author: MR. JUSTICE CLARK MR. JUSTICE RYAN,

text:
    (No. 51828.
    JUDITH MARIE SPIDLE et al., Appellants, v. LEE A. STEWARD et al. (Lee A. Steward, Appellee).

      Opinion filed Feb. 22, 1980.

    Rehearing denied Mar. 28, 1980.

      RYAN and UNDERWOOD, JJ., concurring in part and dissenting in part.
    Robert D. Owen, Marshall A. Susler and Linda M. Castleman, of Owen, Roberts, Susler & Murphy, of Decatur, for appellants.
    William A. Sunderman, of Charleston, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This case concerns the quantum and quality of evidentiary proof necessary to maintain medical malpractice actions based on res ipsa loquitur and negligence. In 1972, plaintiff Judith Marie Spidle underwent a supra-cervical hysterectomy after recurrent attacks of pelvic inflammatory disease. Dr. Lee A. Steward had treated Mrs. Spidle during these attacks and was her surgeon during the operation. Following the operation, she developed vaginal fecal fistula and a drainage sinus at the lower part of the surgical incision, indicating a communication between the vagina, colon and abdominal wall. This caused fecal matter to drain from her incision and from her vagina. Although the abdominal incision was closed relatively soon thereafter, the vaginal fecal fistula persisted for approximately two years before surgically corrected by another doctor. Mrs. Spidle, however, has continued to experience medical difficulties. There was evidence that Dr. Steward’s initial surgery caused the fistula. Spidle v. Steward (1979), 68 Ill. App. 3d 134, 135.

Mrs. Spidle and her husband, Ada Spidle, timely filed a medical malpractice suit in Coles County against Dr. Steward, another doctor, and the hospital in which Mrs. Spidle was treated, asking damages for personal injuries, medical expenses for problems related to the surgery, and for Spidle’s loss of consortium. The suits against the other doctor and the hospital were settled prior to jury deliberations. At the close of plaintiffs’ case, the trial court directed a verdict for Dr. Steward (hereinafter referred to as defendant) on the two complaint counts based upon res ipsa loquitur, and, at the end of the trial, the court refused to give plaintiffs’ modified version of Illinois Pattern Jury Instruction, Civil, No. 105.01 (2d ed. 1971). The jury found for the defendant on the two counts alleging negligence.

The Fourth District Appellate Court affirmed the trial court, one judge dissenting on the res ipsa loquitur issue. (68 Ill. App. 3d 134.) We granted leave to appeal. We reverse as to res ipsa loquitur and affirm as to the jury instruction.

The res ipsa loquitur doctrine is a species of circumstantial evidence permitting the trier of fact to draw an inference of negligence if plaintiff demonstrates that he or she was injured “(1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by an agency or instrumentality within the defendant’s exclusive control, and (3) under circumstances indicating that the injury was not due to any voluntary act or neglect on the part of the plaintiff ***.” (3 J. Dooley, Modern Tort Law sec. 48.02 (1977). See also W. Prosser, Torts sec. 39 (4th ed. 1971)). Illinois recognizes this doctrine (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446) and its applicability to medical malpractice actions (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298; Walker v. Rumer (1978), 72 Ill. 2d 495).

Before our opinion in Walker, there was a misconception that res ipsa loquitur only applied in medical malpractice actions when the medical activity at issue was within the common knowledge of laymen. (See, e.g., Slater v. Missionary Sisters of the Sacred Heart, (1974), 20 Ill. App. 3d 464; Estell v. Barringer (1972), 3 Ill. App. 3d 455.) The court recognized in Walker, however, that expert testimony could establish a negligence probability where jurors were unfamiliar with the issue. (72 Ill. 2d 495, 499-500.) Our opinion in Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, noted that one purpose of res ipsa loquitur was to insure that relevant evidence was produced at trial. In addition, the doctrine is useful in combatting the reluctance of medical personnel to testify against one another. (Sanders v. Frost (1969), 112 Ill. App. 2d 234, 241; Prosser, Torts sec. 39, at 227 (4th ed. 1971).) Doctors, for example, “may be more willing to testify that the injury was of a kind which would not ordinarily occur in the exercise of due care than they would be to specify those acts which constituted negligence.” Note, The Application of Res Ipsa Loquitur in Medical Malpractice Cases, 60 Nw. U.L. Rev. 852, 865 (1966).

In accordance with the foregoing principles, we decided in Walker that res ipsa loquitur could be an appropriate theory of liability in medical malpractice cases. Since that issue was decided on the pleadings, we did not consider the quantity of evidence required to prove the elements of res ipsa loquitur. Nor did we discuss the standard by which the trial court determines, as a matter of law, the amount of evidence necessary to present a res ipsa loquitur theory to the jury. These issues are presented now.

The trial court must in the first instance decide whether, as a matter of law, the res ipsa loquitur doctrine applies at all. (Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 349.) It will not apply unless a duty of care is owed by the defendant to the plaintiff. (See, e.g., Hunter v. Alfina (1969), 112 Ill. App. 2d 432.) Assuming that a duty of care exists, and in this case the issue is beyond doubt, the trial court must also determine, as a matter of law, (1) whether plaintiff’s pleaded facts would ever establish the three elements of control, lack of contributory negligence and the improbability of injury without negligence, and (2) whether those elements, as pleaded, gave sufficient notice to the defendant of the res ipsa loquitur cause of action. See, e.g., Kruger v. Newkirk (1976), 40 Ill. App. 3d 581.

On a motion for directed verdict, the role of the trial judge is to view all of the evidence in a light most favorable to the nonmovant and decide whether a verdict for the nonmovant could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) In Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416, 421, for example, this court held the doctrine inapplicable as a matter of law because the evidence introduced by the plaintiff clearly established that the defendant did not have control over the instrumentality causing the injury. (See also Krotke v. Chicago, Rock Island & Pacific R.R. Co. (1974), 26 Ill. App. 3d 493, 501-02; Wimberley v. Material Service Corp. (1973), 12 Ill. App. 3d 1051; Collgood, Inc. v. Sands Drug Co. (1972), 5 Ill. App. 3d 910; 3 J. Dooley, Modern Tort Law sec. 48.21 (1977).) In the instant case, since the parties agree that Mrs. Spidle was injured while under control of the defendant and was without contributory negligence, the only issue presented is whether the plaintiffs have introduced enough evidence that the injury would not have happened, ordinarily, without negligence.

Defendant contends that no evidence submitted by plaintiffs was sufficient to support this case going to the jury on the res ipsa loquitur counts. Plaintiffs’ expert witness, Dr. Thomas Wilson, answered these questions about the probability of negligence:

“Q. Is a hysterectomy, supracervical hysterectomy, removal of the tubes and ovaries, a type of surgery which in ordinary course, is likely to lead and have as one of its results, now, in the ordinary course, mind you, in the ordinary course, likely to lead to and have as one of its results, in the absence of any negligence, the formation of fecal vaginal fistulas?
A. This is a rare and unusual complication of hysterectomies.
Q. It is not one one would normally expect, is it?
A. No.”

Defendants argue that the doctor’s answer only concerned unusual results, not unusual results ordinarily or most often due to negligence. As such, the defendant contends that, even in a light most favorable to plaintiffs, res ipsa loquitur cannot be invoked. While we agree with the defendant and the appellate court that surgeons are not liable merely for unusual, unfortunate results, we think that these answers, combined with other testimony, were sufficient under Pedrick to present a jury question regarding the probability of negligence.

Plaintiffs’ counsel asked, in his first question, whether the fistula would, in the absence of negligence, ordinarily result. If the expert had answered that question “no,” he would have established directly plaintiffs’ initial burden with respect to the probability component of res ipsa loquitur. With such an answer, he would have testified, in effect, that supracervical hysterectomies resulting in fistulas more probably than not have negligent antecedents. Such a direct answer, contrary to the conclusions of the appellate court in Grubb v. Jurgens (1978), 58 Ill. App. 3d 163, would be sufficient initially even though it would not have constituted proof that fistulas never happen without negligence. To hold otherwise, to require a plaintiff to conclusively prove negligence, would “obviate the purposes and policy behind shifting the burden of coming forward with the evidence to the defendant” (Spidle v. Steward (1979), 68 Ill. App. 3d 134, 140 (Craven, J., dissenting)), a policy this court endorsed in Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298. Most courts have agreed with this view and have required plaintiff to show only that the result “ordinarily,” not always, had negligent antecedents. Walker v. Rumer (1978), 72 Ill. 2d 495; Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298; Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446; People v. Morris (1978), 60 Ill. App. 3d 1003; Jirik v. General Mills, Inc. (1969), 112 Ill. App. 2d 111; Summers v. Northern Illinois Gas Co. (1969), 117 Ill. App. 2d 125, 138; 2 Restatement (Second) of Torts sec. 328D and comments (1965).

Unfortunately, the expert in this case answered the question indirectly. We cannot conclude with equanimity, from this colloquy alone, whether he meant fistula formation after hysterectomies is usually á result of negligence or whether there is an equal probability that they occur despite the exercise of due care. In this case, however, the expert also testified about the inadvisability of operating on Mrs. Spidle if her pelvic inflammatory disease was in an acute or an acute flare-up stage. The defendant even agreed with the plaintiffs’ expert regarding the inadvisability of operating during an acute stage, although denying that Mrs. Spidle was in such a stage. Evidence was introduced, however, that Mrs. Spidle was in an acute stage and that the defendant, after the operation, admitted he “operated a little too soon.” In a light most favorable to plaintiffs, a reasonable person could conclude that plaintiffs’ expert believed that this fistula, more probably than not, resulted from defendant’s negligence. If believed, this is evidence of more than a mere unusual occurrence (see Hahn v. Illinois Office Equipment Co. (1976), 42 Ill. App. 3d 29, 31), from which the jury could have inferred negligence under res ipsa loquitur.

To be sure, some of the foregoing evidence was controverted. Nevertheless, factual disputes presenting credibility questions or requiring evidence to be weighed should not be decided by the trial judge as a matter of law. As was stated in Pedrick: “Clearly, the constitution does, and judges should, carefully preserve the right of the parties to have a substantial factual dispute resolved by the jury, for it is here that assessment of the credibility of witnesses may well prove decisive.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 504; see also Lovejoy v. National Food Stores, Inc. (1973), 12 Ill. App. 3d 982; Wolfe v. Whipple (1969), 112 Ill. App. 2d 255; Summers v. Northern Illinois Gas Co. (1969), 117 Ill. App. 2d 125, 138; Traylor v. The Fair (1968), 101 Ill. App. 2d 268, 275.) This right was not preserved in the instant case.

Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, illustrates the preferred approach. There a steel ventilator-window sash fell from a building owned by defendants and struck the plaintiff. It was agreed that plaintiff was not contributorially negligent and that this type of accident would not ordinarily happen without negligence. But whether defendant exercised control over the window was disputed. The court examined the record as a whole and held “it was not error for the trial court to send the case to the jury on a res ipsa instruction, particularly where the jury was expressly instructed that control on defendant’s part was a prerequisite to its liability.” (42 Ill. 2d 345, 351.) We see no reason to treat the probability component of res ipsa loquitur differently from the control component. Plaintiffs have the burden of proof on each element of res ipsa loquitur. And we think that from this record, read as a whole, a jury could have decided that each of these elements was proved. Therefore, the res ipsa loquitur negligence counts should have been submitted to the jury for a decision.

The Illinois civil pattern jury instruction on res ipsa loquitur states in pertinent part:

“The plaintiff has the burden of proving each of the following propositions:
[the requirements of injury, control, lack of contributory negligence and probability of injury]
If you find that each of these propositions has been proved, the law permits you to infer from them that the defendant was negligent ***.” IPI Civil No. 22.01 (2d ed. 1971).

With this instruction, we think the jury is fully capable of determining these issues in accordance with the law.

The California Supreme Court reached similar conclusions in Clark v. Gibbons (1967), 66 Cal. 2d 399, 412, 426 P.2d 525, 534, 58 Cal. Rptr. 125, 134. In that case, an expert testified to a low incidence of injuries when due care was used. Other evidence tended to establish specific acts of negligence. The court reasoned that this evidence, combined, presented a jury question under res ipsa loquitur. Subsequent cases have struck res ipsa loquitur counts where expert testimony of a rare and unusual result was not accompanied by further evidence of negligent acts that could have caused the injury at issue. (See, e.g., Contreras v. St. Luke’s Hospital (1978), 78 Cal. App. 3d 919, 933, 144 Cal. Rptr. 647, 656.) When the trial judge in the instant case permitted the ordinary negligence counts to go to the jury, he ruled that a verdict finding the defendant liable could stand. The evidence sufficient to hold defendant liable under negligence specifically does not eliminate the res ipsa loquitur doctrine; rather, the foundation for it and the inference of negligence permitted under it were strengthened (Prosser, Torts sec. 40, at 231-32 (4th ed. 1971)), at least to the extent of presenting a jury question.

The second indication of the soundness of our reasoning lies in the statements made by the trial judge in striking the res ipsa loquitur counts. He said:

“Illinois, regardless of what any of us say, still gives expression to the, as far as res ipsa is concerned, to what we call the gross negligence or common negligence rule.”

He cited Comte v. O’Neil (1970), 125 Ill. App. 2d 450, and Estell v. Barringer (1972), 3 Ill. App. 3d 455, as support for his position, and then noted that our decision in Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, criticized these prior holdings:

“They merely said basically, the evidence merely created an inference of negligence under res ipsa, and that is as far as they went. Even in referring to the intramuscular injection which was involved in the Edgar County case, I believe Mr. Sunderman correctly stated the law or the opinion of that court. They felt this was a common knowlege type of thing and again, you might say hung their head on that doctrine ***. Looking at the evidence most favorable to the plaintiff, obviously a fistula' did occur after the operation. There is no testimony in the record that it was caused at the time of the operation. Precipitating factors resulting from the operation could have caused or may not have caused it. I don’t know.
***
I don’t think it is a res ipsa case under any stretch of the imagination, based on the law as it exists in Illinois now.”

From these statements it is apparent that the trial judge relied on cases rendered inapplicable by the opinion in Edgar County. At the time of this trial, other attorneys, like the defendant in Walker, similarly misinterpreted that opinion. We must remain consistent with Walker and Edgar County nevertheless. We conclude, therefore, that from all of the evidence, viewed in a light most favorable to plaintiffs, a jury could have determined that the foundation for the res ipsa loquitur doctrine was laid and, further, could have concluded that the defendant was negligent. Since this jury’s conclusions on this issue will never be known, we must remand the case for a new trial on the res ipsa loquitur counts.

At the end of the trial, plaintiff tendered the following jury instruction, a modified version of IPI Civil No. 105.01 (2d ed. 1971) relevant to the causes of action based upon negligence:

“In treating and operating upon a patient, a doctor must possess and apply the knowledge and use the skill and care that is ordinarily used by reasonably well-qualified doctors in the locality in which he practices or in similar localities in similar cases and circumstances. A failure to do so is a form of negligence that is called malpractice.
The only way you may decide the standard of care that is required in the circumstances is by a doctor called as an expert witness. You must not attempt to determine this standard from any personal knowledge you may have.”

The tendered instruction differs from IPI Civil No. 105.01 in that the second paragraph of No. 105.01 states that expert witnesses must also establish defendant’s deviation from the standard of care. The trial court upheld defendant’s objection to this instruction, neither plaintiff nor defendant tendered IPI Civil No. 105.01, and, consequently, no instruction concerning the standard of care or deviation from that standard was given.

Even adopting the view argued by the plaintiffs, their modified version of IPI Civil No. 105.01 was inadequate because it contained no instruction about the necessity of establishing a deviation from the standard of care. According to cases cited by the plaintiffs and others reviewed by us, establishing a deviation from the standard of care is the second essential element in a negligence cause of action. (Walski v. Tiesenga (1978), 72 Ill. 2d 249.) Because plaintiffs’ proffered instruction omitted mention of this element, it was properly refused.

The judgment of the appellate court is affirmed as to its affirmance of the verdict on the negligence counts and reversed as to its affirmance of the dismissal of the res ipsa loquitur portions of the complaint. The judgment of the circuit court of Coles County is affirmed as to the negligence counts and reversed as to its dismissal of those portions of plaintiffs’ complaint based on res ipsa loquitur. The cause is remanded to the circuit court for further proceedings consistent with this opinion.

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

MR. JUSTICE RYAN,

concurring in part and dis-en ting in part:

Appropriate to my concern about the majority opinion is a statement by Dean Prosser commenting on the doctrine of res ipsa loquitur:

“It is a thing of fearful and wonderful complexity and ramifications, and the problems of its application and effect have filled the courts of all our states with a multitude of decisions, baffling and perplexing alike to students, attorneys and judges.” Prosser, Res Ipsa Loquitur in California, 37 Cal. L. Rev. 183 (1949).

The majority opinion relies on Clark v. Gibbons (1967), 66 Cal. 2d 399, 426 P.2d 525, 58 Cal. Rptr. 125, in support of its holding that a rare occurrence, plus evidence of specific acts of negligence, are sufficient to submit the case to the jury under a res ipsa loquitur instruction. Before demonstrating that the facts of our case are not even sufficient to warrant giving a res ipsa loquitur instruction to the jury under the holding of Clark v. Gibbons, some general comments about the doctrine are in order.

Before the doctrine applies to a given case, a plaintiff must establish his exercise of due care, that the instrumentality which caused the injury was under the control of the defendant, and that the accident is such as ordinarily does not happen if due care is exercised. (Prosser, Torts sec. 39, at 214 (4th ed. 1971).) The last of these is the essential circumstantial evidence from which the inference of negligence is drawn. The majority, while acknowledging that whether the doctrine applies in the given case is a question of law to be determined by the court, nonetheless holds that the jury should determine whether the elements have been proved from which it may draw inferences of negligence. Although that may be true in a limited area, it is not the general rule.

Essential to the application of the doctrine is the fact that the occurrence is such as in the ordinary course of things would not have happened if due care had been exercised. This is another way of stating an obvious principle of circumstantial evidence. Generally, the basis from which the conclusion may be drawn that such events did not occur without negligence is the common knowledge of the community. Whether common knowledge exists is not a question of fact but a question of law. It is for the court to determine. “It is enough that the court cannot say that the jury could not reasonably [conclude that it is more likely than not that there was negligence associated with the cause of the event]. Where no such balance of probabilities in favor of negligence can reasonably be found, res ipsa loquitur does not apply.” (Prosser, Torts sec. 39, at 218 (4th ed. 1971).) Once the court makes the determination that res ipsa loquitur does apply, however, the jury may draw inferences from the occurrence that the event was caused by a negligent act.

There are circumstances that do not fall within the common knowledge of the community. In such cases it is permissible to establish through the use of experts that certain events do not ordinarily occur if due care is exercised. In Walker v. Rumer (1978), 72 Ill. 2d 495, this court held that this essential element in the medical malpractice case can be established by expert testimony and held that the determination must be made as a matter of law whether the occurrence is such as in the ordinary course of things would not have happened if the party had exercised due care.

The majority cites Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, as illustrating “the preferred approach” for determining the application of the res ipsa loquitur doctrine. In that case there was a dispute as to whether the defendant was in control of the premises from which the window fell. This court held that the question of whether or not defendant had control of the premises was a question of fact. The court also noted that there was no question that this was the type of accident which does not ordinarily occur in the absence of someone’s negligence. The court, in that case, restated the accepted principle that “ [w] hether the doctrine applies in a given case is a question of law which must be decided in the first instance by the trial court.” (Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 349.) Thus, Drewick lends no support to the holding of the majority opinion. In two recent medical malpractice cases the holding of Drewick was reaffirmed. Walker v. Rumer (1978), 72 Ill. 2d 495, 502; Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 305.

In some States there has developed what is referred to as “conditional” res ipsa loquitur, which is applied in cases where the existence of conditions upon which the doctrine depends are disputed, and the applicability of the doctrine thus becomes a question of fact. (2 J. Dooley, Modem Tort Law sec. 34.66 (1977).) The Law Revision Commission comment to section 646 of the Evidence Code of the State of California (Cal. Evid. Code sec. 646 (Deering 1979 Supp.) explains that the conditional res ipsa loquitur instruction under the Code should be given in cases where the basic facts upon which the doctrine rests are contested.

Clark v. Gibbons, relied on by the majority opinion, fits neither the traditional nor conditional res ipsa loquitur pattern. It relies on neither common knowledge nor expert testimony to establish the basic premise that the event is not such as ordinarily occurs in the absence of negligence. It does not rely on the happening of the occurrence alone. The premise from which the inference of negligence may be drawn under the Clark v. Gibbons rationale is that proof that when due care is used, an injury rarely occurs, accompanied by other evidence of negligence, may be sufficient to warrant an instruction on conditional res ipsa loquitur. (Clark v. Gibbons (1967), 66 Cal. 2d 399, 412, 426 P.2d 525, 534, 58 Cal. Rptr. 125, 134.) In that case, however, both Mr. Justice Tobriner and Mr. Chief Justice Traynor wrote concurring opinions which opposed the extension of the res ipsa loquitur doctrine. Mr. Justice Tobriner stated:

“To give a res ipsa instmction under such circumstances invites a purely speculative leap and entrusts the jury with unreviewable power to impose or withhold liability as it sees fit.” (Clark v. Gibbons (1967), 66 Cal. 2d 399, 415-16, 426 P.2d 525, 536-37, 58 Cal. Rptr. 125, 136-37.)

Mr. Justice Tobriner further observed:

“ [T] he rarity of an event may well bear no relationship to negligence. Courts which ignore that fact in formulating the law of res ipsa loquitur unjustly penalize physicians and plunge the legal process into an abyss of uncertainty and obfuscation.” (Clark v. Gibbons (1967), 66 Cal. 2d 399, 421, 426 P.2d 525, 540, 58 Cal. Rptr. 125, 140.)

Mr. Chief Justice Traynor, in his concurring opinion, pointed out that the inference of negligence in a res ipsa loquitur case must be based on more than speculation. It is drawn from the happening of the accident, and there must be common knowledge or expert testimony that when such an accident occurs, it more probably than not is a result of negligence:

“A showing that such an accident rarely occurs does not justify an inference of negligence without a further showing that when the rare event happens, it is more likely than not caused by negligence.” (Clark v. Gibbons (1967), 66 Cal. 2d 399, 422, 426 P.2d 525, 541, 58 Cal. Rptr. 125, 141.)

Mr. Chief Justice Traynor pointed out that evidence of specific acts of negligence has no relation to res ipsa loquitur, which requires the inferences to be drawn from the mere happening of the event. Indicative of the departure of the holding of Clark v. Gibbons from the accepted principles of res ipsa loquitur is Dean Prosser’s comment:

“A badly confused case is Clark v. Gibbons, 1967, 66 Cal. 2d 399, 58 Cal. Rptr. 125, 426 P.2d 525 ***.” (Prosser, Torts sec. 41, at 243 n.57 (4th ed. 1971).)

It is also worthy of note that the holding of Clark v. Gibbons has had very limited, if any, acceptance outside California, and, as shown by the California cases discussed below, even in that State it has been narrowly applied.

Even assuming the validity of Clark v. Gibbons, it is not authority for the giving of a conditional res ipsa loquitur instruction under the facts of our case. Several California cases subsequent to Clark v. Gibbons have limited and defined the application of the holding of that case. In Clemens v. Regents of the University of California (1970), 8 Cal. App. 3d 1, 87 Cal. Rptr. 108, the court noted that the rule of Clark v. Gibbons was not stated in absolute terms, but held only that a rare occurrence, coupled with other evidence of negligence, may be sufficient to authorize the giving of a conditional res ipsa loquitur instruction. The Clemens court also pointed out that the rule is generally only applicable to injuries resulting from procedures which are not complex. Clemens held that although the evidence in that case showed that the injury was unexpected and unusual when due care was exercised, the evidence was not sufficient to warrant the giving of a res ipsa loquitur instruction without further testimony that the unexpected and unusual result was probably the consequence of negligence. The court also noted that the evidence in support of the plaintiff’s contention that the medical procedure was negligently performed was sketchy and consisted only of a medical opinion that the procedure should not have been undertaken and discrepancies in the evidence concerning the timing of injections. It has been stated that the holding of Clemens is that the conditional res ipsa loquitur doctrine is not used when the evidence of negligence is weak. Comment, Res Ipsa Loquitur: Its Place In Medical Malpractice Litigation, 8 U.S.F. L. Rev. 343, 352 (1973).

Fraser v. Sprague (1969), 270 Cal. App. 2d 436, 76 Cal. Rptr. 37, and Berkey v. Anderson (1969), 1 Cal. App. 3d 790, 82 Cal. Rptr. 67, both held that, under the facts of those cases, the giving of a conditional res ipsa loquitur instruction was appropriate. However, both cases emphasized, as did Clemens, that the holding of Clark v. Gibbons may warrant the giving of the instruction, particularly if the injury resulted from a commonplace procedure rather than from a complex or unusual operation.

In Contreras v. St. Luke’s Hospital (1978), 78 Cal. App. 3d 919, 144 Cal. Rptr. 647, the plaintiff had suffered an infection in his knee following surgery. It was established that infection following surgery rarely occurred. The defendant doctor told the plaintiff that the infection was caused by one of three things. Either a glove or a tool was not sterilized properly, or a defective mask permitted one of the persons operating to breath on the area of the body where the surgery was being performed. The court held that the rule of Clark v. Gibbons did not apply because the evidence did not show any specific act or omission of a type which could have caused the injury suffered by the plaintiff. The court noted that there was no evidence to establish that the sterilizing procedures and other precautions did not conform to accepted practice.

Applying these constructions of Clark v. Gibbons to the facts of our case, it is clear that res ipsa loquitur did not apply. Our case involved complex surgery and was not a commonplace procedure. Also, in our case there is no evidence, by expert testimony, establishing .that the event or injury rarely occurs if due care is exercised. The most that Dr. Wilson, plaintiff’s expert witness, would say is that “this is a rare and unusual complication.” There is no evidence that it is rare and unusual if due care is used. The attorney was well aware of what he had to prove. He did not get Dr. Wilson to give the answer that was necessary. The simple fact is that the plaintiff did not prove that which was required. We have no indication as to why the attorney did not pursue the matter further. It may well be that through the use of a discovery deposition he was aware that Dr. Wilson would not say that this occurrence would not ordinarily happen in the absence of negligence, or under the Clark v. Gibbons test that it is rare when due care is exercised. In any event, all that is in the record is that it is a rare and unusual complication. This is not enough, under Clark v. Gibbons, to authorize the giving of a conditional res ipsa loquitur instruction regardless of what other evidence there may be of specific acts of negligence.

As to the specific acts of negligence of the defendant, the evidence of such acts is at the best weak or “sketchy.” The evidence must be of a specific act of negligence of a type which could have caused the injury. (Contreras v. St. Luke’s Hospital (1978), 78 Cal. App. 3d 919, 932, 44 Cal. Rptr. 647, 656.) The majority opinion relies on the defendant’s statement that he “operated a little too soon.” Actually, the exact statement, according to the testimony of the plaintiff’s husband, was “he said he went in a little too soon.” There is no evidence that by operating at the time he did the defendant did not conform to accepted medical standards. Dr. Wilson, plaintiff’s expert witness who practiced in obstetrics and gynecology, was questioned by plaintiff’s counsel concerning surgery for hysterectomy of a patient who has pelvic inflammatory disease. The witness stated there were acute stages and chronic stages of the disease. An acute stage would be manifested by an elevated white blood cell count to as much as 20,000 to 25,000, and possibly an elevated temperature. If possible, the witness stated, surgery is ordinarily not performed at that time. It is best to treat the patient with antibiotics until the condition is in the chronic or “smoldering” state. Surgery is preferable at that time. The witness stated that normally the white blood cell count is from 5,000 to 10,000. Plaintiff’s attorney then asked the witness whether absent an emergency situation a hysterectomy should be performed during a stage when the infection is acute. The doctor responded:

“That is a judgment decision. *** The judgment must be made, basically, by the surgeon at the time of the surgical procedure. It is not always possible to tell what’s in an abdomen from the outside until one is actually looking inside the abdomen at the time the surgery is done.”

On cross-examination, the witness stated that the laboratory at his hospital considers as a normal range of white blood cell count from 5,000 to 10,000, whereas, some laboratories use the outer limits of the normal range of from 5,000 to 11,000 or 12,000. He also stated that the acute stage would be accompanied by a fever and acute pain.

Dr. Steward testified that at the time he performed surgery on plaintiff, she did not have an acute infection. He had been treating her conservatively with antibiotics for the infection since November 1971. The infection would flare up, that is, become acute, and then subside. She had been hospitalized in June 1972 with severe abdominal pain and treated with antibiotics. Her white blood cell count was about 25,000. On July 6, 1972, she was released from the hospital but continued to take antibiotics. On July 31, 1972, he saw the plaintiff. At that time her temperature was normal and he scheduled surgery for August 3, 1972. On August 2 her white blood cell count was taken and it was only 10,900. He stated that in this hospital laboratory the normal limits were considered to be 7,000 to 11,000. He also stated that the normal limits varied, depending upon the techniques that the laboratory uses. He considered her blood count, at that time, to be within normal limits, so he proceeded with the surgery as scheduled.

In light of all this evidence, the alleged statement by the defendant to the plaintiff’s husband that he “went in a little too soon” is no evidence that the defendant did not conform to accepted medical procedures. Thus, the plaintiff has failed to prove any of the facets of the Clark v. Gibbons test that the occurrence rarely happens if due care is exercised, that the defendant committed a specific act of negligence of a type which could have caused the injury, and that the procedure was commonplace rather than a complex surgery. Under the holding of the California cases previously cited, conditional res ipsa loquitur did not apply. The essence of medical malpractice is a violation of the prevailing standard of care. (2 J. Dooley, Modern Tort Law sec. 34.12 (1977).) Even assuming the defendant “went in a little too soon,” and that this was the cause of the fistula, this is not proof of a specific act of negligence. Dr. Wilson, the plaintiff’s expert, testified that it is a judgment decision which must be made by the surgeon and that it is not always possible to tell what is in an abdomen from the outside. The plaintiff’s white blood cell count was within normal range and her temperature was normal. There was no indication that her infection was in an acute stage.

The majority opinion does not refer to another California case which is factually very similar to ours. In Siverson v. Weber (1962), 57 Cal. 2d 834, 372 P.2d 97, 22 Cal. Rptr. 337, plaintiff brought an action against the defendant doctor, alleging malpractice in the performance of a hysterectomy. Several days after the surgery, plaintiff developed a fistula with complications quite similar to the plaintiff’s in our case. The plaintiff testified that the defendant had said to her, “I must have put a suture through the flap of the bladder there which caused the fistula.” (57 Cal. 2d 834, 837, 372 P.2d 97, 98, 22 Cal. Rptr. 337, 338.) The California Supreme Court held that the doctrine of res ipsa loquitur did not apply. The court stated that no witness testified that in the rare cases where fistulas occur they are more probably than not the result of negligence. The court also held that the defendant’s statement to the plaintiff that he must have put a suture through the flap of the bladder which caused the fistula cannot properly be regarded as showing probability of negligence. Clark v. Gibbons distinguished Siverson by noting that in Siverson there was no evidence of a negligent act of the type that could have caused the accident, and that none of the witnesses testified that anything was done during the operation which was contrary to good medical practice. These are facts which also distinguish our case from Clark v. Gibbons. Siverson would therefore appear to be the more appropriate precedent.

It has been noted that plaintiffs rarely lose res ipsa loquitur cases at the jury’s hands. (James, Proof of the Breach in Negligence Cases (Including Res Ipsa Loquitur), 37 Va. L. Rev. 179, 219 (1951).) Professor James states:

“In most of these cases the only serious obstacle to plaintiff’s recovery is the possibility that he may not make out a res ipsa case in the first place.” (James, Proof of the Breach in Negligence Cases (Including Res Ipsa Loquitur), 37 Va. L. Rev. 179, 225.)

(See also Prosser, Torts sec. 40, at 231 (4th ed. 1971); Rubsamen, Res Ipsa Loquitur in California Medical Malpractice Law — Expansion of a Doctrine to the Bursting Point, 14 Stan. L. Rev. 251, 256 (1962).) Mr. Justice Tobriner, in his concurrence in Clark v. Gibbons, also noted that the holding in that case permitted the jury to speculate and would result in many doctors who had performed no negligent acts being found guilty of malpractice. If such is the possibility under the ordinary res ipsa loquitur doctrine, or under the expanded doctrine of Clark v. Gibbons, to what greater extent will this be true under the holding of the majority in this case? If, as stated by Professor James, the only serious obstacle to a plaintiff’s recovery under res ipsa loquitur is getting the case to the jury, then the majority opinion in our case has virtually created a strict liability in malpractice cases under the guise of res ipsa loquitur. Now, given only a scintilla of evidence, the jury is permitted to speculate that the basis for drawing the inference of negligence exists.

To impose liability for fault, when in a vast number of cases where liability is imposed there is no fault, seems to me to be intellectually dishonest. It is demeaning to the law, to the legal profession, and to the judicial process because it will appear to the public in general, and to the members of the health care professions in particular, that the legal profession and the courts are playing games with what has come to be a meaningless Latin phrase for the purpose of permitting an injured party to recover on the basis of fault when there is in fact no fault involved.

There is no just reason to stigmatize a doctor and damage his professional reputation when he may have conformed to all accepted professional standards. Mr. Justice Tobriner, in his concurrence in Clark v. Gibbons, observed: “[N] o technique yet devised can protect a doctor from the devestating impact which an adjudication of malpractice can have upon his professional standing.” (Clark v. Gibbons (1967), 66 Cal. 2d 399, 418, 426 P.2d 525, 538, 58 Cal. Rptr. 125, 138.) In Siverson v. Weber the court found that to permit inferences of negligence under the doctrine of res ipsa loquitur solely because an uncommon complication develops would place too great a burden upon the medical profession and might result in an undesirable limitation on the use of operations or new procedures involving an inherent risk of injury even when due care is used. Any system which diverts the doctor’s attention from the operating room to the courtroom leaves much to be desired. Clark v. Gibbons (1967), 66 Cal. 2d 399, 418, 426 P.2d 525, 538, 58 Cal. Rptr. 125, 138 (Tobriner, J., concurring).

If public policy requires that financial responsibility be placed upon the doctor for rare complications on the assumption that in that manner the risk of loss can be better spread to the public at large, I suggest that we be truthful with ourselves and with the public and not continue to attempt to do so through the largely fictitious search for fault. I have heretofore expressed my dissatisfaction with the attempt to expand the concept of fault in another area of tort law to cover those injured in a manner outside the traditional fault concept. (See Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 381 (Ryan, J., dissenting).) Here again, I urge that if it is the public policy of this State that injured persons should recover for complications regardless of the fault of the doctor, then a no-fault procedure should be established to cover the unfortunate individuals who cannot recover within the traditional fault doctrine. I suggest that the fault concept be preserved for those who are truely injured through the doctor’s malpractice. This will protect the doctor from being unjustly stigmatized; it will relieve him of the heavy burden of balancing medical against legal consequences, and it should enhance the prestige of the legal profession and the courts by demonstrating to the public that the judicial process is in reality and not in name only “seeking after the truth.” I seriously invite the legislature of this State to give consideration to this suggestion.

I concur in the majority’s affirmance as to the negligence counts.

MR. JUSTICE UNDERWOOD joins in this partial concurrence and partial dissent.


source: Caselaw Access Project

author: MR. JUSTICE CLARK MR. JUSTICE MORAN,

license: Public Domain

text:
    (No. 50745.
    ROBERT E. WOODILL et al., Indiv. and as parents and next friends of Eric Woodill, a Minor, Appellants, v. PARKE DAVIS & CO. et al., Appellees.

      Opinion filed February 22, 1980.

    Rehearing denied March 28, 1980.

      MORAN, J., GOLDENHERSH, C.J., and WARD, J., concurring in part and dissenting in part.
    John D. Hayes & Associates, Ltd., of Chicago (John J. Lowrey and John D. Hayes, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and John D. Cassiday, of counsel), for appellee Parke Davis & Co.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The parents of a minor child brought this action to recover damages for injuries suffered by the child during the fetal stage, the injuries having allegedly been caused by a drug, administered to the mother during delivery of the child. In the first three counts, Parke Davis & Co., the manufacturer of the drug in question, was named as defendant. Counts I and II, sounding in strict liability in tort, sought, respectively, recovery on behalf of the child for his injuries and recovery for plaintiffs’ mental anguish and distress. Count III sought the same recovery as count I, but was based on breach of warranty. Defendant’s motion to dismiss all three counts was granted by the circuit court of Cook County. The appellate court affirmed that portion of the order which dismissed counts I and II and reversed that portion of the order which dismissed count III. (58 Ill. App. 3d 349.) We granted plaintiffs leave to appeal.

The facts as stated by plaintiffs’ first amended complaint are accepted as true for purposes of this appeal (Court v. Grzelinski (1978), 72 Ill. 2d 141, 146; Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 460; Gertz v. Campbell (1973), 55 Ill. 2d 84, 87), and are, substantially, as follows.

Ellen Woodill, the minor child’s mother, entered Central Du Page Hospital as an obstetrical patient on or about November 22, 1973, at a time when the fetus was in high station. Pursuant to her physician’s order for the inducement of uterine contractions, she was infused intravenously with the prescription drug, Pitocin. The product information disseminated to the medical profession by the defendant did not contraindicate the use of Pitocin for this purpose. On or about the same date, the child, delivered by the vaginal route, was born with brain damage, permanent blindness and quadriplegia. The complaint alleges that the use of Pitocin was the proximate cause of the child’s injuries, and, with regard to the counts sounding in strict liability in tort, that defendant’s failure to warn physicians and patients of the danger in using Pitocin while a fetus is in high station rendered the drug “not reasonably safe.”

The issue of primary concern in this appeal is whether, in an action seeking to hold a defendant strictly liable for failure to warn of a danger attendant to the use of a product, the plaintiff must allege and prove that the defendant knew or should have known of the danger.

It is well recognized that a failure to warn of a product’s dangerous propensities may serve as the basis for holding a manufacturer or seller strictly liable in tort. (Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 551; see Annot., 53 A.L.R.3d 239 (1973); Noel, Products De fective Because of Inadequate Directions or Warnings, 23 Sw. L.J. 256 (1969).) The product is in a “defective condition unreasonably dangerous” (Restatement (Second) of Torts, sec. 402A (1965)), not because of some defect inherent in the product itself, but because of the absence of an adequate warning accompanying the product.

The plaintiffs particularly rely upon Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, to support their position that the defendant may be held strictly liable for failure to warn, even absent knowledge or reason to know of the danger. In Lawson, the plaintiffs sued, under strict tort liability, to recover damages for death and injuries allegedly resulting from the use of defendant’s contraceptive drug. This court upheld jury verdicts in favor of the defendant. It is true, as plaintiffs point out, that the jury instructions on the theory of strict liability which the court quoted with approval (64 Ill. 2d 543, 547) did not contain any requirement that the defendant have knowledge or reason to know of the danger before it could be held liable for failure to warn. The warning-related issue decided by the court, however, was not whether the defendant was required to issue a warning absent knowledge or reason to know of the danger, but whether a warning was, in fact, given and whether it was, in fact, sufficient. The court held simply that there was sufficient evidence from which the jury could have decided these two questions in defendant’s favor. (64 Ill. 2d 543, 553.) Inasmuch as the court was not confronted with the knowledge issue, the case is not dispositive of that issue.

In Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, this court joined the growing trend of decisions to remove the last vestiges of the privity requirement in products liability actions. The court further expressed its agreement with the view that liability in such cases is governed by the law of strict liability in tort, and not by the law of contract warranties. (32 Ill. 2d 612, 621.) The arguments advanced to support the imposition of strict liability in food cases were cited by the Suvada court as reasons for extending strict liability to products other than food. These arguments include the public interest in human life and health, the manufacturer’s invitations and solicitations to use the product, its representations that the product is safe and suitable for use, and the justice of imposing the loss on the one creating the risk and reaping the profit. (32 Ill. 2d 612, 619.) If, as the court thought then, the foregoing arguments justified extending strict liability beyond food to a used reconditioned tractor, the product involved in Suvada, certainly they justify the application of strict liability to drugs.

In Suvada the court set forth the elements of an action sounding in strict liability in tort.

“The plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.” 32 Ill. 2d 612, 623.

Also, in connection therewith, the court quoted with approval section 402A of the Restatement (Second) of Torts (1965), which provides:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of the product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.” 32 Ill. 2d 612, 621.

In support of the decision of the appellate court, the defendant argues that comment j of this section requires that a manufacturer have knowledge or reason to know of the danger before it can be held liable for failure to warn. Comment j provides, in pertinent part:

“Directions or warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. Likewise in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use may be required.” (Restatement (Second) of Torts sec. 402A comment j (1965).)

Specifically, defendant points to the language in the comment which provides that the seller is required to give warning if “he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge,” of the danger. The plaintiffs argue, however, that to predicate the defendant’s liability for failure to warn upon whether he knew or should have known of the danger is to revert to a negligence standard. The plaintiffs aver that the inquiry would then focus on the conduct of the manufacturer defendant rather than on the unreasonably dangerous condition of the product created by the failure to warn. There are decisions from other jurisdictions which support the plaintiffs’ averment: Little v. PPG Industries, Inc. (1978), 19 Wash. App. 812, 579 P.2d 940, aff'd as modified (1979), 92 Wash. 2d 118, 594 P.2d 911; Hamilton v. Hardy (1976), 37 Colo. App. 375, 549 P.2d 1099; Haugen v. Minnesota Mining & Manufacturing Co. (1976), 15 Wash. App. 379, 550 P.2d 71; Berkebile v. Brantly Helicopter Corp. (1975), 462 Pa. 83, 337 A.2d 893. These decisions hold that failure to warn in strict liability, as opposed to negligence, imposes liability upon the defendant regardless of whether the manufacturer’s conduct was reasonable (e.g., Little v. PPG Industries, Inc. (1978), 19 Wash. App. 812, 822, 579 P.2d 940, 947). Rather, knowledge of the danger is assumed under strict liability. Berkebile v. Brantly Helicopter Corp. (1975), 462 Pa. 83, 101, 337 A.2d 893, 902.

On the other hand, a line of decisions, including several in our own appellate court, have stated that knowledge is an essential element in a failure-to-warn case. Mahr v. G.D. Searle & Co. (1972), 72 Ill. App. 3d 540; Knapp v. Hertz Corp. (1978), 59 Ill. App. 3d 241, 246; Peterson v. B/W Controls, Inc. (1977), 50 Ill. App. 3d 1026, 1029; Neal v. Whirl Air Flow Corp. (1976), 43 Ill. App. 3d 266, 272; Stanfield v. Medalist Industries, Inc. (1975), 34 Ill. App. 3d 635, 639; Bristol-Myers Co. v. Gonzales (Tex. 1978), 561 S.W.2d 801, 804; Nissen Trampoline Co. v. Terre Haute First National Bank (Ind. App. 1975), 332 N.E.2d 820, rev’d on other grounds (1976), 265 Ind. 457, 358 N.E.2d 974; Singer v. Sterling Drug, Inc. (7th Cir. 1972), 461 F.2d 288; Oakes v. E. I. DuPont de Nemours & Co. (1969), 272 Cal. App. 2d 645, 650, 77 Cal. Rptr. 709, 713; Phillips v. Kimwood Machine Co. (1974), 269 Or. 485, 498, 525 P.2d 1033, 1039.

We think that the imposition of a knowledge requirement is a proper limitation to place on a manufacturer’s strict liability in tort predicated upon a failure to warn of a danger inherent in a product. We do not agree with the plaintiffs that to require knowledge to be alleged and proved is to infuse negligence principles into strict liability. Indeed, liability based upon a failure to warn adequately of dangers (Restatement (Second) of Torts sec. 402A, comment j (1965)) is itself a doctrine borrowed from negligence. (See Kirby v. General Paving Co. (1967), 86 Ill. App. 2d 453, 457.) Yet the failure-to-warn theory in strict liability has been upheld as a distinguishable doctrine from its counterpart in negligence, based on the fact that it is the inadequacy of the warning that is looked to, rather than the conduct of the particular manufacturer, to establish strict liability. (Little v. PPG Industries, Inc. (1979), 92 Wash. 2d 118, 121-23, 594 P.2d 911, 914.) In a concurring opinion in Little it is stated:

“Dean W. Page Keeton has articulated the applicable standard in the following manner:
a product is unreasonably dangerous at the time of sale if the ordinary man, knowing the risks and dangers actually involved in its use, would not have marketed the product without supplying more information about the risks and dangers involved in its use and ways to avoid harm therefrom.
Keeton, Products Liability — Inadequacy of Information. 48 Tex. L. Rev. 398, 403-04 (1970).” (Emphasis added.) (92 Wash. 2d 118, 127, 594 P.2d 911, 916.)

The opinion continues that, while reasonableness is implicit in the foregoing standard, it is an objective standard and is not to be read to mean whether the particular manufacturer or supplier was reasonable in the circumstances. (92 Wash. 2d 118, 127-28, 594 P.2d 911, 917.) The proper inquiry is whether it would have been reasonable for a drug manufacturer to have given a warning and whether that warning would have been adequate under similar circumstances. Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 562.

In a similar vein, a recent opinion in this court clarified this same point with regard to a case sounding in strict liability based on the defective design of a liquified-petroleum-gas tank car:

“Any misapprehension that negligence is the standard of liability stems only from the injection of a ‘reasonableness’ element in determining whether a defective condition is unreasonably dangerous. As Prosser states, a strict liability design case resembles a negligence action because the reasonableness of the manufacturer’s design choice is a key issue (Prosser, Torts sec. 96, at 644-45 (4th ed. 1971)). Despite the resemblance, however, the elements of the plaintiff’s proof remain those of an action in strict liability.” Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 439.

We perceive that requiring a plaintiff to plead and prove that the defendant manufacturer knew or should have known of the danger that caused the injury, and that the defendant manufacturer failed to warn plaintiff of that danger, is a reasonable requirement, and one which focuses on the nature of the product and on the adequacy of the warning, rather than on the conduct of the manufacturer. The inquiry becomes whether the manufacturer, because of the “present state of human knowledge” (Restatement (Second) of Torts sec. 402A, comment k (1965)), knew or should have known of the danger presented by the use or consumption of a product. Once it is established that knowledge existed in the industry of the dangerous propensity of the manufacturer’s product, then the plaintiff must establish that the defendant did not warn, in an adequate manner, of the danger. Such a rule is entirely consistent with the principles of strict liability, as first recognized and adopted as applicable to all products in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612.

We emphasize that we do not view our holding that knowledge is an element of a failure-to-warn case to be a weakening of the statement in Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443. There it was stated in refutation of the defendant’s assertion that there was no way to detect serum hepatitis virus in whole blood that “[t] o allow a defense to strict liability on the ground that there is no way, either practical or theoretical, for a defendant to ascertain the existence of impurities in his product would be to emasculate the doctrine and in a very real sense would signal a return to a negligence theory.” (47 Ill. 2d 443, 453.) (Currently, an act is in effect which provides that the only bases for liability for the tortious injecting, transfusing or transplanting of human whole blood, blood products, and human bones, organs and tissue are in instances of negligence or willful misconduct. (Ill. Rev. Stat. 1977, ch. 91, par. 181.) However, that act is to be repealed effective July 1, 1981. (Ill. Rev. Stat. 1977, ch. 91, par. 184.)) Later in Cunningham, we distinguished between strict liability based on a defect in a product, such as was involved therein, and where, as here, a warning may be required because a product is unavoidably unsafe. We referred to the “exception” created by comment k to section 402A of the Restatement (Second) of Torts:

“ ‘k. Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified ***. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. ***’ [Emphasis in original.] We believe it clear that the exception set forth in the quoted comment relates only to products which are not impure and which, even if properly prepared, inherently involve substantial risk of injury to the user.” 47 Ill. 2d 443, 456.

Therefore, the pleading requirement that a manufacturer know or should know of the dangerous propensity of the product is limited to complaints which allege a breach of the duty to warn adequately. Whether it is necessary to allege knowledge where liability is predicated on the defective design of the product is not before us.

We believe our holding in this case is justified because a logical limit must be placed on the scope of a manufacturer’s liability under a strict liability theory. To hold a manufacturer liable for failure to warn of a danger of which it would be impossible to know based on the present state of human knowledge would make the manufacturer the virtual insurer of the product, a position rejected by this court in Suvada. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 11.) Strict liability is not the equivalent of absolute liability. There are restrictions imposed upon it. For example, we have previously held that where an injury is not foreseeable, that is, objectively predictable, no liability will ensue based on strict liability. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 12-13.) Also, where the plaintiff knows of the risk of injury presented by the use of a dangerously defective product but assumes the risk nonetheless, the manufacturer is absolved from liability. Court v. Grzelinski (1978), 72 Ill. 2d 141, 149; Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 430.

This court is acutely aware of the social desirability of encouraging the research and development of beneficial drugs.- We are equally aware that risks, often grave, may accompany the introduction of these drugs into the marketplace. We simply think, however, in accordance with comments j and k of section 402A of the Restatement (Second) of Torts, that where liability is framed by the manufacturer’s duty to warn adequately of dangers which may arise from the use of a drug, that liability should be based on there being some manner in which to know of the danger. Otherwise the warning itself, which is the focus of the liability, would be a meaningless exercise.

Since we are enunciating the requirement that knowledge must be alleged in a complaint for the first time in this opinion, substantial justice would seem to require that the plaintiffs be given an opportunity to amend their complaint to comply with this decision. We therefore affirm the appellate court as to count I and remand to the circuit court with directions to give the plaintiffs reasonable time to amend count I of their complaint.

The appellate court concluded, as an alternative ground for holding that count II failed to state a cause of action, that strict liability should not be extended to include recovery for the plaintiffs’ emotional distress and mental anguish. (58 Ill. App. 3d 349, 355.) We agree, and we adopt the decision of the appellate court on this point.

We also adopt that portion of the court’s opinion which held that count III of plaintiffs’ complaint stated a cause of action for breach of warranty. 58 Ill. App. 3d 349, 355-56. See Berry v. G.D. Searle & Co. (1974), 56 Ill. 2d 548, 554.

For the foregoing reasons, the judgment of the appellate court is affirmed as to counts I, II and III, and this cause is remanded to the circuit court of Cook County with directions.

Judgment affirmed; cause remanded, with directions.

MR. JUSTICE MORAN,

concurring in part and dissenting in part:

I concur in the majority’s judgment with respect to counts II and III. However, I dissent from that portion of the majority opinion which limits a manufacturer’s liability under strict liability in tort for failure to warn of a danger inherent in its product to situations in which the manufacturer knows or has reason to know of the danger. The majority opinion sets forth the applicable section of the Restatement, section 402A of the Restatement (Second) of Torts (1965), but then focuses on language appearing in a comment to that section. The comment provides that a seller is required to give warning if “he has knowledge, or by application of reasonable, developed human skill and foresight should have knowledge” of the danger. (Restatement (Second) of Torts sec. 402A, comment j (1965).) In focusing upon this language, the majority ignores the rule, set forth in the body of the section, that the seller is liable even though “the seller has exercised all possible care in the preparation and sale of his product ***.” (Restatement (Second) of Torts sec. 402A(2)(a) (1965).) The quoted language from the comment directly conflicts with the rule itself, and, in my view, should not control. (Accord, Little v. PPG Industries, Inc. (1978), 19 Wash. App. 812, 822, 579 P.2d 940, 946, aff’d as modified (1979), 92 Wash. 2d 118, 594 P.2d 911; Noel, Products Defective Because of Inadequate Directions or Warnings, 23 Sw. L.J. 256, 268, 297 (1969).) Moreover, section 388 of the Restatement, which governs a supplier’s duty to warn under negligence principles (Dougherty v. Hooker Chemical Corp. (3d Cir. 1976), 540 F.2d 174, 177-78; Martinez v. Dixie Carriers, Inc.. (5th Cir. 1976), 529 F.2d 457, 464-65), expressly conditions liability upon the supplier’s knowledge or reason to know of the danger. (Restatement (Second) of Torts sec. 388 (1965).) Thus, in requiring knowledge, the majority is ruling that defendant’s liability is to be determined under a negligence standard, despite its pronouncements to the contrary.

In strict liability actions, the focus is on the condition of the product and not on the conduct of the manufacturer or seller. This is the feature which primarily distinguishes strict liability from negligence.

“In strict liability it is of no moment what defendant ‘had reason to believe.’ Liability arises from ‘sell[ing] any product in a defective condition unreasonably dangerous to the user or consumer.’ It is the unreasonableness of the condition of the product, not of the conduct of the defendant, that creates liability.” Dougherty v. Hooker Chemical Corp. (3d Cir. 1976), 540 F.2d 174, 177, quoting Jackson v. Coast Paint & Lacquer Co. (9th Cir. 1974), 499 F.2d 809, 812.

The majority cites several decisions which assertedly stand for the proposition that knowledge is an essential element in a failure-to-warn case. Of the cases cited which contain language supporting this proposition, however, only Oakes v. E.I. DuPont de Nemours & Co. (1969), 272 Cal. App. 2d 645, 77 Cal. Rptr. 709, squarely faced the issue. (The holdings in the remaining cases were not dependent upon the issue’s resolution.) It is noteworthy that the California Supreme Court has cast doubt on the vitality of Oakes, an appellate court opinion, in Cronin v. J.B.E. Olson Corp. (1972), 8 Cal. 3d 121, 501 P.2d 1153, 104 Cal. Rptr. 433 (see Midgley v. S.S. Kresge Co. (1976), 55 Cal. App. 3d 67, 73, 127 Cal. Rptr. 217, 220-21), and, more recently, in Barker v. Lull Engineering Co. (1978), 20 Cal. 3d 413, 573 P.2d 443, 143 Cal. Rptr. 225. Finally, the last case which the majority cites, Phillips v. Kimwood Machine Co. (1974), 269 Or. 485, 525 P.2d 1033, is precisely contrary to the majority’s stance, as pointed out below.

The majority quotes the standard propounded by Dean Keeton for application in failure-to-warn cases. Instead of supporting the majority’s position, however, Dean Keeton’s formulation, which does not condition liability upon the defendant’s knowledge or reason to know of the danger, does just the opposite. This is evident upon reading Dean Keeton’s general proposition, applicable in any case to determine whether a product is unreasonably dangerous, which appears in the article directly following the standard referred to by the majority:

“ [I] f the sale of the product under all the circumstances under which it was marketed subjected the consumer or others to an unreasonable risk of harm, the seller is subject to liability, and it is not relevant that he neither knew nor could have known nor ought to have known in the exercise of ordinary care that the unreasonable risk actually existed. It is enough that had he known of the risk and dangers he would not have marketed the product at all or he would have done so differently.” (Keeton, Products Liability— Inadequacy of Information, 48 Tex. L. Rev. 398, 404 (1970).)

This formulation thus removes any question of whether the defendant knew or should have known about the extent of the dangers resulting from the use of the product. Similarly, according to Professor Wade, the essential difference between negligence and strict liability is that, in the latter, it is not necessary for the plaintiff to prove either that the defendant negligently created the unsafe condition of the product or that he was aware of it. Wade, Strict Tort Liability of Manufacturers, 19 Sw. L.J. 5, 25 (1965).

The Oregon Supreme Court, in Phillips v. Kimwood Machine Co. (1974), 269 Or. 485, 525 P.2d 1033, recognized and approved the distinction between strict liability and negligence in the context of the same issue as that involved here. In expressly overruling a prior case which had concluded that there was no difference between negligence and strict liability for a product that was unreasonably dangerous for failure to warn of certain characteristics, the court stated:

“The article can have a degree of dangerousness because of a lack of warning which the law of strict liability will not tolerate even though the actions of the seller were entirely reasonable in selling the article without a warning considering what he knew or should have known at the time he sold it.” (269 Or. 485, 498, 525 P.2d 1033, 1039.)

(See Robbins v. Farmers Union Grain Terminal Association (8th Cir. 1977), 552 F.2d 788, 794-95 n.15; Hamilton v. Hardy (1976), 37 Colo. App. 375, 384, 549 P.2d 1099, 1107.) The same attitude is expressed in Little v. PPG Industries, Inc. (1978), 19 Wash. App. 812, 820-22, 579 P.2d 940, 945-47, aff’d as modified (1979), 92 Wash. 2d 118, 594 P.2d 911.

Mindful lest negligence concepts creep back into the law of strict tort liability, the California Supreme Court has gone so far as to purge the “unreasonably dangerous” factor from the list of essential elements which a plaintiff must prove. (Cronin v. J.B.E. Olson Corp. (1972), 8 Cal. 3d 121, 131-35, 501 P.2d 1153, 1161-63, 104 Cal. Rptr. 433, 441-43, followed in Barker v. Lull Engineering Co. (1978), 20 Cal. 3d 413, 417-18, 573 P.2d 443, 446, 143 Cal. Rptr. 225, 228.) Similarly recognizing the threatened dilution of the strict tort liability concept, the Pennsylvania Supreme Court, in a lead opinion, stated that when a plaintiff proved there was a defect in the product and that the defect caused his injury, he will have proved the product unreasonably dangerous. Berkebile v. Brantly Helicopter Corp. (1975), 462 Pa. 83, 96-97, 337 A.2d 893, 899-900; cf. Azzarello v. Black Brothers (1978), 480 Pa. 547, 558, 391 A.2d 1020, 1026 (jury instruction should not contain the term “unreasonably dangerous”).

The majority maintains'that the focus is on the nature of the product and the adequacy of the warning, rather than on the conduct of the manufacturer, and analogizes to the court’s recent opinion in Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, a case in which Mr. Justice Ward and I joined in the dissent of the chief justice. Rucker was a design-defect case brought under strict liability in tort. There, a majority of the court held that evidence that the manufacturer complied with Federal regulations in designing its product, even though a safer alternative design was technologically feasible, is relevant in determining whether the product was in a defective, unreasonably dangerous condition. The dissent in that case was prompted, as here, by the majority’s obfuscation of the distinction between negligence and strict liability. I agree that if the plaintiff’s complaint in Rucker had sounded in negligence, the defendant properly could have introduced evidence that it had complied with Federal regulations in designing its product. Even under a negligence theory, however, a manufacturer or seller is not immunized from liability because it has complied with governmental requirements for the manufacture and sale of its product. (See Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 381-82; Burch v. Amsterdam Corp. (D.C. App. 1976), 366 A.2d 1079, 1085-86, and authorities cited at nn. 17 & 19.) But when the theory of recovery is strict liability, evidence of the defendant’s due care in complying with governmental requirements is irrelevant and has no place in the litigation. Similarly, the majority opinion in the instant case will open the door to allowing evidence of the defendant’s use of due care in its testing procedures. This is directly at odds with the basic notion of strict liability, which permits the injured plaintiff to recover without the burden of proving negligence.

The majority’s assertion that removal of the knowledge element would make the manufacturer the virtual insurer of the product is an overstatement. In my view, the manufacturer is not made an insurer when it is held answerable for injuries to someone for whom its product is intended, who uses it in the manner in which it was intended to be used, and whose injuries were proximately caused by an inherent danger in the product of which the user was unaware. The majority confesses to an awareness that risks, often grave, may accompany the introduction of beneficial drugs into the marketplace. To me, this suggests a greater need for protecting the unsuspecting and unprotected consumer, and for making recovery under strict liability available to him in fact, and not just in theory.

The majority further expresses concern that, if the knowledge element is eliminated, the warning itself would be a meaningless exercise. This does not necessarily follow. The manufacturer’s warnings and directions for the use of its product operate to establish the product’s intended uses and, by the same token, operate to prevent unintended uses, many of which may be dangerous. When the use of the product causes injury, the warnings and directions often assume relevancy in determining the manufacturer’s liability. Whether such warnings and directions are adequate to allow the manufacturer to avoid liability is ordinarily a question for the finder of fact, and must be dealt with on a case-by-case basis. Thus, it cannot be stated here what, if anything, the manufacturer could place on its product label or elsewhere to absolve itself from liability for harm caused by a danger inherent in its product in a situation in which the manufacturer had no knowledge of the danger. The manufacturer could, however, disclose under what circumstances its product has been found to be safe. Elimination of the knowledge element does not, in my opinion, necessarily foreclose the possibility that such a disclosure might enable the manufacturer to avoid liability.

In summary, to condition plaintiff’s recovery under strict liability on his pleading and proving that defendant knew or had reason to know of the danger is to inject elements of negligence into plaintiff’s cause of action. Unlike negligence, the elements of a strict product liability action generally do not include knowledge or culpable fault. Consequently, inasmuch as the plaintiff is not required to plead and prove knowledge of the danger in manufacturing-defect or design-defect cases, no greater requirement should be imposed on plaintiffs in cases in which the defect is the lack of warning.

GOLDENHERSH, C.J., and WARD, J., join in this partial concurrence and partial dissent.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 51411.
    WILSON-RAYMOND CONSTRUCTORS COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al., (Helen Lyskawa, Appellee).

      Opinion filed February 1, 1980.

    Modified on denial of rehearing March 28, 1980.

      Burgeson, Laughlin, Cunningham & Smith, of Chicago (John E. Cunningham and Andrew Marzal, of counsel), for appellant.
    J. Michael Madda & John E. Flavin, of Chicago (Charles Wolff, of counsel), for appellee Helen Lyskawa.

      Sweeney & Riman, Ltd., of Chicago, for appellees Chicago White Sox and Home Insurance Company.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

This action was originally brought by Edwin Lyskawa under the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1 et seq.) to recover benefits for injuries sustained by him on September 3, 1971. The cause is brought to this court under Rule 302(a) (73 Ill. 2d R. 302(a)) from a decision of the circuit court of Cook County confirming an award.

Edwin Lyskawa was hired by respondent, Wilson-Raymond Constructors Company, in approximately 1960 as a carpenter. He was assigned to work at various locations and eventually settled at White Sox Park, where, in approximately 1962, he became foreman of a four- or five-man crew composed of individuals who had also been hired by Wilson-Raymond and assigned to White Sox Park.

On September 3, 1971, Lyskawa was asked by a White Sox executive to remove a road sign from the nearby Dan Ryan Expressway. In attempting to remove the sign, approximately 14 feet above the ground, Lyskawa fell, breaking his left leg. In this instance, as always, Lyskawa received his work instructions from the White Sox.

On August 23, 1972, Lyskawa filed a claim with the Industrial Commission, specifying Wilson-Raymond as his employer. On December 9, 1974, an arbitrator entered an award of $79 per week for 26 weeks for temporary total disability and $63 per week for 160 weeks for the 80% loss of use of Lyskawa’s left leg. That part of the award which relates to temporary disability has been paid, as have medical, surgical and hospital expenses.

Following the arbitrator’s award, Wilson-Raymond filed a petition for review and a third-party action against the White Sox and its workmen’s compensation insurer, Home Insurance Company. The White Sox and Home Insurance thereafter filed a special appearance and moved to dismiss the third-party action.

On August 19, 1975, pending review before the Commission, Lyskawa died from an unrelated cause. His widow, Helen, subsequently filed a motion to substitute herself for her husband as claimant. The White Sox and Home Insurance filed objections to the motion to substitute, arguing that the proceedings abated by reason of Lyskawa’s death and citing the provisions of the Workmen’s Compensation Act relating to abatement as they existed at the time of Lyskawa’s injury on September 3, 1971 (see Ill. Rev. Stat. 1971, ch. 48, par. 138.8(e)(19)).

On March 14, 1977, the Commission rendered a decision affirming the arbitrator’s award, dismissing the third-party action of Wilson-Raymond, allowing Helen Lyskawa’s motion to substitute, and, by necessary implication, rejecting the argument of the White Sox and Home Insurance that the action had abated. On March 30, 1977, Wilson-Raymond filed a petition to recall the decision of the Commission, contending that the Commission had violated an agreement to reserve its ruling on the validity of the arbitrator’s award pending presentation of further evidence by Wilson-Raymond. Five days later, on April 4, 1977, and before obtaining a ruling on its petition to recall, Wilson-Raymond filed a petition for writ of certiorari in the circuit court of Cook County. On September 28, 1977, the Commission denied Wilson-Raymond’s petition to recall.

On August 22, 1978, claimant filed in the circuit court a motion to dismiss for lack of jurisdiction, contending that Wilson-Raymond’s filing of its petition for writ of certiorari on April 4, 1977, was premature since the Commission had not yet ruled on Wilson-Raymond’s petition for recall at that time. The circuit court denied the motion to dismiss that same day, August 22, 1978. One week later, on August 29, 1978, the circuit court confirmed the Commission’s decision affirming the arbitrator’s award. This appeal followed. We hold that the Commission erred in declining to rule that Lyskawa’s death caused the action to abate. It was therefore improper to allow his widow’s motion to substitute.

The law in effect at the time of Lyskawa’s injury, September 3, 1971, provided:

“In a case of specific loss other than by amputation under the provisions of this paragraph the amount of which loss has been determined under the provisions of this Act, or in a case of specific loss by amputation under the provisions of this paragraph, and the subsequent death of such injured employee from other causes than such injury leaving a widow or lineal dependents or both surviving before payment in full for such injury, then the balance remaining due for such injury is payable to such dependents, in the proportion which such dependency bears to total dependency.” (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(e)(19).)

Cases interpreting the language of the provision hold that a claim for compensation for specific loss abates and that substitution is improper where, as here, the claimant dies from an unrelated cause after an arbitrator enters an award but before the Commission rules on the employer’s petition for review. (Wm. J. Burns International Detective Agency v. Industrial Com. (1966), 36 Ill. 2d 225, 226-27; Pullman-Standard Car Manufacturing Co. v. Industrial Com. (1947), 396 Ill. 386, 387; Neumann v. Industrial Com. (1947), 396 Ill. 224, 229-30.) The reasoning of these cases is that no loss “has been determined” within the meaning of the statute unless the Commission itself, rather than an arbitrator, has rendered a decision specifying its finding on the issue of the amount of loss or unless the matter has become finalized in some other way as, for example, by settlement or failure of the employer to seek review of the arbitrator’s award by the Commission.

Helen Lyskawa argues that the applicable law, insofar as the abatement and substitution issues are concerned, is the law as amended in 1972 and 1975 rather than the law in effect at the time of the injury. The 1972 amendment changed the statute in such a way as to allow substitution if the Commission or an arbitrator determined the amount of specific loss (Pub. Act 77 — 1871, 1972 Ill. Laws 148, 163; Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e)(19)), and the 1975 amendment removed any requirement that specific loss be determined before substitution would be allowed (Pub. Act 79 — 79, 1975 Ill. Laws 224, 257; Ill. Rev. Stat. 1975, ch. 48, par. 138.8(e)(19)). Mrs. Lyskawa contends that these amendments merely effectuate changes in procedure rather than substantive rights and that they may therefore be applied retroactively. We disagree.

As a general rule, workmen’s compensation proceedings are governed by the law in effect at the time of the injury. (Health & Hospitals Governing Com. v. Industrial Com. (1978), 72 Ill. 2d 263, 271.) In accordance with this principle, the court in Stanswsky v. Industrial Com. (1931), 344 Ill. 436, refused to apply the then recent amendments to section 8(e) of the Workmen’s Compensation Act, holding that a widow could not be substituted as claimant, if her husband died from unrelated causes, where no such right of substitution existed at the time of his injury. The case is indistinguishable in material respect from the case now before us, and, we believe, it is controlling.

In Stanswsky, the injury of the employee was followed by the amendments to the statute, the arbitrator’s award, and the employee’s death, in that order. Being advised of the claimant’s death, the Commission then dismissed the proceedings when the cause was brought before it on review. The statute as it existed at the time of the injury contained no provision for substitution. As amended after the injury, substitution was proper if the amount of specific loss were “determined” (1929 Ill. Laws 440, 449-50; Ill. Rev. Stat., ch. 48, par. 145(e)(19) (Smith-Hurd 1929)); the word “determined,” as mentioned earlier, has been interpreted as meaning “finalized,” as by decision of the Commission, and it is substantially the same language as was in effect at the time of the injury involved in the present case.

In holding that the amendment would not be applied retroactively, the court said:

“The liability of the employer to pay compensation for a prior injury and the right of the injured person or his dependents to receive such compensation were not changed or affected by the amendments ***. The liability of the employer and the rights of the workman were fixed at a definite amount under the law existing on January 8, 1929, the date of the injury. At that time the law provided that upon the death of the injured person from other causes than the injury the right to receive further compensation was thereby extinguished. An amendment thereafter made to the act will not operate to deprive either party of substantive rights accrued or in existence prior to its effective date. ***
***
At the time of the accidental injury in this case the law defined the rights of the employee and circumscribed the limits of the employer’s responsibility. It is clear that such rights to compensation as existed on the date of the injury in January, 1929, could not be enlarged or diminished by an act of the legislature which became effective in July, 1929. It is true that the award was not made until July 23, 1929, but it was based upon the statute in force at the time of the injury. The law in effect at the time of the injury governs the rights of the parties and not the law effective at the time the award is made or at the date of death of the injured person(Emphasis added.) (Stanswsky v. Industrial Com. (1931), 344 Ill. 436, 438-40; see also Playhouse Theatre v. Industrial Com. (1931), 346 Ill. 509.)

In reaching this conclusion, the court pointed out that, by statute in Illinois, new laws should not be so construed as to affect rights accrued under prior law. (344 Ill. 436, 439; see Ill. Rev. Stat. 1971, ch. 131, par. 4.) We believe that the same considerations are fully applicable here. (See also General Motors Corp. v. Industrial Com. (1975), 62 Ill. 2d 106, 111 (Pub. Act 77-1871, the 1972 amendment to section 8(e) (19), was not intended to be retroactively applied).) We note, too, that constitutional problems are presented where, as here, we are asked to apply statutory amendments in such a way as to revive extinguished liabilities. Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161, 167, citing Board of Education v. Blodgett (1895), 155 Ill. 441 (a statute of limitations defense is a vested right protected under the due process clause of the Illinois Constitution from deprivation by legislative action).

Mrs. Lyskawa argues that the Stanswsky case is distinguishable in that the statutory amendment there in question created a completely new right of substitution in widows rather than merely effectuating a change in a preexisting right. She cites Diamond T Motor Car Co. v. Industrial Com. (1941), 378 Ill. 203, 208, as so interpreting Stanswsky. We do not so interpret Stanswsky, however, nor do we read the Diamond T case as supporting the interpretation suggested. In Diamond T, the court agreed to apply a procedural amendment retroactively, distinguishing Stanswsky and Playhouse Theatre v. Industrial Com. (1931), 346 Ill. 509, on the basis that “those cases clearly involved changes in substantive law ***.” (Emphasis added.) (378 Ill. 203, 208.) There is no indication in the Diamond T case that the court was there concerned with the fact that Stanswsky involved a completely new right of substitution. More importantly, there is no such concern evident in the Stanswsky opinion itself. The principle to be derived from the Stanswsky decision is more broadly based: In the absence of a legislative intent to the contrary, a statutory amendment will not be applied retroactively to the detriment of one’s substantive rights. (See also Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161, 167.) That principle operates here, too, to bar substitution of Helen Lyskawa. Prior to the statutory amendments here in question, respondent could be assured that its liability for the specific loss suffered by Edwin Lyskawa would be extinguished by his death from an unrelated cause. As in Stanswsky, that liability may not be revived by virtue of subsequent statutory amendments.

Support for this principle is also found in this court’s more recent decision in Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161. We there refused to give retroactive effect to the amendment to section 6(c) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.6(c)) whereby the time limitation on the filing of claims was extended from one to three years. Rejecting the claimant’s argument that the amendment was merely procedural in nature and that it could therefore be applied retroactively, this court held, in line with prior cases, “that a subsequent statutory amendment which extends the time for filing a cause of action or claim will not be applied retroactively to revive a cause of action or claim which had been previously barred.” (Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161, 163.) Holding, as we do here, that a legislative intention to apply a new law retroactively should not be implied, this court said, “Assuming, but not deciding, that the legislature can, in certain cases, constitutionally, revive previously barred statutorily created remedies, such revival should not result unless the legislature expressly indicates that intention.” 72 Ill. 2d 161, 167.

Seeking to avoid an adverse ruling on her substitution efforts, Helen Lyskawa argues that the Commission’s decision was delayed beyond the death of Edwin Lyskawa in August of 1975 only because of an alleged delay occasioned by the litigation of Wilson-Raymond’s third-party action. Wilson-Raymond, however, had incurred a liability by virtue of the arbitrator’s decision, and it therefore had a right to seek reimbursement for amounts paid to meet its obligation. We cannot penalize it for having exercised that right. The Commission erred in dismissing the action for reimbursement. We do note that, under the 1972 and 1975 amendments to section 8(e)(19), the legislature has recognized the potential for inequity mentioned by Mrs. Lyskawa and has acted to correct the situation. As to specific losses occurring after June 26, 1972, substitution is proper if the Commission or an arbitrator has entered an award, and, after July 1, 1975, substitution is proper regardless of whether the Commission or an arbitrator has entered an award.

Helen Lyskawa also argues that the circuit court erred in denying her motion to dismiss Wilson-Raymond’s petition for writ of certiorari, relying on section 19(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.19(f)) and cases decided thereunder (International Harvester v. Industrial Com. (1978), 71 Ill. 2d 180; Zbilski v. Industrial Com. (1971), 48 Ill. 2d 131). Section 19(f) provides in pertinent part:

“The decision of the Commission acting within its powers, according to the provisions of paragraph (e) of this Section shall, in the absence of fraud, be conclusive unless reviewed as in this paragraph hereinafter provided. However, the Arbitrator or the Commission may on his or its own motion, or on the motion of either party, correct any clerical error or errors in computation within 15 days after the date of receipt of any award by such Arbitrator or any decision on review of the Commission and shall have the power to recall the original award on arbitration or decision on review, and issue in lieu thereof such corrected award or decision. Where such correction is made the time for appeal or review herein specified shall begin to run from the date of the receipt of the corrected award or decision.” (Ill. Rev. Stat. 1971, ch. 48, par. 138.19(f).)

Mrs. Lyskawa argues that Wilson-Raymond’s filing of its petition for writ of certiorari in the circuit court was premature since Wilson-Raymond had not at that time obtained a ruling on the petition to recall that it had filed before the Commission. The circuit court, it is argued, was therefore without jurisdiction to review the Commission’s decision.

Wilson-Raymond’s petition to recall the Commission’s decision requested reconsideration of the merits and the presentation of further evidence, but there is no authorization for the filing of such a petition. Section 19(f) of the Workmen’s Compensation Act provides for petitions to recall in the event of clerical or computational error, but no such error is involved here. Because there is no provision for recall other than that provided by section 19(f), Wilson-Raymond’s petition to recall was a nullity, and a decision thereon was not a prerequisite to the filing of a petition for writ of certiorari. Wilson-Raymond’s appeal from the Commission’s decision was therefore proper, and the circuit court properly denied Helen Lyskawa’s motion to dismiss.

By virtue of our holding and the application of section 8(e)(19) as it read at the time of the injury, none of the named respondents may be held liable for the specific loss suffered by Edwin Lyskawa. Liability for temporary total incapacity and for medical, surgical and hospital expenses remains unaffected, however, and it is therefore necessary to consider the third-party action filed by Wilson-Raymond against the White Sox and Home Insurance insofar as it seeks reimbursement for amounts paid for these. Wilson-Raymond has paid $2,054 for temporary total disability; no finding was made by the Commission or arbitrator as to the exact amount paid for medical, surgical and hospital expenses.

Section 1(a)(4) of the Workmen’s Compensation Act provides in part:

“Where an employer operating under and subject to the provisions of this Act loans an employee to another such employer and such loaned employee sustains a compensable accidental injury in the employment of such borrowing employer and where such borrowing employer does not provide or pay benefits or payments due such injured employee, such loaning employer is liable to provide or pay all benefits or payments due such employee under this Act and as to such employee the liability of such loaning and borrowing employers is joint and several, provided that such loaning employer is in the absence of agreement to the contrary entitled to receive from such borrowing employer full reimbursement for all sums paid or incurred pursuant to this paragraph together with reasonable attorneys’ fees and expenses in any hearings before the Industrial Commission or in any action to secure such reimbursement.” (Ill. Rev. Stat. 1971, ch. 48, par. 138.1(a)(4).)

Wilson-Raymond and the White Sox disagree as to the nature of their respective roles, but we believe that a prima facie showing has been made of a lending-borrowing employer relationship. In this regard, we note especially that Edwin Lyskawa, though hired and paid by Wilson-Raymond, was directed in his work activities by the White Sox (Raymond Concrete Pile Co. v. Industrial Com. (1967), 37 Ill. 2d 512, 516-17); an injury occurred when and where it did only because of his assignment and service to the White Sox. The White Sox, however, were deprived of an opportunity to contest liability by virtue of the Commission’s dismissal of the third-party action. The cause therefore must be remanded to the Commission for consideration of the merits of Wilson-Raymond’s claim for reimbursement and for determination of the exact amount paid for medical, surgical and hospital expenses.

The White Sox and Home Insurance argue that Wilson-Raymond’s third-party action, filed more than one year after the injury, was barred by the one-year limitation period for the filing of claims (Ill. Rev. Stat. 1971, ch. 48, par. 138.6(c)(3)). We disagree, however, as the time for filing is measured from the date that Wilson-Raymond’s right to reimbursement arose and not from the date of the injury, as the argument presumes. The White Sox’ argument is apparently prompted by our cases involving an employer’s subrogation rights. Under section 5(b) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.5(b)), an employer may bring a third-party action against one, other than an employer of the claimant, who caused the claimant’s injuries. In that situation, the employer is bound by the same limitations period that would have applied to the claimant in an action against the third party. (Schlitz Brewing Co. v. Chicago Railways Co. (1923), 307 Ill. 322.) Subrogation is not involved under section 1(a)(4), however, but rather an independent right of the lending employer to obtain reimbursement. As such, the lending employer is not bound by the same limitations period applicable to the claimant.

This conclusion is also supported by a simple reading of section 1(a)(4), for, under its terms, no right to reimbursement even arises in a lending employer until it pays or incurs a liability to pay compensation. The time in which it may seek reimbursement can therefore only be measured from that time.

In summary, we hold that the death of Edwin Lyskawa caused his claim for specific loss to abate and that it was therefore error for the Commission to allow the substitution of his widow, Helen Lyskawa. The Commission also erred in dismissing Wilson-Raymond’s third-party claim for reimbursement from the White Sox, and the cause must therefore be remanded to the Commission for consideration of the merits of the claim and the amount expended for medical, surgical and hospital expenses. The judgment of the circuit court of Cook County is accordingly reversed, and the award for specific loss is hereby set aside. The cause is remanded to the Industrial Commission for further proceedings in accordance with the views expressed herein.

Judgment reversed; award set aside; cause remanded.