Seef v. Sutkus

562 N.E.2d 606, 205 Ill. App. 3d 312, 150 Ill. Dec. 76, 1990 Ill. App. LEXIS 1590
CourtAppellate Court of Illinois
DecidedOctober 12, 1990
Docket1-88-1835, 1-88-3180 cons.
StatusPublished
Cited by12 cases

This text of 562 N.E.2d 606 (Seef v. Sutkus) 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
Seef v. Sutkus, 562 N.E.2d 606, 205 Ill. App. 3d 312, 150 Ill. Dec. 76, 1990 Ill. App. LEXIS 1590 (Ill. Ct. App. 1990).

Opinion

JUSTICE RAKOWSKI

delivered the opinion of the court:

This medical malpractice action arises from the stillbirth of an allegedly viable fetus. Plaintiffs Marilee and Michael Seef, parents of Baby Boy Seef, filed suit against defendants Frank Sutkus, M.D., and Ingalls Memorial Hospital, alleging that the death was caused by negligent failure to monitor the condition of the fetus and timely perform a caesarean section. The amended complaint sought recovery as follows:

(1) On behalf of Marilee Seef, alleging negligent infliction of emotional distress arising from the death of her viable fetus (counts I and II).

(2) On behalf of Michael Seef, for loss of his wife’s consortium as a result of her emotional distress (counts III and IV).

(3) On behalf of the estate of Baby Boy Seef, alleging medical malpractice and seeking, as part of the damages claimed, compensation for the parents’ loss of the fetus’ companionship and society (counts V and VI).

Defendants moved for dismissal of the amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). On May 9, 1988, the circuit court dismissed counts I through IV and struck those portions of counts V and VI (the wrongful death claim) that sought damages for parental loss of society. Plaintiffs later voluntarily dismissed the remaining portions of the wrongful death counts.

The issues presented on appeal are: (1) whether plaintiffs’ amended complaint stated a cause of action for negligent infliction of emotional distress when it did not plead that Mrs. Seef ever feared for her own safety as a result of defendants’ negligence, and (2) whether, in a wrongful death action, plaintiffs can claim damages for loss of society of an unborn child. We affirm on the first issue and reverse and remand on the second.

The facts alleged in the complaint are that Marilee Seef was under the care of defendant Sutkus during her pregnancy. On June 9, 1980, Mrs. Seef, 38 weeks pregnant, was admitted to defendant In-galls Memorial Hospital. At the time of admission to Ingalls, Mrs. Seef complained to Sutkus and to hospital personnel about “changes in the activities and responses of her fetus.” At that time, Baby Boy Seef was capable of separate and independent life. Defendants failed to monitor the condition of this unborn child and delayed in performing the caesarean section which would have saved his life. He died on June 10, 1980.

On November 16, 1981, Michael Seef was appointed special administrator of the estate of Baby Boy Seef. In that capacity, he filed a wrongful death action which claimed, among other things, that, as a result of the death of their child, he and his wife sustained damages for the loss of the society of Baby Boy Seef.

The trial court dismissed counts I and II for negligent infliction of emotional distress to Mrs. Seef because the complaint did not plead that she had been within the zone of danger and in fear for her own safety. The court also dismissed counts III and IV, which were derivative counts for loss of consortium suffered by Mr. Seef.

In striking those portions of counts V and VI (the wrongful death claim) that sought recovery for parental loss of society, the court followed the one Illinois case exactly on point at that time, Hunt v. Chettri (1987), 158 Ill. App. 3d 76, 510 N.E.2d 1324, appeal denied (1987), 116 111. 2d 555, 515 N.E.2d 108, from the fifth district.

When a court reviews a motion to dismiss on the pleadings, it must accept all well-pleaded facts as true and should not grant the motion unless it is clear that no set of facts can be proved which would entitle the plaintiff to relief. Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61, 466 N.E.2d 224.

I

The plaintiffs first contend that the trial court erred in dismissing counts I and II (and the derivative counts III and IV) on the ground that plaintiffs did not state a cause of action for negligent infliction of emotional distress when they failed to plead that Mrs. Seef was- ever in the zone of danger for injury as a result of defendants’ negligence. We disagree.

For an action in negligence, a plaintiff must plead that: (1) the defendant owed a duty to that particular plaintiff; (2) the defendant breached this duty; (3) the defendant’s breach was the proximate cause of injuries to the plaintiff; and (4) these injuries caused damages. (Horak v. Biris (1985), 130 Ill. App. 3d 140, 144-45, 474 N.E.2d 13.) Courts generally have been reluctant to allow recovery for a plaintiff who suffered purely mental or emotional distress because such injuries are not easily foreseeable. (Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 555, 457 N.E.2d 1.) Thus, historically, plaintiffs with a cause of action for the negligent infliction of emotional distress had to plead some contemporaneous physical injury or impact to themselves. Rickey, 98 Ill. 2d at 553.

In Rickey, the Illinois Supreme Court eliminated the impact requirement and substituted a zone-of-danger rule to define the parties to whom the defendant might owe a duty. (Rickey, 98 Ill. 2d at 555.).Under this rule, “a bystander who is in a zone of physical danger and who, because of the defendant’s negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress.” (Rickey, 98 Ill. 2d at 555.) Thus, for negligent infliction of emotional distress, a plaintiff must now plead that either (1) he suffered direct impact or (2) he was in a zone of danger that caused him to fear for his own safety and further that he suffered physical injury or illness as a result of his emotional distress. Courtney v. St. Joseph Hospital (1986), 149 Ill. App. 3d 397, 403, 500 N.E.2d 703.

Parents of an unborn child are not ipso facto in the zone of danger for negligence involving that child. (Siemieniec v. Lutheran General Hospital (1987), 117 Ill. 2d 230, 260-62, 512 N.E.2d 691.) Illinois courts have found parents outside the zone of danger when negligent genetic counselling results in the birth of a hemophiliac child (Siemieniec, 117 Ill. 2d at 260-62); when hospital personnel allow a newborn to fall off a delivery table (Villamil v. Elmhurst Memorial Hospital (1988), 175 Ill. App. 3d 668, 670-72, 529 N.E.2d 1181); and when negligence is a factor in the delivery of a stillborn child (Hunt (1987), 158 Ill. App. 3d at 79-80; Robbins v. Kass (1987), 163 Ill. App. 3d 927, 930-32, 516 N.E.2d 1023).

On appeal the Seefs contend that they have pled a cause of action for negligent infliction of emotional distress.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Thomas v. Khoury
2020 IL App (1st) 191052 (Appellate Court of Illinois, 2021)
Ford-Sholebo v. United States
980 F. Supp. 2d 917 (N.D. Illinois, 2013)
Broadnax v. Gonzalez
809 N.E.2d 645 (New York Court of Appeals, 2004)
Turner v. Williams
Appellate Court of Illinois, 2001
Clohessy v. Bachelor
675 A.2d 852 (Supreme Court of Connecticut, 1996)
Krishnan v. Sepulveda
916 S.W.2d 478 (Texas Supreme Court, 1995)
Seef v. Sutkus
583 N.E.2d 510 (Illinois Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
562 N.E.2d 606, 205 Ill. App. 3d 312, 150 Ill. Dec. 76, 1990 Ill. App. LEXIS 1590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seef-v-sutkus-illappct-1990.