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03/27/97 MARK CULLOTTA v. JULIE CULLOTTA

March 27, 1997

MARK CULLOTTA, A MINOR, BY HIS GRANDMOTHER AND NEXT FRIEND, CYNTHIA CULLOTTA, PLAINTIFF-APPELLANT,
v.
JULIE CULLOTTA, ADMINISTRATOR OF THE ESTATE OF SHELLEY CULLOTTA, DECEASED, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE LORETTA C. DOUGLAS, JUDGE PRESIDING.

Released for Publication May 12, 1997.

The Honorable Justice Hoffman delivered the opinion of the court. Hartman and South, JJ., concur.

The opinion of the court was delivered by: Hoffman

The Honorable Justice HOFFMAN delivered the opinion of the court:

This case is before us on the plaintiff's appeal from an order of the circuit court granting judgment on the pleadings in favor of the defendant. The substantive issue we are called upon to decide is whether the 1993 decision of our supreme court in Cates v. Cates, 156 Ill. 2d 76, 619 N.E.2d 715, 189 Ill. Dec. 14 (1993), partially abrogating the parent-child immunity doctrine, also gives rise to the recognition of a cause of action on behalf of a fetus, subsequently born alive, against the estate of his deceased mother for the unintentional infliction of prenatal injuries. For the reasons which follow, we answer the question in the negative, and affirm the judgment of the circuit court.

Cynthia Cullotta (plaintiff), on behalf of Mark Cullotta (minor-plaintiff), a minor, brought the instant action against the administrator of the estate of Shelley Cullotta, deceased. Shelley Cullotta was the mother of the minor-plaintiff. In her second amended complaint, the plaintiff charged Shelley Cullotta with negligence in the operation of a motor vehicle, the direct and proximate result of which caused injuries to the minor-plaintiff who was born prematurely four days after the occurrence. The plaintiff's second amended complaint consisted of two counts. Count I sought damages for personal injuries sustained by the minor-plaintiff prior to birth and as a result of his premature birth. Count II, based upon the same operative allegations as count I, sought recovery for medical expenses incurred and to be incurred by the minor-plaintiff. In response to the second amended complaint, the defendant answered count I, moved to dismiss count II for failure to state a cause of action, and moved for judgment on the pleadings.

On April 24, 1996, this case came before the trial court on the defendant's motion for judgment on the pleadings. The court set a briefing schedule and continued the defendant's motion for hearing on June 14, 1996. When the matter came on for hearing on June 14, the court granted the defendant's motion for judgment on the pleadings relying upon the decision in Stallman v. Youngquist, 125 Ill. 2d 267, 531 N.E.2d 355, 126 Ill. Dec. 60 (1988), which holds that no cause of action can be maintained by or on behalf of a fetus, subsequently born alive, against its mother for the unintentional infliction of prenatal injuries. This appeal followed.

In urging reversal, the plaintiff has raised both procedural and substantive arguments. Before addressing the substantive issues presented, we will briefly address the plaintiff's procedural claims.

According to the plaintiff, the trial court erred in entertaining the defendant's motion for judgment on the pleadings as it was filed without leave of court more than 21 days after the plaintiff filed her second amended complaint. She further contends that the filing of the defendant's answer to count I of the second amended complaint precluded the entry of judgment on the pleadings. We find both arguments meritless.

A motion for judgment on the pleadings brought by a defendant pursuant to section 2-615(e) of the Code of Civil Procedure (735 ILCS 5/2-615(e) (West 1994)) tests the legal sufficiency of the plaintiff's complaint. The issue to be decided is whether the facts alleged in the complaint, if proven, could entitle the plaintiff to relief. Foley v. Santa Fe Pacific Corp., 267 Ill. App. 3d 555, 641 N.E.2d 992, 204 Ill. Dec. 562 (1994). As noted in Foley, the failure of a complaint to state a legally cognizable cause of action is such a fundamental defect that it may be raised at any time and cannot be waived, even by the filing of an answer. Foley, 267 Ill. App. 3d at 561.

In this case, the defendant moved for judgment on the pleadings contending that the plaintiff's second amended complaint failed to state a recognized cause of action. Consequently, the fact that she had answered count I and filed her motion more than 21 days after the filing of the second amended complaint is of no moment. Further, the record fails to reflect any procedural objection to the defendant's motion interposed by the plaintiff before the trial court. To the contrary, the record reflects that the plaintiff was aware that the trial court would address the defendant's motion for judgment on the pleadings and argued the merits of the motion. Thus, having failed to raise her procedural objections before the trial court, the plaintiff has waived those issues for purposes of review. D'Urso v. Wildheim, 37 Ill. App. 3d 835, 347 N.E.2d 463 (1976).

On the substantive issues raised in this appeal, the plaintiff contends that: 1) the trial court erroneously construed the second amended complaint as seeking recovery for prenatal injuries; 2) based upon the supreme court's decision in Cates, the trial court erred in finding that no cause of action in negligence could be stated in favor of the minor-plaintiff against the estate of his deceased mother; and 3) the trial court erred in dismissing count II of the second amended complaint which sought recovery under the Family Expense Act (750 ILCS 65/15 (West 1994)). Because we believe that the plaintiff's second contention is at the heart of this appeal, we will address that contention first.

In Stallman v. Youngquist, our supreme court was called upon to decide the question of whether a minor could maintain an action against her mother for prenatal injuries sustained as a consequence of her mother's negligent operation of a motor vehicle. Stallman, 125 Ill. 2d at 268-69. The Stallman court identified two issues on appeal, namely: "the status of the parental immunity doctrine in Illinois and the tort liability of mothers to their children for the unintentional infliction of prenatal injuries." (Emphasis added.) Stallman, 125 Ill. 2d at 268. After a thorough analysis of the policy considerations implicit in the recognition of a cause of action by a child against his or her mother for unintentionally inflicted prenatal injuries, the supreme court held that "no cause of action will lie for maternal prenatal negligence[.]" Stallman, 125 Ill. 2d at 280. In support of that holding, the court found the absence of a legally cognizable duty on the part of pregnant women to their developing fetuses, and commented that if such a duty is to be recognized, "the decision must come from the legislature[.]" Stallman, 125 Ill. 2d at 280. The Stallman Court was careful to point out that its ruling on the underlying tort liability issue made "unnecessary the consideration of the issue of the parental immunity doctrine." Stallman, 125 Ill. 2d at 271.

In Cates v. Cates, decided five years after Stallman, the supreme court, in the context of an automobile negligence action brought on behalf of a minor child against her father, addressed the continued viability of the parental immunity doctrine in Illinois. Cates, 156 Ill. 2d 76, 619 N.E.2d 715, 189 Ill. Dec. 14. The Cates court referenced its earlier decision in Stallman wherein it had before it the application of the parental immunity doctrine in an automobile negligence action, but reiterated that in Stallman "'it [was] unnecessary' for the court 'to reach the issue concerning the status of the parental immunity doctrine'". Cates, 156 Ill. 2d at 84-85, quoting Stallman, 125 Ill. 2d at 269. After examining the evolution of the parental immunity doctrine in Illinois and other jurisdictions, our supreme court partially abrogated the doctrine, holding that "the immunity should afford protection [only] to conduct inherent to the parent-child relationship" ( Cates, 156 Ill. 2d at 104), and concluding that "the negligent operation of an ...


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