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July 10, 1991

BRANDON THOMPSON, et al., Plaintiffs,

James B. Zagel, United States District Judge.

The opinion of the court was delivered by: ZAGEL


 Brandon Thompson ("Thompson"), a minor, through Debra Christopher ("Christopher"), his mother, filed this action against Pizza Hut of America, Inc. ("Pizza Hut"). Plaintiff Thompson seeks damages for injuries he suffered while in utero allegedly caused by the defendant's negligent acts. Pizza Hut has moved for summary judgment under Fed. R. Civ. P. 56. For the reasons stated below, Pizza Hut's motion is denied.


 In December, 1984, Christopher was employed at the defendant's restaurant located in Zion, Illinois. At that time, Christopher was in her first trimester of pregnancy with the plaintiff, Thompson. During the installation of a computer system, Pizza Hut's ventilation and exhaust system failed and Christopher was exposed to carbon monoxide and other fumes over a three-day period. Christopher complained to the defendant over this three-day period of excessive heat, tearing of her eyes, headaches and nausea. On August 3, 1985, Thompson was born with "severe and disabling birth defects." Thompson now seeks recovery for his personal injuries which allegedly were caused from his mother's exposure to carbon monoxide due to Pizza Hut's negligence.


 Thompson is a citizen of Iowa and Christopher is a citizen of Texas. Pizza Hut is a Delaware corporation with its principal place of business in Kansas. Thus, there is diversity jurisdiction under 28 U.S.C. § 1332. Diversity cases are governed by the choice of law rules of the forum state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). In tort actions, Illinois choice of law rules apply the law of the state where the injury occurred. Ferguson v. Kasbohm, 131 Ill. App. 3d 424, 475 N.E.2d 984, 86 Ill. Dec. 605 (1st Dist. 1985). Because plaintiff Thompson's alleged injury occurred in Illinois, Illinois law applies.


 The issue in this case is whether the Illinois Workers' Compensation Act (the "Act") bars a child from bringing suit against its mother's employer for fetal injuries the child incurred while the mother was acting as an employee in the course of her employment. *fn1" Defendant argues that Thompson's claim against Pizza Hut is barred by §§ 3 and 11 of the Act and that Pizza Hut is entitled to a judgment as a matter of law. The Act applies automatically to Pizza Hut because the restaurant business is an extra hazardous activity under § 3 of the Act. Ill. Rev. Stat. ch. 48, para. 138.3(14). As an employer covered under the Act, Pizza Hut's liability for injuries sustained by its employees during the course of their employment is limited to amounts set forth in the Act. Ill. Rev. Stat. ch. 48, para. 138.11.

 It is Pizza Hut's contention that the exclusive remedy doctrine of the Act bars Thompson from bringing a common law cause of action against the defendant because Thompson's injuries derive from injuries suffered by Christopher in the course of her employment by Pizza Hut. Defendant relies on Bell v. Macy's California, 212 Cal. App. 3d 1442, 261 Cal. Rptr. 447 (1st Dist. 1989) to support its position. In Bell, the California Appellate Court applied the derivative injury doctrine to injuries sustained by a fetus which occurred in the course of the mother's employment and barred recovery based on the exclusive remedy provision of the state's worker's compensation law. Id. at 1453 n. 6, 261 Cal. Rptr. at 454 n. 6. The Bell court based its holding on the inseparability of the fetus in utero from its mother, stating that any injury to the fetus can only occur as a result of a condition which affects its mother. Id. Furthermore, the court reasoned that to hold otherwise would lead to discrimination by employers in their hiring policies toward women out of fear of unlimited liability for fetal injuries suffered by employees' unborn children. Id. at 1454, 261 Cal. Rptr. at 455.

 However, a Louisiana court has come out differently on this same issue, (a fact which the defendant failed to point out). See Cushing v. Time Saver Stores, Inc., 552 So. 2d 730 (La. Ct. App. 1989). In Cushing, a child brought an action against his mother's employer for injuries the child sustained while in utero due to an on-the-job injury to his mother. The Louisiana Court of Appeals held that the state's worker's compensation act did not prevent the child from bringing the tort claim against his mother's employer. Id. at 731. The court distinguished cases where it had rejected tort claims brought by the employees' family members which stemmed from injuries to the employees. Id. Unlike those cases, the Cushing court reasoned that the injuries sustained by the child while in utero did not derive from injuries to the employee mother. Thus, the child "is entitled to assert a cause of action in tort against his mother's employer in the same way that a child already born, who was injured on the mother's job site, could assert such a claim." Id. at 732.

 We agree with the Louisiana court and hold that Thompson's cause of action for injuries he incurred while in utero is not barred by the exclusive remedy doctrine of the Act. The language of § 5(a) of the Act states:

No common law or statutory right to recover damages from the employer . . . for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.

 Ill. Rev. Stat. ch. 48, para. 138.5(a) (emphasis added). Thus, Illinois courts have rejected common law claims made by spouses and children of injured employees which are based on the employee's injury. See Block v. Pielet Bros. Scrap and Metal, Inc., 119 Ill. App. 3d 983, 457 N.E.2d 509, 75 Ill. Dec. 515 (1st Dist. 1983) (court denied claim for loss of consortium brought by child of injured employee); Bloemer v. Square D. Co., 8 Ill. App. 3d 371, 290 N.E.2d 699 (1st Dist. 1972) (court rejected claim for loss of consortium brought by wife of injured employee). Even though the employees' family members might claim ...

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