APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. BEN SCHWARTZ, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 28, 1973.
The question presented is whether there can be recovery under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, pars. 1 and 2) for the wrongful death of a viable child or fetus born dead as a result of injuries negligently inflicted en ventre sa mere.
On September 1, 1966, Mrs. Donna Chrisafogeorgis, while in her 36th week of pregnancy, was struck by an automobile driven by Richard Brandenberg as she walked across a Chicago street. Emergency surgery was performed on Mrs. Chrisafogeorgis several hours later and, according to the complaint which we consider here, it was determined that her unborn infant had died from injuries sustained when Mrs. Chrisafogeorgis was struck.
On March 27, 1968, Mrs. Chrisafogeorgis and her husband, Gust J. Chrisafogeorgis, filed a complaint in the circuit court of Cook County against the defendants, Richard Brandenberg, the driver of the automobile, and Hubert Brandenberg, its owner. Mrs. Chrisafogeorgis sought damages for her own injuries, and her husband, as the administrator of the estate of Baby Boy Chrisafogeorgis, sought recovery for the wrongful death of the stillborn child. The action by Mrs. Chrisafogeorgis is not involved in this appeal.
The defendants moved for summary judgment against the plaintiff Gust Chrisafogeorgis on the ground that under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, pars. 1 and 2) there can be no action unless the fetus has been born alive. The circuit court granted the defendant's motion, and dismissed the wrongful death action. This was affirmed by the appellate court (3 Ill. App.3d 422), and we granted leave to appeal.
There was no right to recover for wrongful death at common law. Whether this plaintiff had a cause of action depends on whether the Wrongful Death Act extends to the death of a viable fetus born dead because of injuries sustained prior to birth through a negligent act.
As relevant here, the Illinois 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 * * *." Ill. Rev. Stat. 1971, ch. 70, par. 1.
This court has held that there is a right of action for injuries wrongfully sustained by a viable child en ventre sa mere when the child survives the injuries and is born alive. Amann v. Faidy, 415 Ill. 422, 430-431.
Though this court has not considered the question whether there can be recovery for the wrongful death of a viable child who is born dead because of a wrongfully inflicted injury en ventre sa mere, courts in other jurisdictions have considered the question. A greater number of them have allowed an action for damages. (See generally, Annot. (1967), Action for Death of Unborn Child, 15 A.L.R.3d 992.) Holdings denying an action for the wrongful death of an infant injured while en ventre sa mere and stillborn, include: California (Bayer v. Suttle (1972), 23 Cal.App.3d 361, 100 Cal.Rptr. 212); Iowa (McKillip v. Zimmerman (Iowa 1971), 191 N.W.2d 706); Massachusetts (Keyes v. Construction Service, Inc. (1960), 340 Mass. 633, 165 N.E.2d 912); New Jersey (Graf v. Taggert (1964), 43 N.J. 303, 204 A.2d 140); New York (Endresz v. Friedberg (1969), 24 N.Y.2d 478, 248 N.E.2d 901); North Carolina (Gay v. Thompson (1966), 266 N.C. 394, 146 S.E.2d 425); Oklahoma (Howell v. Rushing (Okla. 1953), 261 P.2d 217); Pennsylvania (Carroll v. Skloff (1964), 415 Pa. 47, 202 A.2d 9); Tennessee (Hogan v. McDaniel (1958), 204 Tenn. 235, 319 S.W.2d 221; Durrett v. Owens (1963), 212 Tenn. 614, 371 S.W.2d 433). Among holdings permitting an action are: Connecticut (Gorke v. Le Clerc (Super. Ct. 1962), 23 Conn. Sup. 256, 181 A.2d 448; Hatala v. Markiewicz (Super. Ct. 1966), 26 Conn. Sup. 358, 224 A.2d 406); Delaware (Worgan v. Greggo & Ferrara, Inc. (Super. Ct. 1956), 50 Del. 258, 128 A.2d 557); Georgia (Porter v. Lassiter (1955), 91 Ga. App. 712, 87 S.E.2d 100); Kansas (Hale v. Manion (1962), 189 Kan. 143, 368 P.2d 1); Kentucky (Rice v. Rizk (Ky. 1970), 453 S.W.2d 732); Louisiana (Valence v. Louisiana Power & Light Co. (La. App. 1951), 50 So.2d 847); Maryland (State ex rel. Odham v. Sherman (1964), 234 Md. 179, 198 A.2d 71); Michigan (O'Neill v. Morse (1971), 385 Mich. 130, 188 N.W.2d 785); Minnesota (Verkennes v. Corniea (1949), 229 Minn. 365, 38 N.W.2d 838); Mississippi (Rainey v. Horn (1954), 221 Miss. 269, 72 So.2d 434); Nevada (White v. Yup (1969), 85 Nev. 527, 458 P.2d 617); New Hampshire (Poliquin v. MacDonald (1957), 101 N.H. 104, 135 A.2d 249); Ohio (Stidam v. Ashmore (1959), 109 Ohio App. 431, 11 Ohio Op.2d 383, 167 N.E.2d 106); South Carolina (Fowler v. Woodward (1964), 244 S.C. 608, 138 S.E.2d 42); West Virginia (Baldwin v. Butcher (W. Va. 1971), 184 S.E.2d 428); Wisconsin (Kwaterski v. State Farm Mutual Automobile Ins. Co. (1967), 34 Wis.2d 14, 148 N.W.2d 107).
Arguments most frequently advanced for a denial of the right of action are grounded (1) on the difficulties in establishing the existence of a causal relation between a prenatal injury and death, e.g., Graf v. Taggert (1964), 43 N.J. 303, 204 A.2d 140, and (2) on the problem in ascertaining the damages to be allowed (Carroll v. Skloff (1964), 415 Pa. 47, 202 A.2d 9).
This court in Amann considered and rejected an argument which was based on the difficulties of establishing causation in the case of a viable fetus injured en ventre sa mere who dies as a consequence after birth. The language used in Amann is appropriate for application here. It was said: "The argument based upon the difficulty of proof of a causal relation between the injury en ventre sa mere and the damage which subsequently becomes apparent has likewise been rejected. `The difficulty of obtaining proof of the wrong should prompt greater leniency in affording the remedy, rather than a denial of plain justice. We are not impressed with the reasoning that a clear remedy for an injustice should be denied because a wrong is not readily susceptible of proof.' (Scott v. McPheeters, 33 Cal.App. [2d] 629, 92 P.2d 678, (1939).) Concerning `the argument of convenience, based upon the difficulty of proof,' the Maryland court made these observations in the Damasiewicz case [Damasiewicz v. Gorsuch (1950), 197 Md. 417, 437, 79 A.2d 550, 559]: `It is probable that this would have been almost insurmountable in the days of Coke, Hardwicke and Black-stone, and perhaps of Holmes, and may have influenced their conceptions of the law. Physicians of today would have less trouble with the problem, but apart from this, the right to bring an action is clearly distinguishable from the ability to prove the facts. The first cannot be denied because the second may not exist." 415 Ill. 422, 430-431.
Here, of course, we are considering the question of a right to bring an action, not the evidence in support of the complaint. We judge that the argument grounded on claimed difficulties in showing causation does not require the denial of a right of action. Parenthetically, we would observe that Mrs. Chrisafogeorgis was in her eighth ...