Appeal from the Circuit Court of Cook County; the Hon. KEITH
F. SCOTT, Judge, presiding. Reversed and remanded with
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
This is an action for prenatal injuries allegedly sustained by a minor child while in the womb of his mother, when she was approximately one month pregnant. The trial court sustained defendant's motion to strike the amended complaint and dismissed the suit. Plaintiff appeals.
The amended complaint alleges that on September 14, 1958, the child, Russell Michael Daley, Jr., while in the womb of his mother, was injured in an automobile collision, caused by defendant's negligence, and that he was born on May 16, 1959, with resulting subnormal mental faculties, has not developed normally, and will require medical care and special medical appliances throughout his life.
The defendant's motion to dismiss the amended complaint was based on the ground that, at the time of the alleged occurrence, plaintiff was not a viable fetus, capable of extra-uterine survival, and therefore had no identity apart from his mother.
In 1953, our Supreme Court in Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412, held that an administratrix of the estate of a child, who suffered prenatal injuries when a viable fetus, had a right of action for wrongful death against the defendant whose negligence caused the injuries which resulted in the death of the child after he was born alive. In the same year, in Rodriquez v. Patti, 415 Ill. 496, 114 N.E.2d 721, the Supreme Court, in a action by a child, born alive, for injuries inflicted upon him "while he was an infant en ventre sa mere," stated, "Our holding in Amann v. Faidy is decisive of the legal issues presented in this case," and reversed the trial court's dismissal of the action. Our attention has not been called to any subsequent Illinois decisions on that subject.
Defendant contends that the reasoning and decision in Amann v. Faidy limits the right of action for prenatal injuries to children, born alive, who, at the time of the injury, were alive and capable of being delivered and of remaining alive separate from their mothers.
Therefore, the sole question is whether a child, who was born alive and survives, can maintain an action to recover for prenatal injuries resulting from the negligence of another, even though the child had not reached the state of a viable fetus at the time of the injury.
Since 1953, there have been a number of cases in other states which have considered at length the basis for distinguishing the rights of an embryo or fetus, nonviable at the time of the injury and later born alive, from those of a fetus viable when injured. In support of the contention that the viable distinction has no justification, plaintiff relies on Kelly v. Gregory (1953), 282 App. Div. 542, 125 NYS2d 696; Hornbuckle v. Plantation Pipe Line Co. (1956), 212 Ga. 504, 93 S.E.2d 727; Bennett v. Hymers (1958), 101 N.H. 483, 147 A.2d 108; Smith v. Brennan (1960), 31 NJ 353, 157 A.2d 497; Sinkler v. Kneale (1960), 401 Penn 267, 164 A.2d 93.
In New York, in 1953, the Appellate Division of the Supreme Court held (Kelly v. Gregory, 282 App. Div. 542, 125 NYS2d 696) that the legal entity of a child begins at conception and a child, born alive, may recover for prenatal injury tortiously inflicted at any time at or after conception, regardless of whether the fetus was viable at time of injury. At page 698, the court says:
"If the child born after an injury sustained at any period of his prenatal life can prove the effect on him of the tort, as for the purpose of this appeal and on the face of the complaint before us we must assume plaintiff will be able to do, we hold he makes out a right to recover."
In Georgia, in 1956, the Supreme Court held that a child, born after receiving tortious injury at any period after conception, had a cause of action for such injuries, regardless of whether they were sustained while he was an embryo or fetus. (Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727.) On page 728, the court said:
"At what particular moment after conception, or at what particular period of the prenatal existence of the child the injury was inflicted is not controlling. . . . `A child is to be considered as in being, from the time of its conception, where it will be for the benefit of such child to be so considered.' . . . If a child born after an injury sustained at any period of its prenatal life can prove the effect on it of a tort, it would have a right to recover."
In New Hampshire, in 1958, the Supreme Court held:
"We hold therefore that an infant born alive can maintain an action to recover for prenatal injuries inflicted upon it by the tort of another even if it had not reached the state of a viable fetus at the time of injury. We so decide because we see no logical reason for not extending the protection of the law of torts to it and are impressed by the harshness of the opposite result. We recognize that there may be difficulty in proving causation and that such a holding may give rise to fictitious claims. However this difficulty and this danger are not peculiar to this type of action and do not appear to be so much greater than in the case of many other matters of medical opinion on the causal sequence of events. Our holding, that if a child born alive after an injury sustained at any period of its prenatal life can prove the damage was caused by the ...