Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 96--L--4. Honorable Martin E. Conway, Judge Presiding.
Released for Publication October 21, 1997.
Present - Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice, Honorable Peg Breslin, Justice. Justice McCUSKEY delivered the opinion of the court. Slater and Breslin, JJ., concur.
The opinion of the court was delivered by: Mccuskey
The Honorable Justice McCUSKEY delivered the opinion of the court:
The plaintiffs, Verline Stephens (individually and as administrator of the estate of Albert Lee Stephens, Jr.) and Albert Lee Stephens, Sr., appeal from the trial court's dismissal of their common-law claim against the defendant hospitals, doctors and nurse for loss of filial society resulting from the death of their adult son, Albert Lee Stephens, Jr. The trial court held that to allow the plaintiffs to proceed would be tantamount to creating a remedy not previously existing in Illinois Law. Consequently, the trial court refused to create such a remedy. Following our careful review of the record on appeal, we affirm.
The plaintiffs allege that their son, Albert Lee Stephens, Jr., died as a result of the defendants' failure to timely treat the decedent's epiglottis and to timely diagnose and treat his dislodged tracheal tube. The complaint alleges claims for wrongful death and survival on behalf of the decedent's wife and four children. Additionally, claims are alleged on behalf of his parents based upon (1) a common-law theory of loss of filial society and (2) section 15 of the Rights of Married Persons Act (750 ILCS 65/15 (West 1996)).
All of the defendants filed motions to dismiss the claims brought on behalf of the parents. The plaintiffs agreed to dismiss the claim brought under the Rights of Married Persons Act, but challenged the dismissal of their common-law claim. Following a hearing, the trial court dismissed the plaintiffs' common-law claim, finding that Illinois law does not recognize a common-law cause of action for individuals not defined as the next-of-kin under the Illinois Wrongful Death Act (the Act) (740 ILCS 180/1 et seq. (1996)).
"Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person * * *." (Emphasis added.) 740 ILCS 180/2 (West 1996).
The law of this state is well settled that parents are not found to be the next-of-kin under the Act when the decedent is survived by a spouse and children. Rallo v. Crossroads Clinic, Inc., 206 Ill. App. 3d 676, 683, 565 N.E.2d 15, 19, 151 Ill. Dec. 744 (1990). Thus, a parent's recovery for damages for loss of society with a child is barred by the Act when the decedent is survived by a wife and children. Rallo, 206 Ill. App. 3d at 683, 565 N.E.2d at 19.
The plaintiffs, however, claim that, notwithstanding Rallo, they can avoid dismissal of their cause of action by bringing a common-law claim. They assert that Illinois law recognizes a common-law claim by parents for the loss of society with an adult child who leaves a surviving spouse and children. We disagree.
The plaintiffs rely in part upon Ballweg v. City of Springfield, 114 Ill. 2d 107, 120, 499 N.E.2d 1373, 1375, 102 Ill. Dec. 360 (1986). They cite Ballweg for the proposition "that the parents of a deceased child have a common-law loss of society claim even when the decedent leaves a surviving wife and child." In Ballweg, the supreme court held that parents were entitled to a presumption of pecuniary injury for the loss of an adult child's society. Ballweg, 114 Ill. 2d at 120, 499 N.E.2d at 1379. Contrary to the plaintiffs' assertion, however, the Ballweg case does not establish any type of common-law right for parents alleging a loss of society claim. Ballweg reviewed a claim brought under the Act, not the common-law. The holding does not mention or even discuss a common-law ...