Williams v. Manchester

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-05-2126 Rel

Case Date: 03/16/2007

Preview:SIXTH DIVISION March 16, 2007

No. 1-05-2126

MICHELLE WILLIAMS, Individually and as ) Special Administrator of the Estate of BABY DOE, ) Deceased, ) ) Plaintiff-Appellant, ) ) v. ) ) JOHN C. MANCHESTER, ) ) Defendant-Appellee. )

Appeal from the Circuit Court of Cook County.

No. 03 L 000863 Honorable Jennifer Duncan-Brice, Judge Presiding.

JUSTICE JOSEPH GORDON delivered the opinion of the court: This is an appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) by plaintiff, Michelle Williams, individually, and as special administrator of the estate of Baby Doe, from the grant of summary judgment, on certain counts of her complaint for her own and Baby Doe's personal injuries, to defendant, John C. Manchester. Specifically, Williams contends that the circuit court erred when it granted summary judgment to Manchester on her claim under the Wrongful Death Act (740 ILCS 180/1 (West 2002)) for Baby Doe's death which came about after she terminated her pregnancy as a result, she contends, of injuries Manchester caused. Williams further contends that the court erred in granting summary judgment to Manchester on her claim for Baby Doe under the Survival Act (755 ILCS 5/27-6 (West 2002)). For the following reasons, we reverse the grant of summary judgment to Manchester on the wrongful death count, but affirm the grant of summary judgment on the survival count.

1-05-2126 FACTUAL BACKGROUND On January 22, 2003, Williams filed a three-count complaint in the circuit court. The complaint alleged that she was a passenger in a car struck by Manchester's car on October 15, 2002, at the intersection of Montrose and Western Avenues in Chicago. Among other acts of negligence causing the collision, plaintiff alleged that Manchester failed to yield the right-of-way and turned left in front of the car in which Williams rode when it was unsafe to do so. In the first count of the complaint, Williams sought recovery for her own injuries on account of Manchester's alleged negligence. In the second count, Williams alleged that she was carrying a child who ultimately died as a result of the collision caused by Manchester and sought to recover for her child's wrongful death as administrator of Baby Doe's estate. Finally, in the third count, Williams, pleading for herself and Baby Doe, sought recovery for Manchester's alleged negligent infliction of emotional distress. As shall be more fully discussed below, Williams subsequently added a fourth count alleging the right of Baby Doe to recover for injuries he/she sustained before his/her death under the Survival Act. Manchester, subsequently, filed an answer denying all pertinent allegations. He further filed a third-party complaint alleging that Michelle Popec, the driver of the car in which Williams was a passenger, caused the collision through her own negligent driving. Popec, in turn, answered Manchester's complaint, denying all pertinent allegations. Manchester ultimately filed a motion for partial summary judgment attacking Williams' wrongful death and negligent infliction of emotional distress counts on November 29, 2004. In the motion, he argued that no wrongful death action for Baby Doe could lie because it was not

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1-05-2126 his negligence that was the proximate cause of its death. Manchester contended: "Neither the car accident, x-rays nor any other potential risks to the fetus was the proximate cause of the fetus' death. Rather, it resulted from Plaintiff's voluntary decision to undergo [an] abortion procedure. *** Plaintiff elected to have an abortion so that she could undergo a course of medical treatment for her own benefit. Plaintiff elected of her own volition to proceed with*** hip surgery despite being provided options that would have allowed her to postpone surgery and forego termination of the pregnancy." Manchester argued that Williams' negligent infliction of emotional distress claim must also fail for lack of causation, and that, further, she could present no proof of actionable emotional distress since she never sought treatment for that alleged distress. Williams countered that, but for medical considerations stemming from Manchester's negligence, she would not have terminated the pregnancy, making his negligence the cause-infact of Baby Doe's death. Williams disputed that, under the circumstances of increased medical risks to Baby Doe and herself in maintaining the pregnancy, her abortion could be characterized as "elective." Williams further argued that the termination of the pregnancy was a reasonably foreseeable result of his negligently causing the collision, which would establish his negligence as the proximate cause of Baby Doe's death. In their summary judgment pleadings, both parties relied on the depositions, taken in discovery, of Williams and Dr. James Keller to support their respective positions. Those

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1-05-2126 depositions revealed the following pertinent facts. In her deposition, Williams testified that she suffered a fractured pelvis and hip in the crash and was taken for treatment to Illinois Masonic Hospital. She was three months pregnant at the time. She was not married to the child's father, and the pregnancy was unplanned. At the hospital, three doctors "convinced [her]" that electing to abort her child was the right thing to do under the circumstances, though the baby itself was unharmed in the collision. Dr. Kirby, an emergency room physician, Dr. Beigler, an orthopedic surgeon, and Dr. George, an obstetrician-gynecologist, informed her that, because her pelvic bone was fractured, they could not be certain that she could maintain the pregnancy. If she did choose to remain pregnant, she would have to be bedridden. Her bones would heal, but would possibly have to be rebroken and reset after delivery. In that event, "[t]hey couldn't promise that [she] would ever walk right." The doctors also told her that the X-rays taken of her in the emergency room could cause "disabilities in the child and mental problems." She "took [the doctors' statements] as [meaning that] the best thing to do [was to] have [an] abortion and let them do *** surgery [on her fracture]." No one counseled her against having an abortion. Williams underwent an abortion and Dr. Beigler subsequently successfully performed surgery on her pelvis. Williams testified that she was not influenced to undergo an abortion by nonmedical factors. Prior to the crash, she had started to prepare for the baby's arrival, purchasing a bumper set and baby clothes. She cried "a lot" in the hospital, including around the time she underwent the abortion. Dr. James Keller, a high-risk obstetrician-gynecologist, also gave a deposition in the case.

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1-05-2126 Dr. Keller testified that he met Williams during his rounds at Illinois Masonic and consulted on her care, but did not actually provide any treatment. As a consulting physician, he was "[t]o make sure that [Williams] had as much information as possible, [and] to make sure that the orthopedic surgeon understood the relevant issues, so that they could make a decision as to what the best course of action would be." The Illinois Masonic doctors' counseling of Williams was to be non-judgmental, meaning only to allow "the patient [to have] the information to make a decision," not to advise her as to what decision she should make. Dr. Keller explained that "our overall goal [was] to be as nonguiding as possible." According to Dr. Keller, at the time he consulted on her care, Williams had a viable pregnancy that could have gone to term. He explained, however: "[T]o the fetus there[] [was] the risk of [Williams'] drug and radiation exposure prior to this point; to the mother there[] [was] an increase of prolonged immobilization with a pelvic fracture which carried short-term and long-term risks. The short-term risks would be mainly an increased risk of embolic phenomenon, thrombosis and embolism, blood clots. The long-term risks *** they said that the longer that she waited to repair the hip the worse her outcome would be." Respecting the fetus' exposure to radiation, Dr. Keller testified that there was "no known safe threshold for radiation exposure to a fetus." He acceded, however, that it was not a "forgone conclusion" that Baby Doe would have experienced difficulties due to his/her radiation exposure and that "[w]ith any individual fetus you won't be able to say, well, this is what would happen

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1-05-2126 with this fetus." Dr. Keller could not quantify the increased risk to Baby Doe due to radiation exposure, nor could he quantify the amount of radiation Baby Doe was exposed to, though he testified that such quantification was possible through consultation with a physicist and geneticist. He stated, however, that there was "theoretically enough radiation [in this case] to cause a problem," citing to studies in which third-trimester fetuses experienced increased risks of childhood leukemia after only limited exposure to radiation. Moreover, had Williams elected to delay the surgery and to continue the pregnancy, she would have exposed Baby Doe to additional radiation through her ongoing treatment. Speaking generally, Dr. Keller identified the risks of fetal radiation exposure to be the incorrect development of organs and "childhood and adulthood malignancies." At one point in his deposition, defense counsel asked Dr. Keller to decipher his consultation notes. In one note, Dr. Keller recorded "Patient would like to continue pregnancy but not at risk to her long-term outcome." In another, he wrote: "Spoke with attending ortho. There is no guarantee of good outcome regardless of immediate surgery, delayed second trimester surgery, or expectant management. However, immediate surgery offers best chance for good long-term outcome. Options are termination of pregnancy with immediate surgery after recovery, delay until second trimester which would decrease risk to fetus of drug radiation exposure, or immediate surgery with fetus at risk for both loss as well as long-term problems due to radiation/medicine which would

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1-05-2126 be difficult to quantify. Long discussion with patient and father of the baby. They understand all issues. I will put through PEC papers." Dr. Keller explained that "PEC" referred to the hospital's perinatal ethics committee. The health care system of which Illinois Masonic was a part had a policy not to perform elective abortions. The hospital would only perform abortions when there was "significant risk" to either the child or mother. The circuit court granted the motion for summary judgment as to the wrongful death count, but denied the motion as to the negligent infliction of emotional distress count, in a written order, on March 11, 2005. With respect to the wrongful death count, the circuit court stated: "[B]ased on the express language of the Wrongful Death Act, Plaintiff cannot maintain a cause of action on behalf of her fetus. In establishing proximate cause, the Act does not take into consideration the reasonable foreseeability of an injury or death, but, rather focuses primarily on whether a defendant's conduct actually caused the injury or death. Here, the evidence establishes that, subsequent to the car accident, Plaintiff's fetus was uninjured and viable. Thus, Plaintiff could have continued with the pregnancy. However, rather than continue with the pregnancy and wait until later to address her own injuries, Plaintiff chose to receive medical treatment at the sacrifice of her fetus, thereby, terminating her pregnancy."

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1-05-2126 The court certified its order as appropriate for interlocutory appeal under Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a). On March 24, 2005, Williams moved the circuit court to reconsider its grant of summary judgment on the wrongful death count and further moved to file an amended complaint. In an order entered that same day, the circuit court granted Williams leave to file the amended pleading and indicated that it would either deny the motion for reconsideration or advise defendant to respond at the next status date of April 11, 2005. The court further ordered that "Plaintiff's time in which to file a notice of appeal pursuant to Rule 304(a) stays until the Court rules on Plaintiff's reconsideration." On March 28, Williams filed a proposed fourth count of her complaint under the Survival Act on behalf of Baby Doe. The new count alleged that, on account of Manchester's negligence, Baby Doe "suffered severe and permanent bodily injuries including radiation and medication exposure prior to *** death." The only action taken at the April 11 status hearing was to continue the matter until April 13, 2005. At that time, the court denied Williams' motion for reconsideration and "indicated [that Rule] 304(a) language will be granted pending the outcome of defendant Ma[n]chester's motion for summary judgment on count IV, and therefore [this court] retains jurisdiction." Manchester subsequently moved for summary judgment on the new survival count on May 4, 2005. Manchester argued that Baby Doe, as an unborn person, was not a "person" as contemplated by the Survival Act. Moreover, Manchester argued that Williams' claim that Baby Doe suffered injury was "purely speculative." Williams responded that Illinois law recognized

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1-05-2126 the creation of an increased risk of future injury as compensable in damages. She further contended that Illinois, generally, recognized the right of fetuses to be born free from harm and that, therefore, Baby Doe should be considered a "person" under the Act. In support of her claim, Williams relied on Dr. Keller's testimony, as well as the averments "[b]ased on a reasonable degree of radiological certainty" contained in the attached affidavit of Dr. Mark Edelman, a board-certified radiologist. Dr. Edelman averred that "the radiation exposure the fetus was subjected to, prior to the pregnancy termination as a consequence of the injuries she had sustained in the automobile collision, produced an increased risk of future injury to the fetus, specifically, neural tube deformity." Dr. Edelman further gave his opinion "that as a consequence of the radiation exposure to Michelle Williams' fetus prior to the termination, and given the fact that the pregnancy was in its first trimester, the fetus was damaged in that it sustained *** an increased risk of future neural tube deformity." Manchester replied that finding risk of future injuries compensable under the Survival Act would run contrary to the Act's purpose of compensating for actual injuries suffered prior to death. The circuit court granted Manchester's motion for summary judgment on the Survival Act count on June 6, 2005. The circuit court ruled that fetuses were not considered persons under the Act. The court further ruled that any potential future injury was speculative in this case, and, in any event, could not be considered an injury under the Act, since the Act was meant to address actual antemortem injuries causing pain and suffering. The court further ruled that Williams provided no evidence of Baby Doe being conscious of and experiencing any pain and suffering. Finally, the court ordered "Rule 304(a) language is entered as to count IV (Survival Act) and

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1-05-2126 counts II and III (wrongful death and negligent infliction of emotional distress). (Counts II and III respectively granted & denied per previous orders and continued until ruling on Count IV)." On June 14, 2005, Manchester moved the court to modify its previous orders of March 11 and June 6 nunc pro tunc to include specific language indicating that the court had made the specific findings required for interlocutory appeal under the rule, rather than merely referring to Rule 304(a). The circuit court ultimately entered an agreed order to that effect on June 14, 2005. However, only two days later, the court struck its June 14 order and further stated that the "March 11 and June 6, 2005 orders are final as of June 6, 2005. The court finds no just reason to delay enforcement or appeal of the orders, with the time for Plaintiff to file an appeal pursuant to Supreme Court Rule 304(a) on both orders beginning to run on June 6, 2005." On June 27, 2005, Williams filed an "Emergency Motion to Correct Order of April 13, 2005." That motion stated: "1. On March 11, 2004 the Court granted Defendant's Motion for Summary Judgment as to Count II of Plaintiff's Complaint. The court entered a 6 page typed order detailing its ruling, and a one page order written by the counsel for Defendant granting Supreme Court Rule 304(a) language. *** 2. Subsequently, Plaintiff filed a Motion for Reconsideration which was denied on April 13, 2005. ***. At that time the Court indicated that it would stay the entry of Supreme Court 304(a) language as to its Order of Summary Judgment as to Count II until after the Defendant's

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1-05-2126 Motion for Summary Judgment as to Cou[n]t IV was decided so as to avoid a piecemeal appeal. 3. The Order entered on April 13, 2005 was incompletely written and stated : 'that the court has indicated that [Rule] 304(a) language will be granted pending the outcome of Defendant Manchester's Motion for Summary Judgment on Count IV and therefore retains jurisdiction.' ***. 4. The court['s] and [the] parties['] intentions were to stay Supreme Court Rule 304(a) language until all of the motions were resolved on June 6, 2005. *** To effectuate this, the April 13, 2005 Order should have contained language striking the Supreme Court Rule 304(a) language from the handwritten March 11, 2005 Order but did not. WHEREFORE, Plaintiff request[s] the Court [to] enter an Order nunc pro tunc correcting the April 13, 2005 Order to include the following: 'The Supreme Court [Rule] 304(a) language from the Court's Order of March 11, 2004 is hereby stricken.' " The circuit court granted the order. The following day, June 28, 2005, Williams filed her notice of appeal. In the notice, Williams stated that she was appealing from the order "entered on March 11, 2005 made final and appealable by order dated June 16, 2005," the "order entered on April 13, 2004, corrected nunc pro tunc on June 27, 2005," and the "order entered on June 6, 2005." ANALYSIS

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1-05-2126 On appeal, Williams contends that "[b]ut for [Manchester's] negligence [she] would not have been forced to undergo a termination [of her pregnancy]. And that it is reasonably foreseeable that negligence which results in injury to a pregnant woman may result in the forced termination of her unborn child." She further argues that her decision to abort was foreseeable in light of injuries to Baby Doe, specifically radiation exposure from X-rays, occurring as a result of Manchester's negligence. With respect to the survival count, Williams contends that fetuses, such as Baby Doe, are "persons" under the Survival Act and that Baby Doe's potential for future injury was cognizable under the Act. Williams, thus, contends that the summary judgments granted to Manchester were erroneous. Manchester, on the other hand, contends that summary judgment was proper on the wrongful death count because, as a matter of law, it was Williams' voluntary decision to undergo an abortion that was the proximate cause of Baby Doe's death, not his negligence. Manchester further contends that summary judgment was also appropriate for the survival action because Baby Doe was not a person as contemplated by the Survival Act and because there was no proof of any pain and suffering to Baby Doe prior to death. Before we address these substantive contentions, however, we perceive the need to first determine our jurisdiction over this matter with respect to the timeliness of this appeal. See Department of Public Aid v. Lekberg, 295 Ill. App. 3d 1067, 1069 (1998) ("[W]e have an independent duty to ensure our jurisdiction is proper"); see also O'Donnell v. Sears, Roebuck & Co., 71 Ill. App. 3d 1, 5-6 (1979) ("None of the parties have raised the jurisdiction of this court as an issue. However, the parties cannot confer jurisdiction where none exists"). A. Jurisdiction

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1-05-2126 We raised the question of our jurisdiction over this matter at oral argument, noting our concern about the timeliness of the notice of appeal from the challenge to the summary judgment granted against the wrongful death count in light of Williams' emergency motion on June 27 which sought to have the April 13 order modified nunc pro tunc to specifically strike the circuit court's Rule 304(a) finding in the March 11 order. The filing of this emergency motion suggested that Williams herself was concerned that the 30-day deadline for filing her notice of appeal might have started on March 11 and that she might have missed that deadline. At oral argument, the parties both asserted that this court had jurisdiction and agreed to file a joint supplemental brief in support of our jurisdiction. We received the parties' joint submission, and after reviewing their brief and conducting our own review, we are now satisfied that our jurisdiction is properly grounded. Supreme Court Rule 304(a) provides: "If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both." 155 Ill. 2d R. 304(a). In the event of such an express written finding from the circuit court, the "time for filing a notice of appeal shall be as provided in Rule 303." 155 Ill. 2d R. 304(a). Rule 303, barring entry of a posttrial motion, provides a window of 30 days in which to file a notice of appeal; in the event of the filling of a posttrial motion within those initial 30 days, the time for filing a notice of appeal

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1-05-2126 is expanded to 30 days beyond the ruling on the posttrial motion. 210 Ill. 2d R. 303(a)(1). See also Greer v. Yellow Cab Co., 221 Ill. App. 3d 908, 913 (1991) ("The trial court *** erred in its belief that upon entry of a proper 304(a) finding it would be divested of its jurisdiction to hear the motion for reconsideration [timely filed within 30 days of the finding]"); Stroud v. News Group Chicago, Inc., 215 Ill. App. 3d 1006, 1010 (1991) ("After a trial court has entered a Rule 304(a) finding that there is no just reason to delay enforcement or appeal of a final judgment and the time to appeal has expired, the court loses jurisdiction to modify the order" (emphasis added)). Thus, Williams' filing of her motion to reconsider the grant of summary judgment on the wrongful death count, filed on March 24, 2005, 13 days after the March 11 order granting summary judgment and including Rule 304(a) language, tolled the time for filing a notice of appeal until the determination of that reconsideration motion and preserved the circuit court's ability to modify its original order. At the time the circuit court ruled on the motion to reconsider, April 13, 2005, the court evinced its desire to change the appealability of the grant of summary judgment on the wrongful death count by stating in its order that "[Rule] 304(a) language will be granted pending the outcome of defendant Ma[n]chester's motion for summary judgment on count IV, and therefore [this court] retains jurisdiction." This was a change within the circuit court's power to make since it still had jurisdiction over its prior order. See, e.g., Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 367 (1998), and Edward E. Gillen Co. v. City of Lake Forest, 221 Ill. App. 3d 5, 10 (1991) (wherein the reviewing courts noted without criticism or comment that the circuit court vacated previously entered Rule 304(a)

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1-05-2126 language and subsequently reviewed the orders after they became final under Rule 303). Hence, the April 13 order itself, as originally written, was sufficient to vacate the circuit court's previous Rule 304(a) finding on March 11. The nunc pro tunc elimination of the March 11 Rule 304(a) finding, through the June 27 emergency motion, was not actually necessary to ensure that the 30 days for filing a notice of appeal was not counted from March 11. The 30-day period for filing Williams' notice of appeal, at the earliest, would have commenced with the entry of the order granting summary judgment to Manchester on the survival count on June 6, 2005, which also stated "Rule 304(a) language is entered as to count IV (Survival Act) and counts II and III (wrongful death and negligent infliction of emotional distress)." The circuit court then appropriately modified its previous order to include the required specific "appealability" language in its June 14 order. See In re Application of the DuPage County Collector, 152 Ill. 2d 545 (1992). Williams notice of appeal, filed on June 28, was obviously within 30 days of the entry of the June 14 order. Therefore, the notice was timely and properly conferred jurisdiction on this court. We turn, then, to the merits of the appeal. B. The Merits: Wrongful Death Summary judgment should be granted when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact" and the "party is entitled to judgment as a matter of law." 735 ILCS 5/3-1005(c) (West 2002). However, "[S]ummary judgment is a drastic measure and should only be granted [when] the moving party's right to judgment is clear and free from doubt." Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Thus, all evidence before a court

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1-05-2126 considering a summary judgment motion must be considered in the light most favorable to the nonmoving party. In re Estate of Hoover, 155 Ill. 2d 402, 410-11 (1993). The court's function in resolving a summary judgment motion is not to try factual disputes, but merely to determine if any material factual disputes exist. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517 (1993). Summary judgment should be denied not only if there are disputed facts, however, but also if reasonable people could draw different inferences from the undisputed facts. Wood v. National Liability & Fire Insurance Co., 324 Ill. App. 3d 583, 585 (2001). We review grants of summary judgment de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). The movant bears the initial burden of production in a motion for summary judgment. Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 689 (2000). A defendant moving for summary judgment may meet its burden of production either by presenting evidence that, left unrebutted, would entitle it to judgment as a matter of law or by demonstrating that the plaintiff will be unable to prove an element of its cause of action. Williams, 316 Ill. App. 3d at 688. Until the defendant supplies facts that would demonstrate its entitlement to judgment as a matter of law, the plaintiff may rely on the pleadings to create questions of material fact. Williams, 316 Ill. App. 3d at 688. However, should a defendant present such facts, the burden then shifts to the plaintiff to present some evidence allowing the imposition of liability on the defendant and supporting each element of his cause of action, thereby defining a material issue of fact to be determined at trial. Williams, 316 Ill. App. 3d at 688; Wortel v. Somerset Industries, Inc., 331 Ill. App. 3d 895, 899-900 (2002); Garcia v. Nelson,

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1-05-2126 326 Ill. App. 3d 33, 38 (2001). The 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, notwithstanding the death of the person injured ***." 740 ILCS 180/1 (West 2002). The "purpose of the [Wrongful Death] Act is to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to the decedent's death." Beetle v. Wal-Mart Associates, Inc., 326 Ill. App. 3d 528, 532 (2001). See also Foster v. Kanuri, 241 Ill. App. 3d 677, 681 (1992) ("The legislative intent of the Wrongful Death Act is that the claims brought are those of the individual beneficiaries. The claim under the survival statute is that of the deceased which arose during his life and survived his death"). Aside from the additional element of the occurrence of death, the elements of a wrongful death claim are identical to those of a common law negligence claim. Compare Leavitt v. Farwell Tower Ltd. Partnership, 252 Ill. App. 3d 260, 264 (1993) ("In order to maintain a claim under the Act, plaintiff must demonstrate: (1) defendant owed a duty to decedent; (2) defendant breached that duty; (3) the breach of duty proximately caused decedent's death; and pecuniary damages arising therefrom to persons designated under the Act"), with Behrens v. Harrah's Illinois Corp., 366 Ill. App. 3d 1154, 1156

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1-05-2126 (2006) ("To properly plead an action based in negligence, plaintiff must allege facts sufficient to establish that defendant owed a duty of care to plaintiff, that defendant breached that duty, and that the breach was the proximate cause of plaintiff's injuries"); see also Beetle, 326 Ill. App. 3d at 540 (Bowman, J., dissenting) ("A wrongful death action requires proof of the same elementsduty, breach of the duty, proximate cause and damages-as a common law negligence action, a classic action in tort"). The parties concur that the primary issue in the case before us is grounded in established tort principles surrounding proximate cause. Specifically, the parties agree that the primary issue presented in this case is whether a party's negligence causing injury to a pregnant woman may make it foreseeable that she will decide to undergo an abortion to facilitate her own medical treatment, so that the original tortfeasor will be the proximate cause of the fetus' death, or if the woman's decision to abort becomes a superceding cause of the fetus' death thereby relieving the original tortfeasor of liability for the fetus' death. Though the case involves an abortion, a medical procedure that can invoke controversial moral, philosophical, and political considerations of theology, philosophy, morality, privacy, and public policy, since the actions taken by Williams were legal and medically endorsed, it is agreed that the right of plaintiff to recover should be determined by general principles of proximate cause as applied with respect to intervening human agencies. As the defendant Manchester states in his brief: "It must be clearly understood that [he] in no way suggests any moral issue here with the option Williams elected to take. This discussion instead focuses entirely upon the legal issue of proximate cause of the death of the fetus, and the validity of a wrongful death claim against [him] under the

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1-05-2126 circumstances."
" Proximate

cause 'is one which produces the injury through a natural and continuous

sequence of events unbroken by any effective intervening cause.' " Cannon v. Commonwealth Edison Co., 250 Ill. App. 3d 379, 381 (1993), quoting Novander v. City of Morris, 181 Ill. App. 3d 1076, 1078 (1989). "Proximate cause" contains two elements: "cause in fact" and "legal cause." Young v. Bryco Arms, 213 Ill. 2d 433, 446 (2004). Cause in fact is determined by analyzing "whether the injury would have occurred absent the defendant's conduct." Young, 213 Ill. 2d at 446. Legal cause is a question "of public policy-how far should a defendant's legal responsibility extend for conduct that did, in fact, cause the harm?" Young, 213 Ill. 2d at 446. See also McCraw v. Cegielski, 287 Ill. App. 3d 871, 873 (1996) ("Proximate cause requires the plaintiff to show that the defendant's negligence was (1) the actual cause or the cause in fact of his injury, i.e., but for the defendant's conduct, the accident would not have occurred; and (2) the legal cause of his injury, i.e., the defendant's conduct was so closely tied to the plaintiff's injury that he should be held legally responsible for it"). Generally, the "proper inquiry regarding legal cause involves an assessment of foreseeability, *** whether the injury is of a type that a reasonable person would see as a likely result of his conduct." Young, 213 Ill. 2d at 446-47. See also Restatement (Second) of Torts

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