Hunt v. Chettri

510 N.E.2d 1324, 158 Ill. App. 3d 76, 110 Ill. Dec. 293, 1987 Ill. App. LEXIS 2817
CourtAppellate Court of Illinois
DecidedJuly 21, 1987
Docket5—86—0417, 5—86—0814 cons.
StatusPublished
Cited by12 cases

This text of 510 N.E.2d 1324 (Hunt v. Chettri) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hunt v. Chettri, 510 N.E.2d 1324, 158 Ill. App. 3d 76, 110 Ill. Dec. 293, 1987 Ill. App. LEXIS 2817 (Ill. Ct. App. 1987).

Opinion

PRESIDING JUSTICE EARNS

delivered the opinion of the court;

This consolidated appeal involves plaintiffs’ allegations of negligence against defendant, Dr. Dhan E. Chettri, stemming from the delivery of a stillborn infant. Plaintiffs are Jan and Robert Hunt, individually, and Jan Hunt as special administrator of the estate of Baby Hunt. Although plaintiffs’ third amended complaint contains three counts, on appeal we are concerned only with the trial court’s dismissal of that portion of count I seeking recovery for the loss of society of Baby Hunt pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 1 et seq.) and with the court’s denial of defendant’s motion to dismiss count II of plaintiffs’ complaint seeking recovery for Jan Hunt based upon negligent infliction of emotional distress resulting from the loss of Baby Hunt. The only facts which are pertinent to this appeal are that defendant was Jan’s obstetrician during her pregnancy and that Baby Hunt was delivered stillborn.

The first issue is whether the trial court erred in striking plaintiffs’ claim for the loss of society of Baby Hunt, a stillborn fetus. Plaintiffs maintain that the loss of society of a stillborn fetus is an element of pecuniary loss in a wrongful death action. Section 2 of the Wrongful Death Act provides that “the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from *** death.” (Ill. Rev. Stat. 1985, ch. 70, par. 2.) In Bullard v. Barnes (1984), 102 Ill. 2d 505, 515, 468 N.E.2d 1228, 1233, the supreme court held that parents may recover damages under the Wrongful Death Act for the loss of a minor child’s society. The court further held that parents are entitled to a presumption of pecuniary injury in the loss of a minor child’s society. (102 Ill. 2d 505, 517, 468 N.E.2d 1228, 1234.) Recently, the supreme court has extended its holding in Bullard by holding that the loss-of-society presumption applies to children who have attained majority. (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 120, 499 N.E.2d 1373, 1379.) Plaintiffs argue that the holding in Bullard should be extended to the wrongful death of a stillborn fetus. Plaintiffs contend that such an extension is logical in light of the court’s holding that an action can be maintained under the Wrongful Death Act for the death of a viable fetus born dead as a result of prenatal injuries. (Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368, 304 N.E.2d 88; see also Ill. Rev. Stat. 1985, ch. 70, par. 2.2.) Although the supreme court has recognized that such a cause of action exists and that difficulties in determining damages should not bar the right of action, the court did not delineate the bases for awarding damages for the wrongful death of a viable fetus. Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368, 372, 304 N.E.2d 88, 90-91; but cf. Jones v. Karraker (1983), 98 Ill. 2d 487, 495-502, 457 N.E.2d 23, 27-30 (Simon, J., dissenting).

“The term ‘society’ embraces a broad range of mutual benefits each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, and protection.” (Sea-Land Services, Inc. v. Gaudet (1974), 414 U.S. 573, 585, 39 L. Ed. 2d 9, 21-22, 94 S. Ct. 806, 815.) In concluding that parents are entitled to a presumption of pecuniary injury in the loss of a minor child’s society, the court in Bullard also noted that this presumption may be rebutted by presenting evidence that a parent and child were estranged. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 517, 468 N.E.2d 1228, 1234.) The court’s statement presumes the existence of a tangible relationship. We fail to see how a defendant could produce evidence establishing that a parent and an unborn child were estranged. In his special concurrence in Bullard, Justice Clark stated his belief that the logic embodied in the majority opinion would dictate a similar result if the cause had involved a child who had reached the age of majority rather than a 17-year-old. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 521, 468 N.E.2d 1228, 1236 (Clark, J., specially concurring).) According to Justice Clark, in either circumstance, plaintiff’s decedent was at a point in his life where his parents could reasonably anticipate receiving advice, companionship and assistance. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 521, 468 N.E.2d 1228, 1236 (Clark, J., specially concurring).) The same cannot be said of plaintiffs’ decedent in the instant cause. Similarly, in Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 120, 499 N.E.2d 1373, 1379, the court stated that “[w]hen children are wrongfully killed, the parents’ investment *** in affection, guidance, security and love is destroyed. Society recognizes the destruction of that value whether a child is a minor or an adult.”

The court’s rationale for recognizing loss-of-society damages in the above cases is dependent upon the relationship of parent and child. In the death of an unborn fetus, no guidance, love, affection or security has been exchanged. While parents may love and have affection for an unborn child, the child cannot be said to have returned such affection. To allow damages for the loss of society of a stillborn fetus confuses loss of society -with recovery for the parents’ grief over their unborn child’s death. The supreme court has rejected recovery for mental anguish or bereavement as an element of loss of society. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 514-15, 468 N.E.2d 1228, 1233; Elliott v. Willis (1982), 92 Ill. 2d 530, 539, 442 N.E.2d 163, 167.) Undoubtedly, it could be claimed that there is virtually no difference between the loss suffered by a parent where a child is born but remains alive only momentarily and where the child is stillborn. However, the initial bonding which takes place at birth cannot be dismissed so easily. The length, intensity and quality of the parent-child relationship are determinative of the loss experienced by the parent. Certainly, birth is a proper point at which to begn to measure the loss of a child’s society. We conclude that the trial court did not err in dismissing that portion of count I of plaintiffs’ complaint seeking damages for the loss of society of Baby Hunt.

The second issue is whether the trial court erred in denying defendant’s motion to dismiss count II seeking recovery by Jan for emotional distress resulting from the loss of her child. In Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 555, 457 N.E.2d 1

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Bluebook (online)
510 N.E.2d 1324, 158 Ill. App. 3d 76, 110 Ill. Dec. 293, 1987 Ill. App. LEXIS 2817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunt-v-chettri-illappct-1987.