dissenting:
I respectfully dissent. This is another unfortunate episode in this litigation. To get a trial, plaintiff had to obtain a writ of mandamus. (People ex rel. Horwitz v. Canel (1966), 34 Ill.2d 306.) When she obtained a trial, the Circuit Court directed a verdict for the manufacturer of the incubator. Although the hospital defended solely on the issue of the casual relationship between the May 13, 1947, incident and the abnormal conditions of the child over a 20 year span, the majority holds she is not entitled to recover against the hospital, notwithstanding the uncontradicted evidence of its negligence.
As the majority opinion correctly points out, all the evidence of the infant being listless or in anywise abnormal comes not from the hospital records, but rather from an investigative report made after the injury. Whether the plaintiff was or was not listless prior to the happening of the occurrence is immaterial. There was negligence, and the child sustained some injury.
At 11:00 P.M. the night prior to May 13, 1947, the day on which the incubator overheated, the night nurse came on duty and was advised by the nurse she relieved that there had been difficulty with this incubator. She handled plaintiff three times between 11:00 P.M. and 7:00 A.M. and found nothing unusual about her.
Betwen 7:00 and 8:00 A.M. on May 13, 1947, three physicians saw the child convulsing, foaming at the mouth, suffering from hyperpyrexia (unusually high body temperature), as well as depressed fontanel, which evidences dehydration or loss of fluid. These three men, one a long time practitioner in pediatrics and two residents in that phase of medicine, found the incubator hot. Their opinion was that these conditions of the infant were directly caused by the overheating of the incubator. She had not, even by the investigative report, ever suffered from any of these conditions before being overheated in the incubator.
A resident, the first one on the scene, had been called by nurses who advised him that the incubator had overheated during the night. He so recorded this fact in the record. The hospital record for May 13, 1947, noted the baby’s temperature at 107 plus. One-half hour after the incubator was shut off and the child was still in it, her temperature was 102. One doctor testified the child’s body temperature goes right up with the incubator. After the incubator was shut off, the temperature would recede. Dr. Gibbs testified it is pretty clear it had been extremely hot, and brain cells are very sensitive to these temperature changes. The plaintiff has severe and crippling brain damage and is virtually helpless.
At the trial court level, the hospital’s position was that the child’s present condition at age twenty was not due to the incubator injury. It produced three witnesses, all experts in the field of pediatrics. To each of these was propounded a hypothetical question in which were listed all tire handicaps of the child across a twenty-year span, and whether there was a relationship between the incubator incident and these conditions. In this hypothetical question, is set forth these facts:
(a) At 7:30 A.M. a nurse in the maternity ward noted the baby convulsing;
(b) The incubator was hot to the touch;
(c) The child was found in a dehydrated state, running a fever and suffering from hyperpyrexia.
One of its witnesses, Dr. Perlman, specifically noted that “overheating of an incubator would not be good for any infant.” Dr. Hsia, another defendant’s expert, specifically stated that this episode could cause convulsions.
The hospital had no thermometer in the incubator to determine the temperature within it. This was in violation of a regulation of the Board of Health of the City of Chicago pursuant to an ordinance (Municipal Code 9-11) and that of the Illinois Department of Health enacted pursuant to statute (Ill. Rev. Stat. 1945, ch. lll½, par. 22). Such is a violation of the statute.
Apart from these specific facts, as well as those set forth in defendant’s investigative report, the infant, as well as the incubator, were under the control of the hospital. The doctrine of res ipsa loquitur was thus applicable. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446; Drewiclc v. Interstate Terminals, Inc. (1969), 42 Ill.2d 345; Moore v. Jewel Tea Co. (1969), 116 Ill.App.2d 109 (1970) 46 Ill.2d 288.) Plaintiff pleaded the doctrine, and the jury was so instructed, but at no time did the hospital undertake to explain this incident. The burden was on the hospital.
The position of the majority that according to defendant’s experts in responding to the hypothetical question the infant suffered from intrauterine growth retardation “unknown in 1947” cannot explain the overheating of the incubator. The hyperpyrexia, abnormal body heat, dehydration and convulsions are all admitted sequelae of being in this overheated incubator.
No one has urged, either in the trial court or in this court, that overheating does not cause these after-effects.
What the majority has held, in effect, is that there cannot be a directed verdict for the plaintiff in any instance because this determines the issue of proximate cause.
In a tort action, negligence and proximate cause are separate and distinct issues. Negligence is frequently an issue of law. This is clear from cases wherein trial courts have been held to properly direct a verdict for the plaintiff (Harrison v. Bingheim (1932), 350 Ill. 269; Sughero v. Jewel Tea Co. (1967), 37 Ill.2d 240), and comts of review have reversed judgments for new trials solely on the issue of damages. Calvetti v. Seipp (1967), 37 Ill.2d 596; Tennes v. Tennes (1943), 320 Ill.App. 19; Olson v. Chicago Transit Authority (1952), 346 Ill.App. 47.
The Calvetti case (37 Ill.2d 596) is particularly significant. There was a verdict for the defendant which was reversed and remanded for trial on the sole issue of damages. (Calvetti v. Seipp (1966), 70 Ill.App.2d 58.) This judgment of the Appellate Court was affirmed. The decision of the Supreme Court in the Calvetti case came at the same term as that of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, whereby Illinois trial courts for the first time were empowered to weigh the evidence on a motion to direct a verdict at the close of all evidence.
Powers of trial and reviewing courts have been expanded, rather than circumscribed, within the last five years. (See: Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494; Supreme Court Rule 366(a)(5).)
In directing a verdict, the court determines an issue of law, namely, that the defendant is negligent. The damages caused by such negligence is another question. This is left to the jury. But it is a grave error for a court to permit a jury to determine a question of law. Here there was no issue of fact of the defendant hospital’s negligence. The damages proximately caused by its conduct was the only issue between plaintiff and defendant hospital.
In the brochure of the manufacturer, the following statements are made:
“The Hess infant incubator and bed is designed and constructed so as to maintain a constant temperature with a safe maximum, a constant supply of fresh air, and a normal average humidity. It requires but little attention and regulation.
The incubator is constructed with an inner copper chamber into which the bed is set. This inner chamber is surrounded, except at the top, by a one inch water jacket, which is covered by insulating material over which is fitted a stainless steel finishing jacket, making in all three walls, with water between the first and second and insulation between the second and third walls.
# # #
The electric heating apparatus consists of a 175-watt heating element attached to the bottom of the incubator and controlled by an adjustable rheostat (heat regulator) and pilot light mounted on the incubator stand. A reserve heating element is provided for emergency * * *. Over this space is fitted an adjustable frame and a removable finen cover forming a hood, the purpose of which is to aid in shielding the infant from outside air currents and in controlling temperature in case the room becomes suddenly cooled, or for use during extremely cold nights.”
The evidence was that the purpose of the bed was to furnish heat with a “safe maximum,” to maintain normal humidity and to furnish oxygen. But after the “safe maximum” heat had been reached, there was no device on it which would shut off further increase in temperature. Although the idea was to determine the heat within the incubator by looking at the face of the crib, there was nothing within the incubator to indicate the level of heat attained.
When the court directed a verdict for the manufacturer of the incubator, he said: “Ladies and gentlemen of the jury, the Court informs you that the Ohio Chemical and Manufacturing Company and the Air Reduction Corporation are no longer in this case as defendants.” This statement left it to the jury to speculate why they were no longer in this case. Did they settle or was the incubator not deficient in any detail? The court misled the jury by this statement. A judge should say something to the effect that he is dismissing the defendant as a matter of law and nothing more. That this error affected the further proceedings is highly likely. The jury was, in effect, told that the incubator was not deficient in any detail, which would lead the jury to believe the hospital did nothing wrong.
The complaint against the manufacturer was based on both strict liability in tort and in negligence. The majority opinion observes:
“We find that the plaintiff failed to produce evidence as to the specific rheostat settings on the Hess bed at the time of the occurrence, the date of manufacture and purchase of the bed, the nature of the specific defect in the bed, and the condition of the bed when it left the defendant manufacturer, and consequently failed to sustain her burden of proof in accordance with standards set by Garofalo v. General Motors, 103 Ill.App.2d 389, and Rotche v. Buick Motor Co., 358 Ill. 507.”
Certainly the specific rheostat settings at the time of the occurrence, the date of the manufacture, the date of purchase, a specific defect, are all immaterial in a strict liability in tort action. Under this theory, “negligence need not be proved and a plaintiff has only to prove that his injury or damages resulted from a condition of the product, that the condition was an unusually dangerous one, and that the condition existed at the time the product left the manufacturer’s control.” (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill.2d 180, 196.)
In the very nature of things, a specific defect is not a requisite for recovery. The term “defect” when employed in a strict liability in tort action has a distinct meaning. In Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42 Ill.2d 339, 342, this term is thus defined:
“Although the definitions of the term ‘defect’ in the context of products liability law use varying language, all of them rest upon the common premise that those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function.”
It is thus obvious that so long as the product fails to perform in a manner in which it is intended and becomes unreasonably dangerous or not reasonably safe, a defect exists within the doctrine.
Nor was there any obligation to prove the condition of the bed when it left the defendant manufacturer. This, as will be noted, was a claim for defective design, in that the particular incubator was so designed that it did not have any device to cause it to be shut off when it reached a certain temperature beyond its maximum.
Liability for defective design is no stranger in this jurisdiction. See Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418; Wright v. Massey-Harris, Inc. (1966), 68 Ill.App.2d 70, as well as the Restatement of the Law of Torts Second, 402A.
Garofalo v. General Motors Corp. (1968), 103 Ill.App.2d 389, involved primarily the issue of the obligation to answer certain interrogatories and the imposition of sanctions. In passing upon that issue, the court noted the evasiveness of the answers. To hold that this is authority for the necessity of proof of a specific defect in a strict fiability in tort action is contrary to Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill.2d 339, and the authorities cited therein.
Rotche v. Buick Motor Co. (1934), 358 Ill. 507, was a negligence action whereby the manufacturer of the product became liable if the product was of such character as to be reasonably certain to cause injury if negligently made. This, of course, has no relevancy in a strict liability in tort action.
The majority opinion also states, “Furthermore, the plaintiff was never even able to identify the bed in question.” Certain pictures were identified by defendant’s supervisor of engineering services as the product of the manufacturer. These were shown to the doctors who, amongst other language, called it “the exact duplicate” and indicated that on the particular incubator in question, the name Hess was printed on the top of the bed.
The record shows that notwithstanding the efforts of the father of the child to see the incubator shortly after the occurrence, this was impossible. These efforts were likewise pursued during extensive discovery procedures, but apparently the hospital did not have it. That it is unnecessary to produce the product itself is well established by Texaco, Inc. v. McGrew Lumber Co. (1969), 117 Ill.App.2d 351, and Holan v. Shaf Mfg. Co. (1970), 128 Ill.App.2d 19.
The incubator was supposedly designed to provide a safe maximum temperature for infants using it. This incubator, however, overheated so as to dehydrate the plaintiff and cause excessive body temperature. It was without any device to prevent it from so doing, and defendant’s engineer so testified. Whether such a product so designed was unreasonably dangerous was for the jury, not the court.
As to the negligence charges, it was certainly foreseeable that unless there was something to insure the “safe maximum” temperature for the infant while in the incubator, it would overheat, with the attendant ill effects upon the infant. The defendant manufacturer, by its literature, recognized this hazard but had no device on its product to guard against overheating. Whether it was negligent in so doing was an issue of fact. Lindroth v. Walgreen Co. (1950), 407 Ill. 121.
The plaintiff was entitled to recover some damages from the hospital. It was error, in my opinion, for the Circuit Court to direct a verdict for the manufacturer of the incubator, who may also be liable for damages. The cause should be reversed for a new trial on the issue of damages only as to the defendant Michael Reese Hospital and for a new trial on all issues as to the defendant manufacturer.