NO. 4-02-0665

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

JOHN T. CASTLE and ANGELA S. CASTLE, 

          Plaintiffs,

          and

CASTLE CONCRETE, INC.,

          Plaintiff-Appellant,

          v.

REBECCA GRACE WILLIAMS,

          Defendant-Appellee.	)

)

)

)

)

)

)

)	  Appeal from

  Circuit Court of 

  Champaign County

  No. 01L70

  Honorable

  John R. DeLaMar,

  Judge Presiding.

______________________________________________________________

		JUSTICE TURNER delivered the opinion of the court: 		Plaintiff Castle Concrete, Inc. (Castle Concrete), appeals from the Champaign County circuit court's dismissal of

its negligence claim against defendant, Rebecca Grace Williams. 

This appeal presents the issue of whether an employer can main

tain a cause of action against a third-party tortfeasor for loss

of service or profits resulting from an employee's injuries where

the injuries resulted from the tortfeasor's negligence.  We

answer this question in the negative and affirm the trial court's

judgment.

	I. BACKGROUND

		In March 2001, plaintiff John Castle filed a negligence

complaint against defendant, seeking damages for his injuries

resulting from an April 6, 2000, automobile accident.  In Febru

ary 2002, plaintiff filed a first-amended complaint, adding (1)

as plaintiffs, John's wife, Angela Castle, and his employer,

Castle Concrete, and (2) two additional counts.  Count I was

John's original negligence claim, and count III contained Angela's consortium claim.  In count II, Castle Concrete sought

to recover damages for loss of John's services as chief operating

officer, resulting from defendant's negligence.  wMoreover,wW we note that

Castle Concrete did not seek to recover damages to the Chevrolet

truck involved in the accident.

		In May 2002, defendant filed a motion to dismiss count

II of the complaint under section 2-615 of the Code of Civil

Procedure (735 ILCS 5/2-615 (West 2000)), asserting Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 435 N.E.2d 443 (1982), barred Castle Concrete from recovering pure economic

damages.  In June 2002, Castle Concrete filed a response, assert ing Moorman only applied to actions involving a defective prod uct.  Defendant replied, citing several cases of the Supreme

Court of Illinois that applied the Moorman doctrine to actions other than defective product cases.

		In July 2002, the trial court held a hearing on defen

dant's motion.  The trial court granted the motion, finding the

law did not recognize a duty to Castle Concrete as the injured

party's employer.  The trial court then made a Supreme Court Rule

304(a) (155 Ill. 2d R. 304(a)) finding.  This appeal followed.  

	II. ANALYSIS

		A section 2-615 motion to dismiss presents the question

of whether the complaint sets forth sufficient facts that, if

established, could entitle the plaintiff to relief.  In deciding

such a motion, a court must accept all well-pleaded facts in the

complaint as true and draw reasonable inferences from those facts in favor of the pleader.  The court should grant the motion only

if no set of facts can be proved that will entitle the plaintiff

to recover.  This court reviews de novo the granting of a section 2-615 motion.  Ashley v. Snyder, 316 Ill. App. 3d 1252, 1255, 739 N.E.2d 897, 900 (2000).

		With a negligence action, a plaintiff's complaint must

set forth facts establishing the existence of (1) a duty owed by

the defendant to the plaintiff, (2) a breach of that duty, and

(3) an injury proximately caused by that breach.  Stutz v. Kamm, 204 Ill. App. 3d 898, 903, 562 N.E.2d 399, 403 (1990).  Defendant

asserts Castle Concrete failed to state a cause of action because

the facts alleged do not establish that defendant owed Castle

Concrete a duty.  In determining whether a defendant owes a

particular plaintiff a duty, a court should consider the follow

ing factors:  (1) the reasonable foreseeability of injury, (2)

the reasonable likelihood of injury, (3) the magnitude of the

burden that guarding against injury places on the defendant, and

(4) the consequences of placing that burden on the defendant. 

True v. Greenwood Manor West, Inc., 316 Ill. App. 3d 676, 679, 737 N.E.2d 673, 676 (2000).  Additionally, a court's determina

tion of duty reflects the policy and social requirements of the

time and community.  Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 526-27, 513 N.E.2d 387, 396 (1987).

		At common law, a master had a right to recover for

tortious injury to his servants because the master would suffer a

loss of services in addition to the loss of the servant himself.  See Dralle v. Ruder, 124 Ill. 2d 61, 76, 529 N.E.2d 209, 216 (1988) (Clark, J., specially concurring).  However, several

courts from other states have declined to find such a cause of

action, holding the common-law right is outdated.  See Morton v. Merrillville Toyota, Inc., 562 N.E.2d 781, 786 (Ind. Ct. App. 3rd Dist. 1990); Hartridge v. State Farm Mutual Automobile Insurance Co., 86 Wis. 2d 1, 12, 271 N.W.2d 598, 603 (1978).  An essential function of a

court is to reevaluate common-law concepts in the light of

present -day realities.  Dini v. Naiditch, 20 Ill. 2d 406, 429, 170 N.E.2d 881, 892 (1960).  Whether the common-law rule is still

applicable in Illinois is a question of first impression for

Illinois courts.  See Zawadzki v. Checker Taxi Co., 539 F. Supp. 207, 208 (N.D. Ill. 1982) (no Illinois case on point).

		The common-law right of a master to recover for loss of

services due to a servant's injury by a negligent third party is

rooted in feudalism, where the servant was considered a member of

the master's household.  Hartridge, 86 Wis. 2d at 7-8, 271 N.W.2d at 601; Restatement (Second) of Agency §316, Comment b., at 58 (1958).  Such a relationship no longer exists.  Today, the

relationship between an employer and his employee is contractu

ally based.  Jacobson v. Board of Education of the City of Chicago, 321 Ill. App. 3d 103, 111-12, 746 N.E.2d 894, 900 (2001); see also A. J. Johnson Paving Co. v. Industrial Comm'n, 82 Ill. 2d 341, 350, 412 N.E.2d 477, 481 (1980).  After analyzing

the duty element in light of the modern employer-employee rela

tionship, we find the common-law right is no longer a viable cause of action in Illinois.

		First, the employer's injury is not reasonably foresee

able because it is too remote and indirect from the negligent

act.  A natural connection between the wrongdoing and the injury

does not exist.  To find such a duty would be to impose liability

on a tortfeasor for interfering with a contract not known to him. 

		Second, holding the third-party tortfeasor liable for

an employer's loss of an employee's service would place an

unreasonable burden on the tortfeasor, who has no knowledge of

the contract and no control over the employer's business.  The

employers are in the better position to insure against such a

loss through the purchase of "key man" insurance and business

management.  See Edward F. Heimbrock Co. v. Marine Sales & Service, Inc., 766 S.W.2d 70, 72 (Ky. Ct. App. 1989); Ferguson v. Green Island Contracting Corp., 44 A.D.2d 358, 360, 355 N.Y.S.2d 196, 198, 44 A.D.2d 358, 360 (N.Y. App. Div. 1974). 

		Third, such a duty raises serious social policy con

cerns.  With the majority of people employed, the allowance of

employers to recover for loss of profits for negligent injury to

their employees would result in a proliferation of claims.  See

Morton, 562 N.E.2d at 786.  Moreover, the nature of the damages is conducive to fraudulent claims.  See Hartridge, 86 Wis. 2d at 12, 271 N.W.2d at 603.  Additionally, the economic consequences

of any single accident are virtually limitless (In re Chicago Flood Litigation, 176 Ill. 2d 179, 198, 680 N.E.2d 265, 274 (1997)), and the allowance of an employer's recovery for loss of service would be a major step toward open-ended tort liability

(see Ferguson, 44 A.D.2d at 360, 355 N.Y.S.2d at 198, 44 A.D.2d at 360).    

		The weight of authority reaches the same conclusion,

denying the existence of such a cause of action.  See Champion Well Service, Inc. v. NL Industries, 769 P.2d 382, 383 (Wyo. 1989).  Additionally, a person who tortiously causes physical

harm to an agent is not liable to the principal for the harm

thereby caused to him.  Restatement (Second) of Agency §316(2),

at 58 (1958).  

	III. CONCLUSION

		For the reasons stated, we affirm the trial court's

judgment.

		Affirmed.

		COOK and APPLETON, JJ., concurring.