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06/20/88 Jeffrey Dralle, A Minor, v. Bernard Ruder Et Al.

June 20, 1988

JEFFREY DRALLE, A MINOR, ET AL., APPELLEES

v.

BERNARD RUDER ET AL. (MERRELL-DOW PHARMACEUTICALS, INC., ET AL., APPELLANTS)



SUPREME COURT OF ILLINOIS

529 N.E.2d 209, 124 Ill. 2d 61, 124 Ill. Dec. 389

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. William A. Kelly, Judge, presiding. 1988.IL.959

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case. JUSTICE CLARK, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

The plaintiffs, Jeffrey Dralle, by his mother and next friend, Karen Dralle, and his parents, Karen and Gregory Dralle, individually, brought an action in the circuit court of Cook County to recover damages resulting from injuries allegedly sustained by Jeffrey before and at the time of his birth. The instant appeal concerns that part of the complaint in which Mr. and Mrs. Dralle seek compensation for loss of their son's companionship and society from defendants Merrell-Dow Pharmaceuticals, Inc., Merrell-National Laboratories, Inc., and Richardson-Merrell, Inc. (Merrell-Dow or the Merrell-Dow defendants), manufacturers and distributors of a prescription drug allegedly used by Mrs. Dralle while she was pregnant with Jeffrey. The trial Judge dismissed the claim for failure to state a cause of action. The appellate court reversed the dismissal order, holding that this State recognizes a common law cause of action by a parent for loss of companionship and society resulting from nonfatal injuries to a child. (148 Ill. App. 3d 961.) We allowed Merrell-Dow's petition for leave to appeal. See 107 Ill. 2d R. 315(a).

Mrs. Dralle was admitted to Riverside Hospital in Kankakee on October 16, 1977, and she gave birth to Jeffrey the following day. In a four-count complaint filed May 31, 1985, the plaintiffs asserted that the child was born with a number of maladies, and damages were sought under common law theories of negligence and products liability. Counts I and II of the complaint, alleging negligence, were brought against Mrs. Dralle's obstetricians, Dr. Bernard Ruder and Dr. James Goldenstein, their employer, Westwood Obstetrics and Gynecology, Ltd., and Riverside Hospital. In those counts the plaintiffs alleged that during the delivery the child suffered anoxia, or lack of oxygen, and was in fetal distress. In count I of the complaint Jeffrey sought recovery in his own behalf for those injuries, and in count II his parents sought recovery for loss of the child's companionship and society. Counts III and IV of the complaint were brought on a products liability theory against the Merrell-Dow defendants. In those counts the plaintiffs alleged that Mrs. Dralle's use during pregnancy of the prescription drug Bendectin, a product manufactured and distributed by the Merrell-Dow defendants, had caused Jeffrey to be born with various birth defects. In count III Jeffrey sought recovery in his own behalf for his personal injuries, and in count IV, at issue here, Mr. and Mrs. Dralle sought recovery for loss of companionship and society resulting from the injuries to the child.

Merrell-Dow moved for dismissal of count IV of the complaint, contending that this State does not recognize a cause of action by a parent for loss of society arising from nonfatal injury to a child. The trial Judge granted the motion and dismissed that part of the complaint. Mr. and Mrs. Dralle took an immediate appeal (see 107 Ill. 2d R. 304(a)), and the appellate court reversed the dismissal order. The court believed that denial of the parents' cause of action would be inconsistent with this court's decision in Bullard v. Barnes (1984), 102 Ill. 2d 505, and with the appellate court's decision in Dymek v. Nyquist (1984), 128 Ill. App. 3d 859. Bullard held that a parent may recover compensation for loss of a minor child's society in a wrongful death action; Dymek approved a claim for loss of society brought by a divorced father against his former spouse and a psychiatrist for allegedly "brainwashing" the couple's child in an attempt to destroy the filial relationship. In this case, the appellate court acknowledged that the parents' loss was intangible and would be difficult to determine, but the court believed that "[a]llowing the parents to maintain an action for the loss of society of a minor child in Bullard and Dymek and denying plaintiffs' cause of action in the instant case would be anomalous." (148 Ill. App. 3d at 963.) The court also construed the trend of case authority on this issue from other jurisdictions as favoring recognition of the parents' cause of action.

The appellate court has previously denied recovery by a parent seeking damages for loss of society and companionship resulting from nonfatal injuries to a child. (Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 408-09, aff'd in part and rev'd in part on other grounds (1983), 98 Ill. 2d 158.) In an earlier case, Stephens v. Weigel (1948), 336 Ill. App. 36, 42, the appellate court had affirmed a judgment awarding to a plaintiff whose wife and daughter were injured in an automobile accident "consequential damages arising from his payment of medical and hospital expenses, and for the loss of the services and society of his wife and daughter"; recovery of damages for loss of society was not at issue there, and it is not clear from the opinion whether the award was limited to the wife's injuries, or whether it also extended to the daughter's. And our appellate court has consistently refused to recognize the converse claim -- actions brought by children for loss of society and companionship resulting from nonfatal injuries to their parents. (Huter v. Ekman (1985), 137 Ill. App. 3d 733; Block v. Pielet Brothers Scrap & Metal, Inc. (1983), 119 Ill. App. 3d 983; Mueller v. Hellrung Construction Co. (1982), 107 Ill. App. 3d 337; Koskela v. Martin (1980), 91 Ill. App. 3d 568.) In support of count IV of the complaint, Mr. and Mrs. Dralle contend here that recognition of a cause of action by a parent for loss of society arising from nonfatal injuries to a minor child is a logical extension of this court's decision in Bullard. The Dralles note that a number of jurisdictions have allowed recovery in those circumstances (see, e.g., Howard Frank, M.D., P.C. v. Superior Court (1986), 150 Ariz. 228, 722 P.2d 955; Reben v. Ely (Ariz. App. 1985), 146 Ariz. 309, 705 P.2d 1360; Shockley v. Prier (1975), 66 Wis. 2d 394, 225 N.W.2d 495), and they maintain that recognition of the cause of action would not be contrary to public policy.

In Bullard this court held that a parent may recover damages for loss of a minor child's society in a wrongful death suit. Bullard was an action brought by the estate and the parents of a minor child killed in an automobile accident; recovery was sought under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1 through 2.2), the Survival Act (Ill. Rev. Stat. 1979, ch. 110, par. 27-6), and the family expense statute (Ill. Rev. Stat. 1979, ch. 40, par. 1015). With respect to the wrongful death claim, the jurors in that case were instructed to consider "the parents' loss of society with the decedent" in determining the pecuniary injury sustained by the parents, and this court held that the parents' loss of their minor child's society was compensable in a wrongful death action.

In Bullard the court noted that a majority of the States with wrongful death statutes limiting damages to pecuniary injuries, as the Illinois statute does, permitted recovery for loss of filial consortium. The decisional law in this State similarly favored a broad reading of the pecuniary injury standard "to encompass non-monetary losses." (Bullard, 102 Ill. 2d at 514.) In Elliott v. Willis (1982), 92 Ill. 2d 530, the court expressly approved the recovery of damages for loss of spousal consortium in actions under the Wrongful Death Act. In Hall v. Gillins (1958), 13 Ill. 2d 26, the court ruled that the broad recovery permitted in wrongful death actions obviated the common law action asserted in that case by a surviving wife and child for destruction of the family unit. Each plaintiff in Hall alleged, in addition to loss of support, "deprivation of the companionship, guidance, advice, love and affection of the deceased," and the court believed that "[t]he term 'pecuniary injuries' has received an interpretation that is broad enough to include most of the items of damage that are claimed by the plaintiffs in this case." (Hall, 13 Ill. 2d at 31.) In Knierim v. Izzo (1961), 22 Ill. 2d 73, the court placed similar reliance on the adequacy of the wrongful death recovery in refusing to recognize a common law action for loss of consortium resulting from the death of a spouse. Relying on those earlier decisions, the court in Bullard held that a parent may recover damages for loss of filial society in a wrongful death action. The court said:

"Defendant urges that we await further indication from the General Assembly as to whether its intent was or is to permit parents to recover for loss of their children's society in a wrongful death action. We have concluded, however, in view of our earlier decisions indicating similar recoveries would have been allowed in cases involving loss of a parent (Hall

Having held that a parent may recover for loss of filial society in a wrongful death action, the court in Bullard went on to consider, as a related question, the makeup of the presumption of pecuniary loss that a parent may assert in the action. That presumption originally was limited to damages for lost wages and services, and it developed from "the common law rule that a parent is entitled to the services and earnings of an unemancipated minor child." (Bullard, 102 Ill. 2d at 516.) The court noted, however, that the social conditions that had given rise to the presumption of loss of earnings no longer obtained; the employment of children outside the home is less widespread than it once was, and their income would now contribute only a fraction of a contemporary family's child-rearing expenses. The court said:

"We therefore hold that in this case, and in all similar cases not finally adjudicated, there can be no presumption of loss of earnings upon the death of a child since such a presumption represents an aberration from, rather than a reflection of, the typical family experience. However, we have concluded that parents are entitled to a presumption of pecuniary injury in the loss of a child's society, based on the holding expressed earlier in this opinion that the pecuniary injury ...


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