Martin v. Kiendl Const. Co.

• Decision Date: 17 March 1982
• Docket Number: Nos. 79-1709,79-1752,s. 79-1709
• Citation: 63 Ill.Dec. 824,108 Ill.App.3d 468,438 N.E.2d 1187
• Parties: , 63 Ill.Dec. 824 Eileen MARTIN, Plaintiff-Appellant, v. KIENDL CONSTRUCTION CO., a corporation and Wight and Company, a corporation, Defendants-Appellees. Geraldine SAUER, Plaintiff-Appellant, v. R. T. MILORD COMPANY, and Orput Associates, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1187

438 N.E.2d 1187

108 Ill.App.3d 468, 63 Ill.Dec. 824

Eileen MARTIN, Plaintiff-Appellant, v. KIENDL CONSTRUCTION CO., a corporation and Wight and Company, a corporation, Defendants-Appellees.

Geraldine SAUER, Plaintiff-Appellant, v. R. T. MILORD COMPANY, and Orput Associates, Inc.,

Defendants-Appellees.

Nos. 79-1709, 79-1752.

Appellate Court of Illinois First District, Third Division.

March 17, 1982.

Rehearing Denied Aug. 26, 1982.

Doyle & Ryan, Ltd., James M. Harman, Chicago, for sauer.

Perz & McGuire, Jos. T. McGuire, Stephen C. Schulte, Chicago, for Martin.

Frank Glazer, Ltd., Frank Glazer and G. A. Lewis, Chicago, for Kiendl.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, D. Kendall Griffith, Thos. M. Crisham, Kevin R. Sido, Chicago, for Milord.

McNAMARA, Justice:

In these consolidated appeals we are asked to decide whether the wife of a living, injured workman, who himself brought an action for damages pursuant to the Structural Work Act, may recover for loss of consortium under the Act.

Plaintiffs' husbands brought actions against defendants under the Act for damages sustained when they fell from scaffolding. Plaintiff Sauer sought damages for loss of consortium premised on the Act and on a negligence theory. Plaintiff Martin sought damages for loss of consortium premised solely on the Act. The trial court held that the Act cannot provide the spouse of an injured worker with an action for loss of consortium. The court then dismissed those portions of plaintiffs' actions which were based on the Act. Plaintiffs appeal. Sauer originally contended that the Act is unconstitutional in failing to provide for an action for loss of consortium, but has expressly waived that argument.

Sauer now maintains that the spouse of an injured worker is a protected person under the terms of the Structural Work Act. We disagree. The purpose of the Act clearly is to compensate the worker for injuries sustained upon an unsafe workplace. (Crothers v. LaSalle Inst. (1977), 68 Ill.2d 399, 12 Ill.Dec. 590, 370 N.E.2d 213.) The title of the Act is as follows:

"An Act providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures, and to provide for the enforcement thereof." (Emphasis added.)

Section 1 (Ill.Rev.Stat.1975, ch. 48, par. 60), provides:

"[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon." (Emphasis added.)

Section 9, (Ill.Rev.Stat.1975, ch. 48, par. 69), recites in pertinent part:

"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 widow of the person so killed, his lineal heirs or adopted children; 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 live or lives."

Section 9 is to be read along with Section 1 so that "any person" in Section 9 means any person delineated in Section 1. Hence, in the absence of an allegation that the present plaintiffs were injured while employed on or passing under scaffolding or that their spouses were killed while so employed, they are clearly outside the scope of the Act's protection. (Kelly v. Northwest Community Hospital (1978), 66 Ill.App.3d 679, 23 Ill.Dec. 466, 384 N.E.2d 102; Bitner v. Lester B. Knight & Associates, Inc. (1974), 16 Ill.App.3d 857, 307 N.E.2d 136; Lavery v. Ridgeway House, Inc. (1969), 117 Ill.App.2d 176, 254 N.E.2d 117.) The Act does not grant the spouse of a living, injured worker a right of action for loss of consortium.

Unlike Sauer, Martin contends that the Act neither confers nor bars her action for loss of consortium. She maintains that a common law action for loss of consortium automatically arises in a spouse whenever the other spouse suffers a bodily injury for which the latter may recover, even if the basis for the latter's recovery is statutory. A brief discussion of the common law remedy for impairment of consortium is necessary. When a spouse is intentionally or negligently injured, the physical injury may indirectly impact on the marriage relationship, depriving the non-injured spouse of the other's services, affection or companionship. In such a case, the deprived spouse may sue for loss of the injured spouse's consortium. The remedy clearly seeks a societal vindication of a wrong done to the family unit, and not compensation for an injury. (Cf. Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881.) In language pertinent to this issue, Roscoe Pound has stated:

"The actual pecuniary damages in these cases is relatively small, as we recognize in permitting large verdicts by way of punitive damage where there is a wanton injury. * * * Where specific redress and prevention are impossible and money redress will cover but a small part of the wrong, the infliction of a penalty, which tends in some measure to satisfy the feelings of the injured person and at the same time vindicates the social interest against such wrongs in general is the sole recourse left open to the law." Pound, Individual Interests in the Domestic Relations, 14 Mich.L.Rev. 177, 190 (1916).

The English common law recognized a loss of consortium action in the husband for loss of his injured wife's services, and based the right on the concept that the wife was the husband's chattel. Since historically the wife could not sue or be sued in her own name she was, for all legal purposes, merged into the entity of her husband. Hence, an injury to the wife, the husband's chattel, was for all purposes an injury to the husband. (See Dini v. Naiditch.) After passage of legislation which recognized the wife as a separate legal entity, and which necessarily ended the concept of the wife as the husband's property, some jurisdictions refused to recognize the efficacy of the husband's action for loss of consortium. See, e.g., Gallagher v. Pequot Spring Water Co. (1963), 2 Conn.Cir. 354, 199 A.2d 172; Helmstetler v. Duke Power Co. (1945), 224 N.C. 821, 32 S.E.2d 611; Rodgers v. Boynton (1943), 315 Mass. 279, 52 N.E.2d 576.

In 1958 the Illinois Supreme Court held that a surviving spouse and a minor child could not maintain a common law action for impairment of consortium caused when the defendant negligently and fatally injured the deceased. (Hall v. Gillins (1958), 13 Ill.2d 26, 147 N.E.2d 352.) The court stated at p. 30:

"But the common law has characteristically imposed close limits upon the persons entitled to sue. If the deceased in this case had survived, for example, his injuries might have been such as to inflict upon these plaintiffs deprivations of the same kind and of equal severity. Yet the only person entitled to recover would be the injured man himself." (Emphasis added.)

Yet, in 1960, responding to an equal protection type argument, our supreme court recognized the right of a wife to recover loss of consortium damages for the negligent infliction of injury to a living husband. (Dini v. Naiditch.) The Dini court expressly reserved the question, raised by the passage of the Married Women's Act, whether a husband's action for loss of consortium was viable in modern law. The court stated at p. 428, 20 Ill.2d, 170 N.E.2d 881:

"Inasmuch as we are not called upon to adjudicate the husband's claim, we need not consider that novel theory which would remedy the arbitrary denial of a cause of action to one partner by denying it also to the other one; nor can we predicate our interpretation of the common law on the supposition that one day a court will be able to equalize the situation by striking down the husband's action. Nor do we find that in Illinois the concept of "consortium" is ready for the discard pile. On the contrary, its vitality was reaffirmed in Heck v. Schupp [Citation, 394 Ill. 296, 68 N.E.2d 464], where we held unconstitutional a statute abolishing the action for alienation of affection, which involves this precise concept."

A dissent maintained that the remedy for loss of consortium for negligent injury to either spouse is insupportable in the law.

It is notable that the tort of alienation of affection, which the Dini court stated involves the concept of deprivation of consortium, requires an intentional interference with the family unit. Moreover, subsequent to the Heck v. Schupp holding, our legislature sharply curtailed the extent of a spouse's recovery for loss of consortium-type damages in an alienation of affection action. The statute was amended limiting recovery to actual damages; actual damages within the statute include pecuniary loss resulting from loss of services but exclude damages for loss of companionship, felicity and sexual intercourse. See Coulter v. Renshaw (1981), 94 Ill.App.3d 93, 49 Ill.Dec. 635, 418 N.E.2d 489.

The tort rationale for imposing liability on a defendant for loss of consortium damages is grounded on a duty and not a causation analysis. In the time-honored case of Palsgraf v. Long Island R. R. Co. (1928), ...