner courts.
Pursuant to that approach, ComEd's undisputed compliance with the applicable regulations conclusively proves the absence of negligence in this case. Therefore, summary judgment in favor of the defendant is appropriate.
B. NRC regulations as prima facie proof on the negligence issue
The plaintiffs argue that at most Illinois law considers compliance or noncompliance with administrative regulations as prima facie proof of negligence. This position finds support in the Illinois case law. See Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 211 N.E.2d 253 (1965); Davis v. Marathon Oil Co., 64 Ill. 2d 380, 1 Ill. Dec. 93, 356 N.E.2d 93 (1976). The plaintiffs have failed, however, to indicate any other factor to which the trier of fact's attention may be drawn in deciding whether ComEd was or should have been aware in the early 1980s that paternal exposure would endanger the offspring of its employees. To the contrary, the record indicates that the generally accepted view on the part of the relevant scientific communities was that congenital injury could not be caused by paternal exposure to radiation, and that the only known factor contributing to Trisomy 18 was maternal. The fact that the generally accepted theories were or are being drawn into question by a few controversial scientists and theorists does not provide sufficient basis for a reasonable jury to find that the defendant reasonably should have foreseen the type of injury that allegedly occurred in this case. Thus, even under the plaintiffs' interpretation of state law, summary judgment is warranted in this case.
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