APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
LINDSAY STALLMAN, by her Father and Next Friend, Mark
504 N.E.2d 920, 152 Ill. App. 3d 683, 105 Ill. Dec. 635 1987.IL.159
Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.
JUSTICE JOHNSON delivered the opinion of the court. LINN and JIGANTI, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON
Plaintiff, Lindsay Stallman, by her father and next friend, Mark Stallman, brought an action in the circuit court of Cook County against defendants, Clarence Youngquist and Bari Stallman. Bari is plaintiff's mother. Plaintiff sought damages for prenatal injuries that she allegedly sustained in an automobile collision that defendants caused. The trial court granted Bari's motion for summary judgment on Count II of the three-count complaint. Plaintiff now appeals, contending that the trial court erred in granting summary judgment for Bari.
Plaintiff's second amended complaint alleged that she was born on January 25, 1982. On October 7, 1981, her mother, Bari, was involved in an automobile collision with Youngquist. In count I, plaintiff alleged that Youngquist was negligent in driving his automobile and that as a result of his negligence she suffered, in utero, serious injuries that became apparent at her birth. She sought $25,000 in damages.
In count II, plaintiff alleged that Bari was negligent in driving her automobile. Plaintiff further alleged that at the time of the accident she was not a person; therefore, she was not a member of Bari's family and her injuries were outside of the family relationship. Plaintiff sought $25,000 in damages. In count III, plaintiff alleged that Bari's acts were wilful and wanton.
Bari moved to dismiss count II, pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-615), invoking the parent-child tort immunity doctrine. On August 4, 1983, the trial court dismissed count II with prejudice, finding that plaintiff was a member of Bari's family at the time of the accident and, therefore, that the parent-child tort immunity rule applied.
Plaintiff then appealed the trial court's dismissal of count II of her second amended complaint. In Stallman v. Youngquist (1984), 129 Ill. App. 3d 859, 473 N.E.2d 400 (hereinafter Stallman I), we first rejected plaintiff's argument that parent-child tort immunity did not apply to her because she was not a person, and thus not a member of Bari's family, at the time of the accident. We held that she was a legal person for the purposes of maintaining a lawsuit after her birth and, therefore, was a member of Bari's family. (129 Ill. App. 3d 859, 862, 473 N.E.2d 400, 402.) We next reversed the trial court's dismissal order, holding that plaintiff stated a cause of action in negligence against Bari. (129 Ill. App. 3d 859, 865, 473 N.E.2d 400, 404.) Since the appeal involved solely the sufficiency of plaintiff's complaint, we remanded the cause to the trial court to determine the facts and then to determine whether those facts fell into any exceptions to the parent-child tort immunity rule. We believed that "plaintiff should [have been] given the opportunity to prove whether defendant Stallman's act of driving to a restaurant was not an act arising out of the family relationship and directly connected with family purposes and objectives." 129 Ill. App. 3d 859, 864, 473 N.E.2d 400, 403.
The sole issue in Stallman I was whether count II of plaintiff's complaint stated a cause of action. We held that it did. We also reviewed the parent-child tort immunity doctrine and its exceptions. We held that the applicability of the immunity rule was a question of fact. We, therefore, could not decide, and the trial court should not have decided, the applicability of the immunity rule on a motion to dismiss, since the motion attacks the legal sufficiency of a complaint and not its factual sufficiency. Holland v. Arthur Andersen & Co. (1984), 127 Ill. App. 3d 854, 862, 469 N.E.2d 419, 424.
The record shows that upon remand, Bari filed a motion for summary judgment, to which she attached her affidavit and excerpts from her deposition. Plaintiff filed no counteraffidavits or any other factual material in response; she filed only a memorandum of law. On January 31, 1986, the trial court found that parent-child tort immunity did apply to the facts and granted Bari's motion for ...