Myers v. Heritage Enterprises, Inc.

• Decision Date: 17 July 2002
• Docket Number: No. 4-01-1003.,4-01-1003.
• Citation: 266 Ill.Dec. 32,332 Ill. App.3d 514,773 N.E.2d 767
• Parties: Michael B. MYERS, Independent Executor of the Estate of Mary Prillmayer, Deceased, Plaintiff-Appellant, v. HERITAGE ENTERPRISES, INC., a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

773 N.E.2d 767

332 Ill. App.3d 514

266 Ill.Dec. 32

Michael B. MYERS, Independent Executor of the Estate of Mary Prillmayer, Deceased, Plaintiff-Appellant, v. HERITAGE ENTERPRISES, INC., a Corporation, Defendant-Appellee.

No. 4-01-1003.

Appellate Court of Illinois, Fourth District.

July 17, 2002.

Robert E. Utter (argued), Mt. Sterling, for Michael B. Myers.

Karen L. Kendall (argued), Heyl, Royster, Voelker & Allen, Peoria, Frederick P. Velde, Matthew R. Booker, Heyl, Royster, Voelker & Allen, Springfield, for Heritage Enterprises, Inc.

Presiding Justice McCULLOUGH delivered the opinion of the court:

Plaintiff, Michael B. Myers, independent executor of the estate of Mary Prillmayer, deceased, appeals from an order of the Brown County circuit court granting defendant's motion to dismiss count II of plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2000)). Plaintiff sought recovery from defendant, Heritage Enterprises, Inc., a corporation, for a statutory violation of the Nursing Home Care Act (210 ILCS 45/1-101 through 3A-101 (West 2000)). On appeal, plaintiff argues that the trial court erred in granting defendant's motion to dismiss count II of plaintiff's complaint finding "[a] Cause of Action under said Nursing Home Care Act does not survive death of resident." We reverse and remand.

On July 12, 2001, plaintiff filed a two-count complaint against defendant, a residential nursing facility. Plaintiff alleged that decedent, before her death, suffered fractures to her legs as a result of defendant's employees' careless and negligent acts while moving decedent from a wheelchair to her bed. Count II of plaintiff's complaint, the only count at issue in this appeal, sought recovery from defendant for a statutory violation of the Nursing Home Care Act. On August 8, 2001, defendant filed a motion to dismiss count II of plaintiff's complaint. Defendant argued that "no provision of the * * * Nursing Home Care Act allows for a cause of action to survive the resident's death." On October 17, 2001, the trial court entered an order stating:

"The Nursing Home Act is in Derogation of the Common Law of Illinois and must be construed strictly. The legislature did not engraft a survival clause. A Cause of Action under said Nursing Home Care Act does not survive death of resident."

A Rule 304(a) finding was made with respect to this interlocutory appeal. See 155 Ill.2d R. 304(a).

We review de novo the granting of a section 2-619 motion to dismiss. Nowak v. St. Rita High School, 197 Ill.2d 381, 389, 258 Ill.Dec. 782, 757 N.E.2d 471, 477 (2001).

Defendant argues that the Nursing Home Care Act "lacks any provision for survivability of a cause of action." Further, defendant argues that the Survival Act (755 ILCS 5/27-6 (West 2000)) must make specific reference to the Nursing Home Care Act "for a cause of action * * * to survive."

The Nursing Home Care Act was enacted because of concerns over reports of "inadequate, improper and degrading treatment of patients in nursing homes." 81st Ill. Gen. Assem., Senate Proceedings, May 14, 1979, at 184 (statements of Senator Karl Berning). The Nursing Home Care Act's purpose is to provide protection for nursing home residents. Eads v. Heritage Enterprises, Inc., 325 Ill.App.3d 129, 132, 258 Ill.Dec. 722, 757 N.E.2d 107, 110 (2001), appeal allowed, 198 Ill.2d 589, 262 Ill.Dec. 619, 766 N.E.2d 239. The Nursing Home Care Act expressly grants nursing home residents the right to pursue actions for damages and other relief against nursing home facilities. Fisher v. Lexington Health Care, Inc., 188 Ill.2d 455, 464, 243 Ill.Dec. 46, 722 N.E.2d 1115, 1120 (1999). Section 3-601 provides that owners and operators of facilities are liable to a resident for injuries caused by the intentional or negligent acts of their employees or agents. 210 ILCS 45/3-601 (West 2000). Section 3-602 makes operators liable for damages to nursing home residents whose rights under the Nursing Home Care Act are violated. 210 ILCS 45/3-602 (West 2000). Section 3-603 specifies that a resident may maintain an action under the Nursing Home Care Act for any other type of relief permitted by law. 210 ILCS 45/3-603 (West 2000).

The Survival Act provides that "[i]n addition to the actions which survive by the common law, the following also survive: * * * actions to recover damages for an injury to the person." 755 ILCS 5/27-6 (West 2000). In National Bank of Bloomington v. Norfolk & Western Ry. Co., 73 Ill.2d 160, 171-72, 23 Ill.Dec. 48, 383 N.E.2d 919, 923 (1978), the supreme court, referencing an action under the Public Utilities Act (Ill.Rev.Stat.1969, ch. 1112/3, par. 77), stated:

"The law, of course, has always recognized that, if a person survives, he may bring a common law or statutory action against a party whose wrongful conduct has caused him such personal injury. At common law, however, the same action would abate upon the death of the injured person. To remedy this injustice, a survival statute was enacted (originally in 1872) to allow an action, such as the instant action to recover damages for an injury to the person, to survive the death of the injured person. [Citation.] The Survival Act does not create a statutory cause of action. It merely allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died."

In Pietrzyk v. Oak Lawn Pavilion, Inc., 329 Ill.App.3d 1043, 1044, 263 Ill.Dec. 932, 769 N.E.2d 134, 135 (2002), decided April 26, 2002, the plaintiff, as executrix of the estate of Antoni Pietrzyk, filed a multicount claim against defendant, Oak Lawn Pavilion, Inc. (Oak Lawn). Count I of plaintiff's amended complaint sought recovery from Oak Lawn for a statutory violation of the Nursing Home Care Act. The appellate court noted:

"Pursuant to section 27-6 of the Survival Act (755 ILCS 5/27-6 (West [2000])), [the plaintiff's] husband's own cause of action remained viable after his death." Pi

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