author: JUSTICE SIMON CHIEF JUSTICE RYAN,

text:
    (No. 55439.
    TRINIDAD RODRIGUEZ, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Wikstrom-Higner Company, Appellant).

      Opinion filed January 24, 1983.
    Rehearing denied April 8, 1983.

      Kane, Doy & Harrington, Ltd., of Chicago (Samuel J. Doy, of counsel), for appellant.
    Joseph P. Storto, P.C., of Bensenville (Joseph P. Storto, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

Petitioner, Trinidad Rodriguez, seeks compensation under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) for injuries sustained while at work when a co-worker struck him over the head with a two-by-four. The co-worker, Roger Knoll, had no provocation for the assault; his only apparent motive was prejudice against petitioner because he was Mexican.

The arbitrator found that petitioner’s injuries did not arise out of and in the course of the employment and denied compensation. He did not make any specific finding, however, as to what triggered the assault. The Industrial Commission adopted the findings of the arbitrator without hearing additional evidence and without making additional findings of fact. The circuit court of Cook County reversed and remanded the cause to the Industrial Commission for determination of the nature and extent of the injury and computation of an award. On the remand, the Industrial Commission awarded petitioner $24,882.54, an amount covering medical expenses, none of which had been paid by the employer, and compensation based on 20 weeks’ temporary total incapacity and 60 weeks’ permanent partial incapacity due to skull fracture. The award was confirmed by the circuit court. This is an appeal by the employer, Wikstrom-Higner Company, from that circuit court order.

The employer, a builder of homes, employed petitioner as a carpenter. His job was to construct frames for various portions of houses, a job which was being performed on the site. He had been an employee of Wikstrom-Higner for only three months at the time of the assault. On the day of the incident petitioner was working on the deck of a house separated by one other structure from the house on which Roger Knoll was working. The relative location of the houses was such that petitioner had to pass the place where Knoll was working on his way to his own work site from the lunch area and the parking lot. This had been the arrangement for three days prior to the incident, but petitioner and Knoll had not known each other and apparently had no conversation until the day of the assault.

Sometime during the morning, petitioner was passing Knoll’s workplace when Knoll greeted him with an ethnic slur. Petitioner ignored the slur and went back to the structure to which he was assigned. On his way back from lunch he passed Knoll again, whereupon Knoll made another ethnic slur and petitioner asked him why he talked to him like that. According to petitioner’s testimony before the arbitrator, Knoll replied, “Because I don’t like Mexicans. And I [sic] gonna kill you,” to which petitioner said, “You crazy [sic],” and started to walk away. Knoll then hit petitioner in the leg with a two-by-four. Petitioner threw it back in Knoll’s direction and returned to his station. While petitioner was attempting to resume his work Knoll sneaked up behind him and hit him over the head with another two-by-four, knocking him unconscious and fracturing his skull.

Petitioner’s explanation for the incident was that Knoll’s daughter had been married to and divorced from a man of Mexican descent and was currently dating other Mexican-Americans, and that Knoll harbored a dislike for Mexicans and people of Mexican descent which erupted into violence on this one particular occasion. The only witness other than the petitioner to testify, an accident investigator called in by the employer, indicated in direct testimony and again on cross-examination that the malfunctioning of a generator which Knoll was using at work that day could have precipitated the assault. This was based on a statement which the investigator had elicited from another employee who had been on the scene at the time that Knoll had been trying without success to start the generator when petitioner came by and Knoll, according to the other employee, exclaimed in petitioner’s direction, “This stupid thing must have been made in Mexico, too.”

Both sides recognize that there is a factual dispute as to whether the assault was spontaneous or was triggered by the failure of a generator to function properly. The employer argues before this court that the arbitrator and the Industrial Commission found that it was spontaneous and grounded only in Knoll’s dislike of Mexicans and asserts that this finding is supported by the evidence. Although petitioner contends that the assault was Knoll’s reaction to the difficulty he was having with the generator, he also maintains, and we agree, that the injury is compensable even if the assault was spontaneous and motivated solely by Knoll’s dislike of Mexicans.

Injuries occasioned by an assault by a co-employee in the workplace during work hours are compensable in Illinois if the assault arose in the course of a dispute involving the conduct of the work, provided that the claimant is not the aggressor. (Ford Motor Co. v. Industrial Com. (1980), 78 Ill. 2d 260 (dispute involved the quality of claimant’s work); Franklin Coal & Coke Co. v. Industrial Com. (1926), 322 Ill. 23 (dispute involved the division of labor between aggressor and claimant); Pekin Cooperage Co. v. Industrial Com. (1918), 285 Ill. 31 (dispute concerned aggressor’s taking of barrel staves needed by claimant to do his job).) Such injuries are not compensable as to either the aggressor or the victim where the dispute was purely personal between the two employees. (Interstate United Corp. v. Industrial Com. (1976), 65 Ill. 2d 434 (dispute concerned the alleged breaking of aggressor’s car antenna by victim); Malco, Inc. v. Industrial Com. (1976), 65 Ill. 2d 426 (dispute concerned a betting pool within the workplace which did not further the work and which was not supervised in any way by the employer); Huddleston v. Industrial Com. (1963), 27 Ill. 2d 446 (dispute concerned a parking space and was two months old when the assault occurred); City of Chicago v. Industrial Com. (1920), 292 Ill. 406 (dispute arose when claimant refused aggressor permission to drink from his drinking can).) In addition, this court has held that injuries suffered in assaults the motives for which are unexplained are not compensable if there is evidence to sustain a finding by the Industrial Commission that the motive was personal to the victim rather than work related or if claimant cannot demonstrate a reason for the assault. (Greene v. Industrial Com. (1981), 87 Ill. 2d 1 (identity of aggressor unknown; permissible inference as to motive drawn in employer’s favor); Laboy v. Industrial Com. (1978), 74 Ill. 2d 18 (identity of aggressor known, but same result); Thurber v. Industrial Com. (1971), 49 Ill. 2d 561 (insufficient evidence as to motive); American Brake Shoe Co. v. Industrial Com. (1960), 20 Ill. 2d 132 (same); Math Igler’s Casino, Inc. v. Industrial Com. (1946), 394 Ill. 330 (aggressor was a friend of claimant and no explanation could be given for the attack); Chicago Hardware Foundry Co. v. Industrial Com. (1946), 393 Ill. 294 (identity of aggressor, and hence his motive, unknown).) The latter four cases were eroded by Health & Hospitals Governing Com. v. Industrial Com. (1975), 62 Ill. 2d 28, in which this court decided that where the assailant’s identity was known and there was no evidence of personal motive, an award was proper despite the claimant’s inability to give a reason for the assault.

Neither the cases relating to injuries resulting from personal antagonisms nor those relating to unexplained assaults are relevant to this appeal. The facts in this case show that the encounter did not result from a personal quarrel. Knoll and the claimant had no previous contact; they had never spoken to each other prior to the day of the assault, and the claimant did nothing to antagonize or arouse Knoll. The motive for the assault is not unexplained; the evidence demonstrated that the incident occurred because of Knoll’s general hostility toward Mexicans.

We find unpersuasive the employer’s argument that the ethnic motive for the attack must be characterized as “personal” notwithstanding the absence of any dispute between the attacker and his victim: the cases relied on by the employer (Pazara v. Industrial Com. (1980), 81 Ill. 2d 76; Interstate United Corp. v. Industrial Com. (1976), 65 Ill. 2d 434; Huddleston v. Industrial Com. (1963), 27 Ill. 2d 446) and their predecessors all involved either a dispute of at least some duration or with a cooling-off period, or an assault to which no motive could be ascribed. Prior to the day of the assault against the petitioner, there was no connection whatever between his private life and his assailant. We believe that a claimant must bring something from his private life to the scene of an assault by a co-employee for the assault to be considered personally motivated. Here, the most petitioner could be said to have brought to the workplace was his ethnic heritage, over which he of course had no control.

Professor Larson describes a category of “neutral assaults” to account for those assaults which are neither personal nor clearly occupational in origin. This category includes “those assaults which are in essence equivalent to blind or irrational forces” (1 A. Larson, Workmen’s Compensation sec. 11.31, at 3 — 224 (1978)), and comprises but is not limited to assaults by insane or drunken co-employees and assaults the motive for which is unexplained although the identity of the assailant is known. (1 A. Larson, Workmen’s Compensation secs. 11.32-11.34 (1978).) We believe that racial or. ethnic prejudice directed by an employee against his co-employee belongs in this category inasmuch as it is an unreasoning emotion, although the Larson treatise cites no cases in which the assault was motivated solely by such prejudice and there have been no such cases in Illinois.

In discussing assaults on claimants by insane, drunken or irresponsible co-employees and unexplained assaults by identifiable co-employees, Professor Larson concludes with approval that a “demonstrably larger body” to a “great majority” of decisions from the various States hold the injuries thus suffered to be compensable (1 A. Larson, Workmen’s Compensation secs. 11.32(a), 11.33 (1978); see Health & Hospitals Governing Com. v. Industrial Com. (1975), 62 Ill. 2d 28, 33). The theory behind the decisions in the irrational co-employee cases is that when a co-employee suffers from a delusion or some similar condition which causes him to erupt into violence, his presence in the workplace in his state is a condition under which his victim is employed and must perform his work, just as a defective machine or ceiling in the workplace would be, and in that sense is a risk peculiar to the employment and not shared by the world at large. (Anderson v. Security Building Co. (1924), 100 Conn. 373, 377, 123 A. 843, 844-45; 40 A.L.R. 1119, 1121 (1926); see also, e.g., Cedar Rapids Community School v. Cady (Iowa 1979), 278 N.W.2d 298 (insane delusion); Pacific Employers Insurance Co. v. Industrial Accident Com. (1956), 139 Cal. App. 2d 260, 293 P.2d 502 (same); Crotty v. Driver-Harris Co. (1957), 45 N.J. Super. 75, 131 A.2d 578 (robbery motivated assault); Wakefield v. World-Telegram (1937), 249 App. Div. 884, 292 N.Y.S. 588, aff’d mem. (1937), 274 N.Y. 517, 10 N.E.2d 527 (intoxication); Perez v. Fred Harvey, Inc. (1950), 54 N.M. 339, 224 P.2d 524 (same); Cleland Simpson Co. v. Workmen’s Compensation Appeal Board (1975), 16 Pa. Commw. 566, 332 A.2d 862 (insane delusion that claimant had broken several dates with assailant).) We have found no Illinois decisions holding squarely to the contrary. (Cf. Belden Hotel Co. v. Industrial Com. (1970), 44 Ill. 2d 253 (assailant was not a co-employee of victim; hence, the risk of his going insane was not a risk inherent in the employment).) Moreover, in Health & Hospi tals Governing Com. v. Industrial Com. (1975), 62 Ill. 2d 28, 33, this court indicated that a “neutral” assault of this general type is compensable without any further showing of a specific causal link between the employment and the assault. In that case, the claimant was injured when a co-employee with whom she had not previously spoken pulled a chair out from under her for no apparent reason: compensation was allowed on alternative theories of negligence and unexplained intentional assault. We note that petitioner in the instant case has succeeded in demonstrating a specific, nonpersonal motive for the assault on him, and thus presents a stronger case than the claimant in Health & Hospitals, who made no such showing.

We believe that assaults by co-employees in the workplace that are motivated by general racial or ethnic prejudice are best treated as compensable “neutral” risks arising out of the employment. Prejudice of this sort does not usually result in physical attacks in the world at large: it would be incorrect to say that people run the everyday risk of assault on the street or in public places because of their Mexican heritage. However, when an assault by a co-employee rooted solely in ethnic prejudice occurs in the workplace, as here, it is presumably the result of an irrational human impulse toward violence which is as much a part of the victim’s work environment as a defective tool would be. The victim may be unaware of the danger, but encounter it he must if the work to which he is assigned is to be completed. It is legitimately a hazard presented by the work. This is particularly true in our polyglot society in which employers are now required by Federal law to hire qualified racial minorities. (42 U.S.C. sec. 2000e — 2(a) (1976); see United Steelworkers of America v. Weber (1979), 443 U.S. 193, 61 L. Ed. 2d 480, 99 S. Ct. 2721.) With more minorities in the workplace, the potential for ethnic or racial friction is likely to increase. It would be anomalous for the law to address the problems of bigotry and lack of opportunity in society by requiring employers to hire qualified members of minority groups while not also requiring them to make the workplace as safe for minorities so hired as for other workers. (See Ill. Rev. Stat. 1977, ch. 48, par. 851 (declaration of public policy referring to the need to utilize the productive capacities of all individuals to the fullest extent possible regardless of ancestry and to insure that workers have resources sufficient to maintain a reasonable standard of living without resort to public charity).) We believe that, in the absence of anything that would personalize the incident, a bigoted and violence-prone co-worker is as much a risk inherent in employment in an integrated or ethnically mixed workplace as a defective machine or ceiling might be.

Respondent asserts that employers in Illinois are not insurers of the safety of their employees at all times and argues that to affirm the decision of the circuit court here would be equivalent to accepting the positional-risk doctrine of compensability, a doctrine which has been rejected by this court. (Campbell “66” Express, Inc. v. Industrial Com. (1980), 83 Ill. 2d 353; Spiller v. Industrial Com. (1928), 331 Ill. 401; see 1 A. Larson, Workmen’s Compensation sec. 11.40 (1978).) We do not agree that an affirmance here means adoption of the positional-risk doctrine. That doctrine holds that an injury may be compensable whenever it was suffered on the work premises during work hours, regardless of whether the conditions or nature of the employment increased or contributed to the risk which led to the injury. (Campbell “66” Express, Inc. v. Industrial Com. (1980), 83 Ill. 2d 353, 355.) Taken to its extreme, it would render compensable an injury resulting from a personal dispute or a natural disaster common to the world at large, once the claimant shows that the employment caused him to occupy what turned out to be a place of danger. (1 A. Larson, Workmen’s Compensation sec. 10.00 (1978).) Neither our rejection of that sweeping doctrine, nor our continued adherence to the maxim that injuries are not compensable if they arise out of a personal dispute or from a risk common to people generally, requires us to deny compensation in this case.

For the foregoing reasons, we believe that the circuit court correctly confirmed the order of the Industrial Commission and that no further findings of fact are necessary. The decision of the circuit court is affirmed.

Judgment affirmed.

CHIEF JUSTICE RYAN,

dissenting:

The first and most glaring error in the opinion of my colleagues is that it misconstrues the nature of the review of the case. The decision of the Industrial Commission that must now be reviewed did not hold in favor of the claimant, but found that the claimant’s injuries did not arise out of and in the course of employment. However, the last paragraph of the opinion treats the case as one in which the Industrial Commission had found in favor of the claimant. The award of the Industrial Commission which the last paragraph of the opinion embraces was made only after the circuit court had reversed the original finding of the Commission and remanded the case. Therefore, the test that must now be applied by this court is whether that original finding in favor of the employer is against the manifest weight of the evidence.

It is well established that the resolution of disputed questions of fact is primarily the function of the Industrial Commission, which must hear and judge the credibility of the witnesses, sift the evidence, determine where the preponderance lies, and then, upon such determination, render its decision. On review, the function of this court is limited to a determination of whether the findings of the Commission are against the manifest weight of the evidence. If the evidence is conflicting or permits the reasonable drawing of different inferences, we will not set aside the decision solely because we might have made a finding different from that made by the Commission or because we might have drawn different inferences. These well-established principles were restated by this court in another assault case, Convertors, Inc. v. Industrial Com. (1975), 61 Ill. 2d 218, 223.

In our case, applying these principles, the original holding of the Industrial Commission that the injury did not arise out of and in the course of the employment must be affirmed unless that holding is against the manifest weight of the evidence. However, the opinion never mentions manifest weight of the evidence, nor does it apply that test to the finding of the Industrial Commission. Instead, after a philosophical discussion concerning bigotry, the opinion adopts a new theory of recovery in Illinois, the “neutral assault” theory. However, even to bring this case within this new theory, it is necessary to expand it into a new area. Usually, this theory of recovery has been applied to assaults by drunks and lunatics, and “assaults which are in essence equivalent to blind or irrational forces.” (1 A. Larson, Workmen’s Compensation sec. 11:31, at 3 — 224 (1978).) The opinion acknowledges that the “neutral assault” theory was suggested by Professor Larson’s text on workmen’s compensation (1 A. Larson, Workmen’s Compensation sec. 11:31 (1978)). It acknowledges, however, that Larson’s treatise cites no case in which the assault was motivated solely by ethnic prejudice and that there have been no such cases in Illinois. Thus, not only does the opinion make new law in Illinois, but it extends the “neutral assault” theory, upon which it rests, to a class of cases in which it has not previously been applied.

In sum, the majority simply does not agree with the findings of the Industrial Commission and the inferences it has drawn and has taken it upon itself to devise this new theory of recovery to permit claimant to recover. To accommodate this new theory, the majority makes its own findings of fact and draws its own inferences and concludes that the injury was caused by the ethnic prejudice of the assailant and that the danger of injury from such prejudice was also peculiar to the employment and not shared by the public at large.

The holding of the majority is based on a theory entirely different from that on which the case was tried. The claimant’s case is based on the contention that the assault was incidental to the employment because it stemmed from problems the assailant had been having with the employer’s faulty generator. The assailant had stated his dislike for Mexicans and had also stated that this generator must have been made in Mexico. Claimant’s theory of the case was that the assailant’s frustration with the faulty generator culminated in his attack, thus making the assault work related. This was claimant’s theory of recovery before the Industrial Commission and in this court. The Commission did not agree and held against the claimant.

The opinion relies on dicta in Health & Hospitals Governing Com. v. Industrial Com. (1975), 62 Ill. 2d 28, as allowing compensation on the theory of unexplained intentional assault. I wish to point out that in that case the Industrial Commission had awarded compensation and on review this court affirmed that award. In Schroeter v. Industrial Com. (1976), 62 Ill. 2d 284, this court noted that the dicta in the Health & Hospitals case should not be construed as permitting an award in every instance where the record fails to demonstrate unambiguously that the motive for the assault was based on personal reasons. Again relying on Schroeter, the court stated that it is the Commission’s function to consider the propriety of the award and that this court will not substitute its judgment for that of the Commission unless the findings are contrary to the manifest weight of the evidence.

Laboy v. Industrial Com. (1978), 74 Ill. 2d 18, is another case in which the claimant was assaulted by a co-employee and the assault occurred on the employer’s premises. The Industrial Commission denied recovery and this court affirmed. In that case there was evidence which would have supported a conclusion that the assailant was angry because of his work and thus the assault was work related. He stated that he would not do the work he was assigned to do. He threw boxes and cans on the floor and he called the claimant, with whom he was assigned to work, a bastard. Throughout the course of the day, heated exchanges occurred between the claimant and the assailant and there were instances of physical combat. After work in the washroom, the assailant struck the claimant, injuring him. However, there was also some evidence that there had been a dispute between the two concerning lottery tickets during the lunch break. This court again deferred to the finding of the Industrial Commission that the injury did not arise out of employment since there was evidence from which such an inference could legitimately be drawn. These co-employee assault cases consistently have held that the claimant must prove not only that the assault occurred in the course of the employment, but also that it arose out of the employment. These cases also hold that the court will not reverse the holding of the Industrial Commission on this question unless it is against the manifest weight of the evidence. Above all, we will not substitute our conclusions and inferences for those of the Commission simply because we may disagree.

The majority opinion in our case makes a finding that just does not conform to the facts of life. It states:

“Prejudice of this sort does not usually result in physical attacks in the world at large: it would be incorrect to say that people run the everyday risk of assault on the street or in public places because of their Mexican heritage.” 95 Ill. 2d at 174.

I do not know the source of this amazing insight. I dare say, however, that there are thousands who are capable of disproving this “verity” by a display of their scars and bruises. The assailant could just as readily have given vent to his prejudice by whacking the claimant over the head with a pool cue in a pool hall, or with a beer bottle in a tavern, or by assaulting him in any public place where they would have been brought into close proximity. In addition to being contrary to the facts of life, this statement is obviously a finding that was not made by the Industrial Commission. This constitutes an independent finding of fact and drawing of inferences and is not a review of the findings of the Commission.

Finally, insofar as assaults by co-employees are concerned, the majority opinion, in spite of its protestations to the contrary, has fairly well established the positional-risk doctrine in Illinois. It essentially eliminates the necessity of proving that the assault arose out of the employment if it occurred in the course of the employment.

I dissent.

UNDERWOOD and MORAN, JJ., join in this dissent.


source: Caselaw Access Project

author: JUSTICE WARD

license: Public Domain

text:
    (No. 56185.
    INTERLAKE, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al (Frieda Bridgeforth, Appellee).

      Opinion filed February 4, 1983.
    Rehearing denied April 8, 1983.

      Jeremy P. Sackmann, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    Mark F. Cyr, of Peter F. Ferracuti & Associates, of Ottawa, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

This appeal is from a judgment of the circuit court of Livingston County, which confirmed a decision by the Industrial Commission. In the decision, the Commission affirmed and adopted an arbitrator’s award of lifetime benefits to Frieda Bridgeforth, the widow of Henry Bridgeforth, who died while returning home from work at a factory of Interlake, Inc., in Pontiac. Interlake appealed from the circuit court’s judgment directly to this court under Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

Henry Bridgeforth died on October 4, 1976, at the age of 63. Frieda and he had been married for 33 years, and they had eight children. Two of those children were under 18 years at the time of his death. Billy Bridge-forth was born on October 27, 1960. Johnny Bridgeforth was born August 16, 1964. Henry’s widow, Frieda Bridgeforth, remarried on February 12,1977.

Henry Bridgeforth, the decedent, had worked for Interlake for 10 years. He was a “staker,” that is he operated a machine that would “stake” end plates. He would pick up the end plates from a basket next to him, insert two rivets into each end plate, and cycle the plates through the machine. In a 10-hour shift, Henry Bridge-forth would cycle about 3,400 pieces or plates.

According to the testimony of other workers, the job involved some bending and lifting, depending upon whether the basket from which one took the plates was placed on the floor or on a table. The plates weighed a pound or a pound and a half, and Henry would pick up five, 10 or even 15 plates at a time. Fred Eppel, an Interlake employee who had operated a staker machine, testified that at times one had to lift five or 10 plates and place them on a chute to load the machine.

Charles Bridgeforth, a son of the decedent, also worked at Interlake. He had worked the staker machine, too, and testified that it was strenuous work. Operating it, he said, made eight hours seem like 15 hours. He stated that the repetitious moving while standing in a “kind of half way humped position” placed strain on the chest and shoulders. According to Charles, because of the strain the job produced, only a few workers would operate the staker rather than seeking to trade jobs if another job was available. His father complained about the strain on his arms and chest, Charles said, and he tried to rotate job assignments, but the company wanted him to stay on the staker because he was proficient at it.

Jerry Steinbrecker, Henry Bridgeforth’s foreman, testified that the decedent was a machine operator, and that he spent about 85% of his working time operating the staker. He minimized the physical effort in operating a staker. Machine operator, he said, was one of the plant’s “lightest duty jobs,” and the arm movement involved in operating the staker was about as limited as that involved in handwriting.

Henry Bridgeforth drove to work on October 4, 1976. Frieda, his wife, testified that he left home around 2:30 p.m. He had not worked since July 1976. In July, the plant had gone on strike, and in August he underwent bilateral inguinal hernia surgery. He had spent much of the time he was off work lying around the house, Frieda testified. She also testified that prior to October 4, 1976, the decedent would return from work, tired and weak, and complaining of this condition. Too, she stated that for two years prior to October 4, 1976, he had been taking diutensen for high blood pressure. Charles Bridge-forth testified that he had seen his father about two weeks before he started back to work, and that his father appeared to be in fine health.

The decedent’s shift began at 3:30 p.m. The temperature in the factory that day was in the upper 70’s or low 80’s. Charles said that he saw the decedent at about 3:45, and his father looked “happy as a lark.” Charles saw him at 6 o’clock, though, and his father said that he was “running out of gas.” At 7 p.m. Charles said that Henry had a yellowish color and was complaining that he felt nauseous and that his chest was tightening up. At 8 p.m., Fred Eppel saw the decedent doubled over -with stomach pain. Eppel told the foreman, Jerry Steinbrecker, and Steinbrecker came over. Henry said he felt like vomiting but he was unable to do so.

Steinbrecker testified that at that time Henry had a peculiar grayish color and was perspiring. He was complaining of stomach pain. Steinbrecker soaked some paper towels in cold water, put them on Henry’s head and neck, and stayed with Henry until he said he felt better, and until his color was restored. The foreman told him that he could go home and offered to drive him or to have Charles drive him, but Henry decided to drive himself. Steinbrecker walked him to the door at about 8:20 p.m.

Alvin Lindsey, a State trooper, testified that about 9 p.m. he found the decedent’s body sitting upright in his automobile about 30 miles from the Interlake plant. The automobile was about 60 yards off the roadway, up against a tree. Tire tracks led straight from the road to the tree with no evidence of braking or maneuvering. The engine was running, the car was in gear, the headlights were on, the radio was playing. Henry’s eyes were open, but Lindsey could detect no pulse. He tried CPR without success.

The medical evidence at the hearing consisted of the records of the hospital where the hernia surgery had been performed and the testimony of three physicians. No autopsy had been performed.

Dr. Samuel E. Baz was the decedent’s family doctor. He performed the hernia operation in August 1976. During Henry Bridgeforth’s convalescence, Dr. Baz found that he had high blood pressure. The elevated pressure, however, was reduced without medication. Dr. Baz stated that in the case of hypertension from which the decedent suffered, the hypertension is not sustained and could be due to generalized arteriosclerosis of the arteries. Arteriosclerosis is the most common cause of hypertension. Dr. Baz did not, however, make any general finding of arteriosclerosis.

An evidence deposition of Dr. Robert F. Bettasso was admitted without objection. Dr. Bettasso, general practioner, who also performs surgery, testified that he treated cardiac patients. In his opinion, based upon the symptoms and manner of death, the most likely cause of Henry Bridgeforth’s death was an acute myocardial infarction. He said that he treats about 20 acute myocardial infarcts per year, and that upset stomach and nausea frequently are symptoms of posterior or posterior lateral infarcts. The doctor presumed that the decedent had coronary artery disease. He stated that he had examined the electrocardiogram made at the time of the decedent’s surgery, and that while the EKG was within normal limits, “there [were] some variations from normal there.” The doctor also testified, “My opinion would be that unless — that he had coronary artery disease previously.”

The witness stated that the decedent’s returning to work, returning to the significant physical activity of his duties, “could have been a precipitating factor for the heart attack.” The doctor explained that returning to work “could very definitely [have been] a precipitating factor,” because returning to work after a long period of time off would result in much greater strain than that experienced by a person regularly working.

Dr. Bettasso stated that a blood clot in the lung or a stroke were possible but less likely causes of death. Nausea and vomiting are not common symptoms of a stroke.

The deposition of Dr. William Brice Buckingham, an internist, also was admitted. Testifying for Interlake, Dr. Buckingham disagreed with Dr. Bettasso’s opinion that an acute myocardial infarction was the most likely cause of death. Instead, Dr. Buckingham gave three other possible causes, none of which could have been caused by the decedent’s work.

The most probable, he said, was a serotonin hormone produced by a carcinoid in the appendix. He based that hypothesis upon the fact that 14 years earlier the decedent had undergone surgery for the removal of the right half of the colon for a growth involving the tip of the appendix. This, the doctor said, suggested a carcinoid. According to that hypothesis, “this serotonin producing carcinoid resulted in a pulmonary hypertension, increased pressure on the right side of the heart, ultimately resulting in a failure of the right side of the heart and the patient’s death in the automobile prior to the time that the automobile left the road ***.” The doctor stated that about two-thirds to three-fourths of the carcinoids in the appendix are serotonin producing.

Another possible cause, Dr. Buckingham said, was based upon reports in the hospital records of chest X rays showing evidence of fibrosis and some cystic changes of both upper lobes, greater in the right lung than in the left. The possible cause of death was scar carcinoma metastasizing into the central nervous system or adrenal glands or both. The scar carcinoma would be an old tuberculosis lesion that had healed.

A third cause was less likely. That possible cause was “that cystic changes in the right upper lobe on the chest X ray were the result of tuberculosis infection, which was not entirely healed, which had resulted in adrenal glands’ atrophy and produced *** adrenal gland insufficiency.”

He did not think the decedent died from a myocardial infarction. He noted that the decedent had a normal electrocardiogram two months before his death, and had no chest pain radiating into the jaw or down the arm. Also, he said that there was no evidence in the hospital records that the decedent was suffering from arteriosclerosis.

He did say, however, that myocardial infarctions are very common. It is possible, he said, to have a myocardial infarction without pain, and to have a normal EKG and an abnormal one a month later. Moreover, he conceded that there was evidence of hypertension in the hospital records, that arteriosclerosis can cause hypertension while hypertension can contribute to arteriosclerosis, that hypertension and arteriosclerosis are frequently associated, and that one can have arteriosclerosis and a normal electrocardiogram. Dr. Buckingham stated, too, that one with arteriosclerosis and an associated condition of hypertension is at risk of having a myocardial infarction.

As to those causes he had suggested, Dr. Buckingham stated that in his 32 years of practice he had become aware of only a half dozen cases of death caused by the production of serotonin. Too, he acknowledged that the radiologists who prepared the X-ray reports did not suggest the presence of scar carcinoma, and that the abnormal shadows in the chest X-rays could have been produced by diseases other than tuberculosis.

Interlake challenges the Industrial Commission’s decision on two grounds. First, it argues that the Commission’s finding that Henry Bridgeforth’s death resulted from an accident arising out of and in the course of his employment is against the manifest weight of the evidence. Second, it contends that it was error to award lifetime benefits to Frieda Bridgeforth.

As to causation, Interlake says that the medical testimony produced six possible causes of death, only one of which could be causally related to the decedent’s work. It argues that the presumption of coronary artery disease cannot be supported and that Dr. Bettasso’s opinions as to the cause of death, and that the decedent’s work contributed to that cause, were only speculations.

It is clear that it is the Commission’s function to resolve conflicts in medical testimony, and that the Commission’s findings will not be set aside unless they are contrary to the manifest weight of the evidence. (E.g., Caterpillar Tractor Co. v. Industrial Com. (1982), 92 Ill. 2d 30, 37; Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 178.) Here evidence was presented as to the stressful nature of the decedent’s work. A physician experienced in the treatment of cardiac patients stated that, considering the symptoms of the decedent, his medical history, and the circumstances of his death, he could give an opinion as to the most likely cause of death, could presume coronary artery disease, and could state that the strain of the decedent’s work very definitely may have been a contributing factor in the death. The petitioner need not disprove every other possible cause to establish death by heart attack. (McLean Trucking Co. v. Industrial Com. (1978), 72 Ill. 2d 350.) The Commission’s finding was not against the manifest weight of the evidence.

Interlake contends, however, that as a matter of law, it was error for the Commission to consider Dr. Bettasso’s opinion. Dr. Bettasso’s testimony was given to the arbitrator in the form of an evidence deposition. In the hypothetical question presented to the doctor, it was to be assumed that the end plates handled by the decedent weighed five pounds. Evidence at the hearing before the arbitrator established that the plates weighed only one or one and a half pounds. Interlake says that this “obvious distortion of the physical strain” in the work was reversible error, and if the doctor’s opinion is properly stricken, there is no evidence to support the Commission’s findings as to the cause of death or its relationship to the decedent’s work.

A review of the record shows that Interlake did not raise this issue before the arbitrator, the Commission or the circuit court. (Somewhat ironically, in examining Dr. Buckingham in its evidence deposition, Interlake even “stipulated” that the plates weighed five pounds.) We therefore deem that the issue was waived. (See District 141, International Association of Machinists & Aerospace Workers v. Industrial Com. (1980), 79 Ill. 2d 544, 556-57; David Wexler & Co. v. Industrial Com. (1972), 52 Ill. 2d 506, 509.) Moreover, the discrepancy is not as important as appears at first blush, for the evidence at the hearing also showed that the decedent would pick up and handle five, 10 or even 15 plates at a time, and that there was other testimony as to the stressful nature of the work.

Interlake’s second contention, that it was error to award lifetime benefits to the decedent’s widow, involves section 7(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.7(a)). That section provides in part:

“(a) If the employee leaves a surviving a widow, [sic\ widower, child or children, the applicable weekly compensation rate computed in accordance with subparagraph 2 of paragraph (b) of Section 8, shall be payable during the life of the widow or widower and if any surviving child or children shall not be physically or mentally incapacitated then until the death of the widow or widower or until the youngest child shall reach the age of 18, whichever shall come later; provided that if such child or children shall be enrolled as a full time student in any accredited educational institution, the payments shall continue until such child has attained the age of 25. In the event any surviving child or children shall be physically or mentally incapacitated, the payments shall continue for the duration of such incapacity.
* * *
In the event of the remarriage of a widow or widower, where the decedent did not leave surviving any child or children who, at the time of such remarriage, are entitled to compensation benefits under this Act, the surviving spouse shall be paid a lump sum equal to 2 years compensation benefits and all further rights of such widow or widower shall be extinguished.
If the employee leaves surviving any child or children under 18 years of age who at the time of death shall be entitled to compensation under this paragraph (a) of this Section, the weekly compensation payments herein provided for such child or children shall in any event continue for a period of not less than 6 years.”

Frieda Bridgeforth remarried prior to the arbitrator’s and Commission’s decisions to award her lifetime benefits, for her use and for the care of her children. At the time of her remarriage, two of the decedent’s surviving children were minors and, therefore, entitled to compensation. Interlake argues that we should hold that under section 7(a) the decedent’s widow forfeited her “share” by remarriage, and her share then passed to her minor children, who may collect compensation until they reach the age of 18 years.

It is obvious that Interlake’s argument is contrary to the plain language of the statute. The statute provides for the payment of death benefits until the widow dies, or until the children reach 18, whichever is later. If, however, the widow remarries when none of the decedent’s children are entitled to compensation, she is to receive a lump sum of two years’ compensation and then her rights are extinguished. Under the language of the section, Frieda, as the decedent’s widow, is entitled to benefits until she dies, because she did not remarry at a time when none of the decedent’s children were entitled to support. There simply is no provision in the statute for terminating a widow’s benefits upon remarriage when there remain minor children entitled to support.

Interlake argues, however, that such a consequence must not have been the legislature’s intention. Citing Professor Larson’s treatise, it points out that workers’ compensation statutes of various States provide that, upon a widow’s remarriage, the balance of the compensation to which she is entitled goes to the children or other dependents. 2 A. Larson, Workmen’s Compensation sec. 64.40 (1982).

Remarriage, Interlake contends, creates a new legal relationship for a widow, and she becomes legally dependent upon a different spouse. She should, therefore, lose the right to collect benefits just as she would at her death. The legislature must not have intended, Interlake says, to provide her with a windfall.

The only support for its contention is Newman v. State (1944), 14 Ill. Ct. Cl. 17, a decision of the State’s claims court, which of course, is not binding on this court. There the Court of Claims modified an award to a widow. It ordered that the widow’s award be terminated because she had remarried, and that the award should be made payable to the decedent’s minor daughter. The statute in force at the time contained a provision in section 7(a) similar to that which now appears in the Act. It provided: “Any right to receive compensation hereunder shall be extinguished by the remarriage of a widow, if the deceased did not leave him surviving any child or children whom he was under legal obligations to support at the time of said injury.” Ill. Rev. Stat. 1943, ch. 48, par. 144(a).

Interlake’s argument is not convincing. A court’s function in statutory interpretation is to give effect to the intention of the legislature. (People v. Beam (1979), 74 Ill. 2d 240, 242; Merrill v. Drazek (1975), 62 Ill. 2d 1, 6.) In ascertaining the legislative intent, we look first to the language of the statute, and if the legislature’s intent may be ascertained from the language it used, it will be given effect without resort to other aids in construction. People v. Robinson (1982), 89 Ill. 2d 469, 475-76; Town of the City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, 203.

Here the language is clear. The legislature could have included a provision terminating a widow’s benefits in a case where she remarries with children entitled to support, but it did not. It is, of course, not our place to state what course we consider the legislature should have taken. In re Griffin (1982), 92 Ill. 2d 48, 52.

For the reasons given, the judgment of the circuit court is affirmed.

Judgment affirmed.

CHIEF JUSTICE RYAN took no part in the consideration or decision of this case.


author: JUSTICE WARD JUSTICE CLARK,

text:
    (No. 55733.
    DONNA COCKRUM et al., Appellees, v. GEORGE BAUMGARTNER et al., Appellants.—EDNA RAJA et al., Appellees, v. A. TULSKY et al. (Michael Reese Hospital and Medical Center, Appellant).

      Opinion filed February 18, 1983.
    Rehearing denied April 8, 1983.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller (Stanley J. Davidson, E. Michael Kelly, and Michael R. Goldman, of counsel), and Lord, Bissell & Brook (Harold L. Jacobson, Robert B. Austin, Paul A. Brady, and Hugh C. Griffin, of counsel), all of Chicago, for appellants.
    Kenneth L. Cunniff, of Chicago, and Keith L. West, of Mundelein (Jean A. Heilman, of counsel), for appellees Donna and Leon Cockrum.
    Ash, Anos, Freedman & Logan, and Addis & Brenner, Ltd., all of Chicago (Lawrence M. Freedman, Sheldon A. Brenner, and James L. Glass, Jr., of counsel), for appellees Edna and Afzal Raja.
   JUSTICE WARD

delivered the opinion of the court:

This appeal concerns the extent of the damages that may be recovered in a malpractice action based on a so-called “wrongful pregnancy” or “wrongful birth.” The issue was raised in two medical malpractice suits that were consolidated on appeal from the circuit court of Cook County to the appellate court. In both cases, the plaintiffs had alleged that but for the negligence of the defendants each of the female plaintiffs would not have borne a child. In both actions, the plaintiffs sought to recover for the pain of childbirth, the time lost in having the child, and the medical expenses involved. The plaintiffs sought also to recover as damages the future expenses of raising the children, who, it would appear, are healthy and normal. The circuit court dismissed the counts that set out the claims for the expenses of rearing the children. The plaintiffs appealed, and the appellate court reversed those judgments. (99 Ill. App. 3d 271.) We granted the defendants leave to appeal under Rule 315 (73 Ill. 2d R. 315).

Both suits were filed in the circuit court of Cook County. Cockrum v. Baumgartner was brought by Donna and Leon Cockrum against Dr. George Baumgartner and a laboratory that performed tests according to Dr. Baumgartner’s instructions. The Cockrums alleged that Dr. Baumgartner negligently performed a vasectomy upon Leon Cockrum. Also, they claimed that he was negligent in telling them that a sperm test conducted by the laboratory showed no live sperm when he should have known that the laboratory report showed that the vasectomy had been medically unsuccessful. The Cock-rums also alleged that after the attempted vasectomy Donna Cockrum became pregnant and gave birth to a child, and they claimed that she would not have become pregnant if the physician had not been negligent.

In Raja v. Tulsky, Edna and Afzal Raja brought an action against Dr. A. Tulsky and Michael Reese Hospital and Medical Center. The Rajas alleged that Dr. Tulsky negligently performed a bilateral tubal cauterization upon Edna Raja, which operation was designed to make her sterile. They alleged that about five years after the operation Edna Raja began to experience signs of pregnancy. She was examined at Michael Reese’s gynecology clinic and advised, however, that she was not pregnant. Later, after the time in which the plaintiffs say it was medically safe to have an abortion, she learned that she was in fact pregnant. Edna Raja alleged that she suffers from hypertensive cardiac disease, and that she had been informed that it would be medically dangerous for her to have a child. The Rajas claim that Michael Reese was negligent in failing to determine that she was pregnant. They say that if Michael Reese had told her that she was pregnant, she would have elected to terminate the pregnancy. Those counts in which Dr. Tulsky was named as a defendant were dismissed as barred by the statute of limitations and are not at issue here.

The Rajas and the Cockrums each gave birth to a child, and there is no indication that the children are other than normal and healthy. The only issue is whether the trial court erred in dismissing the counts in which the plaintiffs sought to recover as damages the future expenses of rearing the child.

As we have stated, the appellate court held that such expenses are recoverable. The members of the panel in the appellate court disagreed, however, in one respect. Two of the three judges believed that in determining damages the trier of fact should be permitted to consider the benefits the plaintiffs receive from the parent-child relationship. (99 Ill. App. 3d 271, 275-77 (Linn, J., specially concurring), 277 (Romiti, P.J., specially concurring).) The third member of the court, on the other hand, considered that such an offset would be improper. 99 Ill. App. 3d 271, 274.

The courts in the majority of States that have considered “wrongful pregnancy” or “wrongful birth” actions have recognized a cause of action against a physician where it is alleged that because of the doctor’s negligence the plaintiff conceived or gave birth. (See Annot., Tort Liability for Wrongfully Causing One to be Born, 83 A.L.R.Sd 15, 29 (1978).) These courts have generally held that in such actions the infant’s parents may recover for the expenses of the unsuccessful operation, the pain and suffering involved, any medical complications caused by the pregnancy, the costs of delivery, lost wages, and loss of consortium. (83 A.L.R.Sd 15, 29-30.) There is sharp disagreement, however, on the question involved here: whether plaintiffs may recover as damages the costs of rearing a healthy child.

There are courts which have allowed the recovery of the cost of rearing a child on the ground that such expense is a foreseeable consequence of the negligence. Those courts also have held that this recovery may be offset, however, by an amount representing the benefits received by the parents from the parent-child relationship. See Stills v. Gratton (1976), 55 Cal. App. 3d 698, 127 Cal. Rptr. 652; Ochs v. Borrelli (1982), 187 Conn. 253, 445 A.2d 883; Pierce v. DeGracia (1982), 103 Ill. App. 3d 511; Troppi v. Scarf (1971), 31 Mich. App. 240, 187 N.W.2d 511; Sherlock v. Stillwater Clinic (Minn. 1977), 260 N.W.2d 169; Mason v. Western Pennsylvania Hospital (1981), 286 Pa. Super. 354, 428 A.2d 1366.

In a substantially greater number of jurisdictions, however, courts have denied recovery in suits for costs of rearing a child. See McNeal v. United States (4th Cir. 1982), 689 F.2d 1200 (interpreting Virginia law); White v. United States (D. Kan. 1981), 510 F. Supp. 146 (interpreting Georgia law); Boone v. Mullendore (Ala. 1982), 416 So. 2d 718; Wilbur v. Kerr (1982), 275 Ark. 239, 628 S.W.2d 568; Coleman v. Garrison (Del. 1975), 349 A.2d 8; Public Health Trust v. Brown (Fla. App. 1980), 388 So. 2d 1084; Wilczynski v. Goodman (1979), 73 Ill. App. 3d 51; Maggard v. McKelvey (Ky. Ct. App. 1981), 627 S.W.2d 44; Kingsbury v. Smith (1982), 122 N.H. 237, 442 A.2d 1003; P. v. Portadin (1981), 179 N.J. Super. 465, 432 A.2d 556; Sorkin v. Lee (1980), 78 A.D.2d 180, 434 N.Y.S.2d 300; Terrell v. Garcia (Tex. Civ. App. 1973), 496 S.W.2d 124, cert. denied (1974), 415 U.S. 927, 39 L. Ed. 2d 484, 94 S. Ct. 1434; Rieck v. Medical Protective Co. (1974), 64 Wis. 2d 514, 219 N.W.2d 242; Beardsley v. Wierdsma (Wyo. 1982), 650 P.2d 288; see also Ball v. Mudge (1964), 64 Wash. 2d 247, 391 P.2d 201.

Some of these courts have pointed to the speculative nature of the damages. (E.g., Sorkin v. Lee (1980), 78 A.D.2d 180, 434 N.Y.S.2d 300.) Others have expressed concern for the child who will learn that his existence was unwanted and that his parents sued to have the person who made his existence possible provide for his support. (E.g., Wilbur v. Kerr (1982), 275 Ark. 239, 628 S.W.2d 568.) Some courts have decided that requiring the payment of rearing costs would impose an unreasonable burden upon a defendant, unreasonable because it would permit the plaintiffs to enjoy the benefits of parenthood, while shifting all of the expenses to the defendant. That burden, the courts say, is out of proportion to the fault involved. (E.g., White v. United States (D. Kan. 1981), 510 F. Supp. 146; Kingsbury v. Smith (1982), 122 N.H. 237, 442 A.2d 1003.) Courts have also stated that allowing such damages would open the door to various false claims and fraud. E.g., Rieck v. Medical Protective Co. (1974), 64 Wis. 2d 514, 219 N.W.2d 242; Beardsley v. Wierdsma (Wyo. 1982), 650 P.2d 288.

Too, many courts have declared an unwillingness to hold that the birth of a normal healthy child can be judged to be an injury to the parents. That a child can be considered an injury offends fundamental'values attached to human life. This was expressed with some sentimentality in Public Health Trust v. Brown (Fla. App. 1980), 388 So. 2d 1084. The court, in denying recovery of rearing costs to a woman who alleged that she had became pregnant after a negligently performed tubal ligation, said:

“In holding that such a claim should not be recognized, we align ourselves with a clear majority of courts in other jurisdictions which have decided the identical question [citations].
There is no purpose to restating here the panoply of reasons which have been assigned by the courts which follow the majority rule. *** In our view, however, its basic soundness lies in the simple proposition that a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child. Even the courts in the minority recognize, as the jury was instructed in this case, that the costs of providing for a child must be offset by the benefits supplied by his very existence. [Citations.] But it is a matter of universally-shared emotion and sentiment that the intangible but all-important, incalculable but invaluable ‘benefits’ of parenthood far outweigh any of the mere monetary burdens involved. [Citations.] Speaking legally, this may be deemed conclusively presumed by the fact that a prospective parent does not abort or subsequently place the ‘unwanted’ child for adoption. [Citations.] On a more practical level, the validity of the principle may be tested simply by asking any parent the purchase price for that particular youngster. Since this is the rule of experience, it should be, and we therefore hold that it is, the appropriate rule of law. It is a rare but happy instance in which a specific judicial decision can be based solely upon a reflection of one of the humane ideals which form the foundation of our entire legal system. This, we believe, is just such a case.” 388 So. 2d 1084,1085-86.

Beardsley v. Wierdsma (Wyo. 1982), 650 P.2d 288, is another decision in which the court refused to permit the recovery of rearing costs. In rejecting the notion that would allow the recovery of rearing costs with an offset for the benefits of parenthood, it was observed:

“We believe that the benefits of the birth of a healthy, normal child outweigh the expense of rearing a child. The bond of affection between child and parent, the pride in a child’s achievement, and the comfort, counsel and society of a child are incalculable benefits, which should not be measured by some misplaced attempt to put a specific dollar value on a child’s life.
The benefit or offset concept smacks of condemnation law, where the trier of fact determines the value of the land taken by the condemnor. The trier of fact then determines the benefit that results to the land owner, which benefit is deducted from the original value to determine the proper award. If the concept of benefit or offset was applied to ‘wrongful birth’ actions, we can conceive of the ridiculous result that benefits could be greater than damages, in which event someone could argue that the parents would owe something to the tortfeasors. We think that a child should not be viewed as a piece of property, with fact finders first assessing the expense and damage incurred because of a child’s life, then deducting the value of that child’s life.” 650 P.2d 288, 293.

Similarly, in Terrell v. Garcia (Tex. Civ. App. 1973), 496 S.W.2d 124, 128, cert. denied (1974), 415 U.S. 927, 39 L. Ed. 2d 484, 94 S. Ct. 1434, the court, not without emotion, reasoned:

“[A] strong case can be made that, at least in an urban society, the rearing of a child would not be a profitable undertaking if considered from the economics alone. Nevertheless, as recognized in [Hayes v. Hall (Tex. Civ. App. 1972), 477 S.W.2d 402, rev’d (Tex. 1972), 488 S.W.2d 412] and [Troppi v. Scarf (1971), 31 Mich. App. 240, 187 N.W.2d 511], the satisfaction, joy and companionship which normal parents have in rearing a child make such economic loss worthwhile. These intangible benefits, while impossible to value in dollars and cents are undoubtedly the things that make life worthwhile. Who can place a price tag on a child’s smile or the parental pride in a child’s achievement? Even if we consider only the economic point of view, a child is some security for the parents’ old age. Rather than attempt to value these intangible benefits, our courts have simply determined that public sentiment recognizes that these benefits to the parents outweigh their economic loss in rearing and educating a healthy, normal chid. We see no compelling reason to change such rule at this time.” 496 S.W.2d 124, 128.

We consider that on the grounds described the holding of a majority of jurisdictions that the costs of rearing a normal and healthy child cannot be recovered as damages to the parents is to be preferred. One can, of course, in mechanical logic reach a different conclusion, but only on the ground that human life and the state of parenthood are compensable losses. In a proper hierarchy of values the benefit of life should not be outweighed by the expense of supporting it. Respect for life and the rights proceeding from it are at the heart of our legal system and, broader still, our civilization.

In Wilczynski v. Goodman (1979), 73 Ill. App. 3d 51, our appellate court held that a mother could not recover the expenses of rearing a healthy child in an action that charged a physician with negligence in performing an abortion. The court, referring to legislation regarding abortion, observed that it is the policy of this State to protect human life. The court declared:

“In our judgment, a public policy which deems precious even potential life while yet in the womb, at such cost and expense that condition may entail, does not countenance as compensable damage to its parent or parents those additional costs and expenses necessary to sustain and nurture that life once it comes to fruition upon and after successful birth. The existence of a normal, healthy life is an esteemed right under our laws, rather than a compensable wrong.” 73 Ill. App. 3d 51, 62.

The reasoning of the court is applicable where an action is brought for a negligent sterilization or a negligent failure to determine pregnancy.

We would observe, too, that it is clear that public policy commands the development and the preservation of family relations. Exemplary of that policy in the tort context is the rule prohibiting suits by children against their parents for negligence. (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 171.) To permit parents in effect to transfer the costs of rearing a child would run counter to that policy. As stated earlier, those jurisdictions that permit a recovery for rearing costs have recognized that the recovery should be offset by the measure by which the plaintiffs have been benefited by becoming parents. Two judges of the appellate court panel here appear to favor this view. It can be seen that permitting recovery then requires that the parents demonstrate not only that they did not want the child but that the child has been of minimal value or benefit to them. They will have to show that the child remains an uncherished, unwanted burden so as to minimize the offset to which the defendant is entitled. The court in Public Health Trust v. Brown (Fla. App. 1980), 388 So. 2d 1084, 1086 n.4, convincingly noted: “The adoption of that rule [allowing recovery] would thus engender the unseemly spectacle of parents disparaging the ‘value’ of their children or the degree of their affection for them in open court. It is obvious, whether the conclusion is phrased in terms of ‘public policy,’ [citation] or otherwise, that such a result cannot be countenanced.”

We do not perceive the relevance here of Griswold v. Connecticut (1965), 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678, and Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, cited by the plaintiffs. In Griswold the court invalidated a statute making the use of contraceptives an offense. The court deemed that by outlawing the use of contraceptives the State unnecessarily invaded marital privacy. In Roe, the court held that a woman’s right to privacy is violated by a statute that prohibits all abortions that are not necessary to preserve the mother’s life.

The decisions appear irrelevant to the issue of whether damages may be recovered under the circumstances here for expenses after the birth of the child. The plaintiffs refer to these decisions in opposing considerations of public policy argued by the defendants and relied upon by some of the decisions we have cited. We would note that the plaintiffs themselves, as we shall show, rely upon public policy.

We cannot on balance accept the plaintiffs’ contention too that we should rigidly and unemotionally, as they put it, apply the tort concept that a tortfeasor should be liable for all of the costs he has brought upon the plaintiffs. It has been perceptively observed, by distinguished authority, that the life of the law is not logic but experience. Reasonableness is an indispensable quality in the administration of justice. The New York Court of Appeals, in rejecting a claim made in very different context, used language, however, that is not without appropriateness here:

“While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.” (Tobin v. Grossman (1969), 24 N.Y.2d 609, 619, 249 N.E.2d 419, 424, 301 N.Y.S.2d 554, 561.)

The reasons given for denying so-called rearing costs are more convincing than the reasons for abstractly applying a rule not suited for the circumstances in this character of case.

As we have noted, the plaintiffs themselves also rely upon considerations of public policy to temper the harshness of a proposed mechanical application of a principle of damages. In general, under the law of damages a plaintiff cannot recover for elements of damage he could reasonably have avoided. (D. Dobbs, Remedies sec. 8.9, at 579 (1973).) It has been said that this avoidable consequences rule might prevent recovery for rearing costs where the parents had an opportunity to avoid parenthood through abortion or adoption. (See Robak v. United States (7th Cir. 1981), 658 F.2d 471, 479 n.23 (the court stated that physicians in negligent-sterilization cases should not be liable for the costs of rearing a normal child where the plaintiffs learned of the pregnancy within the first trimester and freely chose not to terminate the pregnancy); Sorkin v. Lee (1980), 78 A.D.2d 180, 434 N.Y.S.2d 300 (the court held that the plaintiffs, suing for a negligently performed vasectomy, could not recover rearing costs, as they did not claim that the physician’s negligence prevented them from terminating the pregnancy or that abortion would have been medically dangerous for the mother); Rieck v. Medical Protective Co. (1974), 64 Wis. 2d 514, 219 N.W.2d 242 (it was contended that plaintiffs should be required to minimize their damages by taking steps to terminate their parental rights).) In contending that the avoidable-consequences rule should not be applied, it was argued for the plaintiffs in oral argument that applying the rule here would violate a policy, based on natural appreciation and affection, which favors the rearing of children by their natural parents.

The area of law we consider here is new, but there is reason to believe this question and related issues will be presented with increasing frequency. As the decisions we have cited show, courts regard the questions as matters of high social importance, transcending the individual controversies involved.

Dean Prosser recognized that considerations of public policy are of great importance in the law of torts. He commented:

“Perhaps more than any other branch of the law, the law of torts is a battleground of social theory. Its primary purpose, of course, is to make a fair adjustment of the conflicting claims of the litigating parties. But the twentieth century has brought an increasing realization of the fact that the interests of society in general may be involved in disputes in which the parties are private litigants. The notion of ‘public policy’ involved in private cases is not by any means new to tort law, and doubtless has been with us ever since the troops of the sovereign first intervened in a brawl to keep the peace; but it is only in recent decades that it has played a predominant part. Society has some concern even with the single dispute involved in a particular case; but far more important than this is the system of precedent on which the entire common law is based, under which a rule once laid down is to be followed until the courts find good reason to depart from it, so that others now living and even those yet unborn may be affected by a decision made today. There is good reason, therefore, to make a conscious effort to direct the law along lines which will achieve a desirable social result, both for the present and for the future.” Prosser, Torts sec. 3, at 14-15 (4th ed. 1971).

For the reasons given, the judgment of the appellate court is reversed and the judgments of the circuit court are affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE CLARK,

dissenting:

This court today has come to the conclusion that child-rearing costs are not recoverable in a wrongful birth action in Illinois. The court relies primarily on what it sees as a necessary public policy posture in reaching the conclusion it does. However, I believe the court’s opinion is internally inconsistent, and I feel that, upon a careful examination, it mischaracterizes the issues without any substantive legal foundation upon which to build. The court inconsistently has said that the birth of a normal child cannot be judged to be an injury to parents and yet, at the beginning of the opinion, the court recognizes that a cause of action exists for wrongful birth in this State, and that plaintiffs can recover for the pain of childbirth, the time lost in having the child, and the medical expenses incurred. The court in effect has found that the birth of a normal child is recognized as an injury in “wrongful birth actions” in Illinois; the issue is what damages are recoverable as a result of that injury to the parénts. If, as the court hypothesizes, the birth of a normal child cannot be construed as an injury, how then can the plaintiff recover for the “pain” of childbirth? Should, then, the court characterize the time “lost in having the child” as “lost” time (which in effect is found to be compensable)? Why then allow for the medical costs of childbirth if they represent the first installment in an investment in the preservation and development of family relations? The opinion of the court contradicts itself. Once the court has agreed that the cause of action for wrongful birth can be brought in Illinois, the policy questions that the opinion grapples with are moot.

The court determines that while other jurisdictions have applied “mechanical logic” in reaching a different conclusion than this court does, such a result can only be reached “on the ground that human life and the state of parenthood are compensable losses.” (95 Ill. 2d at 200-01.) Are we then to assume that the courts in Pennsylvania (Mason v. Western Pennsylvania Hospital (1981), 286 Pa. Super. 354, 428 A.2d 1366), Connecticut (Ochs v. Borrelli (1982), 187 Conn. 253, 445 A.2d 883), Minnesota (Sherlock v. Stillwater Clinic (Minn. 1977), 260 N.W.2d 169), and California (Stills v. Gratton (1976), 55 Cal. App. 3d 698, 127 Cal. Rptr. 652), as well as the appellate courts of Michigan (Troppi v. Scarf (1971), 31 Mich. App. 240, 187 N.W.2d 511), and of this State (Cockrum v. Baumgartner (1981), 99 Ill. App. 3d 271, Pierce v. DeGracia (1982), 103 Ill. App. 3d 511) do not respect human life, because those courts find the foreseeable child-rearing expenses to be recoverable in a wrongful birth action? I believe the court has mischaracterized the issue in a most unfortunate and hyperbolic way. It is not at all that human life or the state of parenthood are inherently injurious; rather it is an unplanned parenthood and an unwanted birth, the cause of which is directly attributable to a physician’s negligence, for which the plaintiffs seek compensation.

Griswold v. Connecticut (1965), 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678, and Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, established that the right to limit procreation was a constitutionally protected right. The United States Supreme Court did not perceive any threat to the sanctity of life by recognizing that a married couple has the right to choose not to procreate. To deny child-rearing expenses effectively nullifies that right by severely impairing the remedy available to parents who, after choosing not to conceive a child, have found that due to a negligently performed vasectomy they are going to be parents. A couple’s decision not to have a child does not undermine the value of a human life. In allowing recovery for damages for child-rearing expenses, we would only be compensating parents for damages that naturally flow from the commission of the tortious act which this court has now recognized.

Nor should the parents be forced to mitigate damages by choosing abortion or adoption. They chose not to conceive a child. It is quite a different situation to ask a couple, once a child has been conceived, to abort, or to put the child up for adoption, indicating that if they failed to do either they would assume full responsibility of any and all costs of that child. If parents are confronted in such a situation with choices that they consider to be unenviable alternatives, they should not be precluded from recovering damages because they select the most desirable of these unpalatable choices. Kelley, Wrongful Life, Wrongful Birth, and Justice in Tort Law, 1979 Wash. U.L.Q. 919, 950; see, e.g., Troppi v. Scarf (1971), 31 Mich. App. 240, 187 N.W.2d 511; Clapham v. Yanga (1980), 102 Mich. App. 47, 300 N.W.2d 727; Sorkin v. Lee (1980), 78 A.D.2d 180, 434 N.Y.S.2d 300.

Once a breach of duty by a physician has been established, that tortfeasor must bear the responsibility for the consequences of that action. See Sherlock v. Stillwater Clinic (Minn. 1977), 260 N.W.2d 169.

It is certainly foreseeable that a physician’s failure to properly perform a vasectomy on a husband or failure to properly perform a bilateral tubal cauterization on a wife, would result in the woman’s giving birth to an unplanned child. It is also foreseeable that the parents would incur substantial expenses in raising and educating that child.

The court has reached the same result arrived at in the Florida case of Public Health Trust v. Brown (Fla. App. 1980), 388 So. 2d 1084. The court quotes with approval from that Florida appellate court opinion, where it was said: “[I]t is a matter of universally-shared emotion and sentiment that the intangible but all important, incalculable but invaluable ‘benefits’ of parenthood far outweigh any of the mere monetary burdens involved.” 388 So. 2d 1084, 1085-86.

I feel such an assertion flies in face of the widespread use of contraceptives today. The court in Troppi v. Scarf (1971), 31 Mich. App. 240, 253, 187 N.W.2d 511, 517, realized that contraceptives “are used to prevent the birth of healthy children.” That appellate court in Michigan also recognized that “[t]o say that for reasons of public policy contraceptive failure can result in no damage as a matter of law ignores the fact that tens of millions of persons use contraceptives daily to avoid the very result which the defendant would have us say is always a benefit, never a detriment. Those tens of millions of persons, by their conduct, express the sense of the community.” (31 Mich. App. 240, 253, 187 N.W.2d 511, 517.) I believe that it is fair to say that many prospective parents use birth-control measures in deliberately attempting to avoid the expense of raising a child, because to many of them, at that point in time, the financial costs of feeding, clothing, sheltering and educating a child are prohibitive.

Certainly there are positive aspects to child rearing and enduring benefits to parenthood, but that does not mean, to me, that parents who take measures to prevent the conception of a child should be burdened with all of the expenses that go along with raising that child — expenses that they would not have incurred had it not been for the negligence of another.

I would also follow those other jurisdictions where child-rearing costs, while recoverable, are offset to a certain degree by the benefits of parenthood. (See Troppi v. Scarf (1971), 31 Mich. App. 240, 187 N.W.2d 511, Sherlock v. Stillwater Clinic (Minn. 1977), 260 N.W.2d 169.) Potential benefits, including companionship, that the parents may derive from that parent-child relationship should be considered by the trier of fact in determining the ultimate amount of damages. I do not believe that the many benefits of having a child should be excluded as a matter of law; nor do I feel that such benefits can be held to automatically offset all expenses. Plaintiffs who choose to rear this unplanned child should be allowed to recover for damages according to the degree of the injury. That will inevitably vary. I agree with what the court in Troppi v. Scarf (1971), 31 Mich. App. 240, 257,187 N.W.2d 511, 519, said:

“The essential point, of course, is that the trier must have the power to evaluate the benefit according to all the circumstances of the case presented. Family size, family income, age of the parents, and marital status are some, but not all, the factors which the trier must consider in determining the extent to which the birth of a particular child represents a benefit to his parents. That the benefits so conferred and calculated will vary widely from case to case is inevitable.”

The Restatement (Second) of Torts indicates that if damages are to be reduced, the benefit conferred must be to the interest that was harmed:

“When the defendant’s tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable.” (Restatement (Second) of Torts sec. 920, at 509 (1979).)

Thus the trier of fact can be in a more flexible position in determining what is the most equitable award. Application of the so-called “special benefits” rule is appropriate here, for as one commentator stated:

“Rigid categorization of interests is unnecessary and especially inappropriate in the wrongful birth context in which plaintiffs’ reasons for limiting family size are often multifaceted and complex.
* * *
*** [While] [t]he process would be admittedly difficult for the judge to administer and would require the trier of fact to exercise utmost diligence in balancing benefits and burdens, [it is only through the balancing process that the court] insure[s] that damages are measured as accurately as possible.” Note, Tort Damages — Wrongful Birth, 1982 So. Ill. U.L.J. 111, 133-35.

While such a computation in offsetting the benefits that accrue to the parents against the expenses to be incurred is difficult, it is no more formidable a task than determining the amount of damages to be awarded for loss of consortium in a wrongful death action. See Elliott v. Willis (1982), Ill. 2d 530, 540.

In reaching the result arrived at today, I believe the court has taken a myopic view of prospective parents’ considerations. A couple privileged to be bringing home the combined income of a dual professional household may well be able to sustain and cherish an unexpected child. But I am not sure the child’s smile would be the most memorable characteristic to an indigent couple, where the husband underwent a vasectomy or the wife underwent a sterilization procedure, not because they did not desire a child, but rather because they faced the stark realization that they could not afford to feed an additional person, much less clothe, educate and support a child when that couple had trouble supporting one another. The choice is not always giving up personal amenities in order to buy a gift for the baby; the choice may only be to stretch necessities beyond the breaking point to provide for a child that the couple had purposely set out to avoid having. The court today expresses concern about putting a negative imprimatur on a child’s life and yet, in denying damages for child rearing, the court may well be accomplishing the very result it so seems intent on avoiding — making a child of an unwanted birth a victim of a very real continuing financial struggle and thus a painful reminder of the obligations of parenthood to a couple who had no appetite for a parental life-style. Does that child then become more wanted because this court has seen fit to deny foreseeable expenses in a case where a physician’s negligence is undisputed?

JUSTICE SIMON joins in this dissent.