Appeal from the Circuit Court of Cook County; the Hon. Myron
T. Gomberg, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Plaintiff, Lindsay Stallman, by her father and next friend, Mark Stallman, appeals an order of the trial court dismissing count II of her second amended complaint. She raises the following issues for review: (1) whether the trial court's dismissal of count II of her complaint was proper and (2) whether her cause of action in negligence (count II) should be barred by application of the parent-child tort immunity rule.
On April 27, 1983, plaintiff filed her second amended complaint alleging that she is a minor and was born on January 25, 1982. On October 7, 1981, at 4:46 p.m., her mother, Bari Stallman, was involved in an automobile collision with defendant, Clarence Youngquist. In count I, plaintiff alleged that Youngquist was negligent in driving his car and that as a result of the accident she suffered serious injuries which became apparent at her birth. She asked for $25,000 in damages.
In count II, plaintiff alleged that her mother was negligent; that at the time of the accident, she (plaintiff) was not a person because her mother could have had a legal abortion; and that her (plaintiff's) injuries were outside the family relationship, since she was not yet part of a family. Plaintiff asked damages of $25,000. In count III, plaintiff alleged that her mother's acts were wilful and wanton, and she asked for damages of $25,000.
Defendant, Bari Stallman, moved to dismiss count II on a claim of parent-child tort immunity. On August 4, 1983, the trial court dismissed count II with prejudice and found that parent-child tort immunity applied because plaintiff was a member of the Stallman family at the time of the accident. Plaintiff appeals.
Plaintiff argues that Illinois courts have created certain exceptions to the judicially created parent-child tort immunity doctrine. For example, the doctrine has not been applied where the negligence complained of arose outside the family relationship and remained unconnected with family purposes and objectives. (Cummings v. Jackson (1978), 57 Ill. App.3d 68, 372 N.E.2d 1127.) Where the doctrine has been applied, the negligence was directly connected to the family. The doctrine has never been applied in a situation similar to the instant case. Plaintiff argues that it is a total legal fiction to hold that when she was a five-month fetus, she was engaged in a family activity. She was incapable of engaging in any activity directly connected with a family purpose or objective. Plaintiff insists that she met her burden of pleading facts sufficient to withstand application of the parent-child tort immunity rule. Plaintiff concludes that the trial court improperly held that she was a member of the Stallman family for purposes of the immunity rule.
Plaintiff also contends that a nonviable fetus is not a legal person. Defendant Stallman could have legally aborted plaintiff at the time of the accident.
Defendant Stallman responds that no Illinois decision has recognized an exception to the parent-child immunity doctrine where a child happens to be in utero at the time of the mother's alleged negligence. She cites Hogan v. Hogan (1982), 106 Ill. App.3d 104, 435 N.E.2d 770, Eisele v. Tenuta (1980), 83 Ill. App.3d 799, 404 N.E.2d 349, and Johnson v. Myers (1972), 2 Ill. App.3d 844, 277 N.E.2d 778, in support of the view that the operation of an automobile with a family member as a passenger is within the scope of the family relationship. Defendant also cites Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 367 N.E.2d 1250, for the recently adopted rule that a child born with injuries sustained while it was a developing fetus may maintain an action for damages.
Defendant Stallman claims that public policy is clear in recognizing a fetus to have the status of a person within the womb from the time of conception at least with respect to tort actions by or on behalf of the fetus subsequently born alive. Defendant contends that it is unreasonable to believe that a fetus is not a child of her mother as she develops in the womb, and defendant concludes that the driving of an automobile to a restaurant (as she did in the instant case) is within the scope of the family relationship with plaintiff in the status of passenger in her mother's car.
Defendant Stallman argues that recognition of the parent-child tort immunity doctrine is supported by the public policy of promoting family harmony and preventing intrafamily strife. Defendant responds to plaintiff's other arguments, stating that any right she may have had to procure an abortion at the time of the accident is irrelevant and that a family relationship exists between a fetus in utero and her mother.
Next, plaintiff argues that the parent-child tort immunity doctrine should not be applied to the instant case. Recently Illinois courts have examined and reinterpreted inter-spousal and parent-child tort immunity in contribution and uninsured motorist cases. Plaintiff claims such interpretations may indicate a growing desire to abandon those doctrines. The immunity doctrine has been abandoned in a majority of jurisdictions because it no longer serves the purpose for which it was intended and because the results of its application are uneven and unjust. The doctrine denies a party access to the court solely because of his or her relationship to another party. It no longer serves its purpose of preserving family harmony and ensuring justice where it disqualifies an entire class of minors.
Plaintiff further argues that the doctrine is hollow where defendant parent has insurance coverage such that the sought-after litigation is not between the child and parent, but between the child and the parent's insurance company. The trial judge and jury are capable of considering the possibility of collusion between parent and child. Finally, plaintiff argues that since the doctrine is court-made, the court has a duty to criticize, re-examine and modify it when such action is justified by public policy. It is unjust that acts considered tortious between strangers should be privileged because of the relationship between plaintiff and defendant.
Defendant Stallman responds that as a matter of public policy a child should not be permitted to sue her mother for prenatal injuries arising out of conduct which occurs during pregnancy. A mother should not be subject to suit because of involvement in legitimate activities. Such judicial involvement would not promote parenthood. Additionally, defendant claims that a mother cannot commit a tort against her child in utero because she cannot commit a tort against herself. She and the child are in a unitary relationship. Defendant contends that for the court to rule that the immunity doctrine did not apply would result in burdensome potential liability on ...