Dralle v. Ruder

529 N.E.2d 209, 124 Ill. 2d 61, 124 Ill. Dec. 389, 1988 Ill. LEXIS 93

• Court: Illinois Supreme Court
• Decided: June 20, 1988
• Docket: 64424
• Status: Published

Opinions

JUSTICE MILLER

delivered the opinion of the court:

The plaintiffs, Jeffrey Dralle, by his mother and next friend, Karen Dralle, and his parents, Karen and Gregory Dralle, individually, brought an action in the circuit court of Cook County to recover damages resulting from injuries allegedly sustained by Jeffrey before and at the time of his birth. The instant appeal concerns that part of the complaint in which Mr. and Mrs. Dralle seek compensation for loss of their son’s companionship and society from defendants Merrell-Dow Pharmaceuticals, Inc., Merrell-National Laboratories, Inc., and Richardson-Merrell, Inc. (Merrell-Dow or the Merrell-Dow defendants), manufacturers and distributors of a prescription drug allegedly used by Mrs. Dralle while she was pregnant with Jeffrey. The trial judge dismissed the claim for failure to state a cause of action. The appellate court reversed the dismissal order, holding that this State recognizes a common law cause of action by a parent for loss of companionship and society resulting from nonfatal injuries to a child. (148 Ill. App. 3d 961.) We allowed Merrell-Dow’s petition for leave to appeal. See 107 Ill. 2d R. 315(a).

Mrs. Dralle was admitted to Riverside Hospital in Kankakee on October 16, 1977, and she gave birth to Jeffrey the following day. In a four-count complaint filed May 31, 1985, the plaintiffs asserted that the child was born with a number of maladies, and damages were sought under common law theories of negligence and products liability. Counts I and II of the complaint, alleging negligence, were brought against Mrs. Drake’s obstetricians, Dr. Bernard Ruder and Dr. James Goldenstein, their employer, Westwood Obstetrics and Gynecology, Ltd., and Riverside Hospital. In those counts the plaintiffs alleged that during the delivery the child suffered anoxia, or lack of oxygen, and was in fetal distress. In count I of the complaint Jeffrey sought recovery in his own behalf for those injuries, and in count II his parents sought recovery for loss of the child’s companionship and society. Counts III and IV of the complaint were brought on a products liability theory against the Merrell-Dow defendants. In those counts the plaintiffs alleged that Mrs. Drake’s use during pregnancy of the prescription drug Bendectin, a product manufactured and distributed by the Merrell-Dow defendants, had caused Jeffrey to be born with various birth defects. In count III Jeffrey sought recovery in his own behalf for his personal injuries, and in count IV, at issue here, Mr. and Mrs. Drake sought recovery for loss of companionship and society resulting from the injuries to the child.

Merrell-Dow moved for dismissal of count IV of the complaint, contending that this State does not recognize a cause of action by a parent for loss of society arising from nonfatal injury to a child. The trial judge granted the motion and dismissed that part of the complaint. Mr. and Mrs. Drake took an immediate appeal (see 107 Ill. 2d R. 304(a)), and the appellate court reversed the dismissal order. The court believed that denial of the parents’ cause of action would be inconsistent with this court’s decision in Bullard v. Barnes (1984), 102 Ill. 2d 505, and with the appellate court’s decision in Dymek v. Nyquist (1984), 128 Ill. App. 3d 859. Bullard held that a parent may recover compensation for loss of a minor chkd’s society in a wrongful death action; Dymek approved a claim for loss of society brought by a divorced father against his former spouse and a psychiatrist for allegedly “brainwashing” the couple’s child in an attempt to destroy the fkial relationship. In this case, the appellate court acknowledged that the parents’ loss was intangible and would be difficult to determine, but the court believed that “[allowing the parents to maintain an action for the loss of society of a minor child in Bullard and Dymek and denying plaintiffs’ cause of action in the instant case would be anomalous.” (148 Ill. App. 3d at 963.) The court also construed the trend of case authority on this issue from other jurisdictions as favoring recognition of the parents’ cause of action.

The appellate court has previously denied recovery by a parent seeking damages for loss of society and companionship resulting from nonfatal injuries to a child. (Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 408-09, aff’d in part and rev’d in part on other grounds (1983), 98 Ill. 2d 158.) In an earlier case, Stephens v. Weigel (1948), 336 Ill. App. 36, 42, the appellate court had affirmed a judgment awarding to a plaintiff whose wife and daughter were injured in an automobile accident “consequential damages arising from his payment of medical and hospital expenses, and for the loss of the services and society of his wife and daughter”; recovery of damages for loss of society was not at issue there, and it is not clear from the opinion whether the award was limited to the wife’s injuries, or whether it also extended to the daughter’s. And our appellate court has consistently refused to recognize the converse claim-actions brought by children for loss of society and companionship resulting from nonfatal injuries to their parents. (Huter v. Ekman (1985), 137 Ill. App. 3d 733; Block v. Pielet Brothers Scrap & Metal, Inc. (1983), 119 Ill. App. 3d 983; Mueller v. Hellrung Construction Co. (1982), 107 Ill. App. 3d 337; Koskela v. Martin (1980), 91 Ill. App. 3d 568.) In support of count IV of the complaint, Mr. and Mrs. Dralle contend here that recognition of a cause of action by a parent for loss of society arising from nonfatal injuries to a minor child is a logical extension of this court’s decision in Bullard. The Dralles note that a number of jurisdictions have allowed recovery in those circumstances (see, e.g., Howard Frank, M.D., P.C. v. Superior Court (1986), 150 Ariz. 228, 722 P.2d 955; Reben v. Ely (Ariz. App. 1985), 146 Ariz. 309, 705 P.2d 1360; Shockley v. Prier (1975), 66 Wis. 2d 394, 225 N.W.2d 495), and they maintain that recognition of the cause of action would not be contrary to public policy.

In Bullard this court held that a parent may recover damages for loss of a minor child’s society in a wrongful death suit. Bullard was an action brought by the estate and the parents of a minor child killed in an automobile accident; recovery was sought under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1 through 2.2), the Survival Act (Ill. Rev. Stat. 1979, ch. 110, par. 27—6), and the family expense statute (Ill. Rev. Stat. 1979, ch. 40, par. 1015). With respect to the wrongful death claim, the jurors in that case were instructed to consider “the parents’ loss of society with the decedent” in determining the pecuniary injury sustained by the parents, and this court held that the parents’ loss of their minor child’s society was compensable in a wrongful death action.

In Bullard the court noted that a majority of the States with wrongful death statutes limiting damages to pecuniary injuries, as the Illinois statute does, permitted recovery for loss of filial consortium. The decisional law in this State similarly favored a broad reading of the pecuniary injury standard “to encompass nonmonetary losses.” (Bullard, 102 Ill. 2d at 514.) In Elliott v. Willis (1982), 92 Ill. 2d 530, the court expressly approved the recovery of damages for loss of spousal consortium in actions under the Wrongful Death Act. In Hall v. Gillins (1958), 13 Ill. 2d 26, the court ruled that the broad recovery permitted in wrongful death actions obviated the common law action asserted in that case by a surviving wife and child for destruction of the family unit. Each plaintiff in Hall alleged, in addition to loss of support, “deprivation of the companionship, guidance, advice, love and affection of the deceased,” and the court believed that “[t]he term ‘pecuniary injuries’ has received an interpretation that is broad enough to include most of the items of damage that are claimed by the plaintiffs in this case.” (Hall, 13 Ill. 2d at 31.) In Knierim v. Izzo (1961), 22 Ill. 2d 73, the court placed similar reliance on the adequacy of the wrongful death recovery in refusing to recognize a common law action for loss of consortium resulting from the death of a spouse. Relying on those earlier decisions, the court in Bullard held that a parent may recover damages for loss of filial society in a wrongful death action. The court said:

“Defendant urges that we await further indication from the General Assembly as to whether its intent was or is to permit parents to recover for loss of their children’s society in a wrongful death action. We have concluded, however, in view of our earlier decisions indicating similar recoveries would have been allowed in cases involving loss of a parent (Hall [13 Ill. 2d 26]) and spouse (Elliott [92 Ill. 2d 530], Knierim [22 Ill. 2d 73]), that it would be anomalous to now deny parents this form of recovery.” Bullard, 102 Ill. 2d at 515.

Having held that a parent may recover for loss of filial society in a wrongful death action, the court in Bullard went on to consider, as a related question, the makeup of the presumption of pecuniary loss that a parent may assert in the action. That presumption originally was limited to damages for lost wages and services, and it developed from “the common law rule that a parent is entitled to the services and earnings of an unemancipated minor child.” (Bullard, 102 Ill. 2d at 516.) The court noted, however, that the social conditions that had given rise to the presumption of loss of earnings no longer obtained; the employment of children outside the home is less widespread than it once was, and their income would now contribute only a fraction of a contemporary family’s child-rearing expenses. The court said:

“We therefore hold that in this case, and in all similar cases not finally adjudicated, there can be no presumption of loss of earnings upon the death of a child since such a presumption represents an aberration from, rather than a reflection of, the typical family experience. However, we have concluded that parents are entitled to a presumption of pecuniary injury in the loss of a child’s society, based on the holding expressed earlier in this opinion that the pecuniary injury for which parents may recover under the wrongful death statute includes this form of loss.” (Bullard, 102 Ill. 2d at 517.)

The decedent in Bullard was a minor, and the court reserved the question whether the same presumption of pecuniary loss would apply in an action for the death of a child who had reached majority. (Bullard, 102 Ill. 2d at 517.) That was answered affirmatively in Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 120, which recognized a presumption of pecuniary loss to the parent in the death of an adult child.

In support of the action here, the Dralles contend that the Wrongful Death Act is designed to fill the gap in cases of fatal injuries, permitting recovery where the common law denied it, and they suggest that the recovery allowed under the statute should be no greater than the recovery allowed for nonfatal injuries. By this logic the Dralles conclude that recovery for loss of filial society, permitted by Bullard in cases of wrongful death, must find a counterpart in cases of nonfatal injury. Moreover, at common law a parent was allowed to bring an action for damages arising from nonfatal injuries to a minor child; recovery was limited to compensation for loss of earnings and services. (See Comment, Negligent Injury to Family Relationships: A Reevaluation of the Logic of Liability, 77 Nw. U.L. Rev. 794, 799 (1983).) Mr. and Mrs. Dralle contend here that the common law action should be revived and updated to permit recovery for loss of society, in the same way that Bullard changed the elements of the presumption of pecuniary loss available in wrongful death actions.

We do not believe that the decision in Bullard to permit a parent to recover damages for loss of a child’s society in a wrongful death action supports recognition of the claim for loss of filial society resulting from nonfatal injuries. The chief distinction between the claim for loss of society in a wrongful death action and its assertion here is that the nonfatally injured victim retains his own cause of action against the tortfeasor. Thus, there is no danger that the injury caused by the tortfeasor will go uncompensated, or that similar conduct in the future will be undeterred. In contrast, an action under the Wrongful Death Act affords the sole remedy for the surviving family members.

As our discussion of Bullard demonstrates, the basis for the holding in that case was the perceived anomaly in allowing spouses and children, but not parents, to recover for loss of society in suits brought under the Wrongful Death Act. Earlier decisions of this court had given a broad interpretation to the pecuniary loss standard in the statute, either expressly approving recovery for loss of consortium (Elliott v. Willis (1982), 92 Ill. 2d 530), or indicating that the pecuniary loss standard was so comprehensive that it made unnecessary the recognition of a corresponding common law action (Knierim v. Izzo (1961), 22 Ill. 2d 73; Hall v. Gillins (1958), 13 Ill. 2d 26). Thus, the statutory foundation was already in place, and the Bullard court was able to deduce from the case law that loss of filial society was an appropriate element of damages under the Wrongful Death Act. Therefore, we do not believe that the decision in Bullard supports recognition of the cause of action asserted here.

A number of policy considerations also counsel against extending Bullard’s reasoning to the parents’ claim here. One relevant concern is the appropriate scope of tort liability. “ ‘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.’ ” (Cockrum v. Baumgartner (1983), 95 Ill. 2d 193, 203, quoting Tobin v. Grossman (1969), 24 N.Y.2d 609, 619, 249 N.E.2d 419, 424, 301 N.Y.S.2d 554, 561.) To recognize claims for loss of society resulting from nonfatal injuries to a child would threaten a considerable enlargement of liability. (See Baxter v. Superior Court (1977), 19 Cal. 3d 461, 464-65, 563 P.2d 871, 873, 138 Cal. Rptr. 315, 317 (denying parent’s claim for loss of filial society); see also Borer v. American Airlines, Inc. (1977), 19 Cal. 3d 441, 449, 563 P.2d 858, 863-64, 138 Cal. Rptr. 302, 307-08 (denying child’s claim for loss of parental society); Koskela v. Martin (1980), 91 Ill. App. 3d 568, 572 (same).) Grandparents, siblings, and friends suffering similar losses of society and companionship would also seek to bring claims, if recovery were to go unchecked.

The assessment of damages for loss of society and companionship resulting from nonfatal injuries to a child would, we believe, pose undeniably difficult problems for the parties to the action and for the trier of fact. First, permitting both the injured victim and his family members to pursue their own actions would invite duplicate recoveries. In light of the intangible nature of the loss, a trier of fact would find it difficult to distinguish between the child’s claim, involving pain and suffering, and the legally distinct but factually similar claim by the parents for loss of the child’s society and companionship. See Baxter, 19 Cal. 3d at 464-65, 563 P.2d at 873, 138 Cal. Rptr. at 317; see also Borer, 19 Cal. 3d at 449, 563 P.2d at 863, 138 Cal. Rptr. at 307.

Moreover, to succeed in their action, parents of a nonfatally injured child would be required to present evidence of the diminution of their child’s society and companionship resulting from the injury; the jury or judge would then be required to perform the sensitive, and perhaps impossible, task of evaluating — and assigning a monetary figure to — the reduced value of the parents’ relationship with the affected child. At the same time a defendant could attempt to show, in an appropriate case, the strengthened family bonds and greater appreciation for life arising from the child’s injury. Thus, a parent’s interest in minimizing the value of a living child contrasts sharply with the situation in a wrongful death action, where the opposite claim is made and loss is presumed. This court noted a similar paradox in Cockrum v. Baumgartner (1983), 95 Ill. 2d 193, 202, which denied a parental claim for damages in a “wrongful birth” action. There the court said:

“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.’ ” (95 Ill. 2d at 202.)

The same concerns are at work here and similarly argue against recovery. In light of the availability of a tort remedy to the injured child, the possible multiplication of claims, and the difficulty of determining damages, we decline to extend the reasoning of Bullard to encompass parental recovery for loss of a child’s companionship and society.

As an additional ground in support of the appellate court’s decision in this case, amicus curiae Illinois Trial Lawyers Association observes that either spouse may bring a cause of action for loss of consortium resulting from nonfatal injuries to the other spouse. (See Dini v. Naiditch (1960), 20 Ill. 2d 406.) We do not believe, however, that recognition of the spousal claim for loss of consortium requires that we also allow the parents’ claim here for loss of society and companionship resulting from the nonfatal injuries to their son. The companionship and society for which recovery is sought here is not identical with the spousal claim recognized in Dini. Given the differences between the two concepts, there is no inconsistency, as other courts have acknowledged, in denying recovery for loss of filial — or parental — society and companionship and in allowing recovery for loss of spousal consortium. (See Borer v. American Airlines, Inc. (1977), 19 Cal. 3d 441, 449, 563 P.2d 858, 863, 138 Cal. Rptr. 302, 307; Siciliano v. Capitol City Shows, Inc. (1984), 124 N.H. 719, 725, 475 A.2d 19, 22; De Angelis v. Lutheran Medical Center (1983), 58 N.Y.2d 1053, 1055, 449 N.E.2d 406, 407, 462 N.Y.S.2d 626, 627.) Spousal consortium “includes, in addition to material services, elements of companionship, felicity and sexual intercourse, all welded into a conceptualistic unity” (Dini, 20 Ill. 2d at 427; see also Brown v. Metzger (1984), 104 Ill. 2d 30, 34); it draws its primary animation from the marriage relationship, that basic human right that is “fundamental to our very existence and survival” (Loving v. Virginia (1967), 388 U.S. 1, 12, 18 L. Ed. 2d 1010, 1018, 87 S. Ct. 1817, 1824; Boynton v. Kusper (1986), 112 Ill. 2d 356, 368). Many of those attributes are absent from the parent-child relationship, and therefore we decline to find in the action for spousal consortium a basis for recognizing recovery of loss of filial society.

We do not consider at this time the nature or extent of the recovery in cases based on what has been termed a “direct interference” with the parent-child relationship, as opposed to the indirect interference involved here. (See Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person’s Society & Companionship, 51 Ind. L.J. 590, 595 n.16 (1976).) Recovery for loss of a child’s companionship and society was approved in Dymek v. Nyquist (1984), 128 Ill. App. 3d 859, a case relied on by the appellate court here, and in Kunz v. Deitch (N.D. Ill. 1987), 660 F. Supp. 679. (But see Whitehorse v. Critchfield (1986), 144 Ill. App. 3d 192 (denying parent’s cause of action for loss of filial society resulting from alleged acts intended to induce child to abandon parental home).) As we have already noted, in Dymek a divorced father brought an action alleging that his former spouse and a psychiatrist had conspired to “brainwash” the couple’s son in an attempt to destroy the father’s relationship with the child. In Kunz, a widowed father brought an action against his deceased wife’s parents for their alleged efforts to have the couple’s child put up for adoption without the father’s knowledge or approval; the child had been staying with her grandparents in Illinois following her mother’s illness and death. Sitting in diversity, the district judge believed that this court would recognize the cause of action asserted by the father in that case.

The torts alleged in Dymek and Kunz did not arise as the derivative consequence of an injury to the child, as is the basis for the action asserted here. (See Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 211-12 (discussing derivative nature of wife’s action for loss of consortium arising from injuries to husband).) Rather, the plaintiffs in Dymek and Kunz alleged acts intentionally and directly interfering with the parent-child relationship. We therefore conclude, as have other courts, that recognition of a cause of action for direct interference with the parent-child relationship does not entail recovery for the type of harm asserted here. See Borer v. American Airlines, Inc. (1977), 19 Cal. 3d 441, 451 n.3, 563 P.2d 858, 865 n.3, 138 Cal. Rptr. 302, 309 n.3; Baxter v. Superior Court (1977), 19 Cal. 3d 461, 466 n.3, 563 P.2d 871, 874 n.3, 138 Cal. Rptr. 315, 318 n.3; Siciliano v. Capitol City Shows, Inc. (1984), 124 N.H. 719, 727, 475 A.2d 19, 23.

Given our result in this case, we need not consider here Merrell-Dow’s additional argument, in opposition to the parents’ claim, that damages for loss of companionship and society are not recoverable in a products liability action. But see Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195 (involving spousal claim for loss of consortium resulting from unreasonably dangerous product).

For the reasons stated, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed, circuit court affirmed.

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