author: MR. CHIEF JUSTICE GOLDENHERSH MR. JUSTICE SIMON,

text:
    (No. 53615.
    EVA C. WILLIAMS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Freeman United Coal Company, Appellee).

      Opinion filed April 17, 1981.

    — Rehearing denied June 4, 1981.

      Livingston, Barger, Brandt, Slater 8c Schroeder, of Bloomington (Ralph Schroeder, of counsel), for appellant.
    Henry D. Noetzel 8c Associates, Ltd., of Peoria (Henry D. Noetzel, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that Eva C. Williams, widow of Roy Stephen Williams, had failed to prove a causal connection between the death of the decedent and an alleged exposure to the hazards of an occupational disease in the course of his employment by respondent, Freeman United Coal Company, and denied her claim for compensation sought under the provisions of the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1975, ch. 48, par. 172.36 et seq.). The arbitrator also found that petitioner had failed to prove that the decedent had sustained accidental injuries arising out of and in the course of his employment by the respondent which caused his death and denied her claim for compensation brought under the provisions of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 etseq.). On review, without hearing additional testimony, the Industrial Commission affirmed and adopted the decisions of the arbitrator. On certiorari the circuit court of Fulton County confirmed the decisions of the Industrial Commission, and petitioner appealed. 73 Ill. 2d R. 302(a).

Petitioner testified that she had been married to decedent for 40 years. He was 60 years of age at death and had been employed by respondent for 34 years, working as a welder for approximately 20 years, and as a blacksmith for the nine months immediately prior to death. On September 8, 1976, he met petitioner after work at the Elks’ Club in Canton to assist with the preparations for a fish fry. After beginning to mix ingredients for the “fish dip,” decedent put his hands to his head and exclaimed: “Oh my God, my head, my head.” He sat down in a folding chair, soon lost consciousness, and was transported by ambulance to the emergency room of Graham Hospital. While decedent regained consciousness for a short period in the emergency room, he ultimately became comatose, and was transferred to St. Francis Hospital in Peoria. He died on September 18, 1976, of “subarachnoid and intraventricular hemorrhage” attributable to a ruptured aneurysm on the left internal carotid artery.

The testimony shows that petitioner and decedent vacationed in California in early summer 1976 and decedent had returned to work in July. Decedent usually worked seven days each week. He had experienced no physical difficulties before July 23, when he returned from work early complaining of a severe headache. He saw a chiropractor on July 23, worked July 24, but returned home that day at his normal time, again complaining of a headache. Although he felt ill, decedent worked both July 25 and 26. He did not work July 27. From July 27 until September 8, petitioner testified, “Some days he felt very good, and some days he had terrible headaches.” Fellow employees also testified that occasionally decedent complained of headaches at work.

The testimony further showed that decedent’s normal activities at home consisted of gardening or mowing the lawn. His employment as a blacksmith involved a variety of tasks, including repairing tools, rebuilding parts, sawing, and hammering with a sledge hammer. He also used a heating torch and a forge, and usually wore goggles while engaged in these endeavors. Decedent’s prior work as a welder involved use of a torch with a cutting tip, and he normally wore a mask covering his entire face. The heat generated by his use of a torch and “heating tip” in connection with his work as a blacksmith greatly exceeded that associated with the welder’s use of a torch and cutting tip.

Dr. Seymour Goldberg, a specialist in internal medicine whose father had been a blacksmith, testified in response to a hypothetical question that continuing work as a blacksmith “could or might have caused or contributed to the rupture of a pre-existing aneurysm.” He also testified that the location of the aneurysm in the hypothetical statement of facts indicated that it was not congenital, but due to aging vessels, and that “the stress of an occupation such as that of a blacksmith could have had a deleterious effect on this aneurysm.” Further Dr. Goldberg testified that a change of employment from a welder to a blacksmith was a change to “harder physical work” which “played a role” in the rupture of the aneurysm. On cross-examination Dr. Goldberg testified that he had treated three patients with aneurysms such as those described in the hypothetical, none of whom were blacksmiths. He also testified that if the blacksmith’s area were well ventilated, the strain on the individual would be reduced. Further Dr. Goldberg indicated that, while this aneurysm was probably “long standing,” without an autopsy its age would be difficult to determine. On cross-examination he stated “the onset of this individual’s aneurysm, the beginning of the leaking and rupture,” might or could be unrelated to employment. He also noted: “And the aneurysm is there, it may or may not rupture, and the question in mind is did the heaviness of the employment cause it to rupture earlier than it would have otherwise, or would it have ever ruptured? *** I have no way of knowing that. All I know is that in the hypothetical it did rupture. He had the stresses and strains of heat and heavy work, which within a reasonable degree of medical certainty would have been a contributing factor toward the rupture at that time.”

Citing Lepper v. Industrial. Com. (1978), 71 Ill. 2d 216, and Cossident v. Industrial Com. (1974), 57 Ill. 2d 33, petitioner points out that the respondent offered no evidence, either lay or medical, and that the decision of the Industrial Commission that petitioner had failed to prove that the decedent suffered an accidental injury which caused his death is therefore against the manifest weight of the evidence. Alternatively, citing Bunney v. Industrial Com. (1979), 75 Ill. 2d 413, petitioner argues that compensation should have been awarded under the Workmen’s Occupational Diseases Act because the evidence established the death of the employee following his exposure to an occupational disease subsequent to July 1, 1975. Respondent contends that the record sustains the findings of the Industrial Commission that decedent did not sustain accidental injuries arising out of and in the course of employment, and that his death was not caused by a disease aggravated and rendered disabling by his employment.

The record reflects the opinion of a medical expert, given without objection in response to a hypothetical question, that the decedent died as the result of a rupture in a preexisting aneurysm. On cross-examination, however, the doctor admitted that “the beginning of the leaking and rupture” might have been unrelated to the employment. The fact that an employee may have suffered from a preexisting condition will not preclude an award if the condition was aggravated or accelerated by the employment. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17.) The employee need not prove employment was the sole causative factor or even that it was the principal causative factor, but only that it was a causative factor in the resulting injury. (Cossident v. Industrial Com. (1974), 57 Ill. 2d 33, 37.) The question before the Commission, therefore, was whether the work decedent performed was a causal factor in the rupture of the aneurysm. Laclede Steel Co. v. Industrial Com. (1955), 6 Ill. 2d 296, 302-04.

We do not read Cossident v. Industrial Com. (1974), 57 Ill. 2d 33, and Lepper v. Industrial Com. (1978), 71 Ill. 2d 216, as requiring us to hold that failure on the part of respondent to introduce evidence to rebut the testimony of petitioner’s medical witness renders the decision of the Industrial Commission contrary to the manifest weight of the evidence. Furthermore, the facts of both cases are clearly distinguishable. In Cossident the claimant, while performing regular duties of employment, suffered an acute myocardial infarction after running a distance equivalent to four city blocks. (57 Ill. 2d 33, 37.) In Lepper, the claimant suffered “tremendous chest pains” and became acutely ill almost immediately after scaling a 24-foot, wooden extension ladder some 10 to 12 times, and caulking expansion joints with a caulking gun. 71 Ill. 2d 216, 217-19.

The fact that decedent was employed after the July 1, 1975, amendments to the Workmen’s Occupational Diseases Act (see Pub. Act 79 — 78, sec. 1, eff. July 1, 1975) is of no significance in this case. On this record the Industrial Commission could draw the inference that decedent had not contracted a disease either arising out of or in the course of employment, or aggravated as a result of the exposure of the employment. See Bunney v. Industrial Com. (1979), 75 Ill. 2d 413.

We are unable to say that the decisions of the Industrial Commission are contrary to the manifest weight of the evidence, and the judgment of the circuit court of Fulton County is affirmed.

Judgment affirmed.

MR. JUSTICE SIMON,

dissenting:

I dissent, believing that in aU important respects this case is the same as Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill. 2d 538, which is also decided this day. The medical evidence in both cases was similar and sufficiently definite to establish that each claimant suffered injuries caused by work-related risks. In this case the medical evidence was unchallenged and uncontradicted. The nonmedical evidence in each case was highly convincing. In each the employee held a heavy, physical job which called for him to work in extreme heat. The deceased here was a blacksmith; the claimant in Valley Mould a skimmer in a casting plant. The only substantial difference between the two cases was the result reached by the Industrial Commission: denying the benefits here but granting the compensation in Valley Mould.

It is well settled that the decision of the Industrial Commission as to whether the worker’s injuries arose in the course of employment will not be disturbed unless contrary to the manifest weight of the evidence. (O’Dette v. Industrial Com. (1980), 79 Ill. 2d 249, 253.) That principle is useful and important. But it should not bind us to conflicting results in substantially identical fact situations. It is a fundamental principle of jurisprudence that like cases should be treated alike. When, on substantially the same kind of facts, with substantially the same degree of medical certainty, the Industrial Commission reaches diametrically opposed results, it appears that something has gone wrong. I believe the Commission here acted against the manifest weight of the evidence in denying the claimant compensation, particularly in view of the fact that the claimant introduced medical testimony to the effect that his aneurysm could or might have been work related, while the employer offered no evidence, lay or medical. I therefore would reverse the decision to bring it into harmony with Valley Mould.

MR. JUSTICE CLARK joins in this dissent.


source: Caselaw Access Project

author: MR. JUSTICE SIMON MR. JUSTICE UNDERWOOD, MR. JUSTICE RYAN,

license: Public Domain

text:
    (No. 53780.
    RAY PALMATEER, Appellant, v. INTERNATIONAL HARVESTER COMPANY, Appellee.

      Opinion filed April 17, 1981.

    — Modified on denial of rehearing June 8, 1981.

      Coryn, Walker & Meehan, of Rock Island (Gerald J. Meehan, of counsel), for appellant.
    Isador I. Katz, Stuart R. Lefstein, and Dale G. Haake, of Katz, McAndrews, Durkee 8c Telleen, of Rock Island, for appellee.
   MR. JUSTICE SIMON

delivered the opinion of the court:

The plaintiff, Ray Palmateer, complains of his discharge by International Harvester Company (IH). He had worked for IH for 16 years, rising from a unionized job at an hourly rate to a managerial position on a fixed salary. Following his discharge, Palmateer filed a four-count complaint against IH, alleging in count II that he had suffered a retaliatory discharge. According to the complaint, Palmateer was fired both for supplying information to local law-enforcement authorities that an IH employee might be involved in a violation of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 1 et seq.) and for agreeing to assist in the investigation and trial of the employee if requested. The circuit court of Rock Island County ruled the complaint failed to state a cause of action and dismissed it; the appellate court affirmed in a divided opinion. (85 Ill. App. 3d 50.) We granted Palmateer leave to appeal to determine the contours of the tort of retaliatory discharge approved in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172.

In Kelsay the plaintiff was discharged in retaliation for filing a worker’s compensation claim. The court noted that public policy strongly favored the exercise of worker’s compensation rights; if employees could be fired for filing compensation claims, that public policy would be frustrated. Despite a dissent urging that the creation of a new tort should be left to the legislature, the court said, “We are convinced that to uphold and implement this public policy a cause of action should exist for retaliatory discharge.” (74 Ill. 2d 172, 181.) The court then considered the claim for damages, and decided that punitive damages would be allowed in retaliatory discharge cases, but only in the future. The creation of the new tort, at a time when decisions in other jurisdictions conflicted on whether such a firing would be actionable, was sufficiently unexpected that Motorola was not required to pay punitive damages to Kelsay. This court directed, however, that in subsequent cases punitive damages would be available. 74 Ill. 2d 172, 189.

With Kelsay, Illinois joined the growing number of States recognizing the tort of retaliatory discharge. The tort is an exception to the general rule that an “at-will” employment is terminable at any time for any or no cause. (Pleasure Driveway & Park District v. Jones (1977), 51 Ill. App. 3d 182, 190.) This general rule is a harsh outgrowth of the notion of reciprocal rights and obligations in employment relationships — that if the employee can end his employment at any time under any condition, then the employer should have the same right. (Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 Va. L. Rev. 481, 484-85 (1976).) As one 19th century court put it:

“May I not refuse to trade with any one? May I not forbid my family to trade with any one? May I not dismiss my domestic servant for dealing, or even visiting, where I forbid? And if my domestic, why not my farm-hand, or my mechanic, or teamster? ***
*** All may dismiss their employes at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.” Payne v. Western & Atlantic R.R. Co. (1884), 81 Tenn. 507, 518-20.

Recent analysis has pointed out the shortcomings of the mutuality theory. With the rise of large corporations conducting specialized operations and employing relatively immobile workers who often have no other place to market their skills, recognition that the employer and employee do not stand on equal footing is realistic. (Blades, Employment At Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum. L. Rev. 1404, 1405 (1967).) In addition, unchecked employer power, like unchecked employee power, has been seen to present a distinct threat to the public policy carefully considered and adopted by society as a whole. As a result, it is now recognized that a proper balance must be maintained among the employer’s interest in operating a business efficiently and profitably, the employee’s interest in earning a livelihood, and society’s interest in seeing its public policies carried out.

By recognizing the tort of retaliatory discharge, Kelsay acknowledged the common law principle that parties to a contract may not incorporate in it rights and obligations which are clearly injurious to the public. (See People ex rel. Peabody v. Chicago Gas Trust Co. (1889), 130 Ill. 268, 294.) This principle is expressed forcefully in cases which insist that an employer is in contempt for discharging an employee who exercises the civic right and duty of serving on a jury. (People v. Vitucci (1964), 49 Ill. App. 2d 171, 172; People v. Huggins (1930), 258 Ill. App. 238, 243; see also Ill. Rev. Stat. 1979, ch. 38, par. 155 — 3 (making it a contempt of court to fire or discipline an employee for attending court when subpoenaed as a witness).) But the Achilles heel of the principle lies in the definition of public policy. When a discharge contravenes public policy in any way the employer has committed a legal wrong. However, the employer retains the right to fire workers at will in cases “where no clear mandate of public policy is involved” (Leach v. Lauhoff Grain Co. (1977), 51 Ill. App. 3d 1022, 1026). But what constitutes clearly mandated public policy?

There is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State’s constitution and statutes and, when they are silent, in its judicial decisions. (Smith v. Board of Education (1950), 405 Ill. 143, 147.) Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed. Thus, actions for retaliatory discharge have been allowed where the employee was fired for refusing to violate a statute. Examples are: Petermann v. International Brotherhood of Teamsters Local 396 (1959), 174 Cal. App. 2d 184, 344 P.2d 25 (for refusing to commit perjury); Tameny v. Atlantic Richfield Co. (1980), 27 Cal. 3d 167, 610 P.2d 1330, 164 Cal. Rptr. 839 (for refusing to engage in price-fixing); Harless v. First National Bank (W. Va. 1978), 246 S.E.2d 270 (for refusing to violate a consumer credit code); O’Sullivan v. Mallon (1978), 160 N.J. Super. 416, 390 A.2d 149 (for refusing to practice medicine without a license). It has also been allowed where the employee was fired for refusing to evade jury duty (Nees v. Hocks (1975), 272 Or. 210, 536 P.2d 512; Reuther v. Fowler & Williams, Inc. (1978), 255 Pa. Super. 28, 386 A.2d 119), for engaging in statutorily protected union activities (Glenn v. Clearman’s Golden Cock Inn, Inc. (1961), 192 Cal. App. 2d 793, 13 Cal. Rptr. 769), and for filing a claim under a worker’s compensation statute (Sventko v. Kroger Co. (1976), 69 Mich. App. 644, 245 N.W.2d 151; Frampton v. Central Indiana Gas Co. (1973), 260 Ind6. 249, 297 N.E.2d 425).

The action has not been allowed where the worker was discharged in a dispute over a company’s internal management system (Keneally v. Orgain (1980), —— Mont. ---, 606 P.2d 127), where the worker took too much sick leave (Jones v. Keogh (1979), 137 Vt. 562, 409 A.2d 581), where the worker tried to examine the company’s books in his capacity as a shareholder (Campbell v. Ford Industries, Inc. (1976), 274 Or. 243, 546 P.2d 141), where the worker impugned the company’s integrity (Abrisz v. Pulley Freight Lines, Inc. (Iowa 1978), 270 N.W.2d 454), where the worker refused to be examined by a psychological-stress evaluator (Larsen v. Motor Supply Co. (1977), 117 Ariz. 507, 573 P.2d 907), where the worker was attending night school (Scroghan v. Kraftco Corp. (Ky. App. 1977), 551 S.W.2d 811), or where the worker improperly used the employer’s Christmas fund (Jackson v. Minidoka Irrigation District (1977), 98 Idaho 330, 563 P.2d 54).

The cause of action is allowed where the public policy is clear, but is denied where it is equally clear that only private interests are at stake. Where the nature of the interest at stake is muddled, the courts have given conflicting answers as to whether the protection of the tort action is available. Compare the inconsistent results where the discharge was for opposition to sexual discrimination or harassment (McCluney v. Jos. Schlitz Brewing Co. (E.D. Wis. 1980), 489 F. Supp. 24, and Monge v. Beebe Rubber Co. (1974), 114 N.H. 130, 316 A.2d 549), for refusal to falsify official reports (Hinrichs v. Tranquilaire Hospital (Ala. 1977), 352 So. 2d 1130, and Trombetta v. Detroit, Toledo & Ironton R.R. Co. (1978), 81 Mich. App. 489, 265 N.W.2d 385), and over internal company disputes regarding product safety (Geary v. United States Steel Corp. (1974), 456 Pa. 171, 319 A.2d 174, and Pierce v. Ortho Pharmaceutical Corp. (1979), 166 N.J. Super. 335, 399 A.2d 1023).

It is clear that Palmateer has here alleged that he was fired in violation of an established public policy. The claim is that he was discharged for supplying information to a local law-enforcement agency that an IH employee might be violating the Criminal Code, for agreeing to gather further evidence implicating the employee, and for intending to testify at the employee’s trial, if it came to that. Because of the procedural posture of the case, these allegations must be accepted as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187.) There is no public policy more basic, nothing more implicit in the concept of ordered liberty (see Palko v. Connecticut (1937), 302 U.S. 319, 325, 82 L. Ed. 288, 292, 58 S. Ct. 149, 152), than the enforcement of a State’s criminal code. (See Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 61-62; Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 345.) There is no public policy more important or more fundamental than the one favoring the effective protection of the lives and property of citizens. See Ill. Const. 1970, Preamble; Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60, 69.

No specific constitutional or statutory provision requires a citizen to take an active part in the ferreting out and prosecution of crime, but public policy nevertheless favors citizen crime-fighters. “Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy. Persons acting in good faith who have probable cause to believe crimes have been committed should not be deterred from reporting them by the fear of unfounded suits by those accused.” (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 44.) Although Joiner involved actions for malicious prosecution, the same can be said for the citizen employee who fears discharge. Public policy favors Palmateer’s conduct in volunteering information to the law-enforcement agency. Once the possibility of crime was reported, Palmateer was under a statutory duty to further assist officials when requested to do so. (Ill. Rev. Stat. 1979, ch. 38, par. 31-8.) Public policy thus also favors Palmateer’s agreement to assist in the investigation and prosecution of the suspected crime.

The foundation of the tort of retaliatory discharge lies in the protection of public policy, and there is a clear public policy favoring investigation and prosecution of criminal offenses. Palmateer has stated a cause of action for retaliatory discharge.

IH contends that even if there is a public policy discouraging violations of the Criminal Code, that public policy has too wide a sweep. IH points out that the crime here might be nothing more than the theft of a $2 screwdriver. It feels that in the exercise of its sound business judgment it ought to be able to properly fire a managerial employee who recklessly and precipitously resorts to the criminal justice system to handle such a personnel problem. But this response misses the point. The magnitude of the crime is not the issue here. It was the General Assembly, the People’s representatives, who decided that the theft of a $2 screwdriver was a problem that should be resolved by resort to the criminal justice system. IH’s business judgment, no matter how sound, cannot override that decision. “[T]he employer is not so absolute a sovereign of the job that there are not limits to his prerogative.” (Tameny v. Atlantic Richfield Co. (1980), 27 Cal. 3d 167, 178, 610 P.2d 1330, 1336, 164 Cal. Rptr. 839, 845.) The law is feeble indeed if it permits IH to take matters into its own hands by retaliating against its employees who cooperate in enforcing the law.

IH also decries the lack of specificity of Palmateer’s complaint. Because the precise crime suspected was not set forth, no one beyond Palmateer, the unnamed employee, and the local law-enforcement agency yet knows the particulars of the investigation. It is understandable that, in view of the novelty of the type of complaint that was filed, Palmateer refrained from identifying his fellow employee through the complaint. IH did not move for a more definite statement, as was its right under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45(1)). Instead it merely moved to dismiss the complaint for failing to state a cause of action. “No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.” (Ill. Rev. Stat. 1979, ch. 110, par. 42(2).) This complaint is less specific than it could be, but it informed IH of the crux of the claim and stated a cause of action. If IH desires, on remand there are ample procedures under the Civil Practice Act and the rules of this court to put any needed meat on the bones of the complaint.

Finally, IH contends that Kelsay requires there be an adversarial relationship before the cause of action for retaliatory discharge is allowed. Even under this theory, it seems that whenever a claim is filed by a former employee, the former employment relationship has already degenerated into an adversarial relationship, at least in the broad sense of the term. But more importantly, Kelsay put no such requirement on the cause of action, and we see no rationale for such a limitation. All that is required is that the employer discharge the employee in retaliation for the employee’s activities, and that the discharge be in contravention of a clearly mandated public policy.

In order to treat like situations alike, we believe it is fair to dispose of the prayer for punitive damages in this case in the same manner as punitive damages were treated in Kelsay. As already noted, this court set aside the punitive damage award, directing that, in cases involving the tort of retaliatory discharge, punitive damages would be allowed only in future cases. The plaintiff was discharged 14 months before the filing of this court’s opinion in Kelsay. Therefore, to be consistent with the holding in Kelsay, punitive damages should not be awarded here.

The cause of action expressed in count II of Palmateer’s complaint was improperly dismissed, and the cause should be returned to the circuit court for further proceedings. Because it is not certain that a trial will ensue, we decline IH’s invitation to express our opinion on the instructions to be given at a retaliatory-discharge trial. That should, if necessary, await another case which has generated a fuller record. (Compare Pierce v. Ortho Pharmaceutical Corp. (1979), 166 N.J. Super. 335, 399 A.2d 1023.) The plaintiff has not appealed the dismissal of counts I, III and IV of his complaint; those portions of the appellate and circuit court judgments dismissing them are therefore to be left undisturbed. The judgments of the appellate and circuit courts with respect to count II, except for the prayer of that count for punitive damages, are reversed, and the cause is remanded to the circuit court of Rock Island County for further proceedings with respect to count II.

Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part; cause remanded, with directions.

MR. JUSTICE UNDERWOOD,

dissenting:

For the reasons stated in my dissent in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 190, I believe the court there erred. The thoughts expressed in that dissent regarding judicial self-restraint are equally applicable here. In addition, I share Mr. Justice Ryan’s criticism of the court’s action in this case.

MR. JUSTICE RYAN,

also dissenting:

Although I authored the opinion in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, I cannot agree to extend the cause of action for retaliatory discharge approved in that case into the nebulous area of judicially created public policy, as has been done by the opinion in this case. I fear that the result of this opinion will indeed fulfill the prophesy of Mr. Justice Underwood’s dissent in Kelsay. “Henceforth, no matter how indolent, insubordinate or obnoxious an employee may be, *** [the] employer may thereafter discharge him only at the risk of being compelled to defend a suit for retaliatory discharge and unlimited punitive damages ***.” Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 192.

Kelsay relied on the fact that the legislature had clearly established the public policy that injured workers had a right to file claims for compensation with the Industrial Commission. We there held that discharging the employee for filing such a claim violated that public policy. Here the public policy supporting the cause of action cannot be found in any expression of the legislature, but only in the vague belief that public policy requires that we all become “citizen crime-fighters” (85 Ill. 2d at 132).

Many of our cases state that public policy is to be found in the constitution and the statutes of this State and, when these are silent, in the decisions of the courts. (People ex rel. Nelson v. Wiersema State Bank (1935), 361 Ill. 75, 86; Illinois Bankers Life Association v. Collins (1930), 341 Ill. 548, 551; Zeigler v. Illinois Trust & Savings Bank (1910), 245 Ill. 180, 193.) There are other opinions of this court which simply say that the public policy of this State is to be found in its constitution and statutes and make no mention of the role of judicial decisions. (See Smith v. Hill (1958), 12 Ill. 2d 588, 598; Knass v. Madison & Kedzie State Bank (1933), 354 Ill. 554, 567; People ex rel. Peabody v. Chicago Gas Trust Co. (1889), 130 Ill. 268, 296.) Whatever the accepted role of the judiciary may be in declaring public policy, it is generally acknowledged that the question of public policy is first and foremost a matter of legislative concern. Nudd v. Matsoukas (1955), 6 Ill. App. 2d 504, 516, rev’d on other grounds (1956), 7 Ill. 2d 608; Fidelity Savings Bank v. Aulik (1948), 252 Wis. 602, 32 N.W.2d 613; Scroghan v. Kraftco Corp. (Ky. App. 1977), 551 S.W.2d 811.

In Petermann v. International Brotherhood of Teamsters, Local 396 (1959), 174 Cal. App. 2d 184, 344 P.2d 25, the court stated that public policy is a vague expression and is not subject to precise definition. In Zeigler v. Illinois Trust & Savings Bank this court also stated that there is no precise definition of public policy. In attempting to define public policy, this court has stated that it is that principle of law which declares that no one may lawfully do that which has a tendency to be injurious to the public welfare or to be against the public good. (People ex rel. Nelson v. Wiersema State Bank (1935), 361 Ill. 75, 86; Knass v. Madison & Kedzie State Bank (1933), 354 Ill. 554, 567.) Stati6ng the converse of this definition, it can be said that public policy favors that which has a tendency to be beneficial to the public welfare or to be for the public good. In view of such a general definition, the correctness of the statement that public policy is a vague expression and is not subject to precise definition cannot be questioned. Certainly, no employer should be subject to suit and unlimited punitive damages based on a nebulous charge that he discharged an employee for doing that which has a tendency to be beneficial to the public welfare or for the public good. To sustain a cause of action for retaliatory discharge, the limitations on the employer’s right to discharge employees must be more precisely defined.

In Geary v. United States Steel Corp. (1974), 456 Pa. 171, 319 A.2d 174, a salesman for a steel manufacturer, after having originally complained to his superior, later bypassed his immediate superior and complained to a company vice-president about the safety of a product the company manufactured. The salesman was discharged and thereafter sued his employer in tort, contending he had acted in the best interests of the general public and of his employer. The Supreme Court of Pennsylvania stated that, in essence, the plaintiff contended that his conduct should be protected because his intentions were good. The court noted that no doubt most employees who are discharged could make the same claim. The court affirmed the lower court’s dismissal of the complaint and observed that the praiseworthiness of the plaintiff’s motives does not detract from the company’s legitimate interest in preserving its normal operational procedures from disruption. The court voiced its concern as to the impact of such suits on the legitimate interest of employers in hiring and retaining the best personnel. The court stated that the ever-present threat of suit might well inhibit the making of critical judgments by employers concerning employees’ qualifications.

In Abrisz v. Pulley Freight Lines, Inc. (Iowa 1978), 270 N.W.2d 454, a discharged employee sued her employer, who had discharged her for writing a letter supporting a fellow employee’s claim for unemployment compensation. In the letter, she severely criticized her employer’s business policies. The employee claims her discharge was for reasons contravening public policy. The Supreme Court of Iowa stated that the plaintiff had not established that her discharge violated public policy. “Courts should not declare conduct violative of public policy unless it is clearly so.” (Abrisz v. Pulley Freight Lines, Inc. (Iowa 1978), 270 N.W.2d 454, 456.) The court also stated: “In considering this matter we keep in mind the rights of the employer, as well as those of the employee, are important.” Abrisz v. Pulley Freight Lines, Inc. (Iowa 1978), 270 N.W.2d 454, 456.

In Scroghan v. Kraftco Corp. (Ky. App. 1977), 551 S.W.2d 811, the plaintiff had been discharged after he announced his intentions to attend law school at night. He sued his former employer, contending that his discharge violated public policy, urging that continued education has been established as a public policy in the United States. The court, after noting that public policy is first and foremost a matter for legislative determination, stated:

“The legislature has not seen fit to establish any policy in this area, and we are not convinced that this is a proper area for the exercise of judicial activism.” Scroghan v. Kraftco Corp. (Ky. App. 1977), 551 S.W.2d 811, 812.

In Geary, Abrisz, and Scroghan the employees’ conduct can be said to have a tendency to be beneficial to the public welfare or to be for the public good, but the courts refused to declare, by judicial fiat, that discharging employees for such conduct contravened public policy. The citing of these three cases is not intended to be an exhaustive examination of the subject. They are cited to demonstrate that the courts are not willing to create a cause of action for a discharged employee simply because his conduct was praiseworthy or because the public may have derived some benefit from it.

Because of the vagueness of the concept of public policy, most of the jurisdictions that have allowed a discharged employee to maintain a cause of action for retaliatory discharge have required that the public policy against such discharge be clear and well-defined, that the mandate of public policy be clear and compelling, and that there be strong public policy against such discharge. Percival v. General Motors Corp. (E.D. Mo. 1975), 400 F. Supp. 1322, aff’d (8th Cir. 1976), 539 F.2d 1126; Campbell v. Ford Industries, Inc. (1976), 274 Or. 243, 546 P.2d 141; Jones v. Keogh (1979), 137 Vt. 562, 409 A.2d 581; Harless v. First National Bank (W. Va. 1978), 246 S.E.2d 270; Geary v. United States Steel Corp. (1974), 456 Pa. 171, 319 A.2d 174.

In Becket v. Welton Becket & Associates (1974), 39 Cal. App. 3d 815, 114 Cal. Rptr. 531, the employee, as the executor of an estate, had filed a suit against his employer. When he refused to terminate the litigation, he was discharged. He then sued his employer, contending that his discharge was in retaliation for action protected by public policy. The court, in analyzing California law, noted that, in cases allowing such an action, the public policy was evidenced by either a criminal statute or a statute specifically designed to protect the rights of the employee. The court pointed out that there was no articulated public policy through legislative action which was violated by the employer.

In Tameny v. Atlantic Richfield Co. (1980), 27 Cal. 3d 167, 177, 610 P.2d 1330, 1336, 164 Cal. Rptr. 839, 845, Mr. Justice Tobriner, writing for the court, acknowledged that many of the California cases for wrongful discharge were based on statutes which specifically barred discharge for certain conduct. The opinion pointed out, however, that the courts also allowed discharged employees to maintain actions for retaliatory discharge where general statutes affording employees certain rights or privileges “articulated a fundamental public policy which the employer’s discharge clearly contravened.” (Emphasis added.) (Tameny v. Atlantic Richfield Co. (1980), 27 Cal. 3d 167, 177, 610 P.2d 1330, 1336, 164 Cal. Rptr. 839, 845.) The courts in the cases cited above, by referring to clear and well-defined public policy, clear and compelling public policy, strong public policy, and fundamental public policy, acknowledge that public policy may exist in varying degrees. Only in cases where there have been clearly articulated, strong, fundamental, compelling, and well-defined policies can a discharge which contravened these policies give rise to a tort action for retaliatory discharge. The clear articulation of such a policy has almost always been found in legislative pronouncement.

In two cases usually discussed by courts considering retaliatory discharge, recovery was permitted in actions for retaliatory discharge based on “bad faith.” In Monge v. Beebe Rubber Co. (1974), 114 N.H. 130, 316 A.2d 549, a female employee was discharged after she refused to go out with her foreman. The New Hampshire Supreme Court held that the termination of employment motivated by bad faith or malice was based on retaliation, constituting a breach of the employment contract. In Fortune v. National Cash Register Co. (1977), 373 Mass. 96, 364 N.E.2d 1251, a salesman sued his former employer after he was discharged. The court held that the contract of employment contained an implied covenant of good faith and fair dealing and that a termination not made in good faith constitutes a breach of the contract. These cases are readily distinguishable from the strong-public-policy line of cases, in that, in the last two cases discussed, recovery was sought and allowed for breach of contract and not for a tort, and punitive damages were not sought.

It is indeed praiseworthy that the plaintiff in our case is interested in ferreting out crime. His complaint, however, does not allege conduct on his part that will bring it within the area of any public policy that has been articulated by the legislature. The plaintiff was not discharged for failing to violate or for complying with the requirements of our obstruction-of-justice statute (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 4), or of the section of our statute concerning refusing to aid an officer (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 8). These sections were referred to in the majority opinion. If the plaintiff would have been discharged for such a reason, strong, clear, fundamental articulated public policy would have been contravened and an action in tort would then be appropriate. The complaint, however, does not even allege that a crime had been committed or that the plaintiff reported to the law-enforcement agency that a crime had been committed. It only alleges that plaintiff was discharged because he reported to a law-enforcement agency that an employee of the defendant might be involved in a violation of the criminal code and that he had agreed to assist the law-enforcement agency in gathering further information. It should be remembered that the plaintiff was not a unionized employee, but held a position in management. By assuming the role of a “citizen crime-fighter” undertaking to ferret out crime for the police the plaintiff, through his spying, could seriously affect labor relations of his employer. Also, his conduct, without consulting with the proper management personnel, could impair the company’s internal security program. In other words, the plaintiff here had taken it upon himself to become involved in crime fighting when it was neither required by law, nor by his employment, and obviously was against the wishes of his employer.

By departing from the general rule that an at-will employment is terminable at the discretion of the employer, the courts are attempting to give recognition to the desire and expectation of an employee in continued employment. In doing so, however, the courts should not concentrate solely on promoting the employee’s expectations. The courts must recognize that the allowance of a tort action for retaliatory discharge is a departure from, and an exception to, the general rule. The legitimate interest of the employer in guiding the policies and destiny of his operation cannot be ignored. The new tort for retaliatory discharge is in its infancy. In nurturing and shaping this remedy, courts must balance the interests of employee and employer with the hope of fashioning a remedy that will accommodate the legitimate expectations of both. In the process of emerging from the harshness of the former rule, we must guard against swinging the pendulum to the opposite extreme. In Percival v. General Motors Corp. (8th Cir. 1976), 539 F.2d 1126, 1130, the court stated:

“It should be kept in mind that as far as an employment relationship is concerned, an employer as well as an employee has rights; ***.”

The district court opinion in Percival stated:

“The courts which have recognized this non-statutory cause of action have done so cautiously, recognizing that a proper balance must be maintained between the employee’s interest in earning his livelihood and the employer’s interest in operating his business efficiently and profitably.” (Emphasis added.) Percival v. General Motors Corp. (E.D. Mo. 1975), 400 F. Supp. 1322, 1323.

The deteriorating business climate in this State is a topic of substantial interest. A general discussion of that subject is not appropriate to this dissent. It must be acknowledged, however, that Illinois is not attracting a great amount of new industry and business and that industries are leaving the State at a troublesome rate. I do not believe that this court should further contribute to the declining business environment by creating a vague concept of public policy which will permit an employer to discharge an unwanted employee, one who could be completely disruptive of labor-management relations through his police spying and citizen crime-fighter activities, only at the risk of being sued in tort not only for compensatory damages, but also for punitive damages.

I am not alone in my concern over the adverse effect that the loose application of the retaliatory-discharge remedy will have on business. I noted above the concern voiced by the Supreme Court of Pennsylvania in Geary and by the Supreme Court of Iowa in Abrisz. In Pierce v. Ortho Pharmaceutical Corp. (1979), 166 N.J. Super. 335, 341, 399 A.2d 1023, 1026, the court stated:

“[T]he employer’s legitimate interests in conducting his business and employing and retaining the best personnel available cannot be unjustifiably impaired.”

The court went on to state:

“In addition the exception [to the general rule] must guard against a potential flood of unwarranted disputes and litigation that might result from such a doctrine, based on vague notions of public policy. Hence, if there is to be such an exception to the at-will employment rule, it must be tightly circumscribed so as to apply only in cases involving truly significant matters of clear and well-defined public policy and substantial violations thereof.” (Emphasis added.) (Peirce v. Ortho Pharmaceutical Corp. (1979), 166 N.J. Super. 335, 342, 399 A.2d 1023, 1026.)

In Monge v. Beebe Rubber Co. the New Hampshire Supreme Court, while allowing recovery on a contract theory for a “bad faith” discharge, nonetheless acknowledged the necessity of balancing the interests of employer and employee. The court stated:

“Such a rule affords the employee certain stability of employment and does not interfere with the employer’s normal exercise of his right to discharge, which is necessary to permit him to operate his business efficiently and profitably.” Monge v. Beebe Rubber Co. (1974), 114 N.H. 130, 133, 316 A.2d 549, 551-52.

The majority opinion cites Blades, Employment At Will vs. Individual Freedom: On Limiting The Abusive Exercise Of Employer Power, 67 Colum. L. Rev. 1404 (1967). Professor Blades, while promoting an expansion of an employee’s right to sue his employer for wrongful discharge, recognizes the adverse effect of such litigation on the employer’s business:

“ [T] here is the danger that the average jury will identify with, and therefore believe, the employee. This possibility could give rise to vexatious lawsuits by disgruntled employees fabricating plausible tales of employer coercion. If the potential for vexatious suits by discharged employees is too great, employers will be inhibited in exercising their best judgment as to which employees should or should not be retained. *** [T]he employer’s prerogative to make independent, good faith judgments about employees is important in our free enterprise system.” 67 Colum. L. Rev. 1404, 1428 (1967).

In order to establish the necessary balance between employer and employee interests, I would hold that the employee may maintain an action for retaliatory discharge only when the discharge has been violative of some strong public policy that has been clearly articulated. Usually, that clear articulation would be found in legislative enactment. I do not think that an employer should be compelled to defend a tort action and possibly be forced to pay a disgruntled discharged employee compensatory, and possibly substantial punitive, damages because of a violation of some vague concept of public policy that has never been articulated by anyone except four members of this court.

I therefore respectfully dissent.

MR. JUSTICE MORAN joins in this dissent.


author: MR. JUSTICE UNDERWOOD

text:
    (Nos. 52867, 52871 cons.
    BETTY WITHERELL, Appellee, v. J. I. WEIMER et al., Appellants.

      Opinion filed, February 20, 1981.

    — Modified on denial of rehearing June 17, 1981.

      Lyle W. Allen, Roger R. Clayton, and David R. Sinn, of Heyl, Royster, Voelker & Allen, of Peoria, for appellants J. I. Weimer and R. K. Taubert.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Tobin, and John T. Rank, of counsel), for appellant Ortho Pharmaceutical Corporation.
    James L. Hafele, of Peoria, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, Betty Witherell, filed a personal injury action in the Tazewell County circuit court on January 4, 1978, against Drs. J. I. Weimer and R. K. Taubert, and Ortho Pharmaceutical Corporation (Ortho). She alleged that severe injuries to her legs were the result of the negligent conduct of the doctors and as to Ortho alleged negligence, strict product liability, and breach of warranty. The pretrial motions of all defendants to dismiss and for judgment under section 48(e) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(e)) were allowed on the grounds that plaintiff had failed to bring suit within the time limits allowed by the applicable statutes of limitation. The appellate court reversed and remanded, holding a question of fact existed as to the time at which the statutes of limitation commenced to run. (77 Ill. App. 3d 582.) We allowed and consolidated the separate petitions for leave to appeal of the defendant doctors and Ortho.

A summary of the material considered by the parties and the court in its ruling on the motions, including the allegations of plaintiff’s complaint, the contents of her affidavit, and her answers to interrogatories, is necessary. They indicate that in 1966 Dr. Weimer prescribed Ortho-Novum, a birth control pill manufactured by defendant Ortho, for plaintiff and she began taking it. Shortly thereafter she commenced to have pain and spasms in her left leg, which became swollen and “could hardly bear weight on it.” The pain was so great that plaintiff had to put her left leg on a chair and “scoot” the chair to get around the house. She consulted Dr. Weimer about the condition in March of the following year. His associate, Dr. Taubert, hospitalized her and told her he thought she had a blood clot in her leg. Dr. Weimer, however, advised plaintiff that she had a muscle condition and would have to learn to live with it.

Although released from the hospital in April, plaintiff continued to have the pain and spasms in her leg which progressively worsened. The problems persisted through 1971, with Dr. Weimer reiterating that they were caused by a muscle condition and prescribing leg massage, walking, and support hose and directing her to ignore the pain. The condition was, in her words, “excruciatingly painful,” but she tried to ignore it, thinking it was the muscle condition diagnosed by Dr. Weimer. Sometimes “the pain was so bad that plaintiff had to crawl back and forth to the bathroom.”

In July 1972, plaintiff was again hospitalized by Drs. Weimer and Taubert. Plaintiff told Dr. Weimer that she had heard from other women that birth control pills could cause blood clots. “Dr. Weimer laughed and said that she should not worry that the pills did not cause bloodclots and that they were safe to take and that they would not harm her in any way.” Plaintiff discontinued her use of the pill for a month in 1973 at the urging of her mother, but Dr. Weimer reassured her that the problem in her legs was not caused by the pills, and she resumed taking them. The condition remained relatively the same thereafter, and plaintiff continued to complain to the doctor, who kept reassuring plaintiff that the problem with her legs was a muscle condition and that she would just have to live with it. He told her that the blood clot for which she had been treated previously was gone, that she did not have blood clots in her legs, and that the trouble with her legs was strictly the muscle condition. In May of 1976, plaintiff was admitted to Pekin Memorial Hospital for the condition in her legs. Again, Dr. Weimer told her it was a muscle condition, and he prescribed whirlpool baths and walking. Plaintiff asked Dr. Weimer for a veinogram, of which plaintiff had just recently heard. The doctor, according to plaintiff, said, “Now there’s nothing wrong with the veins in your legs,” as he patted her on the leg.

Thereafter plaintiff apparently discharged Dr. Weimer and Dr. Taubert, left the hospital and consulted Dr. Juco, a Peoria physician, who had her admitted to a Peoria hospital. After performing a veinogram on her legs, Dr. Juco told plaintiff she had bilateral thrombosis, that some of the veins were occluded from the old blood clots and that the condition of her legs was serious. About three months later plaintiff, without benefit of counsel, filed what is described as a “letter complaint” against Drs. Weimer and Taubert in the circuit court of Peoria County. That complaint was later dismissed without prejudice on the court’s own motion and the instant suit filed. Plaintiff’s bill of particulars in the current suit describes her then current condition as having “extensive deep vein thrombosis in both lower extremities, with considerable recannulization. Plaintiff’s legs are always in pain. The only variation is that the pain goes from tolerable to excruciating. Her legs must be elevated at all times. She uses a cane for walking, except when she is in a wheelchair. If plaintiff goes out of her home she must do so in a wheelchair. She cannot play the piano, she cannot dance, she can engage in no sporting events such as fishing, she cannot do her housework, her condition interferes with sexual intercourse between her and her husband, and in numerous other aspects interferes with the daily enjoyment of her life.”

Excerpts from the Ortho-Novum product information apparently contained in the physician’s desk reference book indicate that “A statistically significant association has been demonstrated between use of oral contraceptives and the following serious adverse reactions: Thrombophlebitis ***.” It also states: “The physician should be alert to the earliest manifestations of thrombotic and thromboembotic disorders, thrombophlebitis ***. Should any of these occur or be suspected, the drug should be discontinued immediately.”

Accompanying the motions for judgment were affidavits of Drs. Weimer and Taubert, from two other doctors who had examined plaintiff, and from Miriam Nafziger, a hospital nurse. Dr. Weimer stated plaintiff had been a patient since 1963, had been hospitalized in 1967 “with a diagnosis of thrombophlebitis of the left calf,” and again in 1972 for “the treatment of thrombophlebitis of the right leg in the calf area.” On both occasions plaintiff’s condition was fully explained to her. He also hospitalized plaintiff in May 1976 for leg problems which were diagnosed as “possible neuritis and myositis” unrelated to her earlier thrombophlebitis. Dr. Taubert’s affidavit was substantially similar, both doctors indicating plaintiff initially gave them a history of pain and swelling in her left leg during the preceding three or four years. In a rebutting affidavit, plaintiff stated that she was told by the defendant doctors in 1967 and 1972 that she had blood clots in her legs; she denied that Dr. Weimer or Dr. Taubert ever told her she had thrombophlebitis and stated the first time she ever heard the word “thrombophlebitis” was in 1976 when she was examined by Dr. Juco.

Dr. Benito M. Camacho’s affidavit stated he saw plaintiff in March and April 1977 as a result of her referral to him by Dr. Juco; that she gave him a history of deep vein thrombosis in 1967 when she was taking birth control pills which were “thought to be the inciting factor” for the thrombosis. Attached to the affidavit were copies of his office records containing the notes of the March and April interviews.

In his affidavit Dr. Francis Rafool stated he had admitted plaintiff to Methodist Hospital in Peoria in 1969, at which time plaintiff had told him “she had had swelling of her left leg following a thrombophlebitis about two years prior to June 25, 1969, and that on that date of June 25, 1969, she was on birth control pills.”

Nurse Nafziger stated in her affidavit that she cared for plaintiff while the latter was hospitalized in May 1976; at that time plaintiff told affiant that plaintiff had had blood clots and pain in her legs for the past nine years.

Plaintiff’s rebutting affidavit denies telling Dr. Camacho what his medical history notes indicated she had told him, and denies telling either Dr. Rafool or Nurse Nafziger that she had thrombophlebitis.

Plaintiff’s allegations of negligence on the part of Drs. Weimer and Taubert are predicated on their failure to diagnose her condition of thrombophlebitis, failing to treat that condition properly, and their continuing negligence in continuing to prescribe birth control pills for her even though those pills could be causing her thrombophlebitis. It is alleged that these acts of negligence continued up to the time plaintiff discharged the doctors in May 1976. The negligence claim against Ortho is predicated on allegations that proper warnings were not given regarding a possible relationship between Ortho-Novum and thrombophlebitis. The strict liability and breach of warranty claims are based, respectively, on charges that Ortho-Novum was not a reasonably safe product and not of merchantable quality.

The question before us is the time at which plaintiff’s cause of action accrued for purposes of the statute of limitations and whether any acts of defendants have tolled the running of the statute as to them.

The statute of limitations governing plaintiff’s action against the doctors is section 21.1 of the Limitations Act:

“No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” (Ill. Rev. Stat. 1977, ch. 83, par. 22.1.)

Section 14 of that act is applicable to plaintiff’s tort claims against defendant Ortho:

“Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years next after the cause of action accrued.” (Ill. Rev. Stat. 1977, ch. 83, par. 15.)

Section 2 — 725 of the Uniform Commercial Code governs plaintiff’s breach of warranty claim. It provides in pertinent part:

“(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” (Ill. Rev. Stat. 1977, ch. 26, pars. 2-725(1), (2).)

Also relevant to our decision is section 22 of the Limitations Act relating to fraudulent concealment:

“If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not after-wards.” Ill. Rev. Stat. 1977, ch. 83, par. 23.

Medical malpractice litigation has been the subject of much legislative and judicial concern in recent years. (See, e.g., Anderson v. Wagner (1979), 79 Ill. 2d 295, appeal dismissed sub nom. Woodward v. Burnham City Hospital (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54.) Application of the so-called “discovery rule” in medical malpractice cases became a major concern since the cause of action did not “accrue” in the sense of triggering the statute of limitations until the plaintiff learned of his injury or should have learned of it. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 305.) Consequently, in those situations where the plaintiff neither knew nor had reason to know of the injury at the time it occurred, litigation could be commenced after expiration of the period ordinarily contemplated by the applicable statutes of limitation when computed from the time of occurrence of the complained-of conduct. As this court pointed out in Anderson, the General Assembly responded to what was considered to be a “medical malpractice insurance crisis” (79 Ill. 2d 295, 305), by amending section 21.1 of the limitations statute, earlier quoted, to provide that a personal injury or death action against a doctor or hospital must be brought within two years from the date when the injury is or should be known, and in no event more than four years from the date of the alleged misconduct.

The “discovery rule” was first announced by us in Rozny v. Marnul (1969), 43 Ill. 2d 54, which involved a surveyor’s error, and has been applied in a variety of situations: Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418 (products liability); Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32 (medical malpractice); Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548 (products liability); and Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129 (defamation). It is entirely clear from the opinions in Williams and Berry that in a products liability tort case the statute of limitations runs from the time plaintiff knew or should have known of the injury and not from the time of sale of the product. It is equally clear from Lipsey that the same rule applies in medical malpractice cases. Because neither Berry nor Lipsey precisely defined the term “injury,” the parties here and in a number of appellate court cases have differed in their interpretations. (Compare Kaufman v. Taub (1980), 87 Ill. App. 3d 134, with Greenock v. Rush Presbyterian St. Luke’s Medical Center (1978), 65 Ill. App. 3d 266, and Roper v. Markle (1978), 59 Ill. App. 3d 706, with Ilardi v. Spaccapaniccia (1977), 53 Ill. App. 3d 933.) Where substantial intervals exist between the time at which a plaintiff should have known of the physical injury and the time at which he should have known that it was negligently caused, the definition of “injury” as including or excluding its wrongful causation becomes significant. Since plaintiff here has alleged that she did not know until May 1976 the nature of her true condition and that it had resulted from the negligence of the doctors in continuing to prescribe Ortho-Novum, plaintiff urges her suit filed less than two years thereafter is timely. It is suggested that our opinions have left unresolved the question whether the statute is triggered by plaintiff’s discovery of the injury or not until discovery of the negligence where, as alleged here, knowledge of the injury substantially preceded knowledge of its cause.

The statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused. At that point the burden is upon the injured person to inquire further as to the existence of a cause of action. (United States v. Kubrick (1979), 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352; Urchel v. Holy Cross Hospital (1980), 82 Ill. App. 3d 1050, 1052-53; Gaudynski v. Corbett (1980), 81 Ill. App. 3d 910, 913-14; Ikenn v. Northwestern Memorial Hospital (1979), 73 Ill. App. 3d 694, 699; Greenock v. Rush Presbyterian St. Luke’s Medical Center (1978), 65 Ill. App. 3d 266.) In many, if not most, cases the time at which an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused will be a disputed question to be resolved by the finder of fact. (Lipsey.) Where it is apparent from the undisputed facts, however, that only one conclusion can be drawn, the question becomes one for the court. Berry.

In the present case the plaintiff began to experience problems with her leg shortly after taking the birth control pill prescribed by the doctor and manufactured by defendant Ortho. She was hospitalized for this condition in 1967 and after her release asserts she experienced excruciating pain in that leg. She had great difficulty in simply moving about her home. The plaintiff was told by her mother and other women that the pill could cause blood clots, and she even voluntarily stopped taking the pill for a month. She was again hospitalized in 1972 for problems in her leg. While maintaining that no doctor told her prior to 1976 that she had thrombophlebitis, she stated in her affidavit that Dr. Taubert told her in 1967 and in 1972 that she had blood clots in her leg.

Given the severe difficulties plaintiff asserts she was having with her legs, the advice from her mother and others that the pill could cause blood clots, her statement that Dr. Taubert told her in 1967 and 1972 that she was having blood clots in her legs but that Dr. Weimer was insisting the problems were muscular, it is, as in Berry, inconceivable to us that a reasonable person would not have realized, at least by the time of plaintiffs second hospitalization in 1972, that she may not have been receiving proper diagnosis and treatment. If Ortho was negligent in the warning it gave, if Ortho did break its warranty concerning the product, and if Ortho did place an unreasonably dangerous product in commerce, then any claim for injuries suffered thereby should have been brought within the time allowed after plaintiff knew or reasonably should have known that her injury resulted from actionable conduct by Ortho. That point was reached more than five years before the present action was filed, and plaintiff might well have acted within the statutory period had it not been for the advice she alleges was given her by the doctors. Ortho-Novum was a prescription drug available only when prescribed by the doctors, who, plaintiff says, continued to prescribe it. It is not alleged that in doing so they were acting as representatives of the manufacturer, nor is any issue raised as to other conduct by Ortho which would preclude it from raising the limitations defense. As was recently said by the Supreme Court in speaking of a similarly situated plaintiff in Kubrick:

“If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit, even though more than two years have passed from the plaintiff’s discovery of the relevant facts about injury.” (United States v. Kubrick (1979), 444 U.S. 111, 124, 62 L. Ed. 2d 259, 270, 100 S. Ct. 352, 360.)

In our judgment the trial court’s action in dismissing the complaint as to Ortho was proper.

Completely different circumstances exist, however, as to the defendant doctors. We have held that plaintiff, in the factual context she alleges, should have been alerted to the fact that her condition was the result of actionable conduct by defendants. Her consideration of that contingency is manifested by her inquiry to the doctor regarding a connection between her leg problems and the pills, and her subsequent request that he perform a veinogram. Had it not been for the alleged constant reassurance by Dr. Weimer that it was a muscle condition and not Ortho-Novum which was causing her problems, and had he not persuaded her it was safe to resume taking it after she voluntarily quit, plaintiff’s action would not have been so long delayed. Consequently, she now urges, the doctors should be precluded by the fraudulent concealment provisions of the earlier-quoted section 22 of the Limitations Act from raising the limitations issue.

We need not here consider whether section 22 is applicable to medical malpractice cases, a question left unresolved in Anderson v. Wagner (1979), 79 Ill. 2d 295, 322, nor whether the alleged conduct of the doctors comes within the scope of that statute. In our opinion, generally accepted principles of equitable estoppel prevent the defendant doctors from urging the limitations bar.

As was said by the Supreme Court in Glus v. Brooklyn Eastern District Terminal (1959), 359 U.S. 231, 232-33, 3 L. Ed. 2d 770, 772, 79 S. Ct. 760, 762: “To decide the case we need look no further than the maxim that no man may take advantage of his own wrong. Deeply rooted in our jurisprudence this principle has been applied in many diverse classes of cases by both law and equity courts and has frequently been employed to bar inequitable reliance on statutes of limitations.” (See also Dill v. Widman (1952), 413 Ill. 448, 471-72; Coke v. General Adjustment Bureau, Inc. (5th Cir. 1980), 616 F.2d 785, 790; Bomba v. W. L. Belvidere, Inc. (7th Cir. 1978), 579 F.2d 1067; Annot., 43 A.L.R.3d 429, 440 (1972).) The Pennsylvania Supreme Court, in defining an equitable estoppel which will preclude raising the statute of limitations, held it to include unintentional deception, and that “ ‘It is not the intention of the party estopped but the natural effect upon the other party which gives vitality to an estoppel’. 5 Williston, Contracts sec. 691 (3d ed. 1961).” (Nesbitt v. Erie Coach Co. (1964), 416 Pa. 89, 96, 204 A.2d 473, 477.) To the same effect is the statement of the Seventh Circuit Court of Appeals in Bomba v. W. L. Belvidere, Inc. (7th Cir. 1978), 579 F.2d 1067, 1071: “Moreover, it is not necessary that the defendant intentionally mislead or deceive the plaintiff, or even intend by its conduct to induce delay. [Citations.] Rather, all that is necessary for invocation of the doctrine of equitable estoppel is that the plaintiff reasonably rely on the defendant’s conduct or representations in forbearing suit.”

There is no real doubt, of course, that the relationship between a doctor and his patient is one in which the patient normally reposes a great deal of trust and confidence in the doctor, accepting his recommendations without question. The relationship is appropriately described in 61 Am. Jur. 2d Physicians and Surgeons, section 95, at 214 (1972):

“The relation of physician and patient has its foundation on the theory that the former is learned, skilled, and experienced in those subjects about which the latter ordinarily knows little or nothing, but which are of the most vital importance and interest to him, since upon them may depend the health, or even life, of himself or family; therefore the patient must necessarily place great reliance, faith, and confidence in the professional word, advice, and acts of the physician.”

Numerous cases characterize the relationship as a fiduciary one. See, e.g., 61 Am. Jur. 2d Physicians and Surgeons sec. 100 (1972); Zeigler v. Illinois Trust & Savings Bank (1910), 245 Ill. 180; Fure v. Sherman Hospital (1978), 64 Ill. App. 3d 259; Stafford v. Shultz (1954), 42 Cal. 2d 767, 270 P.2d 1; Bowman v. McPheeters (1947), 77 Cal. App. 2d 795, 176 P.2d 745; Adams v. Ison (Ky. 1952), 249 S.W.2d 791.

In the circumstances alleged to be present here, we believe that considerations of fundamental fairness require that the defendant doctors be held estopped by their conduct from now urging that plaintiff should have sooner complained against them for a condition they repeatedly assured her she did not have. Plaintiff, acting pro se, filed a “letter complaint” against the defendant doctors with the Peoria County circuit court shortly after terminating her relationship with them. The complaint now before us was filed within three months following dismissal without prejudice of the pro se action. We cannot say that plaintiff did not act within a reasonable time after she was informed of what she alleges to be her true condition. She is, in our judgment, entitled to an opportunity to prove the allegations upon which the estoppel and her cause of action are based.

The judgment of the appellate court is accordingly affirmed as to the defendant doctors and reversed as to defendant Ortho. The cause is remanded to the circuit court of Tazewell County for further proceedings consistent with this opinion.

Affirmed in part and reversed in part and remanded.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.


author: MR. JUSTICE CLARK

text:
    (No. 52484.
    BILLIE IRENE NOLAN, Adm’x, Appellee, v. JOHNS-MANVILLE ASBESTOS et al., Appellants.

      Opinion filed February 20, 1981.

    — Opinion modified June 17, 1981.

      Johnson, Cusack & Bell, of Chicago (William V. Johnson and Thomas H. Fegan, of counsel), for appellants Johns-Manville Asbestos and Midwest Pipe Covering.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stanley J. Davidson, Thomas J. Weithers and Frederick S. Mueller, of counsel), for appellant Owens-Coming Fiberglas Corporation.
    Baker 8c McKenzie, of Chicago (Francis J. Morrissey, Harry J. O’Kane and Daniel J. Cheely, of counsel), for appellant Forty-Eight Insulation, Inc. et al.

    Jacobs, Williams 8c Montgomery, Ltd., of Chicago (Lloyd E. Williams, Jr., and Barry L. Kroll, of counsel), for appellant Ryder Industries, Inc.
    Clausen, Miller, Gorman, Caffery 8c Witous, P.C., of Chicago (James T. Ferrini and Kevin J. Glenn, of counsel), for appellant H. A. Jones.
    Ash, Anos, Harris & Freedman, of Chicago (George J. Anos, Bmce T. Logan and Lawrence M. Freedman, of counsel), for appellant Keene Ceiling & Insulating et al.

    O’Brien, Redding 8c Hyde, of Chicago (Michael W. Rathsack and Donald J. O’Brien, Jr., of counsel), for appellant Standard Asbestos Manufacturing 8c Insulating Company.
    Wildman, Harrold, Allen & Dixon, of Chicago (Ann C. Peterson, of counsel), for appellants Certain-Teed St. Gobain Insulation Corp. and Grant Wilson.
    Sloan 8c Connelly, P.C., of Chicago (Michael P. Connelly, of counsel), for appellant Philip Carey Corporation.
    William J. Harte, Ltd., of Chicago (William J. Harte, Jan Gerske and John J. Lowrey, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The plaintiff’s decedent, Edwin L. Nolan, Jr., filed a complaint, sounding in strict liability, in the circuit court of Cook County on May 9, 1975. The complaint alleged, inter alia, that the defendants manufactured, sold and distributed asbestos, fiberglass and related products which were unreasonably dangerous because the containers were not adequately labeled so as to warn of foreseeable and known dangers associated with their use, because the defendants failed to warn of the known likelihood of contracting asbestosis due to prolonged exposure and use of the products, and because the defendants failed to provide protective equipment. On a motion joined by all the defendants, and after notice and hearing, the circuit court granted summary judgment for all defendants, on the basis that Nolan’s cause of action was barred by the two-year statute of limitations (Ill. Rev. Stat. 1977, ch. 83, par. 15).

Nolan appealed. During the pendency of that appeal, he died. His wife was substituted as special administratrix to prosecute the appeal. The Appellate Court for the First District reversed the judgment of the circuit court and remanded the cause for further proceedings. (74 Ill. App. 3d. 778.) We allowed leave to appeal. (73 Ill. 2d R. 315.) We affirm.

The facts are amply set forth in the appellate court opinion. A summary will suffice here. Edwin L. Nolan, Jr., was employed as an asbestos insulator from 1941 to May 11, 1973, with the exception of time spent in military service from 1943 to 1946. In 1957, Nolan became aware of shortness of breath and increasing difficulty climbing stairs. He underwent a chest X ray administered by the Suburban Tuberculosis Sanitarium, which showed he did not have tuberculosis, but indicated that he had “lung problems.” Nolan consulted his family doctor, Robert Muench. Dr. Muench examined Nolan, ordered some X rays taken, and confirmed the sanitarium’s statement that Nolan had lung problems, but he did not elaborate further. Dr. Muench referred Nolan to a psychiatrist, Dr. Monty Meldmann. Dr. Meldmann conducted a physical examination and ordered more X rays taken. He also told Nolan that he had lung problems, but told Nolan he thought his problem was partly psychological as well.

Nolan again sought Dr. Muench’s advice in 1965, when he noticed that his earlier complaints were becoming more pronounced. Nolan was admitted to St. Joseph’s Hospital in Elgin, where he underwent a physical examination, pulmonary function tests, and chest X rays. During Dr. Muench’s deposition, he read the reported findings of the hospital’s X-ray department:

“The findings suggest a generalized pulmonary fibrosis or interstitial inflammatory process. Pneumoconiosis is a consideration to be correlated with the occupational history. Chronic interstitial pneumonia, sarcoidosis, and pulmonary fungus disease are other considerations to be correlated with the clinical and laboratory data.
The accentuated findings at the left anterior lower lung field may represent a supraimposed acute inflammation. Comparison to previous chest x-rays will be of value.”

Dr. Muench testified during the course of the deposition that, while usually test findings and their causes are discussed with patients, he could not recall whether he had discussed the foregoing findings with Nolan. Nolan testified that Dr. Muench told him he had pulmonary fibrosis, but did not indicate any causal connection between his condition and his occupation. Nolan testified further that Dr. Muench told him there was nothing the doctor could do for. him.

Nolan sought further medical attention from the Veteran’s Administration Hospital after his discharge from St. Joseph’s Hospital. He was told he was receiving competent treatment from Dr. Muench and was refused admittance to the hospital.

Sometime after 1968, the international union to which Nolan belonged began to publish “green sheets” as a supplement to its quarterly magazine, The Asbestos Worker. The green sheets detailed the findings of a physician, Dr. Irving Selikoff, concerning the relationship between exposure to asbestos materials and lung problems. Nolan was not sure when he first read the green sheets.

During May 1973 Nolan consulted an internist, Dr. Robert C. Kloempken. Nolan’s symptoms consisted of a serious case of diarrhea, a weight loss of 13 pounds, shortness of breath, discomfort in the abdomen, and swelling of the feet.

Dr. Kloempken noted in his records that “He [Nolan] was told around 1957 that he had pulmonary fibrosis secondary to asbestosis.” The doctor stated that this was medical terminology. He also stated under questioning by different counsel, alternatively, that he did not know whether the precise words used were Nolan’s, and later, that Nolan did tell him so in those words. Finally, the doctor testified he was paraphrasing what Nolan told him.

On May 15, 1973, Dr. Kloempken diagnosed Nolan’s condition as asbestosis and tuberculosis. Nolan had ceased working on May 11, 1973, and never did return to work. The complaint in this cause was filed May 9, 1975.

The issue in this case is whether the two-year statute of limitations which governs personal injury'actions (Ill. Rev. Stat. 1977, ch. 83, par. 15) bars this action. As a preliminary contention the defendants argue that the discovery rule, which this court has applied to a number of actions, has no application in a strict liability action of this sort. In Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, where this court applied the discovery rule to a strict tort liability action, it was stated:

“ [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. [Citations.] Although we have not specifically held this rule applicable to a products liability claim [citation], refusal to do so would emasculate much of the consumer protection afforded by Suvada [v. White Motor Co. (1965), 32 Ill. 2d 612.] ” 45 Ill. 2d 418, 432.

In Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, a cause of action in strict tort liability involving the sale of a contraceptive pill was said to accrue when the plaintiff suffered a stroke. “From plaintiff’s description of the severity of her condition in the complaint and her reply brief it is inconceivable that her injury was not occasioned by a traumatic event and that she knew of this injury more than two years prior to the filing of her complaint.” 56 Ill. 2d 548, 559.

It is important to recognize that in Williams this court rejected the contention that the statute of limitations began to run when the allegedly defective trenching machine left the manufacturer’s control. In Berry we held that the cause of action in tort accrued when the plaintiff suffered a stroke and not when the pill was manufactured, sold or consumed. (56 Ill. 2d 548, 559; see Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 135.) Thus in Williams and Berry, with reference to the strict tort liability counts, the statute was held to commence to run when the plaintiffs knew or should have known of their injuries, which were suffered as part of traumatic events.

In Rozny v. Marnul (1969), 43 Ill. 2d 54, 70, this court said that whether to apply the discovery rule to a particular type of action involves “balancing the increase in difficulty of proof which accompanies the passage of time against the hardship to the plaintiff who neither knows nor should have known of the existence of his right to sue. There are some actions in which the passage of time, from the instant when the facts giving rise to liability occurred, so greatly increases the problems of proof that it has been deemed necessary to bar plaintiffs who had not become aware of their rights of action within the statutory period as measured from the time such facts occurred. (See Skinner v. Anderson, 38 Ill. 2d 455, 458; New Market Poultry Farms, Inc. v. Fellows, 51 N.J. 419, 241 A.2d 633.) But where the passage of time does little to increase the problems of proof, the ends of justice are served by permitting plaintiff to sue within the statutory period computed from the time at which he knew or should have known of the existence of the right to sue.” We think the instant case is a prime example of where, though the passage of time does create problems of proof, those problems are outweighed by the hardship to the plaintiff who neither knows nor reasonably should know that he is being injured. In the instant case, the defendants deposed Nolan to discover the particulars of when and where he used their products. Also, records relative to the sale of these products should still be extant in many cases. Additionally, in a case such as this, it is difficult to pinpoint a precise time when an injury occurred. As was stated in Urie v. Thompson (1949), 337 U.S. 163, 169, 93 L. Ed. 1282, 1292, 69 S. Ct. 1018, 1024, where the plaintiff, a railroad fireman, had contracted silicosis:

“If Urie were held barred from prosecuting this action because he must be said, as a matter of law, to have contracted silicosis prior to November 25, 1938, it would be clear that the federal legislation afforded Urie only a delusive remedy. It would mean that at some past moment in time, unknown and inherently unknowable even in retrospect, Urie was charged with knowledge of the slow and tragic disintegration of his lungs; under this view Urie’s failure to diagnose within the applicable statute of limitations a disease whose symptoms had not yet obtruded on his consciousness would constitute waiver of his right to compensation at the ultimate day of discovery and disability.” (337 U.S. 163, 169, 93 L. Ed. 1282, 1292, 69 S. Ct. 1018, 1024.)

Thus when the problems of proof are weighed against the fact that Nolan could not possibly have been aware of his injury until, at the earliest, 1957, when the first symptoms began to appear, the discovery rule must be applied to this action. See Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 41.

We need next consider the precise extent of the discovery rule in a case such as the instant one, where the injury involved did not arise out of a “sudden traumatic event.” It is argued by the defendants to this action that if indeed the discovery rule applies to this case, then it should be said to mean that Nolan’s cause of action accrued when he knew or should have known of his injury, in which case, the defendants say, the statute would have begun to run in either 1957 or 1965. Alternatively, the defendants argue that the cause of action could be said to accrue when Nolan possessed knowledge, actual or constructive, of an injury and that it was wrongfully caused, in which case, the defendants argue, the statute would start to run sometime between 1968 and 1972, when the green sheets were published.

The appellate court, however, held that the cause of action accrued when “Nolan knew or, in the exercise of reasonable diligence, should have discovered that he had contracted the disease asbestosis due to defendants’ acts or omissions which would have entitled him to proceed against them.” The court stated that this question was one to be decided by the trier of fact.

We are of the opinion that the preferred rule is that the cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another.

Such a rule is supported by the weight of authority in our appellate court. (See, e.g., Ikenn v. Northwestern Memorial Hospital (1979), 73 Ill. App. 3d 694, 695; Kristina v. St. James Hospital (1978), 63 Ill. App. 3d 810, 812; Roper v. Markle (1978), 59 Ill. App. 3d 706, 713; Wigginton v. Reichold Chemicals, Inc. (1971), 133 Ill. App. 2d 776, 779-80; McDonald v. Reichold Chemicals, Inc. (1971), 133 Ill. App. 2d 780, 782.) Moreover, this rule is similar to the rule applicable to malpractice claims under the Federal Tort Claims Act (United States v. Kubrick (1979), 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (the claim accrues when the plaintiff knows or should know of the injury and its cause)), as well as in accord with authorities from other jurisdictions involving injuries caused by exposure to asbestos materials (Harig v. Johns-Manville Products Corp. (1978), 284 Md. 70, 82, 394 A.2d 299, 306; Karjala v. Johns-Manville Products Corp. (8th Cir. 1975), 523 F.2d 155, 160-61 (applying Minnesota law); see Borel v. Fiberboard Paper Products Corp. (5th Cir. 1973), 493 F.2d 1076, 1101-02, cert. denied (1974), 419 U.S. 869). Finally, this rule is in accord with two of our own opinions, where this issue has been discussed but not decided (Witherell v. Weimer (1981), 85 Ill. 2d 146; Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 135 (citing with approval Wigginton v. Reichold Chemicals, Inc. (1971), 133 Ill. App. 2d 776)). Also, see generally Note, The Evolution of Illinois Tort Statutes of Limitations: Where Are We Going and Why?, 53 Chi.-Kent L. Rev. 673 (1977).

We wish to emphasize that the rule we announce is not the same as a rule which states that a cause of action accrues when a person knows or should know of both the injury and the defendants’ negligent conduct. Not only is such a standard beyond the comprehension of the ordinary lay person to recognize, but it assumes a conclusion which must properly await legal determination. (United States v. Kubrick (1979), 444 U.S. 111, 124, 62 L. Ed. 2d 259, 271, 100 S. Ct. 352, 360-61.) Moreover, if knowledge of negligent conduct were the standard, a party could wait to bring an action far beyond a reasonable time when sufficient notice has been received of a possible invasion of one’s legally protected interests. (See Restatement (Second) of Torts sec. 7 (1965) (definition of an injury)). Also, such a rule would seem contrary to the underlying purpose of statutes of limitations, which is to “require the prosecution of a right of action within a reasonable time to prevent the loss or impairment of available evidence and to discourage delay in the bringing of claims.” Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 132; United States v. Kubrick (1979), 444 U.S. 111, 117, 62 L. Ed. 2d 259, 266, 100 S. Ct. 352, 357.

We hold, therefore, that when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused, the statute begins to run and the party is under an obligation to inquire further to determine whether an actionable wrong was committed. In that way, an injured person is not held to a standard of knowing the inherently unknowable (Urie v. Thompson (1949), 337 U.S. 163, 169, 93 L. Ed. 1282, 1292, 69 S. Ct. 1018, 1024), yet once it reasonably appears that an injury was wrongfully caused, the party may not slumber on his rights. The question of when a party knew or reasonably should have known both of an injury and its wrongful cause is one of fact, unless the facts are undisputed and only one conclusion may be drawn from them. Witherell v. Weimer (1981), 85 Ill. 2d 146, 156.

In the instant case, Nolan knew he had lung problems in 1957, and he knew he had pulmonary fibrosis in 1965. It was not until May 15, 1973, that he was told by a doctor that he had asbestosis and that his condition was caused by exposure to asbestos materials at work. The evidence is conflicting as to whether or when Nolan would have had sufficient information to reach such a conclusion earlier. The resolution of this question is not the province of this court. It is a question of fact, and in this case, a seriously disputed one. Accordingly, summary judgment, which requires that no genuine issues of material fact exist (Ill. Rev. Stat. 1977, ch. 110, par. 57), is not an appropriate remedy here. Therefore, for the reasons stated, the judgment of the appellate court is affirmed and this matter is remanded to the circuit court for proceedings consistent with this opinion.

Affirmed and remanded.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.