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11/01/88 Mary Wills, Special Adm'x v. De Kalb Area Retirement

November 1, 1988

MARY WILLS, SPECIAL ADM'X OF THE ESTATE OF RUTH GILBERT, DECEASED, PLAINTIFF-APPELLANT

v.

DE KALB AREA RETIREMENT CENTER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

530 N.E.2d 1066, 175 Ill. App. 3d 833, 125 Ill. Dec. 657 1988.IL.1584

Appeal from the Circuit Court of De Kalb County; the Hon. John A. Leifheit, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiff, as special administratrix of the estate of Ruth Gilbert, brought this action in the circuit court of De Kalb County against defendants, De Kalb Area Retirement Center, Mary Kelly, a/k/a Shelly Kelly, Suzanne Mullis, Louise Noe, and Stephen T. Cichy, to recover compensatory and punitive damages for the wrongful death of plaintiff's decedent, Ruth Gilbert, and for Mrs. Gilbert's alleged conscious pain and suffering prior to her death. The trial court dismissed counts III and IV of plaintiff's five-count amended complaint which sought recovery for exemplary relief under the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 4151-101 et seq.) in the context of the Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, par. 1 et seq.) and the Survival Act (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 27-6), and count V, which sought common law recovery of punitive damages under the Survival Act. Pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), plaintiff appeals from the trial court's order dismissing counts III, IV and V of her amended complaint.

At the time of her death, decedent, Ruth Gilbert, was a resident at the De Kalb Area Retirement Center (De Kalb). In her complaint plaintiff alleged that on December 9, 1984, defendant De Kalb, through its agents and employees, defendants Mary Kelly, a/k/a Shelly Kelly, Suzanne Mullis, Louise Noe, and Stephen T. Cichy, placed Mrs. Gilbert in a geriatric chair, constrained by an improperly tightened and secured posey restraint, and left her unmonitored and alone for an unreasonable period of time in her room with the door closed and in a location where she could not reach the nurses' call button or otherwise call for help. Plaintiff averred that as a result of one or more of these acts of defendants, Mrs. Gilbert died.

Counts I and II of plaintiff's amended complaint sought damages under the Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, par. 1 et seq.) and under the common law for injuries sustained by Mrs. Gilbert prior to her death. Similar claims were made in counts III and IV for treble damages, costs, and attorney fees under the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 4151-101 et seq.). Count V sought punitive damages under the common law for injuries sustained by Mrs. Gilbert prior to her death. Pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), defendants moved to dismiss plaintiff's amended complaint, asserting that the Nursing Home Care Reform Act of 1979 did not create or authorize a cause of action for wrongful death or create a cause of action which survives the death of a nursing home resident, that the individual defendants were not subject to liability under the Act, and that plaintiff's common law action for punitive damages for injuries sustained prior to death did not survive Mrs. Gilbert's death. Defendants' motion was supported by a memorandum of law. Plaintiff filed a response to defendants' motion.

Following a hearing conducted on defendants' motion to dismiss, the trial court issued an opinion letter on November 5, 1987, finding that counts I and II of plaintiff's amended complaint constituted proper actions, that counts III and IV were dismissed because the language of the Nursing Home Care Reform Act of 1979 did not provide the relief plaintiff sought, and that count V, seeking common law punitive damages for injuries sustained by decedent prior to her death, was dismissed. Subsequently, on November 25, 1987, the court entered an order, denying defendants' motion with respect to counts I and II of plaintiff's amended complaint, which remain pending below, and dismissing counts III, IV and V. Plaintiff then filed this interlocutory appeal.

On appeal plaintiff contends: (1) that the trial court erred in dismissing count IV of plaintiff's amended complaint seeking exemplary damages under the Survival Act; (2) that the trial court erred in dismissing count III of plaintiff's amended complaint asserting that the Nursing Home Care Reform Act of 1979 creates or authorizes a cause of action seeking punitive damages for wrongful death; and (3) that the trial court improperly dismissed count V of plaintiff's amended complaint seeking punitive damages at common law for injuries sustained prior to decedent's death.

In her first contention plaintiff maintains that the trial court erred in dismissing count IV of plaintiff's amended complaint seeking exemplary damages under the Survival Act. Plaintiff asserts that the survival statute allows for exemplary damages where there is a statutory basis for such relief and that the Nursing Home Care Reform Act of 1979 provides the statutory basis for pursuing treble damage relief.

For more than 100 years recovery under the Survival Act has been limited to compensatory damages. (Mattyasovzky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 33.) The statute has never been thought to authorize the award of punitive damages. (61 Ill. 2d at 33.) In National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, however, our supreme court, while acknowledging that under Mattyasovzky a decedent's estate could not recover punitive damages which the decedent, under the common law, might have recovered had he survived, drew a distinction between punitive recovery based on the common law and that based on the statute.

In National Bank, the decedent died as a result of injuries sustained when the automobile he was operating was struck by defendant's train. In count IV of the amended complaint, filed by the administrator of decedent's estate, the administrator charged the railroad with wilful violation of the Public Utilities Act for its failure to keep its right-of-way clear of obstructions (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77 (now Ill. Rev. Stat. 1987, ch. 111 2/3, par. 5-201)). The administrator sought both actual and punitive damages under the statute. The railroad contended that the Public Utilities Act did not create a cause of action in a personal representative for compensatory and punitive damages for injuries decedent sustained prior to his death.

The supreme court found otherwise, stating, first, that the "Survival Act does not create a statutory cause of action" but "merely allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died." (National Bank, 73 Ill. 2d at 172.) Second, the court indicated that the Public Utilities Act expressly provides that "'if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77).'" (73 Ill. 2d at 173-74.) Thus, the statute intended to punish an offender and discourage similar offenses by allowing punitive damages whenever an injury resulted from a defendant's wrongful and wilful statutory violation. (73 Ill. 2d at 174.) The court concluded that under the Public Utilities Act, "defendant's punitive liability accrued from the moment the decedent sustained personal injury and, upon decedent's death, his right to recover passed unabated to his estate." 73 Ill. 2d at 174.

On the basis of the supreme court's opinion in National Bank, plaintiff argues that because there is also a statutory basis here, as in National Bank, for punitive damages, decedent's right to recovery for treble damages passed unabated to her estate. The statutory basis, relied on by plaintiff, appears in section 3 -- 602 of the Nursing Home Care Reform Act of 1979. Section 3 -- 602 provides:

"The licensee shall pay 3 times the actual damages, or $500, whichever is greater, and costs and attorney's fees to a facility resident whose rights, as specified in Part 1 of Article II of this Act, are ...


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