Appeal from the Appellate Court for the Fifth
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Plaintiff, Ralph Green, as "Administrator of the Estates of Jillena Ann Green and Unborn Infant, Deceased," appealed from the judgment of the circuit court of Saline County entered upon allowance of the motion of defendants, Charles Smith, d/b/a Charles Smith Trucking Company, and Gary Ross, to dismiss count II of plaintiff's complaint. Plaintiff, in count I of the complaint, sought to recover damages for the wrongful death of his wife, Jillena Ann Green, and in count II sought to recover damages for the pecuniary loss suffered "by reason of the death of the unborn infant." The appellate court affirmed (51 Ill. App.3d 856), and we allowed plaintiff's petition for leave to appeal. This action arose out of a collision between an automobile driven by Jillena Ann Green and a truck owned and driven by defendants. The pleadings are adequately described in the opinion of the appellate court and will be reviewed here only to the extent necessary to discuss the issues. In count II it was alleged that immediately prior to the collision Jillena Ann Green was 14 weeks pregnant with the unborn infant, that at the time 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."
The basis upon which the circuit court allowed defendants' motion to dismiss, and upon which the appellate court affirmed, was that at 14 weeks the fetus was not viable and that there was no cause of action under the Wrongful Death Act for its "death."
Plaintiff contends that under the decision of this court in Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, "viability is no longer a required criterion in a wrongful death action for the death of an unborn child being carried by her mother." Alternatively, plaintiff contends that should this court hold "that viability is still a criterion in a wrongful death action," the complaint nevertheless states a cause of action for the reason that whether the fetus was viable is a question of fact. Defendants contend that a 14-week fetus is not viable and is therefore not a person for whose death damages may be recovered under the provisions of the Wrongful Death Act.
The Wrongful Death Act in pertinent part provided:
"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. 1975, ch. 70, par. 1.
In Amann v. Faidy (1953), 415 Ill. 422, it was held that under the Wrongful Death Act a complaint which alleged that as the result of defendant's negligence a child en ventre sa mere suffered injuries which caused his death shortly after birth stated a cause of action. In Chrisafogeorgis v. Brandenberg (1973), 55 Ill.2d 368, the court held that under the Wrongful Death Act there was a cause of action for the death of a child stillborn after its mother was injured. In both cases it was held requisite to the cause of action that, at the time the injuries were sustained, the child was viable. Although in Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 353, the court rejected viability "as a criterion to a common law action for prenatal injuries," the court did not in that case decide the question presented here. In our opinion there is a clear distinction between a common law cause of action on behalf of a live-born infant for injuries suffered prior to its having become viable, and a statutory cause of action for the destruction of a fetus not yet viable. The extent of the loss incurred by a living child burdened with mental or physical defects resulting from a prenatal occurrence is not affected by whether the injuries were suffered prior to or after he became viable. On the other hand, the Wrongful Death Act provides for recovery for the "death of a person," and we find no basis upon which to hold that one can cause the death of a fetus not yet viable. We hold, therefore, that no cause of action exists for injuries and death of the unborn infant plaintiff unless at the time of the occurrence it had attained viability. Although there are several decisions which arguably support the position that viability is irrelevant, our holding is consistent with the majority view. See Annot., 84 A.L.R.3d 411 (1978).
We consider next the question whether the appellate court correctly held that "There is no reason to believe that plaintiff could prove that the fetus was viable at the time of injury" (51 Ill. App.3d 856, 859) and that as a matter of law the fetus could not be viable.
The record shows that shortly after the appellate court opinion was filed, plaintiff pursuant to Rule 362 (58 Ill.2d R. 362) moved for leave to amend his complaint to allege that at the time of the occurrence Jillena Ann Green, deceased, was 18, rather than 14, weeks pregnant. Plaintiff filed no petition for rehearing, and the motion to amend the complaint was denied. Section 46 of the Civil Practice Act in pertinent part provides:
"(1) At any time before final judgment amendments may be allowed on just and reasonable terms * * * in any matter, either of form or substance, in any * * * pleading, * * * which may enable the plaintiff to sustain the claim for which it was intended to be brought * * *." (Ill. Rev. Stat. 1977, ch. 110, par. 46.)
The decision of the question presented requires that the complaint be treated as amended in accordance with plaintiff's motion.
As Mr. Justice Ryan observed in his dissent in Chrisafogeorgis v. Brandenberg (1973), 55 Ill.2d 368, 376: "Viability * * * is uncertain, indefinite and depends upon several factors other than the length of pregnancy. * * * `[I]t is a relative matter, depending on the health of mother and child and many other matters in addition to the stage of development.'" In Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, Mr. Justice Moran, writing for the plurality, stated: "In addition to the length of pregnancy, viability depends on other factors which include the weight and race of the child and the available life-sustaining techniques." (67 Ill.2d 348, 352.) Relying principally on "Obstetrics" by Professor Nicholson J. Eastman, Professor of Obstetrics at Johns-Hopkins University, defendants argue that the smallest, youngest fetus ever to have survived was 20 weeks and weighed approximately 400 grams; that the fetus in this case at 14 weeks would probably weigh less than 120 grams and as a matter of law, was not viable. We note that the edition (10th) of "Obstetrics" upon which defendants rely was published in 1950, and we have not been favored with information concerning the opinions expressed in the four editions published since that time.
From our review of the authorities we are unable to say that as a matter of law the unborn infant was not viable at the time of the occurrence which allegedly caused its "death." It does not appear that in the present state of medical science it can be held that beyond question the fetus here involved could not have survived separate from and independent of its mother. Under the circumstances we hold that the question whether the unborn infant was viable at the time of the occurrence was one of fact and the appellate and circuit courts> erred in deciding the question as one of law.
For the reasons stated the judgments of the appellate and circuit courts> are reversed and the cause is remanded to the circuit court of Saline County for further ...