Stephens v. Trinity Medical Center
State: Illinois
Court: 3rd District Appellate
Docket No: 3-97-0124
Case Date: 09/19/1997
No. 3--97--0124
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
_________________________________________________________________
VERLINE STEPHENS, Administrator ) Appeal from the Circuit Court
of the Estate of ALBERT LEE ) of the 14th Judicial Circuit,
STEPHENS, deceased; VERLINE ) Rock Island County, Illinois
STEPHENS, individually; and )
ALBERT LEE STEPHENS, SR., )
individually, )
)
Plaintiffs-Appellants, )
)
v. ) No. 96--L--4
)
TRINITY MEDICAL CENTER, an )
Illinois not-for-profit )
corporation; HAMMOND-HENRY )
HOSPITAL AUXILIARY, INC., an )
Illinois not-for-profit )
corporation; PAUL M. RUDY, )
M.D.; TERRILL M. BANER, M.D.; )
VELUSAMI ARUMUGAM, M.D.; MANUEL )
GUERERO, M.D.; FELIPE ENREQUEZ, )
M.D.; JACK BUZEK, M.D.; SARA )
REED, R.N., individually and as )
employee and/or agent and/or )
servant of TRINITY MEDICAL )
CENTER, an Illinois not-for- )
profit corporation, ) Honorable
) Martin E. Conway,
Defendants-Appellees. ) Judge Presiding
_________________________________________________________________
JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________
The plaintiffs, Verline Stephens (individually and as
administrator of the estate of Albert Lee Stephens, Jr.) and Albert
Lee Stephens, Sr., appeal from the trial court's dismissal of their
common-law claim against the defendant hospitals, doctors and nurse
for loss of filial society resulting from the death of their adult
son, Albert Lee Stephens, Jr. The trial court held that to allow
the plaintiffs to proceed would be tantamount to creating a remedy
not previously existing in Illinois Law. Consequently, the trial
court refused to create such a remedy. Following our careful
review of the record on appeal, we affirm.
FACTS
The plaintiffs allege that their son, Albert Lee Stephens,
Jr., died as a result of the defendants' failure to timely treat
the decedent's epiglottis and to timely diagnose and treat his
dislodged tracheal tube. The complaint alleges claims for wrongful
death and survival on behalf of the decedent's wife and four
children. Additionally, claims are alleged on behalf of his
parents based upon (1) a common-law theory of loss of filial
society and (2) section 15 of the Rights of Married Persons Act
(750 ILCS 65/15 (West 1996)).
All of the defendants filed motions to dismiss the claims
brought on behalf of the parents. The plaintiffs agreed to dismiss
the claim brought under the Rights of Married Persons Act, but
challenged the dismissal of their common-law claim. Following a
hearing, the trial court dismissed the plaintiffs' common-law
claim, finding that Illinois law does not recognize a common-law
cause of action for individuals not defined as the next-of-kin
under the Illinois Wrongful Death Act (the Act) (740 ILCS 180/1 et
seq. (1996)).
ANALYSIS
The Act provides:
"Every such action shall be brought by and in the
names of the personal representatives of such
deceased person, and, except as otherwise
hereinafter provided, the amount recovered in
every such action shall be for the exclusive
benefit of the surviving spouse and next of kin
of such deceased person * * *." (Emphasis added.)
740 ILCS 180/2 (West 1996).
The law of this state is well settled that parents are not
found to be the next-of-kin under the Act when the decedent is
survived by a spouse and children. Rallo v. Crossroads Clinic,
Inc., 206 Ill. App. 3d 676, 683, 565 N.E.2d 15, 19 (1990). Thus,
a parent's recovery for damages for loss of society with a child is
barred by the Act when the decedent is survived by a wife and
children. Rallo, 206 Ill. App. 3d at 683, 565 N.E.2d at 19.
The plaintiffs, however, claim that, notwithstanding Rallo,
they can avoid dismissal of their cause of action by bringing a
common-law claim. They assert that Illinois law recognizes a
common-law claim by parents for the loss of society with an adult
child who leaves a surviving spouse and children. We disagree.
The plaintiffs rely in part upon Ballweg v. City of
Springfield, 114 Ill. 2d 107, 120, 499 N.E.2d 1373, 1375 (1986).
They cite Ballweg for the proposition "that the parents of a
deceased child have a common-law loss of society claim even when
the decedent leaves a surviving wife and child." In Ballweg, the
supreme court held that parents were entitled to a presumption of
pecuniary injury for the loss of an adult child's society.
Ballweg, 114 Ill. 2d at 120, 499 N.E.2d at 1379. Contrary to the
plaintiffs' assertion, however, the Ballweg case does not establish
any type of common-law right for parents alleging a loss of society
claim. Ballweg reviewed a claim brought under the Act, not the
common-law. The holding does not mention or even discuss a common-
law claim for loss of filial society. Moreover, in Ballweg, the
decedent was not survived by a wife and children. Consequently,
the parents in Ballweg were properly found to be the next-of-kin
under the Act.
The plaintiffs' reliance on Dini v. Naiditch, 20 Ill. 2d 406,
170 N.E.2d 881 (1960), is equally misplaced. The plaintiffs argue
that "Dini recognized a common-law remedy for wrongful death in
holding that a wife could bring a loss of consortium claim for the
death of her husband." We note that Dini was a combined appeal
which addressed issues relating to the death of one fireman and the
injury to another. Dini held that a wife could bring a common-law
loss of consortium claim resulting from the injury to her husband.
Dini, 20 Ill. 2d at 430, 170 N.E.2d at 893. Dini does not discuss
or review a common-law claim for loss of consortium resulting from
the death of a husband. As a result, we find Dini distinguishable
because: (1) the relevant portion of the holding addressed injury,
not death; and (2) the claim alleged was for loss of spousal
consortium, not loss of filial society.
The plaintiffs argue that Kubian v. Alexian Brothers Medical
Center, 272 Ill. App. 3d 246, 651 N.E.2d 231 (1995), supports their
cause of action. We disagree. Kubian addresses issues regarding
loss of spousal consortium. In Kubian, the decedent's wife
challenged the dismissal of her wrongful death claim and her
common-law loss of consortium claim. The surviving spouse in
Kubian was the decedent's second wife. The decedent's daughter
from a previous marriage became administrator of the estate.
Although the surviving spouse was the next-of-kin under the Act,
the stepdaughter refused to file a wrongful death claim on behalf
of the estate. Because of the stepdaughter's action, the
stepmother could not recover under the Act. The stepmother
proceeded in spite of the position of administrator of the estate
and filed both a wrongful death claim and a common-law loss of
spousal consortium claim. The court in Kubian affirmed the trial
court's dismissal of the surviving spouse's wrongful death claim
because the stepdaughter "possessed the sole authority to control
any litigation on behalf of the estate" as provided in the Act.
Kubian, 272 Ill. App. 3d at 252, 651 N.E.2d at 236. However, the
court in Kubian determined that the common-law loss of consortium
claim could proceed in the trial court. Furthermore, the court
concluded that the common-law of Illinois recognized a claim for
spousal consortium, and the Act did not pre-empt such a claim.
Kubian, 272 Ill. App. 3d at 255, 651 N.E.2d at 238.
We find Kubian to be distinguishable from the case at hand.
Initially, we note that the plaintiff in Kubian was already the
next-of-kin under the Act. In Kubian, if the administrator of the
estate had filed suit on behalf of the estate, then the surviving
spouse would have clearly recovered a benefit under the Act. In
the instant case, however, the plaintiffs are not the next-of-kin
because the decedent was survived by his wife and children.
According to the plain language of the Act, the plaintiffs cannot
recover a benefit because they are not the decedent's next-of-kin.
We will now review Kubian in light of the plaintiffs' common-
law claim. In Kubian, the court found a common-law claim for loss
of spousal consortium. In the instant case, the plaintiffs' claim
is for loss of filial society. Our supreme court noted in Dralle
v. Ruder, 124 Ill. 2d 61, 72, 529 N.E.2d 209, 214 (1988), that the
companionship between spouses "is not identical" to that between
parent and child. Given the differences between these two types of
common-law claims, we find no inconsistency "in denying recovery
for loss of filial--or parental--society and companionship and in
allowing recovery for loss of spousal consortium." Dralle, 124
Ill. 2d at 72, 529 N.E.2d at 214.
The plaintiffs admit that no court of review in this state has
ever allowed a common-law claim for loss of filial society when the
parents' adult child was survived by either his wife or children.
The defendants respond to the plaintiffs' common-law claim by
noting that recognition of such a claim would risk expanding the
scope of tort liability far beyond its present state. See Dralle,
124 Ill. 2d at 70, 529 N.E.2d at 213. "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." Dralle, 124 Ill. 2d at 69, 529 N.E.2d at
213.
From our review of well-settled law in Illinois, we are not
inclined to allow causes of action outside of and in addition to
claims under the Wrongful Death Act. To do so would encourage
"[g]randparents, siblings, and friends suffering similar losses of
society and companionship" to bring claims. Dralle, 124 Ill. 2d at
70, 529 N.E.2d at 213 (noting that recognizing a common-law claim
for loss of filial society for non-fatal injuries to a child would
threaten expansion of liability). Any expansion of the common-law
liability should properly rest with the General Assembly. We
determine that it is for the legislature to decide if the Act
should be expanded and to create additional remedies not currently
recognized in this state.
Finally, the plaintiffs argue that failure to give the parents
a remedy in this case would violate the Illinois Constitution. Our
Constitution states that "[e]very person shall find a certain
remedy in the laws for all injuries and wrongs which he receives to
his person, privacy, property or reputation." Ill. Const., art. I,
12. This provision of our Constitution has been construed as an
expression of philosophy and does not mandate the creation of a
cause of action or remedy in each case where one does not exist.
Bart v. Board of Education, 256 Ill. App. 3d 880, 632 N.E.2d 39
(1993).
CONCLUSION
In sum, given that Illinois has never recognized a cause of
action for loss of filial society by parents whose adult child was
survived by a wife and children, we refuse to create such a right.
Moreover, we find that our decision does not violate the
Constitution of the State of Illinois.
For the reasons stated, we find that the trial court properly
dismissed the plaintiffs' common-law claims. Accordingly, the
circuit court of Rock Island County is affirmed.
Affirm.
SLATER and BRESLIN, JJ., concur.
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