dissenting:
I respectfully dissent from the conclusion of the majority that the plaintiffs do not have an action for loss of consortium. In my opinion, if a defendant’s wilful violation of the Structural Work Act results in a tortious interference with the familial relationship between spouses, the spouse of the injured person has a common law cause of action against the defendant for loss of consortium.1 I would reverse the dismissal of the loss of consortium actions in these two cases and remand the cases for trial.
An action for loss of consortium has always been recognized as a common law cause of action. (See Dini v. Naiditch (1960), 20 Ill. 2d 406, 421-30, 170 N.E.2d 881, 888-9S.)2 Plainly, the existence of the action was never dependent upon the co-existence of any statutory right given to the spouse of the injured person. Nor has the existence of the action ever been dependent upon an “additional” duty other than the duty owed by the tortfeasor to the person injured by the tortfeasor. Rather, the action has always existed solely because of the defendant’s tortious interference with the familial relationship between spouses. See Prosser, Torts secs. 124,125, at 873-97 (4th ed. 1971).
Thus, to me, an action for loss of consortium should not be allowed or denied by determining whether the tortious interference with the familial relationship is premised upon the defendant’s violation of a statute. For this reason, in my opinion, no words of the Structural Work Act are needed to give a spouse a right to recover for loss of consortium. The right to recover for loss of consortium exists by virtue of the defendant’s tortious interference with the familial relationship.3
In the present case, I do not find the reasoning of the majority persuasive, and I do not find the cases relied upon by the majority apposite. As an example, the majority states, “The tort rationale for imposing liability on the defendant for loss of consortium damages is grounded on a duty and not a causation analysis.” In support of this statement, the majority cites and discusses Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99, and Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250. I believe that the present case does not involve a conflict between a duty and a causation analysis. Moreover, in my opinion, the existence of a duty or causation is not the issue.4 A loss of consortium action is based upon the traditional common law precept that the duty owed by a tortfeasor to the person injured includes a duty to the injured person’s spouse, viz., not to tortiously interfere with the familial relationship. In this same regard, it has long been recognized that a duty may exist to one foreseeably harmed even though the person harmed may be unknown and remote in time and place. Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 357, 367 N.E.2d 1250, 1254-55; Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95,103,197 N.E. 578, 582.
On this same point, the majority cites Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157, for the statement that “loss of consortium [is] not recoverable under [the] dram shop statute.” However, the fact that loss of consortium is not recoverable against a Dramshop Act defendant is not relevant here because, unlike the Structural Work Act, “[u]nder the Liquor Control Act *** the defendant’s liability is not based on fault.”* 5 (Knierim v. Izzo (1961), 22 Ill. 2d 73, 78-79, 174 N.E.2d 157, 160-61.) This sharp contrast between the two statutes is made clear by what the court stated in Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., when it compared the statutes:
“In sharp contrast to the language in [the Structural Work Act] is the phraseology of the Liquor Control Act (Ill. Rev. Stat. 1959, chap. 43, par. 135,) in which the legislature, in order to effectuate a public purpose, imposed in unequivocal terms liability on the owner irrespective of his control over or participation in the tortious act. ***
The Dram Shop Act was enacted prior to the Scaffold Act, and in the absence of such clear language in the Scaffold Act indicating an intention to impose a nondelegable duty on the owner, we do not believe that such a departure from recognized bases of liability can be inferred.” 22 Ill. 2d 305, 321,175 N.E.2d 785, 793.
Together, the Knierim and Gannon cases manifest that, unlike the Dramshop Act, liability under the Structural Work Act is based on fault. Further, this critical difference between the two statutes demonstrates why a common law loss of consortium action can be premised on a defendant’s violation of the Structural Work Act although it cannot be premised on a defendant’s violation of the Dramshop Act. To me, if liability under a statute is based on fault which results in a tortious interference6 with the familial relationship between spouses, the spouse of the injured person has a common law cause of action against the defendant for loss of consortium. However, if liability under a statute is not based on fault, then there would be no tortious interference with the familial relationship of the spouse.
The majority next cites Kaiserman v. Bright (1978), 61 Ill. App. 3d 67, 377 N.E.2d 261, for the proposition that “loss of consortium [is] not available under [the] wrongful death statute.” However, in Elliott v. Willis (1980), 89 Ill. App. 3d 1144, 1148-49, 412 N.E.2d 638, 642, appeal allowed (1981), 83 Ill. 2d 570, the court refused to accept the holding in Kaiserman and expressly declined to follow it. I agree with the court in Elliott. In Elliott, the court stated:
“Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881, held that a wife could maintain an action for lost consortium resulting from the nonfatal injuries to her husband. Thus, with recovery for consortium permitted when a spouse is merely injured, logic dictates that recovery be allowed when death occurs. The only basis in Illinois for excluding consortium as an element of loss when death occurs is that the suit must be brought under the Wrongful Death Act; the action approved in Dini was nonstatutory. Yet in the case of death, the harm inflicted upon the marital relationship is more final and generally greater. Furthermore, the existence of the statute should not be viewed as an obstacle to compensation; the cases have emphasized its remedial nature and invite us to interpret it as permitting compensation for consortium.” 89 Ill. App. 3d 1144,1146-47, 412 N.E.2d 638, 640.
Here, the Structural Work Act should not be viewed as an obstacle to a common law action for loss of consortium since the Act is not and never was intended to be an exclusive remedy.7 (Illinois Pattern Jury Instructions, Civil, No. 180.00 (Structural Work Act), Introduction, at 466 (2d ed. 1972).) Moreover, unfair and illogical results would occur if recovery for loss of consortium is denied. To illustrate, if a worker is injured and dies months later as a result of a defendant’s wilful violation of the Structural Work Act, his administrator could maintain an action under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1, 2) on behalf of the worker’s surviving spouse and next of kin (Thomas v. Carroll Construction Co. (1957), 14 Ill. App. 2d 205, 144 N.E.2d 461), and the worker’s spouse could recover under the Wrongful Death Act for loss of consortium resulting from the worker’s death (Elliott v. Willis (1980), 89 Ill. App. 3d 1144, 1147, 412 N.E.2d 638, 641). With recovery for loss of consortium permitted when a worker is killed because of a defendant’s wilful violation of the Structural Work Act, logic and fairness dictate that recovery be allowed for the spouse’s loss of consortium prior to the time the worker died as a result of the accident, i.e., a spouse should be allowed to bring a common-law action for loss of consortium resulting from a worker’s nonfatal injuries because of a defendant’s wilful violation of the Structural Work Act.
Lastly, the majority also relies on Wright v. Synergistics, Inc. (1977), 52 Ill. App. 3d 233, 367 N.E.2d 466. I do not find that case applicable. There was no loss of consortium or analogous action involved in Wright. In Wright, the sole issue was whether the injured plaintiff’s activity at the time of the accident was covered under the Structural Work Act. Here, there is no issue as to whether the workmen’s activities were covered under the Structural Work Act.
Accordingly, I believe that if a defendant’s wilful violation of the Structural Work Act results in a tortious interference with the familial relationship between spouses, the spouse of the injured person has a common law action against the defendant for loss of consortium. Therefore, I would reverse the dismissal of the loss of consortium actions and remand the cases for trial.
In the present eases, although the loss of consortium counts are not delineated as common law causes of action in the pleadings, the operative facts are sufficiently pleaded to treat the loss of consortium counts as alleging common law actions for loss of consortium.
The Dini court stated that consortium includes, in addition to support, “elements of companionship, felicity and sexual intercourse, all welded into a coneeptualistic unity.” 20 Ill. 2d 406, 427,170 N.E.2d 881, 891.
The right to recover for the tortious interference with the familial relationship will, of course, depend upon the existence of tortious conduct on the part of the defendant. Normally, this means that there must be a tort for which an action might be maintained by the injured party. However, there is ample evidence that, historically and at present, the tortious interference action is an independent one, and is not necessarily controlled by the disposition of the case by the injured party. The use of the threadbare fictions of the tort being a “derivative action” or based on “imputed negligence” or being a tort in which “there is only one cause of action in two parties” is not, in my opinion, based on sound reasoning and is generally condemned by writers on the subject. It follows that in a loss of consortium action, the spouse’s recovery should not be precluded because of any personal defenses that may exist against others, including the injured party, except to the extent that the facts relating to those defenses go to the issue of proximate cause in the loss of consortium action. (See Prosser, Torts sec. 125, at 889, 891-93 (4th ed. 1971).) Viewing the situation realistically from a modern-day perspective, the injuries to the spouse in a loss of consortium case constitute very real injuries and, indeed, may in some instances exceed the severity of the injuries to the injured person. Thus, to the extent the spouse’s injuries are proximately caused by a defendant’s tortious conduct, it is only fair and in accordance with basic legal principles that the spouse recover for those injuries regardless of any personal defenses that may exist against others.
Causation is preeminently an issue of fact. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 369, 367 N.E.2d 1250, 1260 (Dooley, J., concurring).) Since this matter is not before us on any factual dispute, there is no question of causation involved here.
liability under the Structural Work Act is based on fault. Indeed, the statute imposes liability only for wilful violations committed by persons having charge of the work. (Ill. Rev. Stat. 1975, ch. 48, par. 69; Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305, 321, 175 N.E.2d 785, 793; Huckabee v. Bell & Howell, Inc. (1970), 47 Ill. 2d 153, 157-58, 265 N.E.2d 134, 137.) A wilful violation exists if a party in charge of the work knows of the dangerous condition or by the exercise of reasonable care could have discovered the existence of the dangerous condition, and does not correct the condition. Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 129-30, 171 N.E.2d 60, 67; Westerfield v. Arjack Co. (1979), 78 Ill. App. 3d 137, 142, 397 N.E.2d 451, 456.
A tort is defined in the American Heritage Dictionary of the English Language 1355 (1975) as follows: “Law. Any wrongful act, damage, or injury done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought.”
In addition to a claim under the Structural Work Act, an injured worker may maintain a workmen’s compensation claim against his employer and a common law action against others (IPI Civil No. 180.00, at 466), as well as a common law action against the same defendant under the Structural Work Act action (Huckabee v. Bell & Howell, Inc. (1970), 47 Ill. 2d 163, 265 N.E.2d 134). Also, an action brought under the Wrongful Death Act may be maintained against a defendant for a wilful violation of the Structural Work Act. Thomas v. Carroll Construction Co. (1957), 14 Ill. App. 2d 205, 144 N.E.2d 461; see also Li Petri v. Turner Construction Co. (1967), 36 Ill. 2d 597, 602, 224 N.E.2d 841, 845, where the court cited Thomas. Further, I am of the opinion that a separate action for funeral expenses may be brought by the decedent’s spouse individually or by the personal representative of the estate if the death was caused by defendant’s wilful violation of the Structural Work Act. Cf. Saunders v. Schultz (1960), 20 Ill. 2d 301, 310, 170 N.E.2d 163,168.