NO. 4-01-1003

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PRESIDING JUSTICE McCULLOUGH delivered the opinion ofthe court:

Plaintiff, Michael B. Myers, independent executor ofthe estate of Mary Prillmayer, deceased, appeals from an order ofthe Brown County circuit court granting defendant's motion todismiss count II of plaintiff's complaint pursuant to section2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(West 2000)). Plaintiff sought recovery from defendant, HeritageEnterprises, Inc., a corporation, for a statutory violation ofthe Nursing Home Care Act (210 ILCS 45/1-101 through 3A-101 (West2000)). On appeal, plaintiff argues that the trial court erredin granting defendant's motion to dismiss count II of plaintiff'scomplaint finding "[a] Cause of Action under said Nursing HomeCare Act does not survive death of resident." We reverse andremand.

On July 12, 2001, plaintiff filed a two-count complaintagainst defendant, a residential nursing facility. Plaintiffalleged that decedent, before her death, suffered fractures toher legs as a result of defendant's employees' careless andnegligent acts while moving decedent from a wheelchair to herbed. Count II of plaintiff's complaint, the only count at issuein this appeal, sought recovery from defendant for a statutoryviolation of the Nursing Home Care Act. On August 8, 2001,defendant filed a motion to dismiss count II of plaintiff'scomplaint. Defendant argued that "no provision of the ***Nursing Home Care Act allows for a cause of action to survive theresident's death." On October 17, 2001, the trial court enteredan order stating:

"The Nursing Home Act is in Derogation of theCommon Law of Illinois and must be construedstrictly. The legislature did not engraft asurvival clause. A Cause of Action undersaid Nursing Home Care Act does not survivedeath of resident."

A Rule 304(a) finding was made with respect to this interlocutoryappeal. See 155 Ill. 2d R. 304(a).

We review de novo the granting of a section 2-619motion to dismiss. Nowak v. St. Rita High School, 197 Ill. 2d381, 389, 757 N.E.2d 471, 477 (2001).

Defendant argues that the Nursing Home Care Act "lacksany provision for survivability of a cause of action." Further,defendant argues that the Survival Act (755 ILCS 5/27-6 (West2000)) must make specific reference to the Nursing Home Care Act"for a cause of action *** to survive."

The Nursing Home Care Act was enacted because of concerns over reports of "inadequate, improper and degradingtreatment of patients in nursing homes." 81st Ill. Gen. Assem.,Senate Proceedings, May 14, 1979, at 184 (statements of SenatorKarl Berning). The Nursing Home Care Act's purpose is to provideprotection for nursing home residents. Eads v. Heritage Enterprises, Inc., 325 Ill. App. 3d 129, 132, 757 N.E.2d 107, 110(2001), appeal pending, No. 92691. The Nursing Home Care Actexpressly grants nursing home residents the right to pursueactions for damages and other relief against nursing home facilities. Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455,464, 722 N.E.2d 1115, 1120 (1999). Section 3-601 provides thatowners and operators of facilities are liable to a resident forinjuries caused by the intentional or negligent acts of theiremployees or agents. 210 ILCS 45/3-601 (West 2000). Section3-602 makes operators liable for damages to nursing home residents whose rights under the Nursing Home Care Act are violated. 210 ILCS 45/3-602 (West 2000). Section 3-603 specifies that aresident may maintain an action under the Nursing Home Care Actfor any other type of relief permitted by law. 210 ILCS 45/3-603(West 2000).

The Survival Act provides that "[i]n addition to theactions which survive by the common law, the following alsosurvive: *** actions to recover damages for an injury to theperson." 755 ILCS 5/27-6 (West 2000). In National Bank ofBloomington v. Norfolk & Western Ry. Co., 73 Ill. 2d 160, 171-72,383 N.E.2d 919, 923 (1978), the supreme court, referencing anaction under the Public Utilities Act (Ill. Rev. Stat. 1969, ch.111 2/3, par. 77), stated:

"The law, of course, has always recognizedthat, if a person survives, he may bring acommon law or statutory action against aparty whose wrongful conduct has caused himsuch personal injury. At common law, however, the same action would abate upon thedeath of the injured person. To remedy thisinjustice, a survival statute was enacted(originally in 1872) to allow an action, suchas the instant action to recover damages foran injury to the person, to survive the deathof the injured person. [Citation.] The Survival Act does not create a statutory causeof action. It merely allows a representativeof the decedent to maintain those statutoryor common law actions which had already accrued to the decedent before he died."

In Pietrzyk v. Oak Lawn Pavilion, Inc., 329 Ill. App.3d 1043, 1044, 769 N.E.2d 134, 135 (2002), decided April 26,2002, the plaintiff, as executrix of the estate of AntoniPietrzyk, filed a multicount claim against defendant, Oak LawnPavilion, Inc. (Oak Lawn). Count I of plaintiff's amendedcomplaint sought recovery from Oak Lawn for a statutory violationof the Nursing Home Care Act. The appellate court noted:

"Pursuant to section 27-6 of the Survival Act (755 ILCS 5/27-6 (West [2000])),[the plaintiff's] husband's own cause ofaction remained viable after his death." Pietrzyk, 329 Ill. App. 3d at 1043 n.1, 769N.E.2d at 135 n.1.

The Survival Act does not create a statutory cause ofaction and instead allows a representative of the decedent tomaintain those statutory or common-law actions that had alreadyaccrued to the decedent prior to the decedent's death, e.g., anaction brought under the Nursing Home Care Act. Pietrzyk, 329Ill. App. 3d at 1049, 769 N.E.2d at 139; Dardeen v. HeartlandManor, Inc., 186 Ill. 2d 291, 299, 710 N.E.2d 827, 832 (1999)(the administrator of the estate of a nursing home resident whohad died while in a nursing home sued the home under Nursing HomeCare Act. Although the issues on appeal concerned the right totreble damages, the supreme court found that repeal of the rightto treble damages "does not interfere with plaintiff's substantive right to recover against defendant for violations under theNursing Home Care Act").

Moreover, while the Nursing Home Care Act may notprovide for the survival of plaintiff's cause of action upondecedent's death, "[i]t is well established that the Illinoissurvival statute allows a decedent's representative to maintainthose common law or statutory actions which had already accruedto the decedent prior to his death." Wasleff v. Dever, 194 Ill.App. 3d 147, 152, 550 N.E.2d 1132, 1135 (1990); Baksh v. HumanRights Comm'n, 304 Ill. App. 3d 995, 1001, 711 N.E.2d 416, 421(1999) (patient's cause of action for compensatory damages underthe Illinois Human Rights Act (775 ILCS 5/1-101 through 10-103

(West 1996)) was personal property under Survival Act; cause ofaction survived death); Wills v. De Kalb Area Retirement Center,175 Ill. App. 3d 833, 841, 530 N.E.2d 1066, 1071 (1988) (specialadministratrix of deceased nursing home resident's estate couldbring resident's cause of action under Nursing Home Care ReformAct of 1979 (Ill. Rev. Stat. 1983, ch. 111 1/2, pars. 4151-101through 4153-803) for injuries incurred prior to her deathpursuant to Survival Act). In the present case, plaintiff maybring decedent's cause of action under the Nursing Home Care Actfor injuries incurred prior to her death pursuant to the SurvivalAct.

For the reasons stated, we reverse the trial court'sorder and remand for further proceedings.

Reversed and remanded for further proceedings.

KNECHT and APPLETON, JJ., concur.