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Prendergast v. Cox

OPINION FILED OCTOBER 9, 1984.

THOMAS G. PRENDERGAST, ADM'R OF THE ESTATE OF JOHN A. PRENDERGAST, DECEASED, PLAINTIFF-APPELLANT,

v.

GERALD COX, ADM'R OF THE ESTATE OF HENRY GARRETT, DECEASED, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. James A. Geroulis, Judge, presiding.

PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

Plaintiff, Thomas G. Prendergast, as administrator of the estate of the deceased, John A. Prendergast, brought a wrongful death action to recover damages resulting from the alleged negligence of the defendants. Following a jury trial, the jury rendered a verdict for plaintiff in the sum of $38,000, which was later reduced by the contributory negligence of the plaintiff to $15,200. Plaintiff appeals the verdict, alleging that the trial court erred in: (1) refusing to permit as an element of damages the loss of society and companionship sustained by the mother of the decedent; (2) refusing to allow as an element of damages the loss of society and companionship sustained by the four adult siblings of the decedent; (3) refusing to allow the loss of accumulation to the estate as an element of damages; and (4) sustaining objections to certain comments by plaintiff's counsel in closing argument.

The record reflects that the decedent was 38 years old when he died in an automobile accident on August 6, 1980. A semitrailer operated by defendants struck his auto on Interstate 294, and the decedent died when fire engulfed his vehicle. The decedent was a bachelor, having never married. At the time of his death, his mother resided with him in the house owned by him. Prior to trial and approximately 1 1/2 years after his death, his mother died. The decedent was also survived by two brothers and two sisters, all of whom were adults at the time of the occurrence. The siblings all resided in the Chicago suburbs and were friendly with each other and the decedent. The two sisters testified that decedent gave them occasional gifts, and all four siblings testified as to various services decedent performed for them, such as home maintenance and repair work.

Decedent was an entrepreneur, engaged in various businesses. He left a will devising all of his property to his brothers and sisters. His net assets totaled $82,603.

I

• 1 We turn first to the question of whether the loss of society and companionship suffered by a parent upon the death of an adult child is recoverable under Illinois' Wrongful Death Act. Section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, par. 2), which governs all recoveries under the Act, provides in relevant part:

"[I]n every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person." (Emphasis added.)

Recently, in Bullard v. Barnes (1984), 102 Ill.2d 505, our supreme court addressed the issue of whether the parents of a minor child may recover under section 2 of the Wrongful Death Act for loss of society. There, the supreme court noted that of the 23 jurisdictions with statutes or decisional law limiting wrongful death recoveries to pecuniary loss, 14 now allow parental recovery in a wrongful death action for the loss of society of a child. The court then reviewed its own recent decisions, stating:

"In Illinois, too, the trend in our more recent decisions under the Wrongful Death Act has been to expand the scope of pecuniary injury to encompass non-monetary losses. In Elliott v. Willis (1982), 92 Ill.2d 530, this court quite recently unanimously held, based on a broad definition of pecuniary injury, that a widowed spouse had the right to recover damages for loss of consortium under the Wrongful Death Act. We there relied upon Hall v. Gillins (1958), 13 Ill.2d 26, where the court refused to allow a common law action to recover for `destruction of the family unit' caused by the death of the father because an adequate remedy already existed under the Wrongful Death Act. This court there stated:

`The term "pecuniary injuries" [found in section 2 of the Wrongful Death Act] has received an interpretation that is broad enough to include most of the items of damage that are claimed by plaintiffs in this case. Each plaintiff alleges deprivation of support as well as deprivation of the companionship, guidance, advice, love and affection of the deceased.' (Emphasis added.) 13 Ill.2d 26, 31.

To the same effect is Knierim v. Izzo (1961), 22 Ill.2d 73, 82-83." (Bullard v. Barnes (1984), 102 Ill.2d 505, 514.)

The supreme court concluded that, in view of its earlier decisions, it would be anomalous to now deny parents recovery for loss of society. The court therefore held that parents are entitled to a presumption of pecuniary injury in the loss of a child's society. (Bullard v. Barnes (1984), 102 Ill.2d 505, 515.) In determining the amount of pecuniary injury, however, a setoff is to be applied for projected child rearing expenses.

The court limited its holding in Bullard to the facts before it, stating: "[T]his case does not present, and we therefore need not decide, the question of whether the loss-of-society presumption applies to children who have reached the age of majority." (102 Ill.2d 505, 517.) However, in a specially concurring opinion, Justice Clark stated:

"I would not limit this opinion to minor children, since I believe the logic embodied in the majority opinion would dictate a similar result if this case involved a 27-year-old rather than a 17-year-old. In the case at bar, plaintiff's decedent was at a point in his life where his parents could reasonably anticipate receiving advice, companionship and assistance. This ...


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