Renslow v. Mennonite Hospital

MR. JUSTICE DOOLEY, concurring in the decision:

I agree with the conclusion reached by the majority, namely, that the child has a cause of action for a wrong committed prior to her existence. While this may be a new issue, it is a simple one as shall be made manifest. The dissenting opinions would make it appear that to allow a right of action means the penetration of outer space in the world of law. These opinions justify some comment on our function.

Holmes noted that “the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage.” Holmes, The Path of The Law, 10 Harv. L. Rev. 457 , 467 (1897).

Simply because the question is new does not mean that it is invalid. Such an attitude is hardly consistent with our duty. In the 18th century Blackstone observed: “For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action; and, therefore, wherever a new injury is done, a new method of remedy must be pursued.” (3 W. Blackstone, Commentaries *123.) That admonition is as vital today as it was then. It is life itself which creates new problems. So is it life itself which determines what particular interest will outweigh another. The judicial process by nature is a scheme of evaluating the varying forces which make society.

Professor Corbin, whose thinking was reflected by Cardozo, expressed his concept of the judicial function thus: “It is the function of our courts to keep the doctrines up to date with the mores by continual restatement and by giving them a continually new content. This is judicial legislation, and the judge legislates at his peril. Nevertheless, it is the necessity and duty of such legislation that gives to judicial office its highest honor: and no brave and honest judge shirks the duty or fears the peril.” Comment, The Offer of an Act for a Promise, 29 Yale L.J. 767 , 771 (1920).

Pound’s appraisal was similar. He considered the decision of a court a process of social engineering involving the developments of principle. His description of the objective of this process was “(1) to paint a process of legal social engineering as a part of the whole process of social control; (2) to set off the part of the field of the legal order appropriate to intelligence, involving repetition, calling for rule or for logical development of principle, from the part appropriate to intuition, involving unique situations, calling for standards and for individualized application; (3) to portray a balance between decision of the actual cause and elaboration of a precedent, in which, subsuming the claims of the parties under generalized social claims, as much of the latter will be given effect as is possible; and (4) to induce a consciousness of the role of ideal pictures of the social and legal order both in decision and in declaring the law.” (Pound, The Theory of Judicial Decision, 36 Harv. L. Rev. 940 , 958 (1923).) Making or finding law, call it what you will, presupposes a mental picture of what one is doing and why he is doing it.

Obviously courts create law. If it were otherwise the common law would be as out of touch with life as is a corpse. Courts must take an active part in the development of the common law, although this may mean creativeness.

Precedents treating prenatal wrongs, cases involving wrongs to persons not conceived, as well as the rule of foreseeability, dictate our duty here. We note there is no common law principle which prohibits recovery for a wrong which took place prior to the conception of the injured person. It would be a reflection upon the common law to attribute to it an inability to function under such circumstances. We must remember that the body of law is not a repository of stagnant problems of society but a vital, moving force which deals with the current problems of society. This court in Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 81 , stated:

“The common law has established itself in the history of jurisprudence because of its flexibility in its recognition of and adaptation to changing times and mores; and, as adopted by our legislature, ‘is a system of elementary rules and of general declarations of principles, which are continually expanding with the progress of society, adapting themselves to the gradual changes of trade, commerce, arts, inventions and the exigencies and usages of the country.’ (Amann v. Faidy, 415 Ill. 422 ; Kreitz v. Behrensmeyer, 149 Ill. 496 .)”

While we are aware that prenatal injury cases do not involve wrongs done prior to conception, they follow the course charted by this court since 1953, when in Amann v. Faidy (1953), 415 Ill. 422 , it recognized a right of action under the wrongful death statute for the death of an infant who, while in a viable condition, sustained a prenatal injury causing death after being born alive.

A further extension of Amann occurred in 1973 when Chrisafogeorgis v. Brandenberg, 55 Ill. 2d 368 , held a wrongful death action could be maintained for a stillborn child who sustained injuries while a viable fetus. This court specifically recognized the unborn fetus was a person within the meaning of the wrongful death statute. The holding was described as not only “consistent with Amann but is a reasonable and natural development of the holding.” 55 Ill. 2d 368, 374 .

Jorgensen v. Meade Johnson Laboratories, Inc. (10th Cir. 1973), 483 F.2d 237 , is highly pertinent and persuasive of the question before us. There the mother sustained an alteration of her chromosome structure as a result of oral contraceptives prior to the conception of twin daughters. This alteration in the chromosome structure, according to the complaint, proximately caused a Mongoloid deformity in the fetus during the developmental period. It caused severe personal injury in the case of one daughter and death in the case of the other after a period of 3Vz years. With due deference to Mr. Justice Moran, this case does not focus “upon causation, rather than upon traditional concepts of duty.”

The district court dismissed the complaint. The court of appeals reversed and remanded holding a person not in being at the time of the tortious conduct had a right of action.

“If the view prevailed that tortious conduct occurring prior to conception is not actionable in behalf of an infant ultimately injured by the wrong, then an infant suffering personal injury from a defective food product, manufactured before his conception, would be without remedy.” 483 F.2d 237 , 240.

Mr. Justice Underwood, dissenting, would distinguish Jorgensen v. Meade Johnson Laboratories, Inc. (10th Cir. 1973), 483 F.2d 237 , on the basis that it was a strict liability in tort action. But such fact in nowise changes the question before the court, whether a person not in being at the time of the wrongful act has a cause of action. If Leah’s mother’s condition was brought about by a defective drug, the identical question in a strict liability in tort action would be before us.

Nor does Park v. Chessin (Sup. Ct. Queens County 1976), 88 Misc. 2d 222 , 387 N.Y.S.2d 204 , turn upon causation, although so described by Mr. Justice Moran. There, a professional negligence action for malpractice and/or fraud causing pain and suffering to a now deceased infant, it was alleged that the mother had a child in 1969 who died shorly after birth as a result of a polycystic kidney condition. Subsequent thereto she was under the care of defendant doctors, who advised her that a future pregnancy would not result in the birth of a congenitally defective child. Upon such advice, she became pregnant and gave birth to Lara on July 31, 1970. She, too, had a polycystic kidney condition from which she died approximately 2Vz years later.

The complaint was held to state a cause of action. The principal basis was that at the time of the conception, the person had the same rights as existed prior to conception. To support the position, Piper v. Hoard (1887), 107 N.Y. 73 , 13 N.E. 626 , was referred to. That was an action to recover a portion of the property occupied by the defendant as a result of a fraud perpetrated prior to the child’s conception in inducing her mother to marry. If the misrepresentations had been true, plaintiff would have been the sole owner of the property. She had a right of action, although not in being at the time of the wrong.

So also there is foreseeability, the touchstone of the quality of an act as negligence, the most important test in determining duty. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 622 ; Pullman Palace Car Co. v. Laack (1892), 143 Ill. 242, 260 .) It is well established that the injury need not be foreseeable in the precise form in which it occurs. Nor need an injury to the specific person be foreseeable. The likelihood of harm in some form to a class of person is sufficient. (Pullman Palace Car Co. v. Laack (1892), 143 Ill. 242, 260 ; Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 622 ; Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 103 .) In Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 103 , this court stated:

“*** It is axiomatic that every person owes a duty to all persons to exercise ordinary care to guard against any injury which may naturally flow as a reasonably probable and foreseeable consequence of his act, and the law is presumed to furnish a remedy for the redress of every wrong. This duty to exercise ordinary care to avoid injury to another does not depend upon contract, privity of interest or the proximity of relationship between the parties. It extends to remote and unknown persons. Colbert v. Holland Furnace Co. 333 Ill. 78 ; Baird v. Shipman, 132 id. 16.”

It was foreseeable that this 13-year-old girl would grow up, marry and become pregnant. Upon the happening of this event, the defendant hospital and doctor were chargeable with the knowledge of what she and her child would encounter as a result of the wrongful transfusion of blood. More than that, however, it must be remembered that defendants are a hospital and a doctor and held to the degree of knowledge of experts. Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, 417, 420 .

Conduct which puts harmful consequences in motion and injury to a foreseeable class of person as a direct result may be negligence for which responsibility may attach. That there may be a time gap between the wrongful act and the suffering is immaterial. The cause of action is uniformily created not at the time of the negligent act, but only when the injury has been sustained. As this court observed in Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418 , 432:

“[W]e have held that an action to recover for personal injuries resulting from a sudden traumatic event accrues when plaintiff first knew of his right to sue, i.e. at the time when the injury occurred. (Leroy v. City of Springfield, 81 Ill. 114 ; see Madison v. Wedron Silica Co., 352 Ill. 60, 62 .)”

The fact that there is a gap between the wrongful act and the time of injury will not bar the action. Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 134 ; Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 37-41 ; Rozny v. Marnul (1969), 43 Ill. 2d 54 .

Here the wrongful act allegedly took place before conception, but injury attached at the moment of conception. It was only then that the cause of action arose. Leroy v. City of Springfield (1876), 81 Ill. 114 ; Madison v. Wedron Silica Co. (1933), 352 Ill. 60 ; Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418 .

It has long been the public policy of this State to protect children not in being at the time of a particular wrongful act. Our statutes evince this in multiple ways. The Probate Act provides that children born after a will is made are entitled to receive a portion of the estate unless either provision in the will is made for them or the will evidences the intent of the testator to disinherit them. (Ill. Rev. Stat. 1975, ch. 3, par. 48.) So also a statute empowers courts to appoint guardians ad litem to protect the possible interests of persons not in being in real or personal property. (Ill. Rev. Stat. 1975, ch. 22, par. 6.) The Probate Act also authorizes the appointment of guardians ad litem to represent the interests of such persons on the sale or mortgaging of property. Ill. Rev. Stat. 1975, ch. 3, par. 232.

Consider also the ancient equitable doctrine of representation whereby the interests of unborn contingent remaindermen can be found by a court if they are adequately represented. Gunnell v. Palmer (1938), 370 Ill. 206 ; Longworth v. Duff (1921), 297 Ill. 479 ; Hale v. Hale (1893), 146 Ill. 227 .

Here, if we were to deny recovery to the child because she was not in being at the time the wrong was done, we would be reviving old fictions of the law, and disregarding the principle of duty so important in the law of torts. More than that, we would be abdicating our obligation to keep the common law equal to the problems of Hfe.

I must note that the dissenting opinion of Mr. Justice Ryan is based upon the erroneous premises that our holding means (1) abandoning “the traditional fault concept of liability premised upon duty and foreseeability and [embracing] instead a system which depends wholly upon the element of causation,” and (2) that “[t] he adoption of causation as the single determinative factor on the issue of liability results not, as professed, from a logical extension of the earlier decisions of this court, but rather from definite choices of policy on the part of the majority.” It then concludes, to paraphrase Mr. Justice Holmes’ famous remark (Schenck v. United States (1919), 249 U.S. 47, 52 , 63 L. Ed. 470, 473 , 39 S. Ct. 247, 249 ) like someone shouting “fire” in a crowed theatre that such “augurs the demise of the dual foundations of the tort concept: duty and foreseeability.”

I do not agree that we have eliminated the fault concept. Under the allegations of the complaint the conduct of defendants constitutes negligence and perhaps even wilful and wanton misconduct. Similarly, the causal connection between the fault of defendants and the injuries to the daughter is sufficiently alleged. The adequacy of proof is, of course, not before us at this, stage of proceedings.

As I read the opinion of Mr. Justice Moran, it does not substitute causal connection for foreseeability. Here the plaintiff’s mother was negligently transfused with incompatible blood. Certainly this was a violation of duty owed the patient by defendants.

Here there is a single question for decision: Whether there was a duty under these circumstances to a plaintiff who was not in being at the time of a wrongful act. The appellate court, as well as this court, have pointed out that the touchstone of duty is foreseeability. This factor, more

than any other single element, determines the existence of duty. The dissents have confused duty and causation. Each is separate from the other. Foreseeability plays no part in causation. As one court observed (Christianson v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co. (1896), 67 Minn. 94, 97 , 69 N.W. 640, 641 ): “What a man may reasonably anticipate is important, and may be decisive, in determining whether an act is negligent, but is not at all decisive in determining whether that act is the proximate cause of an injury which ensues.” Cause is án element which becomes operative only if a duty is breached and damages result. Foreseeability is an element to be considered only in determining negligence, but plays no function in determining whether that negligence is causal. As Harper and James put it (2 F. Harper 8c F. James, Torts 1135 (1956)), “[f] oreseeability of damage is altogether irrelevant in determining the existence of the cause in fact relationship.” To the same effect, see Strahlendorf v. Walgreen Co. (1962), 16 Wis. 2d 421 , 114 N.W.2d 823 ; Prosser, Torts sec. 50, at 289 (3d ed. 1964); Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401 , 1417 (1961); Green, The Causal Relation Issue in Negligence Law, 60 Mich. L. Rev. 543 , 549 (1962); Restatement (Second) of Torts sec. 435(1) (1965).

Whenever we commingle the elements of duty and causation, error results. That causation and fault are separate elements becomes clear when one considers that to recover in a negligence action plaintiff must prove not only that defendant was guilty of negligence, but that this negligence was a proximate cause of the injury complained of. That negligence and causation are distinct propositions is best demonstrated by Illinois Pattern Jury Instruction, Civil, No. 21.02 (2d ed. 1971).

In view of the facts alleged in the complaint, it is plain error to urge that the case was decided on causation. This matter is here on a motion to dismiss. We must, in this posture, assume all well pleaded facts to be true. (Bulk Terminals Co. v. Environmental Protection Agency (1976), 65 Ill. 2d 31, 37 ; Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 96 .) The complaint alleges that the negligence of the defendants was a proximate cause of plaintiff’s injury. We must, for the purposes of this motion, accept this to be true.

Amongst the differences between duty and causation is that duty is always a question of law. (Prosser, Torts sec. 45, at 289 (4th ed. 1971).) Causation, on the other hand, is preeminently an issue of fact. (Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, 418-19 , and Lerette v. Director General of Railroads (1922), 306 Ill. 348, 353 .) Prosser, to whom the dissent alludes, says this concerning causation:

“In cases where reasonable men might differ — which will include all but a few of the cases in which the issue is in dipute at all — the question is one for the jury.” Prosser, Torts sec. 45, at 289 (4th ed. 1971).

That causation is usually an issue of fact is demonstrated by the fact that summary judgment cannot be entered on this question. (Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App. 3d 56, 64 ; Greer v. Checker Taxi Co. (1973), 10 Ill. App. 3d 814 ; McVey v. Discher (1970), 122 Ill. App. 2d 408, 414 .) On the other hand, summary judgment may reach the issue of duty.

It would be improper to determine the issue before us on the matter of causation, unless we were to act as triers of fact.

In my opinion, Mr. Justice Ryan’s dissent misconceives the nature of foreseeability. This is shown by its measuring unforeseeable consequences in terms of the period of time in which the tortfeasor could be subject to claim. If foreseeability were thus to be measured, then the infant injured at birth should not have a cause of action two years after he reaches his majority, nor should one injured 20 years after the manufacture of a defective product have a right of action. But we know that the statute of limitations does not run against a minor, an incompetent, or one imprisoned on a criminal charge, and that such a person may bring an action within two years after the removal of such disability. (Ill. Rev. Stat. 1975, ch. 83, par. 22.) No cause of action in the case of a defective product arises until injury to the plaintiff. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 428 .) In some instances this may be over 20 years after the making of the injury-producing product. Mickle v. Blackmon (1969), 252 S.C. 202 , 166 S.E.2d 173 (13 years); Rosenau v. City of New Brunswick (1968), 51 N.J. 130 , 238 A.2d 169 (22 years); and Durant v. Grange Silo Co. (1960), 12 App. Div. 2d 694, 207 N.Y.S.2d 691 (12 years).

Nor is the question of a cause of action being transmitted genetically or the genetic consequences from long-term exposure to radiation before us. Here our sole concern is whether there can be a recovery under the circumstances of the instant case. It is the duty of this court to address itself to the issues presented by the particular litigation. See National Jockey Club v. Illinois Racing Commission (1936), 364 Ill. 630, 631 .

It would appear Mr. Justice Ryan’s dissent uses this case as a vehicle to complain of what it terms “our present day system of tort law.” We are not concerned with automobile insurance rates, nor the premiums of health insurance benefits, nor the cost of medical malpractice insurance. Such questions involve many issues foreign to the question presented here.

Equally immaterial is the fact that certain malpractice legislation, as well as a no-fault law, have been stricken down by this court. Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313 ; Grace v. Howlett (1972), 51 Ill. 2d 478 .

For the reasons expressed, I would affirm the judgment of the appellate court.