dissenting:
I respectfully dissent.
In its opinion, the majority too narrowly construes the Kirk and Condell cases and precludes the imposition of a duty in a situation in which the trial court correctly determined a cause of action exists.
The majority construes Kirk as establishing a bright line test and, based on Renslow, restricting the scope of a special relationship solely to that of physician-patient. In my opinion, reading Renslow, Kirk and Condell together, the supreme court was limiting the imposition of duty to those situations in which a relationship distinguishable from that of a mere member of the general public was present. In Renslow, the special relationship of physician-patient to the plaintiff was outside the scope of the general public member, whereas in this situation the plaintiff is in a special relationship of a professional caregiver, a fellow health care professional who works in concert with and often at the direction of a physician. This relationship is also distinguishable from that of the general public.
In this situation also there is applicable authority which the court in Kirk specifically noted that it was not construing. (Kirk, 117 Ill. 2d at 530, 513 N.E.2d at 398.) The court in Kirk (117 Ill. 2d at 530-31, 513 N.E.2d at 398) specifically noted that its decision did not deal with those situations covered in sections 315 to 319 of the Restatement (Second) of Torts (1965) in which a duty to third parties is delineated in various rules. The case at hand would reasonably come under the category of those instances contemplated under section 319 of the Restatement (Second) of Torts (1965) and follows the situation contemplated by that section in illustration 1.
Ҥ319. Duty of Those in Charge of Person Having Dangerous Propensities
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
Comment:
a. The rule stated in this Section applies to two situations. The first situation is one in which the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal. The second situation is one in which the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know.” (Restatement (Second) of Torts §319, Comment, at 129 (1965).)
“Illustrations:
1. A operates a private hospital for contagious diseases. Through the negligence of the medical staff, B, who is suffering from scarlet fever, is permitted to leave the hospital with the assurance that he is entirely recovered, although his disease is still in an infectious stage. Through the negligence of a guard employed by A, C, a delirious smallpox patient, is permitted to escape. B and C communicate the scarlet fever and smallpox to D and E respectively. A is subject to liability to D and E ***.” (Restatement (Second) of Torts §319, at 130 (1965).)
Actually, this is a stronger situation than illustration 1 in which apparently a member of the general public contracts this contagious disease. In the instant case the person who has a special relationship to the contagious individual contracts the contagious disease. If a member of the general public would be of the class to whom a duty would be owed in the circumstances delineated in illustration 1, a member of the particular class in a special relationship such as this plaintiff would surely be one to whom a similar duty is owed. This would also satisfy the special relationship requirements of Renslow, Kirk and Condell noted above.
Viewing other aspects of Kirk, imposition of liability would also conform to the analysis of the entire question of duty. In Kirk, as stated by the majority, a court must consider various factors such as reasonable foreseeability, likelihood of injury, the magnitude of the burden of guarding against the particular harm and the consequences of placing that burden on a defendant.
An example of application of the Kirk method of analysis is found in Johnson v. Village of Libertyville (1986), 146 Ill. App. 3d 834, 496 N.E.2d 1219, aff’d in part & rev’d in part on other grounds sub room. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37. The explicit premise the appellate court’s imposition of duty, and the grounds on which our supreme court reversed, was that the defendant mental hospital knew or should have known that its patient should have been involuntarily committed based on mental disorders, drug addiction and propensities toward violence and flight from authorities, pursuant to the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1983, ch. 91½, par. 1 — 119). The patient was not so committed, left the hospital without approval, and in the course of a subsequent high-speed chase by the police, the plaintiff’s decedent was severely injured and died. Our supreme court reversed the appellate court on the basis of lack of any allegation in the complaint that the patient was either involuntarily or voluntarily committed to the mental health facility (the defendant Condell) and concluded that she was admitted by her own request. Within this same context of mental health commitment and the constitutional implications of the resultant loss of liberty, the supreme court found no duty under the plaintiff’s theory of one who should have been committed nor under section 319 of the Restatement of Torts. (Restatement (Second) of Torts §319 (1965).) The court also noted that “plaintiff concedes that his decedent was a stranger to [defendants] Condell and Holt” (Condell, 119 Ill. 2d at 503, 520 N.E.2d at 49) and found no “special relationship.” The supreme court did not reverse the appellate court on its methodology of analysis of the duty question but, rather, on the mental health premise of its reasoning. The appellate court in Johnson noted the essential elements of a duty analysis to be as follows:
“Factors bearing on the issue of duty include the foreseeability of subsequent occurrences, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant.” (Johnson, 146 Ill. App. 3d at 837-39, 496 N.E.2d at 1223.)
This method of analysis tracks Kirk:
“Although the reasonable foreseeability of injury is a key concern in determining whether a duty exists, it is not the only consideration. The question of duty in a negligence action should take into account the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” (Kirk, 117 Ill. 2d at 526, 513 N.E.2d at 396.)
The majority is incorrect in claiming that our supreme court in Con-dell reversed the appellate court in all respects.
Applying the Kirk and Johnson factors for analysis of duty to the instant case, the circuit court properly denied defendants’ motion to dismiss. It is reasonably foreseeable that one who has a contagious disease such as tuberculosis could communicate that disease and that the likelihood of injury through that contact is great. The magnitude of the burden of guarding against this is not great and, in fact, has already been considered; the doctors involved in treating the individual with a communicable disease such as tuberculosis are already under a duty to diagnose that disease, recognize it as a communicable disease, and provide accordingly for the patient’s treatment, including confinement if required. The consequences of placing this burden on defendants is essentially to compel them to do what they are already obligated to do. This analysis is further strengthened by the position of plaintiff in this cause as being in a special relationship with the patient. This special relationship heightens the degree of reasonable foreseeability of an injury and the likelihood of that injury when one is discussing a fellow health care professional who is compelled by the mandates and ethics of the profession as well as the direct order of doctors similarly situated to the defendants in this case to provide care for a person who has a contagious disease; however, in this case, due to defendants’ failure to diagnose that contagious disease, the fellow health care professional, the plaintiff in this cause, was not given the opportunity to guard against the harm and likely injury of contracting this contagious disease. The burden of guarding against this injury and the consequences of placing this burden are merely to compel defendants to do what they were already obligated to do.
As noted above, our supreme court in Kirk specifically exempted section 319 of the Restatement from its analysis:
“There are types of relationships that give rise to a duty to control a third party’s conduct set out in sections 316 to 319 of the Restatement (Second) of Torts (1965), but none are applicable here. These decisions upon which the plaintiff relies are primarily concerned with a custodian’s duty and frequently rely on section 319 of the Restatement (Second) of Torts (1965), concerning the ‘duty of those in charge of person having dangerous propensities.’ There is no allegation here that the plaintiff was negligently released from the hospital, and there is no allegation that McCarthy had dangerous propensities of which the hospital and physicians were aware.” 117 Ill. 2d at 530-31, 513 N.E.2d at 398.
In my judgment, the proper disposition of this appeal would be to note that the Kirk case specifically excepts section 319 of the Restatement (Second) of Torts and that Johnson was reversed on other grounds in Condell, apply section 319 to the situation in this cause, further apply the duty analysis of Kirk to this cause, and affirm the trial court in its proper conclusion that a duty does, in fact, exist, and that the complaint stated a cause of action.