also dissenting:
I must dissent from the majority’s decision because I agree with Dean Prosser “that liability must stop somewhere short of the freakish and the fantastic.” (Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 27 (1953).) I believe that the majority decision, as a practical matter, has abandoned the traditional fault concept of liability premised upon duty and foreseeability and embraced instead a system which depends wholly upon the element of causation. Though the majority decision pays lip service to the concepts of duty and foreseeability, the effect of the decision is to emasculate these principles whenever causation can be shown. The adoption of causation as the single determinative factor on the issue of liability results not, as professed, from a logical extension of the earlier decisions of this court, but rather from definite choices of policy on the part of the majority. Those choices, however, are made at the expense of competing social policies which underlie the more traditional notions of liability in tort, and, I believe, augur the demise of the dual foundations of the tort concept: duty and foreseeability. To properly consider the instant case, one must examine briefly the origin of the trend to exalt the notion of causation, and the policies which initially generated the movement.
Natural sympathy for unfortunate individuals who suffer damages through no fault of their own has rendered quite acceptable the theory, currently in vogue, that compensation to an innocent victim should be spread over a broad base and passed on to the public either through the insurance premiums the public pays or as a cost of doing business. (See generally Harper and James, Torts (1956).) As one commentator has succinctly stated, the basic slogans of this line of reasoning are: “Let All Accident Victims Be Compensated” and “Let The Loss Be Spread.” (Cooperrider, A Comment on the Law of Torts, 56 Mich. L. Rev. 1291, 1299 (1958).) As this doctrine of “spread the risk” has evolved, the interest of tort law in fault has declined, because the doctrine’s emphasis is upon the existence of a fund to compensate the victim and not upon the liability of the individual defendant. Concomitantly, the traditional legal concepts of duty and foreseeability have increasingly come to be seen as mere catchwords to be manipulated according to the results one wishes to reach. (See Keeton, Creative Continuity in the Law of Torts, 75 Harv. L. Rev. 463, 464-65 (1962).) I concede that this philosophy has a certain philanthropic appeal, but only so long as the burden on the public can be comfortably borne. Today’s decision brings us perceptibly closer in our inexorble procession to that point at which the burden becomes unbearable.
The advance of the spread-the-risk doctrine has inevitably resulted in the relaxation of the traditional tort elements of duty and foreseeability, and in an increased emphasis upon the element of causation as the determinative factor in liability. This is so because the policies which underlie the doctrine, and which the majority inescapably approves today, are not compatible with a healthy solicitude for the traditional concept of duty. Generally stated, these policies are that every injured person is entitled to compensation, and that the loss should fall upon the defendant, who is considered better able to distribute the cost. (Cooperrider, A Comment on the Law of Torts, 56 Mich. L. Rev. 1291 (1958).) A court cannot approve the concept of risk spreading until it at least tacitly accepts one or both of these principles. In so doing, the court jettisons the fault theory of tort law in favor of a system based merely upon causation. In my opinion, the damning effect of this process is that it totally disregards the competing policy of limiting the burden to which the public can be subjected and focuses solely upon the need of the injured individual.
In my view, the majority’s decision can only be viewed as a tacit acceptance of causation as the sole determinant of liability. Though couched in terms of duty and foreseeability, the majority’s decision certainly does not comport with any traditional understanding of those terms. The fundamental expression of the need in the law of negligence for a concept of duty, grounded upon foreseeability, was provided long ago by Justice Cardozo in Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99. As paraphrased by Dean Prosser: “Negligence must be a matter of some relation between the parties, some duty, which could be founded only on the foreseeability of some harm to the plaintiff in fact injured. ‘Negligence in the air, so to speak, will not do.’ ” Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 5 (1953).
In determining, then, to whom a duty is owed, foreseeability is one element by which we are guided. We made clear, however, in Cunis v. Brennan (1974), 56 Ill. 2d 372, 375, that “the existence of a legal duty is not to be bottomed on the factor of foreseeability alone.” Nonetheless, foreseeability is the element which circumscribes the outermost limits of duty. Thus, as we held in Cunis, no legal duty arises unless harm is reasonably foreseeable. However, there are areas of foreseeable harm where no legal obligation arises. Prosser, Torts sec. 56, at 340-41 (4th ed. 1971).
In addition to foreseeability of harm, the concept of legal duty includes and expresses considerations of social policy. As Dean Prosser accurately commented: “In the end the court will decide whether there is a duty on the basis of the mores of the community, ‘always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.’ ” Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953).
It is thus evident that judicial discretion is an integral part of the duty concept. This does not, however, imply that the concept is illusory, or that the rules of law on the subject, which have been developed over many years, should be blithely ignored. Today’s decision abrogates what I had thought was an unquestionable rule of law, that “negligence in the air, so to speak, will not do.” (Pollock, Torts 361 (14th ed. 1939).) A holding which finds a duty of care owed to an entity which is not in existence must be considered the classic illustration of “negligence in the air.”
Although the majority professes to find a legal duty in this case within the realm of foreseeability, it has, in effect, abandoned the concept of foreseeability and accepted the notion that where causation is shown all results are foreseeable. Neither causation nor foreseeability standing alone are adequate standards upon which to predicate liability. It must be admitted that in the normal course of events there existed the possibility that the injury complained of in this case would result from the acts of the defendant. But, as we stated in Cunis “[t] he creation of a legal duty requires more than a mere possibility of occurrence.” (56 Ill. 2d 372, 376.) In a sense, to use a well-worn phrase, “through hindsight, everything is foreseeable.”
The unprecedented step this court has taken in this case is, the majority contends, required by “[l]ogic and sound policy.” We would do well to remember, however, that “[t] he life of the law has not been logic: it has been experience.” (O. W. Holmes, The Common Law 1 (1923).) Since experience is the life of the law, for the reasons stated later in this dissent, I believe experience in the field of tort law demands that our concept of legal duty be circumscribed by something more definable and restraining than simple foreseeability. Otherwise, the philosophies expressed by the majority will strip the concept of duty of all vitality and leave recovery solely to the unfettered whim of causation.
This decision holds the potential for far reaching and, in the broadest sense of the word, unforeseeable consequences. Under the majority’s theory, it is entirely possible that a doctor or a hospital could be subject to a claim half a century after the negligent act was performed. If the mother in this case had received the transfusion at the age of two or three, if she gave birth at the age of 40, and if the action were not brought until the child reached majority, then nearly 60 years would have elapsed between the negligent act and the institution of the suit. Under this decision, there is no reason, in cases where certain deficiencies are passed from generation to generation, that a cause of action cannot be maintained by any individual at any point in the chain of heredity.
Nor is the possibility of a cause of action being transmitted genetically out of the question. The genetic consequences which could result from a nuclear accident or from long-term exposure to radiation are, unfortunately, no longer matters of concern only to writers of science fiction. (See Comment, Radiation and Preconception Injuries: Some Interesting Problems in Tort Law, 28 Sw. L.J. 414 (1974).) It is also not beyond the realm of possibility that the use of modern drugs could cause inherited deformities. Such a hereditary defect could be passed on to successive generations, making it impossible to determine how long a potential claim could confront an institution. Under these circumstances, it is difficult to perceive how an individual or institution could adequately provide insurance coverage, or how an insurer could establish reserves to cover a potential loss. The instant case presents us with an opportunity to anticipate and forestall such hereditary causes of action by drawing a line which limits liability “short of. the freakish and the fantastic” (Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 27 (1953)). Failure to do so could lead unavoidably to liability stretching across generations.
The majority feels confident that future courts will prevent such a result from ever occurring. I am less optimistic. If long-established principles of law may be discarded in this case in order to allow what is considered to be a desirable result, what assurance is there that they will be resurrected in the future? It seems more likely that a future court, armed with today’s decision, will take one more “logical” step down the slippery slope to absolute liability. For are not our twin slogans now, “Let All Accident Victims Be Compensated” and “Let The Loss Be Spread”?
Naturally, our sympathies are with the unfortunate child. The responsible individual, however, is not relieved of all liability if we find that the child has no cause of action. In this case the person who was injured through the wrongful act was the child’s mother, who, at the time, was 13 years old. The injury was to the mother in the first instance and not to the child. It is only through the injury brought about in the mother that the child has sustained an injury. It must be remembered that the mother has brought an action against the defendants in this case in her own name as well as the action now under consideration. If the mother is entitled to recover in her own right, much of the damages claimed by the infant in this case will be recovered by her parent.
My deepest concern with the majority decision is that it is symptomatic of the increasing tendency of the courts to expand the traditional limits of tort law with little regard for the resultant social consequences. As was noted earlier in this dissent, the idea has developed that the damages suffered by innocent persons should be spread over a broad base either through insurance or as a cost of doing business. An ever-broadening concept of duty has evolved to accommodate this theory, bringing more persons under the protective umbrella. Once under this umbrella, sympathetic juries and an increasingly efficient plaintiff’s bar have managed to inflate the size of verdicts. The combination of these two factors has skyrocketed the cost of spreading the loss over a broad base so that the cost to the individual members of the public is no longer insignificant. We have painfully learned that the “spread the risk” theory of tort law depends upon the “deep pockets” of the general public.
I believe we have finally reached the point where the public can no longer or will no longer bear the economic burden of our present-day system of tort law. Automobile insurance rates have reached absurd heights, premiums for health insurance increase regularly and rapidly, and the overbearing cost of medical malpractice insurance, with its attendant social ills, has become a matter of common knowledge. In some States the so-called malpractice crisis has resulted in the closing of hospital emergency services, the withdrawal of insurance underwriters from the field, and the abandonment by some physicians of their chosen specialties. Symposium, The 1975 Indiana Medical Malpractice Act, 51 Ind. L.J. 91, 92-94 (1975).
The public, asked to endure this intolerable economic strain, is seeking, through its elected representatives, to reduce this burden through various legislative schemes which either limit recovery, modify judicially created rules of law, or adopt a no-fault system of compensation. A number of jurisdictions have taken these steps. (See Stewart, The Malpractice Problem — Its Cause and Cure: The Physician’s Perspective, 51 Ind. L.J. 134, 135 n.9, for a list of these statutes.) We have seen such attempts in Illinois, though the legislation failed to withstand particular constitutional challenges. (See Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313 (holding the provisions of a comprehensive medical malpractice act unconstitutional); Grace v. Howlett (1972), 51 Ill. 2d 478 (holding unconstitutional an act concerning the compensation of automobile accident victims).) No-fault legislation has also been introduced in the Federal Congress in the recent past. (See Stewart, The Malpractice Problem — Its Cause and Cure: The Physician’s Perspective, 51 Ind. L.J. 134, 135 n.10 (1975) (citing proposed Federal legislation).) The current legal literature abounds with various no-fault proposals (see Symposium, The 1975 Indiana Medical Malpractice Act, 51 Ind. L.J. 91, 97 n.28 (1975), and the articles cited thereunder), and it has been advocated that a no-fault-type system replace our present tort system. (O’Connell, Expanding No-Fault Beyond Auto Insurance: Some Proposals, 59 Va. L. Rev. 749 (1973).) Regardless of the merits of these various legislative and scholastic proposals, we cannot ignore the fact that the public is seeking some alternative to the burdens brought about under our present practice of spreading the risk.
It would be inaccurate to lay all the blame for the current woes of our tort system upon the doorsteps of the bar and the courts. However, we must certainly shoulder a large share of the blame. In my opinion, the public has clearly indicated that it is no longer willing to silently accept the economic burdens imposed upon it. Yet, though the message is unequivocal, for some reason it is being consistently ignored. The bar and the courts of this State continue to rush blindly forward, ever expanding and enlarging the area of potential recovery and therefore the burden the public must bear. We must establish, or perhaps more accurately, reestablish, reasonable limits and boundaries based upon the fault concept of tort recovery, or the legislature, urged on by a disgusted and overburdened public, will be forced to act.
In light of decisions like that which we announce today, it appears that this court is unwilling to take such an approach. I feel that legislative action is therefore inevitable. It is my hope that the fault concept of tort recovery, in which I firmly believe, survives. Without unduly extending this dissent, I believe generally that a person injured through another’s fault should recover adequate, not exorbitant, damages. The concept of liability based upon fault is premised on the simple principle that an individual who harms another through conduct which falls below the accepted norm of the community should compensate the injured party. It is my view that this principle represents the popularly accepted understanding of fairness and justice. When the remote, albeit logical, consequences of this principle are limited and tempered by the pragmatic considerations which have traditionally been expressed through the concepts of duty and foreseeability, a fair and workable system of com pensation results. When these limitations, are removed by reliance upon a philosophy which places compensation of the individual above all other considerations, the result is a system which unjustly burdens the innocent public which is required to pick up the bill.
Liability based upon fault, which has been recognized for generations and which is still adequate to compensate the great majority of tort victims, should not be sacrificed through a legislatively created no-fault system of compensation simply because the courts have sought to permit recovery by those who are unfortunately injured in a manner outside the traditional fault concept. For such unfortunate persons, it may be appropriate to legislatively provide nonfault compensation for actual loss. It is not, in my opinion, appropriate to manifest our sympathies for these injured parties by permitting compensation through the extension and distortion of the ideas of duty and foreseeability beyond the bounds of reason.
In light of the views of law, and personal sentiment, which I have expressed, I cannot concur in the majority decision and must respectfully dissent.