author: MR. JUSTICE RYAN

text:
    (No. 50880.
    (Nos. 50980, 50981.
    THOMAS ANDERSON et al., Appellants, v. WILLIAM WAGNER, Appellee.—CAROL C. WOODWARD, Indiv. and as Adm’r, Appellee, v. BURNHAM CITY HOSPITAL et al., Appellants.

      Opinion filed October 2, 1979.

    Rehearing denied March 28, 1980.

      Stephen O. Willoughby, of Decatur, for appellants.
    Armstrong, Erickson & Davis, Ltd., of Decatur, for appellee.
    Harry L. Kinser and Kenneth C. Robins, of Chicago (McLaughlin, Kinser & Bryant, of counsel), for amicus curiae Illinois Hospital Association.
    Vance I. Kepley, of Reno, O’Byrne & Kepley, of Champaign, for appellant Burnham City Hospital.
    Phillips, Phebus, Tummelson & Bryan, of Urbana (Hurshal C. Tummelson and Birch E. Morgan, of counsel), for appellant George Green.
    Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and Richard L. Wattling, of counsel), for appellee Carol C. Woodward.
    Harry L. Kinser and Kenneth C. Robins, of Chicago (McLaughlin, Kinser & Bryant, of counsel), for amicus curiae Illinois Hospital Association.
   MR. JUSTICE RYAN

delivered the opinion of the court:

These consolidated cases involve the validity of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), which provides for a special limitation period for medical malpractice actions against physicians and hospitals. One panel of the Fourth District Appellate Court in cause No. 50880, Anderson v. Wagner, held section 21.1 to be constitutional, with one justice dissenting. (61 Ill. App. 3d 822.) Another panel of the appellate court for the same district in cause Nos. 50980 and 50981, Woodward v. Burnham City Hospital, held section 21.1 unconstitutional, with one justice dissenting. (60 Ill. App. 3d 285.) We granted petitions for leave to appeal in both cases and consolidated them for hearing and opinion in this court.

On the date the complaints in these consolidated cases were filed, section 21.1 of the Limitations Act provided:

“No action for damages for injury or death against any physician or hospital *** 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.
If the person entitled to bring the action is, at the time the cause of action occurred, under the age of 18 years, or insane, or mentally ill, or imprisoned on criminal charges, the period of limitations does not begin to run until the disability is removed.” Ill. Rev. Stat. 1977, ch. 83, par. 22.1.

Plaintiffs Thomas and Marilyn Anderson filed a complaint in the circuit court of Macon County against defendant William Wagner, M.D., on June 23, 1977, alleging that the defendant had failed to inform the plaintiffs that Marilyn had tested positive for rubella in a first trimester pregnancy test given to her late in 1972. Plaintiffs also allege that defendant failed to inform them of the likelihood of mental retardation in a child born under these circumstances. On May 20, 1973, a child, who later proved to be mentally retarded, was born to plaintiffs, who allege they did not discover the defendant’s malpractice until January 26, 1976. The circuit court of Macon County dismissed the complaint on motion of the defendant, holding that section 21.1 barred the action. In an amended complaint filed subsequent to the dismissal, plaintiffs allege that the defendant had fraudulently concealed their cause of action from them, which concealment, they allege, tolled the running of the statute of limitations. The trial court held that the statute was not tolled and dismissed the amended complaint. As noted above, the appellate court, with one justice dissenting, affirmed.

Plaintiffs Charles and Carol Woodward filed suit against defendants Burnham City Hospital and two doctors for malpractice on December 30, 1976, alleging an erroneous diagnosis of tissue taken from plaintiff, Charles Woodward, on November 27, 1965. As a result of the erroneous diagnosis, massive steriod treatments were administered which, it is alleged, caused Charles Woodward to develop a condition known as steroid myopathy which necessitated the amputation of both legs and caused cataracts. Charles died after the complaint was filed and an amended complaint was filed by Carol Woodward as administrator of the decedent’s estate and individually. It is alleged that the malpractice was first discovered in February 1976, when a sample from the preserved tissue taken in the 1965 biopsy was tested by another facility, which test demonstrated that the earlier diagnosis had been incorrect. The circuit court of Champaign County, in response to defendants’ motion, dismissed the amended complaint, holding that the actions were barred by section 21.1 of the Limitations Act. As stated earlier, the appellate court, with one judge dissenting, reversed and held section 21.1 unconstitutional.

The plaintiffs contend that section 21.1 is unconstitutional for several reasons. First they say it violates the due process and equal protection clauses of both the Federal and State constitutions. The plaintiffs’ primary contention is, however, that section 21.1 violates article IV, section 13, of the Illinois Constitution of 1970 in that it is special legislation because it (1) sets medical malpractice apart from all other professional malpractice and (2) confers a special privilege upon only two classes of medical health providers, physicians and hospitals. Before considering these arguments, a survey of recent legislative enactments and judicial decisions relating to medical malpractice will be helpful.

I

It is generally agreed that in the early 1970’s what has been termed a medical malpractice insurance crisis existed in most jurisdictions in this country. The crisis resulted from the increasing reluctance of insurance companies to write medical malpractice insurance policies and the dramatic rise in premiums demanded by those companies which continued to issue policies. The difficulty in obtaining insurance at reasonable rates forced many health-care providers to curtail or cease to render their services. The legislative response to this crisis sought to reduce the cost of medical malpractice insurance and to insure its continued availability to the providers of health care. By October 1975, 39 States had commissioned studies of the medical malpractice problem and 22 States had revised, civil practice laws and rules in an attempt to remedy the problem. Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex. L. Rev. 759, 761 n.14 (1977); see generally American Bar Association, Report of the Commission on Medical Professional Liability (1977); United States Department of Health, Education and Welfare Publication No. (OS) 73 — 88, Medical Malpractice: Report of the Secretary’s Commission on Medical Malpractice (1973); Illinois Insurance Laws Study Commission, Final Report to the Governor and 79th General Assembly 47-60 (1975) (medical malpractice).

Legislative efforts dealing with the malpractice crisis included a variety of changes in tort law principles. In many instances direct limits were placed on the amount of recovery. The use of screening panels and arbitration was broadly recommended and followed, and certain procedural changes such as altering the statute of limitations were made. (See Medical Malpractice: The Duke L.J. Symp. 241-92 (1977); Comment, Recent Medical Malpractice Legislation — A First Checkup, 50 Tul. L. Rev. 655 (1976).) The Illinois General Assembly, in its effort to meet the crisis, adopted “An Act to revise the law in relation to medical malpractice” (Pub. Act 79 — 960, approved September 12, 1975, effective November 11, 1975). This act, in addition to amending section 21.1 of the Limitations Act, also created a medical review panel (Ill. Rev. Stat. 1975, ch. 110, par. 58.2 through 58.10) and limited the maximum amount of recovery in medical malpractice actions (Ill. Rev. Stat. 1975, ch. 70, par. 101).

This court, in Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, was one of the first State courts of final review to pass on the validity of a legislature’s response to the malpractice crisis. In Wright this court held invalid the limitation on the amount of recovery and the provision relating to a medical review panel. That part of the new act amending the Limitations Act was not involved in that case.

It appears that few State courts of final review have followed the holding of Wright, though many courts and writers have discussed the case. (Arneson v. Olson (N.D. 1978), 270 N.W.2d 125 (limitation on amount of recovery held invalid) (State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner (Mo. 1979), 583 S.W.2d 107) (provision for reviewing panel held invalid).) Two lower courts in Ohio have held portions of the Ohio statute invalid. (Simon v. St. Elizabeth Medical Center (Ohio C.P. Montgomery County 1976), 3 Ohio Op. 3d 164, 355 N.E.2d 903 (limitation on amount of recovery held invalid); Grayley v. Satayatham (Ohio C.P. Cuyahoga County 1976), 74 Ohio Op. 2d 316, 343 N.E.2d 832 (limitation on amount of recovery and provision concerning a panel held invalid).) The Ohio Supreme Court, however, in Amer v. Akron City Hospital (Ohio 1976), 47 Ohio St. 2d 85, 351 N.E.2d 479, in a case not directly involving the validity of the shortened medical malpractice limitation period, stated that the enactment of such limitations was within the prerogative of the legislature. (Amer v. Akron City Hospital (Ohio 1976), 47 Ohio St. 2d 85, 91 n.4, 351 N.E.2d 479, 484 n.4.) Also, some trial courts in Tennessee have not applied the statute of that State providing for screening panels, finding that provision to be in violation of the Tennessee Constitution. (See Comment, Constitutional Challenges to Medical Malpractice Review Boards, 46 Tenn. L. Rev. 607, 632-44 (1979).) Recently the Florida Supreme Court, in two cases not yet reported, held unconstitutional the provisions of that State’s malpractice statute which provided for screening panels. (6 Nat’l L.J. 3 (Mar. 17, 1980).) In addition to these cases holding medical malpractice legislation invalid, the Supreme Court of Idaho, in Jones v. State Board of Medicine (1976), 97 Idaho 859, 555 P.2d 399, reached a result which cannot be classified as sustaining or holding invalid the medical malpractice statute of that State. While it found that the Idaho act did not deny the plaintiff access to the courts, it nonetheless remanded the case for factual findings on a question of classification.

On the other hand, an overwhelming majority of courts have recognized the unique nature of medical malpractice problems and have upheld general medical malpractice statutes against numerous constitutional attacks. Many of the cases cited from other jurisdictions have either attempted to distinguish Wright, or have refused to follow it. (Woods v. Holy Cross Hospital (5th Cir. 1979), 591 F.2d 1164; Hines v. Elkhart General Hospital (N.D. Ind. 1979), 465 F. Supp. 421; Eastin v. Broomfield (1977), 116 Ariz. 576, 570 P.2d 744; Carter v. Sparkman (Fla. 1976), 335 So. 2d 802; State ex rel. Schneider v. Liggett (1978), 223 Kan. 610, 576 P.2d 221; McGuffey v. Hall (Ky. 1977), 557 S.W.2d 401 (statute valid but certain limited aspects of it declared void because of State constitutional provisions); Everett v. Goldman (La. 1978), 359 So. 2d 1256; Attorney General v. Johnson (1978), 282 Md. 168, 385 A.2d 57; Paro v. Longwood Hospital (1977), 373 Mass. 645, 369 N.E.2d 985; Prendergast v. Nelson (1977), 199 Neb. 97, 256 N.W.2d 657; Comiskey v. Arlen (1976), 55 App. Div. 2d 304, 390 N.Y.S.2d 122; Parker v. Children’s Hospital (1978), 483 Pa. 106, 394 A.2d 932; State ex rel. Strykowski v. Wilkie (1978), 81 Wis. 2d 491, 261 N.W.2d 434.) Wright has also been criticized by the writers. See, e.g., Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex. L. Rev. 759 (1977); Comment, Constitutional Challenges to Medical Malpractice Review Board, 46 Tenn. L. Rev. 607 (1979); Note, Medical Malpractice Mediation Panels: A Constitutional Analysis, 46 Fordham L. Rev. 322 (1977); Note, Wright v. Central Du Page Hospital Association: A Grim Prognosis for Medical Malpractice Review Panels?, 22 S.D. L. Rev. 461 (1977); Note, Recent Medical Malpractice Legislation — A First Checkup, 50 Tul. L. Rev. 655 (1976).

The critics have read the holding in Wright too broadly. First, the case did not hold that all statutory provisions creating panels for the review of malpractice claims were unconstitutional. Second, the holding of Wright that the limitation on the amount of recovery is invalid is not inconsistent with the position taken by the American Bar Association Commission on Medical Professional Liability that no dollar limit on recoverable damages should be enacted which can operate to deny a plaintiff in a medical malpractice action full compensation for economic loss. (American Bar Association, Report of the Commission on Medical Professional Liability 145-46 (1977).) The court noted in Wright that, under the act being considered, the very seriously injured, because of the limitation, might be unable to recover even all of his medical expensen. Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 327-28.

II

We now turn to the consideration of the changes that were made in the limitation statutes as a part of the legislative response to the medical malpractice insurance crisis. Prior to that crisis few States had special limitation statutes for medical malpractice cases. Generally, the statutes of limitations applicable to personal injuries were followed, and occasionally, when the action was framed on an implied contract theory, a contract limitation period would be applied. A few States had statutes of limitations applicable to all types of malpractice and a few States had statutes of limitations specifically for medical malpractice. D. Harney, Medical Malpractice 247-70 (1973); 1 D. Louisell & H. Williams, Medical Malpractice sec. 13.01 et seq. (1977); Lillich, The Malpractice Statute of Limitations in New York and Other Jurisdictions, 47 Cornell L.Q. 339 (1962).

Increased use of the “discovery rule,” beginning in the late 1960’s, dramatically complicated the question of statutes of limitation, particularly in the field of medical malpractice. Under the discovery rule a cause of action accrued when a person learned of his injury or reasonably should have learned of it. With extensive application of the discovery rule to medical malpractice cases, statutes of limitations no longer constituted statutes of repose for a defendant in a malpractice action. By the application of the discovery rule a medical malpractice action was not deprived of its vitality simply by the passage of the statutory period. (As to the effect of the discovery rule on the statute of limitations in malpractice cases, see generally, Letvin, In Search of the Spirit of Lipsey: Discovery of Malpractice and the Statute of Limitations, 1978 S.I.U. L.J. 345; Scott, For Whom The Time Tolls — Time of Discovery and the Statute of Limitation, 64 Ill. B.J. 326 (1976); Note, The Evolution of Illinois Tort Statutes of Limitation: Where Are We Going and Why ? 53 Chi.Kent L. Rev. 673 (1977); Comment, The Time of Discovery Rule and the Qualified Privilege Defense for Credit Reporting Agencies in Illinois after World of Fashion v. Dun & Bradstreet, Inc., 10 J. Mar. J. Prac. & Proc. 359 (1977).)

Before considering other States’ responses to the discovery-rule problem in medical malpractice, however, it is appropriate to consider the development of the Illinois statute of limitations as it relates to medical malpractice actions. In Illinois, prior to 1965, actions involving medical malpractice were governed by the general provisions of the Limitations Act. If the action was one for personal injury, the 2-year limitation period of section 14 of the Act (Ill. Rev. Stat. 1963, ch. 83, par. 15) was applied. In 1964 in Mosby v. Michael Reese Hospital (1964), 49 Ill. App. 2d 336, the plaintiff alleged that a surgical needle had been left in her body but that she did not discover this fact until 4 years later when she had a second operation. The trial court, relying on the 2-year statute of limitations, dismissed the plaintiff’s complaint. The appellate court, although recognizing the wide application of the discovery rule in other- areas, nonetheless affirmed the trial court. However, the appellate court expressed dissatisfaction with the result. At the next session of the General Assembly, section 21.1 was added to the Limitations Act (Ill. Rev. Stat. 1965, ch. 83, par. 22.1), providing in substance that where a foreign object has been introduced into a person’s body and was negligently permitted to remain there the period of time within which an action must be brought would not begin to run until the person knew or should have known of this fact, with an outside 10-year limitation following the treatment or operation. Other than cases involving foreign objects, the 2-year provision of section 14 (Ill. Rev. Stat. 1965, ch. 83, par. 15) still applied. In 1970 in Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, this court applied the discovery rule to a medical malpractice case not involving a foreign object left in the patient’s body and held that the cause of action did not accrue until the injured person learned of the injury or should have learned of it. Thus, after Lipsey, if a person had been injured by having a foreign object negligently left in his body, the maximum time within which a complaint could be filed was 10 years. Whereas, if the negligent act involved faulty diagnosis or a negligent act other than leaving a foreign object in the body, the cause of action did not arise until the patient learned of the injury or should have learned of it regardless of how long after the negligent act that may have been. Thus in 1975 the General Assembly, when it enacted Public Act 79 — 960, part of which was held unconstitutional in Wright, was faced with this discrepancy and as part of Public Act 79 — 960 amended section 21.1 of the Limitations Act by adding to its previous provisions concerning a foreign object a provision limiting the time within which other malpractice actions may be brought to 2 years. However, the statute further provided an outside time limit of 5 years for bringing this type of action in cases where the discovery rule was applicable. In 1976 section 21.1 was again amended deleting the special provisions concerning foreign objects left in the body and providing that all malpractice actions against physicians and hospitals arising out of patient care shall not be brought more than 2 years after the claimant knew or should have known of the existence of the injury but in no event more than 4 years after the date on which occurred the last act or omission alleged to have been the cause of such injury.

The discovery rule was thought to have played a significant role in the medical malpractice crisis. Because it created what came to be called the “long tail” of liability, the discovery rule reduced an insurance company’s ability to predict future liabilities. (See Comment, “Claims Made” Dilemma in Professional Liability Insurance, 22 U.C.L.A. L. Rev. 925 (1975).) Responding to these problems, various State and national commissions recommended placing an outside limit on the discovery rule in medical malpractice cases. See, e.g., American Bar Association, Report of the Commission on Medical Professional Liability 140-43 (1977); Medical Injury Insurance Reparations Commission, Report and Recommendation to Governor Dan Walker and Members of the 79th General Assembly (Ill. 1976); Medical Malpractice: The Duke L.J. Symp. 253-54 (1977).

This interest in the discovery rule prompted a substantial number of States to enact limitation statutes placing an outside limit on the applicability of the discovery rule in medical malpractice cases. The various statutes differ in both length of time within which suit must be filed and the types of medical personnel or entities affected by the statute. A number of statutes apply to all “health care providers,” comprehensively covering all medical malpractice actions. (Ala. Code 6 — 5—480 (1975) (4 Years); Ariz. Rev. Stat. sec. 12 — 564 (1978 Supp.) (3 years); Cal. Civ. Proc. Code sec. 340.5 (Deering 1979 Supp.) (3 years); Del. Code tit. 18 sec. 6856 (1978 Supp.) (3 years); Fla. Stat. Ann. sec. 95.11 (West 1979 Supp.) (7 years); Ga. Code Ann. secs. 3 — 1102, 3 — 1103 (1978 Supp.) (2 years); Ind. Code Ann. secs. 16 — 9.5—3—1, 16 — 9.5—3—2 (Burns Supp. 1978) (2 years); Kan. Civ. Proc. Stat. Ann. sec. 60 — 513 (Vernon 1976) (4 years); Md. Cts. & Jud. Proc. Code Ann. sec. 5 — 109 (1978 Supp.) (5 years); Nev. Rev. Stat. sec. 41A.097 (1977) (4 years); N.H. Rev. Stat. Ann. sec. 507 — C:4 (1977 Supp.) (8 years); N.M. Stat. Ann. sec. 41 — 5—13 (1978) (3 years); N.Y. Civ. Prac. Law sec. 214 — a (McKinney 1978-79 Supp.) (2 years, 6 months); Okla. Stat. Ann. tit. 76, sec. 18 (West 1978-79 Supp:) (only economic expenses allowed after 3 years); Or. Rev. Stat. sec. 12.110 (1977) (5 years); S.C. Code sec. 15 — 3—545 (1978 Supp.) (6 years); Tenn. Code Ann. sec. 23 — 3415 (1978 Supp.) (3 years); Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon 1978-79 Supp.) (2 years); Vt. Stat. Ann. tit. 12, sec. 521 (1978 Supp.) (7 years).) Other statutes attempt to enumerate specific groups of medical personnel or facilities; although not applying to all “health care providers” or health facilities, they, nonetheless, cover a broad spectrum. (Colo. Rev. Stat. sec. 13 — 80—105 (1978 Supp.) (3 years); Haw. Rev. Stat. sec. 657 — 7.3 (1978 Supp.) (6 years); Iowa Code Ann. sec. 614.1 (1979-80 Supp.) (6 years); Mich. Comp. Laws Ann. sec. 600.5838 (1979-80 Supp.) (action accrues when alleged tortfeasor ceases treating plaintiff, regardless of time of discovery); Mo. Ann. Stat. sec. 516.105 (1979 Supp.) (10 years); Mont. Rev. Codes Ann. sec. 93 — 2624 (1977 Supp.) (5 years); S.D. Comp. Laws Ann. sec. 15 — 2—14.1 (1978 Supp.) (2 years); Utah Code Ann. sec. 78 — 12—28 (1975 Supp.) (10 years); Wash. Rev. Code Ann. sec. 4.16.350' (1978 Supp.) (8 years).) However, another group of statutes provides protection to a very limited group of medical personnel or facilities and usually excludes nurses and a substantial body of medical personnel and health-care facilities that could be involved in malpractice litigation. The Illinois statute falls into this group. (Conn. Gen. Stat. Ann. sec. 52 — 584 (West 1979) (3 years); Ky. Rev. Stat. Ann. sec. 413.140 (Baldwin 1978) (5 years); La. Rev. Stat. Ann. art. 9:5628 (1977 Supp.) (3 years); N.D. Cent. Code sec. 28 — 01—18 (1977 Supp.) (6 years); Ohio Rev. Code Ann. sec. 2305.11 (Baldwin 1978) (4 years).) Some States have previously had medical malpractice limitation statutes which applied only to a limited group and have substantially broadened the application of these statutes. (Compare the Colorado statute above to the statute involved in McCarty v. Goldstein (1962), 151 Colo. 154, 376 P.2d 691.) Two States have statutes which protect against claims for all types of professional malpractice. (See Neb. Rev. Stat. sec. 25 — 222 (1975) (10 years); N.C. Gen. Stat. sec. 1 — 15 (1977 Supp.) (4 years).) We do not suggest that these statutes represent the total legislative activity in this area. They do show, however, that a substantial majority of the States have felt that the discovery rule should be limited by prescribing a maximum time within which a malpractice action must be commenced regardless of when the injury is discovered.

The Illinois malpractice limitation statute — as it now stands in relation to the time within which actions must be filed — generally follows the time limitation specified in the statutes of other States. However, as noted above, there is a wide variance as to the classes of health-care providers who are covered by the statutes. Our statute falls within the group which does not extend the protection of the statute to all classes of health-care providers who could be the subject of medical malpractice actions. Protection is afforded by our statute only to physicians and hospitals.

The various limitation statutes of the other States relating to malpractice have been challenged on a variety of constitutional grounds including equal protection, due process and special legislation. All of the cases that our research found have sustained the validity of the statutes. Whether the statute is broad and covers all malpractice actions (Taylor v. Karrer (1976), 196 Neb. 581, 244 N.W.2d 201), or applies to all types of medical malpractice or all groups of health-care providers (Landgraff v. Wagner (1976), 26 Ariz. App. 49, 546 P.2d 26; Harrison v. Schrader (Tenn. 1978), 569 S.W.2d 822; Duffy v. King Chiropractic Clinic (1977), 17 Wash. App. 693, 565 P.2d 435; Chaffin v. Nicosia (1974), 261 Ind. 698, 310 N.E.2d 867), or whether the statute applies only to limited and specific groups of those who provide health care (Sellers v. Edwards (1972), 289 Ala. 2, 265 S.2d 438; McCarty v. Goldstein (1962), 151 Colo. 154, 376 P.2d 691; Laughlin v. Forgrave (Mo. 1968), 432 S.W.2d 308), the statute has been consistently upheld against the charge that the classifications have been discriminatory or unreasonable and constituted a denial of equal protection or constituted special legislation in favor of a class protected. The reasoning of these cases can be summarized by the language of this court in Hamilton Corp. v. Alexander (1972), 53 Ill. 2d 175, 179:

“The equal-protection clause does not prevent a State from adjusting its legislation to differences in situations. A statute effecting the classifications of persons or objects is not unconstitutional merely because it affects one class and not another, provided that it affects all members of the same class alike; so long as the classification is not arbitrary and is founded upon some substantial difference in circumstances or conditions properly related to the classification.”

(We will more particularly discuss the propriety of the classifications in our statute below when we consider the plaintiffs’ arguments concerning special legislation.)

The plaintiffs also contend, in an unarticulated due process argument, that under section 21.1 it is possible that a person’s cause of action may be barred by the 4-year-maximum time limit before he learns of his injury. This problem is not directly involved in these cases. However, in Laughlin v. Forgrave (Mo. 1968), 432 S.W.2d 308, Owen v. Wilson (1976), 260 Ark. 21, 537 S.W.2d 543, and Landgraff v. Wagner (Ariz. App. 1976), 546 P.2d 26, the statutes had run before the plaintiffs became aware of their injuries. In those cases the. validity of the statutes was challenged as constituting a violation of the plaintiffs’ right to due process of law. The courts in those cases noted that the period provided in the statutes was a reasonable time within which to require a complaint to be filed. The Supreme Court of Arkansas in Owen v. Wilson stated:

“Any statute of limitations will eventually operate to bar a remedy and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment.” (Owen v. Wilson (1976), 260 Ark. 21, 24-25, 537 S.W.2d 543, 545.)

The court held that a claimant is not denied due process of law where a reasonable period of limitation has barred the claim without awareness by the claimant that he has been injured. Also, in Dunn v. Felt (Del. 1977), 379 A.2d 1140, the statute of limitations had run prior to the plaintiff’s discovery of his injury. The statute was challenged as being in violation of the Delaware Constitution; however, the court sustained the validity of the act, stating:

“The authority of the General Assembly in enacting statutes of limitation is quite broad and limited only by a rule of reason. [Citations.] I cannot say that the 3 year limitation found in 18 Del. C. section 6856 is unreasonable.” Dunn v. Felt (Del. 1977), 379 A.2d 1140, 1141.

Although such a result — a cause of action barred before its discovery — seems harsh and unfair, the reasonableness of the statute must be judged in light of the circumstances confronting the legislature and the end which it sought to accomplish. We have noted above that various reports, commissions, and authors recommended that the “long tail” exposure to malpractice claims brought about by the discovery rule be curtailed by placing an outer time limit within which a malpractice action must be commenced. The 4-year limit of our present statute follows the recommendations of the Medical Injury Reparations Commission contained in its report to the Governor and the 79th General Assembly cited above. This recommendation was made following extensive hearings by the Commission. Our 4-year time limit is also within the general area of limits that had been set by other States. Some are shorter than ours, and some are longer. It has not been demonstrated that the legislative action in establishing the 4-year outer limit within which to file a complaint for medical malpractice is unreasonable. We thus find no due process violation.

III

We turn now to the main thrust of the plaintiffs’ argument. The appellate court in one of our cases, Woodward v. Burnham City Hospital, held that section 21.1 of the Limitations Act constituted special legislation in violation of section 13 of article IV of the Illinois Constitution of 1970. That section of our constitution provides:

“The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.”

The court held that the act conferred a special benefit upon physicians and hospitals while denying it to all other groups of health-care providers. This, the court held, was unfair, unjust and arbitrary and constituted special legislation in violation of section 13 of article IV of the Constitution of 1970.

The history of the special legislation prohibition of section 22 of article IV of the Constitution of 1870 is exhaustively set forth in G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 203-26 (1969). Since this book was prepared for the 1970 Illinois Constitution Study Commission, its analysis is most helpful. Section 22 once contained a long list of specific prohibitions, the original purposes of which were lost sight of long ago. The 1870 Constitution, however, contained no equal protection clause and the authors note at page 221 that the last enumerated prohibition, which concerned the granting of special privileges, came to be used by the courts as Illinois’ version of the fourteenth amendment’s equal protection clause. (See also, Schuman v. Chicago Transit Authority (1950), 407 Ill. 313, 317.) Authors Braden and Cohn recommended omitting from the draft of any new constitution adopted by the 1970 constitutional convention the list of specific prohibitions of special and local laws that had been in the 1870 Constitution. They also recommended including in the new constitution an equal protection clause. To support their recommendation, the authors pointed out the difference between “real” special legislation, such as that specifically prohibited in the prior constitution which had ceased to be a problem, and nonreal special legislation. Nonreal special legislation was simply general legislation challenged on equal protection grounds. They felt that, though the legislature no longer attempted to enact “real” special legislation, the prohibition against the enactment of special legislation should be retained in the constitution in general terms to guard against any attempt to do so. (G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 226 (1969).) Braden and Cohn also noted that section 22 of article IV of the 1870 Constitution contained, just after the specific prohibitions, a catch-all statement: “In all other cases where a general law can be made applicable no special law shall be enacted.” The authors stated that this provision had been construed as vesting in the legislature and not the courts the authority to say if a general law was applicable. (G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 222 (1969).) They suggested that with the inclusion in a new constitution of a general prohibition against special legislation there should also be included a provision authorizing judicial control over a legislature bent on evading the Constitution’s provision. Finally, it was suggested that the provision of the model State constitution covering special legislation would accomplish these suggested ends. The drafters of the 1970 Illinois Constitution closely followed Braden’s and Cohn’s advice. Section 13 of article IV of the 1970 Constitution is almost identical to section 4.11 of article IV of the model State constitution. G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 224, 225 (1969).

In Bridgewater v. Hotz (1972), 51 Ill. 2d 103, the court, in construing section 13 of article IV of the Constitution of 1970, pointed out that the new constitution rejected the previous rule allowing the legislature to determine whether a general law could be made applicable. This court stated, however, that though the scope of judicial review of legislation is enlarged to that extent, section 13 of article IV requires no change in the definition of what is “general and uniform,” “special,” or “local.” Bridgewater then applied traditional equal protection tests, tests which this court had used prior to the 1970 Constitution. If there is a reasonable basis for differentiating between the class to which the law is applicable and the class to which it is not, the General Assembly may constitutionally classify persons and objects for the purpose of legislative regulation and control. Furthermore, if the classification bears a reasonable and proper relation to the purposes of the act and the evil it seeks to remedy, it does not violate the constitutional proscription on special or local laws. “Whether the course chosen is wise or whether it is the best means to achieve the desired result it is not a proper subject of judicial inquiry.” Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 111.

Subsequent to Bridgewater, this court has continued to evaluate the validity of legislative classifications by the above tests. In addition the court has applied these tests interchangeably, whether the court had under consideration an equal protection question (Fujimura v. Chicago Transit Authority (1977), 67 Ill. 2d 506, 512; Hamilton Corp. v. Alexander (1972), 53 Ill. 2d 175, 179), or a special legislation challenge (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165). In fact, in S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70, 77, this court stated that the Illinois Constitution of 1870 contained no equal protection clause, “but similar standards are applied to determine violations of the special legislation provision ***.” Thus, though section 13 of article IV of the Constitution of 1970 gives the court enlarged judicial review in the narrow area of “real” special legislation, traditional deference is given to legislative classification in this area as well as when the court is considering equal protection questions in the guise of special legislation challenges. See generally Turkington, Equal Protection of the Laws in Illinois, 25 De Paul L. Rev. 385, 410-22 (1976); Whalen & Wolff, Constitutional Law: The Prudence of Judicial Restraint Under the New Illinois Constitution, 22 De Paul L. Rev. 63, 77-79 (1972); Comment, Medical Malpractice Statute of Limitations as Special Legislation, 55 Chi.-Kent L. Rev. 519 (1979).

The plaintiffs in this action rely heavily upon several of our frequently discussed special legislation cases. (Grace v. Howlett (1972), 51 Ill. 2d 478; Skinner v. Anderson (1967), 38 Ill. 2d 455 (this case will be discussed at length below); Harvey v. Clyde Park Dist. (1964), 32 Ill. 2d 60.) In fact, however, these cases illustrate the equal protection classification test outlined above. Though these cases were phrased in special-legislation language, they clearly applied an equal protection standard. Although the statutes in each case operated uniformly on all members of a class, no sound basis or rational reason existed for treating that particular class as separate from other classes for the purposes of legislation. In the cases now before us there clearly is a sound and rational basis for the classification at issue.

Plaintiffs in the Woodward case first contend that the limitations statute violates section 13 of article IV because it sets medical malpractice actions apart from other professional malpractice actions. This contention has no merit. When it enacted this statute, the legislature was directly addressing itself to a medical malpractice problem. Its action was supported by recommendations of numerous commissions and authors that the “long tail” of the discovery rule be curtailed by adding to the limitation period an outer time limit within which medical malpractice actions must be filed. Our legislature’s action is also supported by reference to many other jurisdictions. The legislatures of many other States have enacted similar limitations on medical malpractice actions. These statutes have been upheld uniformly by courts of review. These statutes and these cases have been set out above at length. Thus we must conclude that there was a reasonable attempt to remedy what the legislature perceived to be a medical malpractice insurance crisis. Whether the course was wise or the best means of accomplishing the result desired is a matter for legislative determination. Bridgewater v. Hotz (1972), 51 Ill. 2d 103.

A more difficult question concerning the legislative classification does exist, however: Is there a reasonable basis for differentiating between the class to whom the statute applies (physicians and hospitals) and other groups of providers of health care to whom this statute does not apply? We have noted earlier in this opinion that there is a wide variance in the statutes of the different States as to the health-care providers covered by their statute of limitations. Our statute is one of the more narrow. However, whether the statute covers all medical personnel or particular groups within the broader class, the courts in the cases cited above have upheld the classifications of the legislatures.

The crisis which confronted the legislatures in the mid-1970’s concerned the rapid increase in the premiums for medical malpractice insurance by some companies and the withdrawal of other insurance companies from the medical malpractice insurance field. The object of the legislation was to insure the continued availability of this type of insurance to those who were affected by the crisis and thus to insure the continuation of health services from these affected groups. Much empirical data has established that physicians and hospitals must be set apart from other members of the health-care class insofar as medical malpractice insurance is concerned. The National Association of Insurance Commissioners, an association of the insurance departments of the various States, in 1977 published “NAIC Malpractice Claims,” which reflects that claims against physicians and surgeons constituted 59% of all claims paid by count and 73% of the total amount of all claims that were paid. Claims against hospitals composed 36% of all claims paid by count and 25% by amount. Thus physicians and hospitals together accounted for 95% of the total number of medical malpractice claims and 98% of the dollar amount of those claims paid. In Report and Recommendation of the Medical Injury Insurance Reparations Commission to Governor Dan Walker and Members of the 79th General Assembly (Ill. 1976), a special legislative commission report sets out a table compiled by the National Association of Insurance Commissioners reflecting claims closed after July 1, 1975, showing that of a total of 3,298 claims, 1,815 were against physicians and surgeons and 1,288 were against hospitals. (Report at 20.) In a section of the above report headed “The Impact of Malpractice Claims on the Insurance Mechanism and Health Care Delivery System,” the report states in summary:

“At the present time, the malpractice crisis has not reached these other health care providers to the same degree that it has reached hospitals and physicians, although the self-employed podiatrist seems to be approaching the problem.” Report at 29.

What is more, much constitutionally valid classification already exists in the medical field, based on the obvious difference between different types of medical professionals. The dissenting judge in the appellate court decision in Woodward v. Burnham City Hospital (1978), 60 Ill. App. 3d 285, 289, pointed out that the legislature had already classified various groups of medical personnel and hospitals and institutions for purposes of licensing and regulation. Recently the United States Supreme Court sustained an extreme example of classification in this field. In Friedman v. Rogers (1979), 440 U.S. 1, 59 L. Ed. 2d 100, 99 S. Ct. 887, the court upheld the Texas legislature’s right to differentiate between two different groups of optometrists, each group having identical training, education, and licensing standards. Both groups practiced the profession; however, one group was self-employed and the other was not. The legislature had given one group of optometrists special preference in representation on a board. The court concluded that the classification reasonably related to the legitimate purpose of the Act.

We conclude that there was a reasonable basis for differentiating between physicians and hospitals and other members of the general class of health-care providers for the purpose of this particular legislation. The General Assembly in responding to the medical malpractice insurance crisis drew the statute very narrowly and encompassed within the classification to whom the statute applied only those segments of the health-care providers most acutely affected by the crisis. (In effect, our limited statute thus preserves far more of the discovery rule than the comprehensive health-care-provider statutes cited earlier.) “ ‘If the law presumably hits the evil where it is most felt, it is not to be overthrown merely because there are other instances to which it might have been applied. ’ [Citations.] ” (Youhas v. Ice (1974), 56 Ill. 2d 497, 502.) “We would also remark that so far as legislative classification is concerned, it has been recognized that evils in the same field may be of different dimensions and reform may take one step at a time. The legislature may address itself to one stage of a problem and not take action at the same time as to other phases.” Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 312-15.

The appellate court in Woodward v. Burnham. City Hospital found Skinner v. Anderson (1967), 38 Ill. 2d 455, controlling, and the plaintiffs now in this court rely heavily on that decision. In Skinner v. Anderson this court held invalid section 29 of the Limitations Act, which was added by an amendment in 1963. (Ill. Rev. Stat. 1965, ch. 83, par. 24(f).) The amendment purported to immunize architects arid contractors from liability upon causes of action that did not accrue within 4 years after the architect or contractor performed his services. This court held that the statute granted to architects and contractors a special and exclusive immunity and thus constituted a violation of section 22 of article IV of the Constitution of 1870. The court pointed out that of all of those whose negligence in connection with the construction of a structure might result in injury to a person that statute singles out only the architect and contractor and grants them immunity. This court stated, however, that though section 22 of article IV of the Constitution of 1870 did not prohibit legislative classification, it did require that the legislation be reasonably related to the legislative purpose. Where that relationship is nonexistent the statute contravenes the constitutional prohibition. The court also stated:

“ ‘That the statute operates uniformly upon all members of a class created as the beneficiaries of the act is not the sole test to be applied, but in order to avoid the constitutional inhibition *** it must also appear that there is a sound basis, in reason and principle, for regarding the class of individuals as a distinct and separate class for the purpose of the particular legislation.’ [Citation.] ” (38 Ill. 2d 455, 461.)

We do not agree that Skinner v. Anderson is controlling. No doubt a general statute of limitations which was not limited in its applicability to only physicians and hospitals but applied to all personnel and institutions administering health care would have achieved whatever end this legislative response to the medical malpractice insurance crisis was seeking to achieve. In fact, a statute of limitations that would apply to all professional malpractice cases would have achieved the result. The sentence in section 13 of article IV of our constitution — Whether a general law is or can be made applicable shall be a matter for judicial determination — does not prohibit classification of persons and objects. As noted in Skinner v. Anderson, however, the classifications must be reasonably related to the legislative purpose and it must appear that there is a sound basis for regarding the class as distinct and separate for the purpose of the legislation. Our analysis of the statute in our earlier discussion of the classification issue compels us to hold that the statute is not defective when judged by the standards of Skinner v. Anderson.

Our conclusion that Skinner v. Anderson does not control is emphasized by a recent case. In Fujimura v. Chicago Transit Authority (1977), 67 Ill. 2d 506, the court upheld the validity o'f a statute which required that within 6 months from the date of the injury anyone about to commence an action against the Chicago Transit Authority because of the injury must file a statement with the Authority. Statutes regarding similar notice to other governmental units required that the same be given within 1 year. This court, applying the traditional equal protection analysis, found that there was a rational basis for supporting a shorter notice period and statute of limitations for the transit authority.

IV

Having concluded that section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) is not special legislation within the proscription of section 13 of article IV of the Constitution of 1970, we turn to several remaining issues in the Anderson case. After the trial court had dismissed plaintiffs Andersons’ original complaint, an amended complaint was filed. It is argued that the amended complaint is based on the theory that the defendant had fraudulently concealed his negligent acts from the plaintiffs. Plaintiffs now contend that section 22 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 23) tolled the running of the time limitation of section 21.1. Section 22 provides:

“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 afterwards.”

Although the trial court held that the allegations of fraudulent concealment were sufficient, it nonetheless held that the cause of action was barred by section 21.1.

The complaint alleges that plaintiff Marilyn Anderson was a patient of the defendant from September 1972 through May 1973. The child was born on May 20, 1973. The complaint was filed June 23, 1977. It is alleged that the plaintiffs discovered the acts complained of on January 26, 1976. Applying the 4-year maximum limitation period of the medical malpractice limitation statute (section 21.1) the earliest date on which the action would be barred would be the first part of September 1976, and the latest date would be the last part of May 1977. Thus after the plaintiffs discovered the basis for their cause of action on January 26, 1976, the statute of limitations had not run and would not run for a minimum of 7 months or a maximum of 16 months. If at the time the plaintiff discovers the “fraudulent concealment” a reasonable time remains within the applicable statute of limitations, section 22 of the Limitations Act does not toll the running of the limitation period. (Skrodzki v. Sherman State Bank (1932), 348 Ill. 403, 407, 409; Solt v. McDowell (1971), 132 Ill. App. 2d 864, 867.) We cannot say that the trial court erred in holding that plaintiffs’ cause of action was barred. It appears that had they exercised diligence after discovery of the alleged fraud their action would not have been barred by the statute.

By discussing section 22 of the Limitations Act we do not hold that it is applicable in medical malpractice cases. That question is not before us. There are, however, uncertainties concerning the applicability of section 22 of the Limitations Act which we need not resolve in this opinion but to which we invite the attention of the General Assembly.

V

The Andersons raise one final issue. Their complaint alleges that Mrs. Anderson was under the care of the defendant from September 1972 through May 1973. There is no specific allegation as to when the rubella test was given, when the fetus became viable, or when any of the defendant’s negligent acts occurred. It is specifically alleged that the child was born May 20, 1973, and the plaintiffs have focused on that date as the date of injury. This appears to have been accepted by the defendant and by the trial court. Applying the present 4-year limitation period of section 21.1, the action had to be filed by May 20, 1977. It was not filed until June 23, 1977. However, prior to September 19, 1976, section 21.1 provided that a medical malpractice action had to be filed within 2 years after the discovery of injury but in no event more than 5 years after the date of the act or omission. The Andersons now argue that since they did not discover that they had a cause of action against the defendant until January 26, 1976, they did not have a reasonable time after the effective date of the amendment to section 21.1 within which to file their complaint. They acknowledge that the legislature may shorten the time within which an action must be filed and that the shortened period will apply to existing claims provided a reasonable time remains within which to file the complaint. They now complain the trial court failed to conduct a hearing as to whether a reasonable time had been afforded them within which to bring their action.

The complaint contains no allegation that the Andersons did not have a reasonable time under the 1976 amendment within which to bring their action. They did not request a hearing on this question in the trial court. There is no indication in the order of the court that it did not consider the reasonableness of the time. Accepting the Andersons’ argument that the limitation period ran. from the birth of the child, the shortened 4-year limitation period did not expire until May 20, 1977, 8 months after September 19, 1976, the effective date of the amendment; 9 months after its adoption on August 20, 1976; and 16 months after they alleged that they learned that they had a claim against the defendant. Under these facts we cannot say that the trial court erred in applying the shortened limitation period of the 1976 amendment to section 21.1.

For the reasons given above, the judgment of the appellate court is affirmed in cause No. 50880, Anderson v. Wagner. As to cause Nos. 50980 and 50981, Woodward v. Burnham City Hospital, the judgment of the appellate court is reversed and the judgment of the circuit court of Champaign County is affirmed.

50880 Judgment affirmed.

50980, 50981 — Appellate court reversed; circuit court affirmed.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 51635.
    PATRICIA BAUER, Appellee, v. GLENN A. JOHNSON Appellant.

      Opinion filed March 28, 1980.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stanley J. Davidson, of counsel), for appellant.
    Lucaccioni & Glickstein, of Chicago (Joel S. Os trow, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Glenn Johnson, was found not liable by a Cook County jury for injuries received by the plaintiff, Patricia Bauer, in an automobile collision. The jury answered a special interrogatory finding the plaintiff contributorially negligent. Plaintiff owned the car in which she was riding. It was driven by her 16-year-old son at the time of the collision. The trial court denied plaintiff’s motion for a directed verdict on the issue of her contributory negligence and plaintiff’s post-trial motion for judgment notwithstanding the verdict. The appellate court reversed and remanded. (67 Ill. App. 3d 146.) We affirm.

The facts are well stated in the appellate court opinion and can be summarized briefly here. Robert Bauer, the plaintiff’s 16-year-old son, testified that he was a licensed driver of two months’ standing. He said that on the day of the accident, March 24, 1971, he was driving south in a parking aisle at a maximum speed of 20 miles per hour from a post office in the Randhurst shopping center toward a “T” intersection located 200 feet south. The roadway at the intersection connected all of the parking aisles. No traffic-control devices were present. When he was approximately 100 feet from the intersection, he decelerated and looked to his left in preparation for making a left turn. At that time he saw the defendant’s vehicle 500 feet away traveling westerly toward him. He thought a vehicle that far away traveling within the speed limit presented no risk to him. He said the posted speed limit was 25 miles per hour. Approximately 50 feet from the intersection, his mother shouted at him to stop the car. He said his car traveled another 20 feet as he began to brake, reasonably hard at first and then harder as he focused on the defendant’s car and heard its tires squeal. He also tried to swerve to his right. His car came to a stop seven feet into the intersection and then was hit by defendant’s vehicle.

Plaintiff testified that she was sitting in the passenger seat facing southeast, paying no particular attention to the way her son drove. When they were about 50 feet from the intersection, she noticed defendant’s car traveling, she said, at a high rate of speed. She then yelled for her son to stop. Their car traveled between 12 and 15 feet, then quickly slowed and stopped in the intersection just before impact.

The defendant was called as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60) and testified that he looked in plaintiff’s direction 1,000, 600, 500 and between 150 and 200 feet before he reached the intersection and saw nothing. When he was 30 feet from the intersection, he said that the plaintiff’s vehicle was also 30 feet away. He said he was traveling 30 miles per hour and that plaintiff’s car was going 20 to 25 miles per hour. He applied his brakes and skidded 20 feet prior to impact. He did not attempt to swerve his car. He said that plaintiff’s vehicle was going 5 to 10 miles per hour at the moment of impact.

Each witness agreed that the collision took place at approximately 5:30 p.m., that the day. was bright and clear and that there was nothing to obstruct the drivers’ or passenger’s view. Plaintiff’s son testified that a police officer paced off nine steps as the length of the skid marks left by defendant’s car. No marks were left by plaintiff’s car.

According to the pictures in evidence and the testimony submitted, the collision took place completely on the private property of the shopping center. Apparently for this reason, neither plaintiff nor defendant has argued the applicability of the Illinois Rules of the Road (Ill. Rev. Stat. 1971, ch. 95½, par. 11 — 100 et seq., par. 11 — 901(a), 11 — 906) and we do not pursue this matter further.

Defendant argues that plaintiff breached her duty to control the driver and her duty to warn the driver of danger. No allegations of a master-servant, principal-agent or joint enterprise relationship were made. In Illinois the duty of an owner-passenger to control the driver was set forth by Palmer v. Miller (1942), 380 Ill. 256, 259. There this court held that an owner-passenger could be liable for the negligence of a driver if the passenger negligently failed to control the driver.

Palmer also was ahead of its time in abolishing the now discredited imputed-negligence doctrine. A brief explanation of this doctrine is helpful to an understanding of the issue involved in the Palmer case and in this appeal. The doctrine originally was designed to provide a financially responsible defendant to victims of the driver’s negligence. (Prosser, Torts sec. 73 (4th ed. 1971).) It was soon applied, however, to bar plaintiffs from recovery due to their imputed contributory negligence. Prosser, Torts sec. 74 (4th ed. 1971).

The right of an owner to control the vehicle was the basis for the doctrine. And in the days of the horse and buggy, it was possible for an owner-passenger to exercise a degree of control over the driver. Traffic was light, the speed was slow and the reins could be taken from the driver with relative ease. Thus, passenger control over the physical details of driving was a realistic possibility. See the discussion in Kalechman v. Drew Auto Rental, Inc. (1973), 33 N.Y.2d 397, 403, 353 N.Y.S.2d 414, 418, 308 N.E.2d 886, 889, and the discussion of Wheatley v. Patrick (Eng. 1837), 2 M. & W. 650, in Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886, 889 (1934).

Recent cases, however, have criticized the imputed-contributory-negligence doctrine and the theory on which it is premised. (See Weber v. Stokely-Van Camp, Inc. (1966), 274 Minn. 482, 144 N.W.2d 540.) These cases have recognized the danger of permitting a passenger to interfere with a driver while he or she was operating the vehicle. (See Weber v. Stokely-Van Camp, Inc. (1966), 274 Minn. 482, 491, 144 N.W.2d 540, 545.) Thus, in Kalechman v. Drew Auto Rental, Inc. (1973), 33 N.Y.2d 397, 402-03, 353 N.Y.S.2d 414, 418, 308 N.E.2d 886, 889, the New York Court of Appeals stated:

“With the advent of the modern automobile there is no longer any basis for assuming that the passenger, no matter what his relationship to the driver may be, has the capacity to assert control over or direct the operation of a moving automobile. The design of the vehicle, the high speeds at which it travels, the split second timing which is often necessary to avoid collision have all combined to erode the assumption that anyone other than the driver can effectively control the operation of the vehicle in traffic.
In fact, under modern driving conditions anyone who ‘allows another to drive would only increase the risk of accidents by interfering with the driver’s control of the car or by diverting his attention’ [citation].
*** All this serves to illustrate the wisdom of Cardozo’s celebrated observation that ‘Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day.’ [Citation.] ”

Other courts also have criticized the doctrine for its failure to recognize that, in an ordinary situation, the probable understanding of an owner-passenger and the driver is that the driver alone exercises control over the physical details of driving. Smalich v. Westfall (1970), 440 Pa. 409, 416, 269 A.2d 476, 481-82; see also Cole v. Woods (Tenn. 1977), 548 S.W.2d 640.

Thus, Palmer anticipated these criticisms in holding that an owner-passenger was only liable for his or her own negligence in failing to control negligent conduct of a driver. Palmer was affirmed again by this court in Summers v. Summers (1968), 40 Ill. 2d 338. Defendant relies primarily upon the holding in Palmer that an owner-passenger has a duty to control the driver. The scope of this duty is the primary issue on appeal.

The mere presence of an owner-passenger in the vehicle does not impose the duty to control. Thus, the Palmer court stated that liability attaches only if the owner-passenger “negligently fails to properly control the driver.” (380 Ill. 256, 260.) Four cases were cited by Palmer as descriptive of the duty to control. In each of these cases the passengers knew or should have known that it was essential for their safety or the safety of a third person to control the conduct of the driver. (See Wheeler v. Darmochwat (1932), 282 Mass. 553, 183 N.E. 55; Powers v. State (1940), 178 Md. 23, 11 A.2d 909; Daggy v. Miller (1917), 180 Iowa 1146, 162 N.W. 854; Rodgers v. Saxton (1932), 305 Pa. 479, 158 A. 166.) The latter case contains this important statement: “Ownership of a car does not necessarily mean control of that car, any more than ownership of any other property necessarily means control of it.” (305 Pa. 479, 485, 158 A. 166, 168.) The court went on to say that when possible dangers are manifested to any passenger, owner or nonowner, with an adequate opportunity to control the situation, he will be barred from recovery if he sits by without protest and permits himself to be driven on to his injury.

The preferred basis of contributory negligence in these situations, as the Rodgers court stated, rests upon a negligent failure to control the conduct of the driver. The Restatement (Second) of Torts sec. 495 (1965), has reached similar conclusions: “A plaintiff is barred from recovery if the negligence of a third person is a legally contributing cause of his harm, and the plaintiff has been negligent in failing to control the conduct of such person.” The vast majority of cases purporting to apply the Palmer principle have also involved a negligent failure to control negligent conduct. Crucial to these cases were foreseeable risks like, for example, the driver’s excessive speed (Coakley v. Nichols (1972), 8 Ill. App. 3d 973, 976; Wassmann v. Ritchason (1978), 63 Ill. App. 3d 770) or intoxication (Kitch v. Adkins (1952), 346 Ill. App. 342, 344), out-of-the-ordinary road conditions (Koch v. Lemmerman (1956), 12 Ill. App. 2d 237, 241; Ritter v. Taucher (1978), 65 Ill. App. 3d 464, 466, 471) or the known fact that the automobile operator lacked a driver’s license (Hodge v. Bzdon (1975), 33 Ill. App. 3d 192). In such cases, if no reasonable precautionary measures were taken by the passenger, a finding of contributory negligence would be appropriate.

The defendant argues that the plaintiff’s opportunity to observe the risk, without more, should give rise to a duty to take added precautions. Passengers, however, normally trust the driver to operate the vehicle unless there is some reason to be conscious of his or her lack of care; there is no duty to keep a lookout or to warn when the driver is exercising due care and is aware of conditions presenting a risk. Zank v. Chicago, Rock Island & Pacific R.R. Co. (1959), 17 Ill. 2d 473, 482-84. See the discussion in Restatement (Second) of Torts sec. 495, comment c (1965).

The defendant also argues that in today’s traffic conditions there is “an even greater need for a second pair of eyes scanning the roadway” and that this is especially true when the driver is newly licensed. This argument is overbroad. One is permitted to drive an automobile alone upon obtaining a license. One pair of eyes scanning the roadway has been deemed sufficient in this State. Exceptions to this in the contributory negligence context rest upon a foreseeable risk to the passenger beyond that normally attending the safe operation of a vehicle or upon a special arrangement made between the driver and passenger regarding the vehicle’s operation.

In sum, a plaintiff passenger in a vehicle will be barred from recovery if the negligence of the driver is a legally contributing cause of harm and if the plaintiff was negligent in failing to control the conduct of the driver. The passenger’s ownership of the car is relevant only insofar as it is a circumstance which gives the passenger reason to believe that his or her advice, directions or warnings would be heeded. (Restatement (Second) of Torts sec. 495, comment e (1965).) But no passenger has a duty to keep a lookout or to control the driver unless the plaintiff knows or should know that such actions are essential to his or her safety. Restatement (Second) of Torts sec. 495, comments c and d (1965).

In view of the foregoing, the appropriate inquiry in this case is whether, considering all of the evidence in an aspect most favorable to the defendant, a verdict of contributory negligence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) We do not think there was sufficient evidence of contributory negligence in this case. There was no evidence of road conditions requiring plaintiff’s assistance in driving the vehicle. There was no evidence of driver incompetence until it was clear or would be clear to a reasonable person that the driver on that day would not take the actions necessary to avoid the collision with the defendant. Such a conclusion was only possible in this case when the other vehicle was observed and the split-second calculation was made that it was likely to strike plaintiff’s vehicle and that the driver would take inadequate measures to avoid the collision. From the uncontroverted testimony, plaintiff made this calculation rapidly upon the observation of the defendant’s vehicle. Moreover, it is highly unlikely that the plaintiff, even if the other vehicle were observed sooner, could have reasonably known earlier that her son would take inadequate measures to avoid the vehicle. Plaintiff had seen her son look to his left and slow down while the intersection was 100 feet away. She could reasonably assume that her son would use reasonable care in reacting to risks presented from that direction. The uncontroverted evidence also shows that as soon as the risk was observed, she took reasonable action to prevent a collision. Defendant makes no argument that yelling “stop” to her son itself was negligent or caused her son to take an action leading to the impact which he would not otherwise have taken.

For these reasons, we agree with the appellate court that no “substantial factual dispute” was left to be resolved by the jury on this issue. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 504.) Hayes v. Alsburg (1978), 72 Ill. 2d 560, a case in which this court held that a jury question was presented on the contributory negligence issue, is inapposite. There the road conditions were poor and the jury could have inferred that the driver was speeding and that a prudent passenger would not go to sleep or neglect further precautions under those circumstances. Here, there is no evidence from which a jury could have inferred that precautions beyond those taken were necessary. Therefore, the trial court should have granted the plaintiff’s motion for a directed verdict on the contributory negligence issue. The judgment of the appellate court to this effect is affirmed and the cause is remanded for a new trial consistent with this decision.

Affirmed and remanded.


text:
    (No. 52673.
    MONTEREY COAL CO., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ray A. Caver, Appellee).

      Opinion filed March 28, 1980.

      Robert L. Mueller, of Livingstone, Mueller, Drake & Davlin, of Springfield, for appellant.
    Lindholm & Williamson, of Peoria (Harold G. Lindholm and Nile J. Williamson, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

On the day he returned to work after a 16-week hiatus due to a strike, the claimant, Ray A. Caver, was injured. The arbitrator entered an award of compensation for the claimant based on his average weekly earnings for the year next preceding the injury, minus the 16 weeks the claimant was absent because of the strike. The Industrial Commission affirmed the arbitrator’s award, and the circuit court of Macoupin County confirmed the decision of the Commission. An appeal was taken pursuant to Rule 302(a). 73 Ill. 2d R. 302(a).

The claimant had been employed by the respondent, Monterey Coal Company (Monterey), except for a brief respite, since June 1972. He participated in the strike of the United Mineworkers of America, of which he was a member, which occurred from December 6, 1977, to March 27, 1978. The day the strike ended, March 27, 1978, the claimant returned to work for Monterey. On that day the claimant injured his knee while in the process of placing bolts in a roof.

The only issue raised on appeal is whether the claimant’s average weekly earnings should be computed to include the 16 weeks spent on strike. Section 10 of the Workmen’s Compensation Act is the applicable provision. It states in pertinent part:

“The basis for computing the compensation provided for in Sections 7 and 8 of the Act shall be as follows:
(a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury.
(b) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employee was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause.” Ill. Rev. Stat. 1977, ch. 48, par. 138.10.

Monterey argues that employment interrupted by participation in a strike is not an unavoidable cause. It refers us to the case of Caterpillar Tractor Co. v. Durkin (1942), 380 Ill. 11. That case is not of aid to Monterey, however, because it concerned a provision of the Unemployment Compensation Act which expressly provided that an individual shall be ineligible for benefits:

“(d) For any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed, provided, that this subsection shall not apply if it is shown that (1) He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (2) He does not belong to a grade or class of workers of which immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided, that if in any case separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purpose of this subsection, be deemed to be a separate factory, establishment, or other premises.” (Ill. Rev. Stat. 1941, ch. 48, par. 223.)

The court held in Caterpillar Tractor Co. that the striking employees were not entitled to recover unemployment compensation, based on the clear language of the Act. Monterey asserts that the foregoing section of the Unemployment Compensation Act is indicative of legislative intent that participation in a strike constitutes “voluntary unemployment” and is not an “unavoidable cause” of absence within the meaning of the Workmen’s Compensation Act. We disagree with Monterey’s analysis. The disparity between the two acts is, we think, indicative only of the fact that the General Assembly considered labor disputes in relation to unemployment compensation, but, intentionally or not, has made no decision as to workmen’s compensation. In the absence of a statutory provision treating the topic, we can draw no such definite inference of legislative intent. We therefore reject Monterey’s argument; Caterpillar Tractor Co. v. Durkin and the Unemployment Compensation Act have no applicability to the instant case.

The General Assembly has used the general word “unavoidable” presumably so as to leave the resolution of cases to the judgment of the courts. (See Harper v. Industrial Com. (1962), 24 Ill. 2d 103, where the court concluded as a matter of law, and in the absence of a controlling statutory provision, that suicide, as an intervening cause between an injury and death, may be work related and compensable.) Thus, while the precise factual situation presented may not be expressly covered by this statute, we must attempt to “quarr[y] out of it in the light of the new situation” the sense of the legislature’s purpose. (Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395, 400 (1950).) It is our conclusion that labor disputes such as strikes should be considered to be unavoidable causes within the meaning of section 10(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.10(b)). Since there is no clear legislative direction in the matter, we refuse to confront the individual employee with the dilemma of choosing between, on the one hand, participating in a strike and thus risking a substantial reduction in workmen’s compensation benefits should he be injured within the ensuing year and, on the other hand, declining to participate in a strike and thereby facing fines and perhaps expulsion from the union. (See NLRB v. Allis Chalmers Manufacturing Co. (1967), 388 U.S. 175, 18 L. Ed. 2d 1123, 87 S. Ct. 2001, wherein the court held it permissible to fine union members for strikebreaking. The court stated: “The economic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement upon its terms and ‘[t]he power to expel or fire strikebreakers is essential if the union is to be an effective bargaining agent ***.’ Provisions in union constitutions and bylaws for fines and expulsion of recalcitrants, including strikebreakers, are therefore commonplace and were commonplace at the time of the Taft-Hartley amendments.” (388 U.S. 175, 181-82, 18 L. Ed. 2d 1123, 1128-29, 87 S. Ct. 2001, 2007, quoting, Summers, Legal Limitations on Union Discipline 64 Harv. L. Rev. 1049, 1051 n.7 (1951).) It is difficult to be convinced that the General Assembly intended to premise the recovery of workmen’s compensation benefits upon such untenable grounds. In addition, deciding that absence from work caused by participation in a strike is not an “unavoidable cause” would hardly be in keeping with “the practical and liberal interpretation” of the Act “intended by the legislature.” Vaught v. Industrial Com. (1972), 52 Ill. 2d 158, 165; Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill. 2d 437, 444-45.

Monterey further urges that section 10(b) requires that the average weekly wage must be computed by dividing the claimant’s actual annual earnings by 52 weeks. In support of its assertion, Monterey refers us to two Tennessee cases: Hartley v. Liberty Mutual Insurance Co. (1954), 197 Tenn. 504, 276 S.W.2d 1, and New Jellico Coal Co. v. Kenner (1937), 172 Tenn. 185, 110 S.W.2d 476. These cases do not assist in resolving the instant inquiry, however, because of the imperative interpretation of the Tennessee statute which has been made by the Tennessee court:

“(1) Where the employee has been working for the employer for as much as a year, prior to the injury, divide the total wages received by fifty-two.
(2) Where the employment, prior to the injury, was less than 52 weeks, divide the total wages received by number of weeks employed; provided, results just and fair to both parties will thereby be obtained.” (Emphasis added.) (Hartley v. Liberty Mutual Insurance Co. (1354), 197 Tenn. 504, 508, 276 S.W.2d 1, 3, quoting a paraphrase of the statute in White v. Pinkerton Co. (1927), 155 Tenn. 229, 231, 291 S.W. 448, 449.)

Clearly, this is a different statute and requires construction different from our open-ended statute.

We think a case which is more pertinent is Rakie v. Jefferson & Clearfield Coal & Iron Co. (1918), 262 Pa. 444, 105 A. 638. In that case, the employee was killed in a mine accident. During the six months preceding the employee’s death, there were 184 calendar days. On 88 of those days the mine was closed and the employee did not work. Although it was not noted in the body of the opinion, a headnote accompanying the decision stated the mine closing was “on account of a labor dispute.” (105 A. 638.) The record contained a finding, adopted by the Compensation Board, that the employee’s “idleness during this period was not due to any fault of his own.” (262 Pa. 444, 445, 105 A. 638, 639.) The court then stated:

“To arrive at a divisor, for -the purpose of determining the average daily earnings of deceased, in order to calculate his weekly wage, so as to ascertain the compensation payable to claimant, the before-mentioned 88 days, together with Sundays and holidays occurring during the six months in question, were deducted in accord with the relevant standing rule of the board [governing the arithmetical computation of compensation]." (262 Pa. 444, 445, 105 A. 638, 639.)

The court concluded that it had been appropriate to deduct the days missed due to the labor dispute. While the court did not divulge its reasoning, the implication is that absence from work because of a labor dispute is not absence attributable to the fault of the employee. In a similar vein, we hold that the claimant’s absence due to participation in a strike was an unavoidable cause within the meaning of the Workmen’s Compensation Act. When confronted with the irreconcilable choices previously discussed, the claimant had, practically speaking, no alternative but to participate in the nationwide mine workers strike. It would not be fair or just to subject him to penalties no matter which choice he made.

Finally, we note that the strike involved in this case was lawful and fully authorized by the union. Whether the same result would obtain in a case where the strike was illegal or unauthorized is an issue we do not consider.

Accordingly, for the foregoing reasons, the judgment of the circuit court of Macoupin County, confirming the award of the Industrial Commission, is affirmed.

Judgment affirmed.