APPEAL from the Circuit Court of Saline County; the Hon.
THOMAS W. HANEY, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Plaintiff, Ralph Green, as administrator of the estate of his wife, Jillena Ann, and an unborn infant, filed a complaint for their wrongful deaths in the circuit court of Saline County on October 15, 1975. The complaint alleged that their deaths, caused by a truck-auto collision, were the result of the negligence of defendants, Charles Smith, the owner of a trucking company, and Gary Ross, a driver for the company. The complaint contained two counts; count I was based solely on the death of plaintiff's wife, Jillena Ann, and count II was for the death of the unborn infant which Jillena Ann was carrying. Defendants made a motion for the dismissal of the complaint. In an order and judgment entered on March 15, 1976, the circuit court denied that portion of the motion which attacked count I of the complaint but sustained the motion as to count II. Plaintiff appeals the judgment rendered on count II.
At issue here is whether a trial court may properly rule as a matter of law that a fetus of a certain number of gestational weeks is not viable, thereby dismissing a complaint for failure to state a cause of action for wrongful death. This appears to be an issue which has not been explicitly decided by an Illinois court. It is our opinion that it is proper for a trial court to dismiss a complaint where it is clear that viability could never be proved at trial.
Among other things, plaintiff averred in count II of the complaint: that immediately prior to the truck-auto collision of May 12, 1975, which claimed the lives of plaintiff's decedents, Jillena Ann Green was 14 weeks pregnant with the unborn infant; that at the time of the collision the unborn infant was a "living, viable human being"; and, that as a proximate result of the collision, the unborn infant died the same date.
Paragraphs 5 and 6 of defendants' motion to dismiss count II, which were sustained by the court, read as follows:
"5. To dismiss Count II for reason that no facts are alleged showing a cause of action for wrongful death of an alleged `unborn' infant.
6. To dismiss Count II for the reason that it affirmatively appears that the alleged `unborn' infant was not a viable person within the meaning of the law, the death of which could give rights to a cause of action for wrongful death."
• 1, 2 In Illinois, when a fetus is stillborn or dies en ventre sa mere, the determination whether a cause of action for wrongful death exists depends upon whether the fetus was "viable" at the time of injury. If the fetus was not viable at the time of the injury's occurrence, no cause of action exists. (Rapp v. Hiemenz, 107 Ill. App.2d 382, 246 N.E.2d 77.) If the fetus was viable at the time of injury, a cause of action does exist. (Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88.) Viability "is the time at which a child is capable of being delivered and remaining alive separate from and independent of the mother." (Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 374.) Since the unborn infant in the instant case died en ventre sa mere, the existence of a cause of action depends upon whether the infant was viable on May 12, 1975, when the collision occurred.
The trial court, in dismissing count II, sustained three paragraphs of defendants' motion to dismiss, two of which are set out above. This meant that the court concluded, as a matter of law, that the fetus was not viable, thereby requiring a dismissal pursuant to the holdings of Rapp v. Hiemenz and Chrisafogeorgis v. Brandenberg. The court, as well as the defendants, premised its finding on the fact that Jillena Ann was only 14 weeks pregnant when she and the fetus were killed.
Plaintiff contends that count II states a cause of action for wrongful death of a fetus and argues that the averment as to the gestational state of the infant at the time of the occurrence was mere surplusage, and, therefore it was error for the court to dismiss the complaint rather than let it proceed to a jury trial. Plaintiff also contends that viability is always a jury question. We do not agree with either contention.
• 3 The existence of a cause of action in a situation such as this requires that the fetus be viable at the time of injury. To plead only that the fetus was viable is to plead a mere conclusion. We feel that an averment as to gestational age is not mere surplusage but, in fact, necessary to state a cause of action. Gestational age aids the court in determining whether the case falls within the parameters of the Chrisafogeorgis rule.
• 4, 5 Plaintiff also argues that it was error to dismiss the count because defendants' motion to dismiss admits his allegation that the unborn infant at the time of collision was a "living viable human being." There is no merit to this argument. A motion to dismiss admits facts well pleaded, but not conclusions of fact not supported by allegations of specific facts upon which such conclusions rest. Pierce v. Carpentier, 20 Ill.2d 526, 169 N.E.2d 747; Heyman v. Mahin, 49 Ill.2d 284, 275 N.E.2d 421.
We do not believe that the question of viability need always be presented to a jury. A jury determination is necessary when the gestational age is within the arguable range of expert medical opinion as to when a fetus is capable of existing outside the womb (currently, 20-28 weeks, see infra). However, where it is clear that a fetus is in such an early gestational stage that it is impossible to conceive of its being capable of independent existence by common knowledge or medical opinion, the trial court can dismiss the complaint for failing to state a claim upon which relief can be granted. The trial court did not err in dismissing. There is no reason to believe that plaintiff could prove that the fetus was viable at the time of injury.
Illinois courts> have not explicitly held that the determination of nonviability or viability can be made by the court in some instances as a matter of law, but previous case law strongly implies that this is the proper rule.
In Rapp v. Hiemenz, the appellate court affirmed a summary judgment for defendant in a wrongful death action involving an unborn fetus that was stillborn. The court related that at the time of the injury the plaintiff was 4 1/2 months pregnant. It went on to note that the Illinois Supreme Court, in Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412, "defined a viable fetus as one sufficiently developed for extrauterine survival, normally a fetus of seven months or older." (107 Ill. App.2d 382, 386.) Without relying on any other evidence, the court stated, "The occurrence giving rise to the injury, in the case at bar, took place when the fetus was not ...