dissenting:
The majority applies a restrictive construction of section 5(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a)) and again refuses to acknowledge the validity of the dual capacity doctrine in Illinois. Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill. 2d 437, 359 N.E.2d 125; see dissenting opinion, McCarty v. City of Marshall (4th Dist. 1977), 51 Ill. App. 3d 842, 366 N.E.2d 1052.
Section 5(a) begins by setting out the limits of coverage of the Workmen’s Compensation Act:
“No common law or statutory right to recover damages from the employer, * * * is available to any employee who is covered by the provisions of this Act * * Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a).
The majority, without considering what common law was intended by the legislature to be included in the act, assumes that the strict product liability doctrine adopted in Illinois by Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182, was included under the act. The portion of paragraph (a) referring to the common law or statutory right of an employee was originally created and enacted in 1911 (Ill. Rev. Stat. 1911, ch. 48, par. 128 (current version at Ill. Rev. Stat. 1973, ch. 48, par. 138.5)), long before the Suvada doctrine was generally recognized as law. Several cases have discussed the legislative purposes of the act and in so doing have delineated the coverage. One such case stated:
“ ‘The act was designed as a substitute for previous rights of action of employees against employers and to cover the whole ground of the liabilities of the master, and it has been so regarded by all courts. * * * It is therefore clear that the words “accident” and “accidental injuries” used in the act, were meant to include every injury suffered in the course of employment for which there was an existing right of action at the time the act was passed; also to extend the liability of the employer to make compensation for injuries for which he was not previously liable and to limit such compensation.’ ” (Emphasis added.) Moushon v. National Garages, Inc. (1956), 9 Ill. 2d 407, 411, 137 N.E.2d 842,_, appeal dismissed (1957), 354 U.S. 905, 1 L. Ed. 2d 1425, 77 S. Ct. 1294.
Clearly the words “common law” in the act were meant to include only those common law rights of action that existed at the time the act was passed and did not include or apply to subsequently developed rights of action such as strict product liability. See dissenting opinion of Mr. Justice Simon in Rosales v. Verson Allsteel Press Co. (1976), 41 Ill. App. 3d 787, 354 N.E.2d 553.
Thus, section 5(a) does not bar an action by the employee against the employer under the strict liability doctrine and the majority’s reliance upon the supposed exclusive remedy is erroneous.
Further, the majority errs in adhering to the view expressed in McCarty that the dual capacity doctrine is not a valid rule in Illinois. In so doing they ignore its basic underpinnings and the recognition and adoption of that doctrine by the supreme court in Laffoon.
The obligations that the defendant in the present case owed as a manufacturer of equipment to users and bystanders was entirely independent of those obligations imposed upon an employer. (See 2A Larson, Workmen’s Compensation Law §72.80 (1976).) Defendant as a manufacturer owed a duty to all users and bystanders, including those users or bystanders in his employ, to market a product that was not in a defective condition or unreasonably dangerous. (Restatement (Second) of Torts §402(a) (1965).) The plaintiff can hardly be expected to assume the risk of a defectively designed or manufactured product when he enters into an employment relationship.
The policy goals of the strict product liability doctrine therefore should not be subverted by the mere fortuitous circumstance that the injured individual was an employee of the manufacturer whose product caused the injury. Certainly if the injured individual had not been an employee it is clear he would have had a strict product liability cause of action against the defendant. To deny the plaintiff such a cause of action because he is an employee gives the defendant more protection than envisioned by the act. In effect, with this result the manufacturer can test new pieces of equipment utilizing any of his employees and limit his liability for any resulting injury from a defective product to that recoverable under the Workmen’s Compensation Act. This result is not only unfair but incorrect in view of the adoption of the dual capacity doctrine in Laffoon and the application of that doctrine to a case similar to the present one wherein the injured employee was allowed to pursue his cause of action on a strict liability theory. Douglas v. E. & J. Gallo Winery (1977), 69 Cal. App. 3d 103, 137 Cal. Rptr. 797.
The majority attempts to show that the lift truck had not been placed in the stream of commerce by resorting to narrow restrictive definitions. However, in so doing, they completely ignore the explanatory comments of the United States Court of Appeals in Delaney v. Towmotor Corp. (2d Cir. 1964), 339 F.2d 4, wherein the phrase “stream of commerce” was first used. The court therein stated in referring to the bailment of a defective product and to a restrictive definition of the word sale:
“We can see no sensible reason why Delaney’s [bailee] rights against Towmotor [bailor] should be less extensive on the facts here than if Towmotor had first sold the hilo to its distributor" " ".” Delaney, 339 F.2d 4, 6.
There is no sensible reason in the present case why the plaintiff’s rights should be less extensive than if the lift truck was sold to a distributor and placed into the stream of commerce. The lift truck actually entered the stream of commerce through defendant’s manufacturing operation. The defendant most certainly did not gratuitously transfer the lift truck from his inventory to the department in which it was used. There was an exchange albeit an internal one. The fork lift is undoubtedly being depreciated by the defendant and to maintain as the majority does that there was no sale or the fork lift was not placed in the stream of commerce is elevating form over substance.
I would reverse the decision of the trial court and remand with direction to reinstate plaintiff’s complaint.