Chrisafogeorgis v. Brandenberg

304 N.E.2d 88, 55 Ill. 2d 368, 1973 Ill. LEXIS 270

• Court: Illinois Supreme Court
• Decided: October 1, 1973
• Docket: 45060
• Status: Published

Opinions

MR. JUSTICE WARD

delivered the opinion of the court:

The question presented is whether there can be recovery under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, pars. 1 and 2) for the wrongful death of a viable child or fetus born dead as a result of injuries negligently inflicted en ventre sa mere.

On September 1, 1966, Mrs. Donna Chrisafogeorgis, while in her 36th week of pregnancy, was struck by an automobile driven by Richard Brandenberg as she walked across a Chicago street. Emergency surgery was performed on Mrs. Chrisafogeorgis several hours later and, according to the complaint which we consider here, it was determined that her unborn infant had died from injuries sustained when Mrs. Chrisafogeorgis was struck.

On March 27, 1968, Mrs. Chrisafogeorgis and her husband, Gust J. Chrisafogeorgis, filed a complaint in the circuit court of Cook County against the defendants, Richard Brandenberg, the driver of the automobile, and Hubert Brandenberg, its owner. Mrs. Chrisafogeorgis sought damages for her own injuries, and her husband, as the administrator of the estate of Baby Boy Chrisafogeorgis, sought recovery for the wrongful death of the stillborn child. The action by Mrs. Chrisafogeorgis is not involved in this appeal.

The defendants moved for summary judgment against the plaintiff Gust Chrisafogeorgis on the ground that under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, pars. 1 and 2) there can be no action unless the fetus has been born alive. The circuit court granted the defendant’s motion, and dismissed the wrongful death action. This was affirmed by the appellate court (3 Ill. App. 3d 422), and we granted leave to appeal.

There was no right to recover for wrongful death at common law. Whether this plaintiff had a cause of action depends on whether the Wrongful Death Act extends to the death of a viable fetus born dead because of injuries sustained prior to birth through a negligent act.

As relevant here, the Illinois Wrongful Death Act provides:

“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 ***.” Ill. Rev. Stat. 1971, ch. 70, par. 1.

This court has held that there is a right of action for injuries wrongfully sustained by a viable child en ventre sa mere when the child survives the injuries and is born alive. Amann v. Faidy, 415 Ill. 422, 430-431.

Though this court has not considered the question whether there can be recovery for the wrongful death of a viable child who is bom dead because of a wrongfully inflicted injury en ventre sa mere, courts in other jurisdictions have considered the question. A greater number of them have allowed an action for damages. (See generally, Annot. (1967), Action for Death of Unborn Child, 15 A.L.R.3d 992.) Holdings denying an action for the wrongful death of an infant injured while en ventre sa mere and stillborn, include: California (Bayer v. Suttle (1972), 23 Cal. App. 3d 361, 100 Cal. Rptr. 212); Iowa (McKillip v. Zimmerman (Iowa 1971), 191 N.W.2d 706); Massachussetts (Keyes v. Construction Service, Inc. (1960), 340 Mass. 633, 165 N.E.2d 912); New Jersey (Graf v. Taggert (1964), 43 N.J. 303, 204 A.2d 140); New York (Endresz v. Friedberg (1969), 24 N.Y.2d 478, 248 N.E.2d 901); North Carolina (Gay v. Thompson (1966), 266 N.C. 394, 146 S.E.2d 425); Oklahoma (Howell v. Rushing (Okla. 1953), 261 P.2d 217); Pennsylvania (Carroll v. Skloff (1964), 415 Pa. 47, 202 A.2d 9); Tennessee (Hogan v. McDaniel (1958), 204 Tenn. 235, 319 S.W.2d 221; Durrett v. Owens (1963), 212 Tenn. 614, 371 S.W.2d 433). Among holdings permitting an action are: Connecticut (Gorke v. Le Clerc (Super. Ct. 1962), 23 Conn. Supp. 256, 181 A.2d 448; Hatala v. Markiewicz (Super. Ct. 1966), 26 Conn. Supp. 358, 224 A.2d 406); Delaware (Worgan v. Greggo & Ferrara, Inc. (Super. Ct. 1956), 50 Del. 258, 128 A.2d 557); Georgia (Porter v. Lassiter (1955), 91 Ga. App. 712, 87 S.E.2d 100); Kansas (Hale v. Manion (1962), 189 Kan. 143, 368 P.2d 1); Kentucky (Rice v. Rizk (Ky. 1970), 453 S.W.2d 732); Louisiana (Valence v. Louisiana Power & Light Co. (La. App. 1951), 50 So. 2d 847); Maryland (State ex rel. Odham v. Sherman (1964), 234 Md. 179, 198 A.2d 71); Michigan (O’Neill v. Morse (1971), 385 Mich. 130, 188 N.W.2d 785); Minnesota (Verkennes v. Corniea (1949), 229 Minn. 365, 38 N.W.2d 838); Mississippi (Rainey v. Horn (1954), 221 Miss. 269, 72 So. 2d 434); Nevada (White v. Yup (1969), 85 Nev. 527, 458 P.2d 617); New Hampshire (Poliquin v. MacDonald (1957), 101 N.H. 104, 135 A.2d 249); Ohio (Stidam v. Ashmore (1959), 109 Ohio App. 431, 11 Ohio Op. 2d 383, 167 N.E.2d 106); South Carolina (Fowler v. Woodward (1964), 244 S.C. 608, 138 S.E.2d 42); West Virginia (Baldwin v. Butcher (W. Va. 1971), 184 S.E.2d 428); Wisconsin (Kwaterski v. State Farm Mutual Automobile Ins. Co. (1967), 34 Wis. 2d 14, 148 N.W.2d 107).

Arguments most frequently advanced for a denial of the right of action are grounded (1) on the difficulties in establishing the existence of a causal relation between a prenatal injury and death, e.g., Graf v. Taggert (1964), 43 N.J. 303, 204 A.2d 140, and (2) on the problem in ascertaining the damages to be allowed (Carroll v. Skloff (1964), 415 Pa. 47, 202 A.2d 9).

This court in Amann considered and rejected an argument which was based on the difficulties of establishing causation in the case of a viable fetus injured en ventre sa mere who dies as a consequence after birth. The language used in Amann is appropriate for application here. It was said: “The argument based upon the difficulty of proof of a causal relation between the injury en ventre sa mere and the damage which subsequently becomes apparent has likewise been rejected. ‘The difficulty of obtaining proof of the wrong should prompt greater leniency in affording the remedy, rather than a denial of plain justice. We are not impressed with the reasoning that a clear remedy for an injustice should be denied because a wrong is not readily susceptible of proof. ’ (Scott v. McPheeters, 33 Cal. App. [2d] 629, 92 Pac. 2d 678, (1939).) Concerning ‘the argument of convenience, based upon the difficulty of proof,’ the Maryland court made these observations in the Damasiewicz case (Damasiewicz v. Gorsuch (1950), 197 Md. 417, 437, 79 A.2d 550, 559] : ‘It is probable that this would have been almost insurmountable in the days of Coke, Hardwicke and Blackstone, and perhaps of Holmes, and may have influenced their conceptions of the law. Physicians of today would have less trouble with the problem, but apart from this, the right to bring an action is clearly distinguishable from the ability to prove the facts. The first cannot be denied because the second may not exist.” 415 Ill. 422, 430-431.

Here, of course, we are considering the question of a right to bring an action, not the evidence in support of the complaint. We judge that the argument grounded on claimed difficulties in showing causation does not require the denial of a right of action. Parenthetically, we would observe that Mrs. Chrisafogeorgis was in her eighth month of pregnancy; there is no question as to the viability of Baby Boy Chrisafogeorgis.

We do not consider that difficulties in determining damages should operate as a legal bar to the right of action. It is unquestioned that there can be a recovery for the wrongful death of a child who lives but a moment after birth. Difficulties in determining damages of the parents of this child cannot be deemed greater or different in character from difficulties attending the determination of damages in the case of an injured child who did not survive delivery.

Among the principal reasons advanced for allowing a right of action for the wrongful death of a viable but stillborn child is that the fetus has an existence separate and independent of its mother. In Amann this court in considering the independent life of the fetus quoted from Woods v. Lancet (1951), 303 N.Y. 349, 357, 102 N.E.2d 691, 695, where it was said: “To hold, as a matter of law, that no viable foetus has any separate existence which the law will recognize is for the law to deny a simple and easily demonstrable fact. This child, when injured, was in fact, alive and capable of being delivered and of remaining alive, separate from its mother.”

Another ground often expressed for permitting a right of action is that a holding would be logically indefensible which would allow a right of action where an injured child survives delivery for even the briefest time and would deny an action where the viable child does not survive delivery. Hatala v. Markiewicz (Super. Ct. 1966), 26 Conn. Supp. 358, 224 A.2d 406; Gorke v. Le Clerc (Super. Ct. 1962), 23 Conn. Supp. 256, 181 A.2d 448; Hale v. Manion (1962), 189 Kan. 143, 368 P.2d 1; State ex rel. Odham v. Sherman (1964), 234 Md. 179, 198 A.2d 71; O’Neill v. Morse (1971), 385 Mich. 130, 188 N.W.2d 785; Rainey v. Horn (1954), 221 Miss. 269, 72 So. 2d 434; Poliquin v. MacDonald (1957), 101 N.H. 104, 135 A.2d 249; Stidam v. Ashmore (1959), 109 Ohio App. 431, 11 Ohio Op. 2d 383, 167 N.E.2d 106; Fowler v. Woodward (1964), 244 S.C. 608, 138 S.E.2d 42; Baldwin v. Butcher (W. Va. 1971), 184 S.E.2d 428.

A statement in Stidam v. Ashmore (1959), 109 Ohio App. 431, 434, 11 Ohio Op. 2d 383, 385, 167 N.E.2d 106, 108, gives an example of incongruous results which would be reached under such a holding. The court observed:

“The wrongful death statute, Section 2125.01 Revised Code, grants a derivative right. The test of the existence of that right is that the injury ‘would have entitled the party injured to maintain an action and recover damages if death had not ensued.’ If death had not ensued, the child in our present case would have been entitled to maintain an action. We are unable to reconcile the two propositions, that if the death occurred after birth there is a cause of action, but that if it occurred before birth there is none. ***

Such a distinction could lead to bizarre results. Suppose, for example, viable unborn twins suffered simultaneously the same prenatal injury of which one died before and the other after birth. Shall there be a cause of action for the death of the one and not for that of the other? Surely logic requires recognition of causes of action for the deaths of both, or for neither.”

Weighing the holdings for and against giving a right of action and their supporting grounds we are persuaded that the preferred rule is that a right of action should be recognized.

This recognition is not only consistent with Amann but is a reasonable and natural development of the holding. The complaint had charged injury to “a living human entity en ventre sa mere. ” The core question presented was the legal significance of viability. This court held that injuries sustained by a viable fetus which caused death after delivery was actionable. The factual difference between the case there and the one here is the time of death, not the character of the injury. The cases have the common ground and question of the rights arising from the death of a “child [who], when injured, was in fact, alive and capable of being delivered and of remaining alive, separate from its mother.” (Woods v. Lancet (1951), 303 N.Y. 349, 357, 102 N.E.2d 691, 695.) The central holding in Amann was that a right of action arose from fatal injuries to such a child. The further question involved in this case was not there presented.

It can be argued, as does the defendant, that, of necessity, border lines often must be drawn and that the process of live delivery should be the line in this case. However, we consider more realistically and reasonably that viability is the appropriate line of demarcation. It is the time at which a child is capable of being delivered and remaining alive separate from and independent of the mother. This can be said to be the critical stage of a “person” within the meaning of the Wrongful Death Act’s language “Whenever the death of a person ***.”

Too, in drawing dividing lines or borders for rights or disabilities, lines which unnecessarily produce incongruous and indefensible results should be avoided. The Supreme Court of Wisconsin in Kwaterski v. State Farm Mutual Automobile Ins. Co. (1967), 34 Wis. 2d 14, 20, 148 N.W.2d 107, 110, made the observation: “If no right of action is allowed there is a wrong inflicted for which there is no remedy. Denying a right of action for negligent acts which produce a stillbirth leads to some very incongruous results. For example, a doctor or a midwife whose negligent acts in delivering a baby produced the baby’s death would be legally immune from a lawsuit. However, if they badly injured the child they would be exposed to liability. Such a legal rule would produce the absurd result that an unborn child who was badly injured by the tortious acts of another, but who was born alive could recover while an unborn child, who was more severely injured and died as a result of the tortious acts of another, could recover nothing.”

For the reasons given, the judgment of the appellate court is reversed and the cause is remanded to the circuit court of Cook County with directions to deny the motion for summary judgment.

Reversed and remanded, with directions.