Smith v. Mercy Hosp. and Medical Center

• Citation: 560 N.E.2d 1164,148 Ill. Dec. 567,203 Ill.App.3d 465
• Decision Date: 18 September 1990
• Docket Number: No. 1-88-3476,1-88-3476
• Parties: , 148 Ill.Dec. 567 Larry SMITH and Yolanda Smith, Individually and as Special Administrator for the Estate of Christopher Duane Smith, Deceased, Plaintiffs-Appellants, v. MERCY HOSPITAL AND MEDICAL CENTER, An Illinois Not-For-Profit Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1164

560 N.E.2d 1164

203 Ill.App.3d 465, 148 Ill.Dec. 567

Larry SMITH and Yolanda Smith, Individually and as Special

Administrator for the Estate of Christopher Duane

Smith, Deceased, Plaintiffs-Appellants, v. MERCY HOSPITAL AND MEDICAL CENTER, An Illinois

Not-For-Profit Corporation, Defendant-Appellee.

No. 1-88-3476.

Appellate Court of Illinois,

First District, Second Division.

Sept. 18, 1990.

Rivkin, Radler, Dunne & Bayh, Chicago (Alan E. Case, David M. Zinder, of counsel), for plaintiffs-appellants.

Peterson, Ross, Schloerb & Seidel, Chicago (J. Jonathan Regunberg, Kathleen A. Brosnan, of counsel), for defendant-appellee.

Justice SCARIANO delivered the opinion of the court:

As a result of injuries sustained en ventre sa mere, Christopher Duane Smith (Christopher) was delivered stillborn on June 6, 1983. On June 3, 1985, his parents, plaintiffs Larry and Yolanda Smith, filed a complaint pursuant to the provisions of the Wrongful Death Act (or Act) (Ill.Rev.Stat.1989, ch. 70, par. 1 et seq.) against Mercy Hospital and Medical Center (defendant) alleging that its negligent medical care of Yolanda Smith (Yolanda) during the final days of her pregnancy caused Christopher's stillbirth. They appeal from two orders of the circuit court dismissing their claims for the loss of (1) Christopher's services and support and (2) his society.

In count I of their two-count complaint, plaintiffs alleged that Yolanda was in defendant's care from March to June 1983, the final trimester of her pregnancy with Christopher; that defendant hospital, which she entered on June 4, 1983, failed to give her proper information about the signs and symptoms of labor; and that instead of advising her to remain at its facilities, it directed her to return home. Yolanda complained of new symptoms to defendant on June 5, 1983, when it again failed (1) to give her proper instructions; (2) to use appropriate procedures; or (3) to conduct tests that could have saved Christopher's life. According to the complaint, these negligent acts and omissions of defendant caused Christopher's stillbirth on June 6, 1983. Plaintiffs claimed damages for the "loss of benefits of pecuniary value, including money, goods and services which Decedent would have contributed to them had he lived and * * * a loss of Decedent's society." In count II, they sought recovery for negligent infliction of emotional distress, and although this count was also dismissed with prejudice, it is not part of this appeal.

In moving to dismiss count I, defendant argued that Illinois, as a matter of law, does not permit the recovery of damages for loss of services and society caused by the wrongful death of an unborn child; however, Circuit Judge Willard J. Lassers found that section 2.2 of the Wrongful Death Act not only "unmistakably" created a cause of action for the wrongful death of a fetus but that, contrary to defendant's contention, Illinois recognizes a right to recover damages under the Act for the loss of a stillborn child's society. The judge accordingly denied defendant's motion with respect to plaintiffs' loss of society, but granted the motion relating to their claim for the loss of the child's services.

Several months later, defendant moved to dismiss plaintiffs' claim for the loss of Christopher's society on the basis of Hunt v. Chettri, 158 Ill.App.3d 76, 110 Ill.Dec. 293, 510 N.E.2d 1324, appeal denied (1987), 116 Ill.2d 555, 113 Ill.Dec. 299, 515 N.E.2d 108, in which the appellate court for the Fifth District denied loss of society benefits to the plaintiffs for the wrongful death of their unborn child, drawing the line for the maintenance of such a cause of action at birth. Acknowledging that he was bound by the decision in Hunt, Circuit Judge Dean J. Sodaro struck the only remaining portion of the complaint. (See Knapp v. Palos Community Hospital (1988), 176 Ill.App.3d 1012, 1018, 126 Ill.Dec. 362, 531 N.E.2d 989, 993.) Plaintiffs appeal from both orders of dismissal.

The issues thus presented for our review are (1) whether plaintiffs, as the parents of a stillborn child, may recover damages in a wrongful death action for the loss of their child's society and whether they are entitled to a presumption of such loss; and (2) whether in the absence of a presumption of pecuniary injury for the loss of the child's services and support, plaintiffs are entitled to prove such loss. We reverse both orders of dismissal and remand the cause for trial.

Our scope of review is well-defined and well-established. At this procedural juncture "all well-pleaded facts in the complaint and all reasonable inferences from them will be regarded as true." (Johnson v. Condell Memorial Hospital (1988), 119 Ill.2d 496, 117 Ill.Dec. 47, 520 N.E.2d 37.) The reviewing court must further consider the complaint as a whole and "should interpret the facts alleged * * * in the light most favorable to the plaintiffs." (Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill.App.3d 834, 52 Ill.Dec. 405, 422 N.E.2d 86.) Accordingly, the defendant's motions should not have been granted unless it affirmatively appears that no set of facts could be proved which would have entitled plaintiffs to relief. People ex rel. Scott v. College Hills Corp. (1982), 91 Ill.2d 138, 61 Ill.Dec. 766, 435 N.E.2d 463; Anixter Bros., Inc. v. Central Steel & Wire Co. (1984), 123 Ill.App.3d 947, 79 Ill.Dec. 359, 463 N.E.2d 913.

We are persuaded that permitting parents to recover for the loss of their stillborn child's society and entitling them to a presumption thereof is a natural and logical outgrowth of existing law in Illinois. Promulgated in 1853, the Illinois Wrongful Death Act has remained virtually unchanged since then. It allows a deceased family member's personal representative to sue on behalf of the spouse or next of kin for "pecuniary injuries" where the victim's death was caused by negligence. (Ill.Rev.Stat.1989, ch. 70, par. 1 et seq.) Section 1 of the Act provides:

" § 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." (Ill.Rev.Stat.1989, ch. 70, par. 1.)

Section 2 of the Act provides in pertinent part as follows:

"[I]n every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person." Ill.Rev.Stat.1989, ch. 70, par. 2.

Since "pecuniary injuries" are not defined in the Act, our courts have evolved their own formulaic definition of the term. In the first of its decisions to construe the Act, City of Chicago v. Major (1857), 18 Ill. 349, the supreme court limited "pecuniary injuries" to the economic loss of the deceased's services and support. Because the deceased in Major happened to be only four years old, the court also recognized a presumption of pecuniary loss. (See also City of Chicago v. Scholten (1874), 75 Ill. 468, 471; Bullard v. Barnes (1984), 102 Ill.2d 505, 516, 82 Ill.Dec. 448, 468 N.E.2d 1228, 1233.) Historically, then, loss of society and loss of consortium were for a considerable period of time not recoverable elements of damage, an exclusion based on the view that the loss of the companionship of the decedent was not capable of pecuniary valuation. (M. Polelle & B. Ottley, Illinois Tort Law 505 (1985).) In recent decades, however, the trend has been to interpret the term "pecuniary injuries" more expansively, which has led to the inclusion therein of not only purely economic loss, but also loss of society. For example, in Allendorf v. Elgin, Joliet & Eastern Ry. Co., 8 Ill.2d 164, 133 N.E.2d 288, cert. denied (1956), 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53, the court recognized that the loss of a deceased father's "felicity, care, attention, and guidance" were compensable as pecuniary injuries under the Act. In Hall v. Gillins (1958), 13 Ill.2d 26, 147 N.E.2d 352, the court declined to allow a common law action brought by a widow and her minor child for the deprivation of the father's "support, * * * companionship guidance, advice, love and affection," because an adequate remedy already existed under the Act, and unanimously held that the term "pecuniary injuries" was broad enough to include most of the items of damages the plaintiffs had claimed in the case. To the same effect is Knierim v. Izzo (1961), 22 Ill.2d 73, 82-83, 174 N.E.2d 157, 162-63. In Elliott v. Willis (1982), 92 Ill.2d 530, 65 Ill.Dec. 852, 442 N.E.2d 163, the court, relying on Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881, in which it held that there was no basis in modern society for the denial of a wife's common law action for loss of consortium, and relying also on Hall, ruled that loss of a spouse's society is a compensable pecuniary injury under the broad wording of the Act. However, although the parents of a deceased minor child were long entitled to a presumption of the loss of the child's services and earnings, prior to June 1984, Illinois courts refused to allow recovery for the loss of a child's society despite the absence of such a proscription in the Act. See, e.g., Trotter v. Moore (1983), 113 Ill.App.3d 1011, 69 Ill.Dec. 653, 447 N.E.2d 1340, rev'd (1984), 101 Ill.2d 551, 82 Ill.Dec. 456, 468 N.E.2d 1236.

Then, in the case of Bullard v. Barnes (1984), 102 Ill.2d 505, 516-17, 82 Ill.Dec. 448, 453, 468 N.E.2d 1228, 1233, the supreme court removed the presumption of damages arising...