dissenting:
The majority concludes that the Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, pars. 60 through 69) authorizes the recovery of damages for loss of consortium by the spouse of a nonfatally injured worker. The court offers a series of reasons in support of this determination but the principal grounds are two: that recognition of the cause of action is consistent with the Structural Work Act’s broad deterrent and remedial purposes, and that recognition of the action finds support in the Act’s legislative history. In so holding, however, the majority rewrites the language of the statute and legislates what it perceives to be the preferable result, significantly expanding potential liability under the Act. Because I do not agree with the majority that the Structural Work Act authorizes the cause of action asserted here, I respectfully dissent.
The question presented is one of statutory construction, and therefore our task in the instant appeal “is to ascertain and give effect to the intent of the legislature.” (Croissant v. Joliet Park District (1990), 141 Ill. 2d 449, 455.) “[T]hat inquiry appropriately begins with the language of the statute. [Citation.]” (Metropolitan Life Insurance Co. v. Washburn (1986), 112 Ill. 2d 486, 492.) Section 1 of the Structural Work Act describes the general duties required by the statute and the persons for whose benefit those duties are imposed. Section 1 states:
“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Ill. Rev. Stat. 1989, ch. 48, par. 60.)
Other sections of the Act impose additional duties.
Section 9 is a remedial provision, prescribing criminal penalties and authorizing the recovery of damages for violations of the Act. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305, 315.) Regarding the civil remedy provided by the Act, section 9 states, in pertinent part:
“For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the surviving spouse of the person so killed, the lineal heirs or adopted children of such person, or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives.” Ill. Rev. Stat. 1989, ch. 48, par. 69.
Thus, the Act grants a cause of action to “the party injured,” in the case of nonfatal injuries, and to surviving family members, in the case of fatal injuries. The Act does not separately define the “party injured” who, in the event of nonfatal injuries, is authorized to pursue a civil action. It is clear from the statutory language, however, that the term refers to the persons listed in section 1, for whose benefit the statute was enacted — “any person or persons employed or engaged [on a scaffold or similar device], or passing under or by the same” — and does not include family members of a nonfatally injured worker. Because the statute limits recovery, in the case of nonfatal injuries, to persons employed or engaged on the subject structures, or passing under or by them, I agree with the holding of the appellate court in the present matter, as well as with the holdings of the two other appellate panels to have considered this issue, that the spouse of a nonfatally injured worker has no right of recovery under the Act. 205 Ill. App. 3d at 665; Allison v. Fluor Engineers, Inc. (1991), 211 Ill. App. 3d 923, 926; Martin v. Kiendl Construction Co. (1982), 108 Ill. App. 3d 468, 470.
As the Structural Work Act does not authorize a separate action by the spouse of a nonfatally injured worker, we need not consider in this case the elements of damages that may be recovered in a suit brought under the Act by surviving family members of a fatally injured worker. Thus, unlike the other members of the court, I express no view here on the merits of the appellate court’s decision in Pickett v. Yellow Cab Co. (1989), 182 Ill. App. 3d 62, which held that the spouse of a fatally injured structural worker may recover damages for lost society under the Act. (Compare 146 Ill. 2d at 292-93 (agreeing with Pickett) with 146 Ill. 2d at 305-06 (Heiple, J., dissenting) (disagreeing with Pickett).) We have no need to consider what damages a putative plaintiff may recover until we determine whether the plaintiffs alleged cause of action exists. Because the Act clearly fails to grant a cause of action in the circumstances presented, Pickett can be of no assistance here.
Although the Structural Work Act will be interpreted liberally to effectuate its deterrent and remedial purposes (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 127), liberal construction of the Act cannot be used to extend its coverage to persons or activities not properly within the scope of its terms (Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 536). However desirable or undesirable the majority’s result might be, the decision whether or not to expand liability under the Act is a matter more appropriately reserved to the collective judgment of the legislature.
The majority opinion also invokes legislative history in support of its novel interpretation of the Act. Specifically, the majority asserts that recovery of the type sought here was permitted under an identical provision in a preexisting statutory scheme, the Mines and Miners Act, which apparently served as the model for the Structural Work Act. (Mitseff v. Acme Steel Co. (N.D. Ill. 1962), 208 F. Supp. 805, 806-07.) The majority concludes that the same elements of recovery therefore should be allowed under the analogous provision of the current Act because the legislative drafters, in using the same language, intended to incorporate in the new statute the judicial gloss placed on the earlier provision.
In support of this argument, the majority relies on Brookside Coal Mining Co. v. (Jacob) Dolph (1902), 101 Ill. App. 174, and its companion case, Brookside Coal Mining Co. v. (John R.) Dolph (1902), 101 Ill. App. 169. In Jacob Dolph, the appellate court upheld a judgment awarding damages to a father for lost services resulting from a nonfatal injury sustained by his unemancipated son in a coal mining accident; in John R. Dolph, the appellate court upheld an award of damages to the injured son. In the present case, the majority asserts that the father’s recovery of damages for the loss of his son’s services in Jacob Dolph was predicated on a remedial provision of the Mines and Miners Act that later served as the model for section 9 of the Structural Work Act. The majority believes that the legislature, in later enacting the Structural Work Act, must have been aware of the appellate court’s prior construction in Jacob Dolph and therefore must have intended to adopt that interpretation when it enacted the same language as section 9 of the Structural Work Act.
As one can see from an examination of John R. Dolph and Jacob Dolph, however, neither opinion provided the long-ago legislature with the definitive statutory construction the majority now perceives. The minor’s cause of action in John R. Dolph was based on both common law and statutory grounds. The appellate court rejected the defendant’s argument that the verdict was against the manifest weight of the evidence and affirmed the judgment in favor of the minor. In reaching that conclusion, the appellate court determined that the evidence sustained findings of liability on a number of the common law and statutory grounds raised by the minor.
The precise basis for the father’s recovery of damages in Jacob Dolph is unclear. The opinion in that case contains only an abbreviated discussion of the grounds underlying the father’s claim, incorporating by reference the rationale expressed in John R. Dolph. In describing the father’s action, the opinion states only that Jacob Dolph “brought this suit to recover for loss of service of his minor son, by reason of the injury sustained in appellant’s coal mine.” (Jacob Dolph, 101 Ill. App. at 174.) Without elaboration, the appellate court affirmed the judgment in favor of the father, saying, “Our views as to the liability of appellant for the injury, to the son are fully set forth in the opinion filed in his case and need not be repeated. The amount recovered by appellee as damages for loss of the service of his son, in the light of the evidence, is very reasonable.” (101 Ill. App. at 175.) The son’s action, it will be recalled, was brought on both common law and statutory grounds, and the son’s recovery was affirmed on both bases.
Contrary to the majority’s interpretation, there is no reason to assume that the father’s recovery of damages in Jacob Dolph was predicated on statutory grounds. There is no discussion in that case of the question whether the Mines and Miners Act permitted the parent of a nonfatally injured, unemancipated child to bring an action for lost services, for the defendant apparently did not raise that issue. At common law, however, a parent was allowed to bring an action to recover damages for nonfatal injuries resulting in the loss of a minor’s services and earnings. (Dralle v. Ruder (1988), 124 Ill. 2d 61, 68.) The opinion in Jacob Dolph is consistent with that principle, and the appellate court’s affirmance of the judgment in the father’s favor may be read as simply giving voice to that doctrine. Perhaps for those reasons the court in Jacob Dolph did not take pains to state the precise basis for the parent’s action; the minor’s complaint in John R. Dolph, it will be recalled, sought recovery on independent common law and statutory theories, and the court sustained the minor’s recovery on both grounds.
Thus, we cannot determine from the Dolph opinions, with any degree of certainty, what particular construction, if any, the legislature intended to adopt when it reenacted the language of the Mines and Miners Act as section 9 of the Structural Work Act. In view of the substantial ambiguities in the two cases, I do not believe that they may be regarded as authority for the proposition the majority ascribes to them.
The majority raises several other points in support of its result, citing, among other things, the absence of a limitation on damages awarded under the Act. All of these contentions must yield, however, to the plain language of the statute, which clearly fails to provide for the cause of action asserted here. Indeed, the majority’s analysis ultimately reduces to the claim that the legislature cannot validly distinguish between spouses of nonfatally and fatally injured structural workers, prohibiting recovery in the case of the former and allowing it in the case of the latter. Subject to constitutional limitations, however, it is certainly within the province of the General Assembly to create remedies and to define the classes of persons who may benefit from them. Distinctions of this type will be presumed valid in the absence of a constitutional challenge. I see no basis on which such a challenge could succeed, and none is made in the present appeal. In sum, I would enforce the statute as it is written and hold that the Act does not provide for the cause of action alleged here.
As she did in the appellate court, Mrs. Harvel presses the alternative contention that she may recover damages for loss of consortium under common law principles of negligence, apart from her claim under the Structural Work Act. Mrs. Harvel does not seek recovery on that ground in her complaint, however, alleging there only a violation of the Structural Work Act. Accordingly, we have no occasion in the present case to consider whether this additional theory of recovery is available in the circumstances alleged here.