dissenting:
Because I see no rational basis to deny recovery to the spouse of an injured worker merely because the worker’s cause of action is brought under the Structural Work Act, I respectfully dissent. My views parallel those of Justice Rizzi as expressed in his dissent in Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 428 N.E.2d 1187. If a defendant’s willful violation of the Structural Work Act results in a tortious interference with the familial relationship between spouses, then the spouse of the injured person should have a common law cause of action against that defendant for loss of consortium. The common law cause of action for loss of consortium has never been dependent upon the co-existence of any statutory right given to the spouse of the injured person. It is an independent action existing solely because of a defendant’s tortious interference with the familial relationship between spouses. (108 Ill. App. 3d at 475, 438 N.E.2d at 1191-92.) As Justice Rizzi so aptly stated, the Structural Work Act is not and was never intended to be an exclusive remedy. 108 Ill. App. 3d at 478, 438 N.E.2d at 1193.-94.
It is true plaintiff here did not specifically plead her loss of consortium claim as a common law cause of action. I believe, however, in the interest of justice, she sufficiently pleaded the operative facts so as to treat the loss of consortium claim as alleging a common law action for loss of consortium. I also believe in the interest of justice the waiver rule should not apply in this instance. As we have noted in the past, the waiver rule exists as a limitation on the parties, not the courts. Allen v. Electoral Board (1986), 147 Ill. App. 3d 782, 784, 493 N.E.2d 878, 879.