Flynn v. Vancil

HOFFMAN, J. This appeal from the Circuit Court of Rock Island County, originated as an action by Ronald E. Flynn, as Administrator for the Estate of Rhonda Kay Flynn, by Ronald E. Flynn, individually, for medical and funeral expenses, by Ronald E. Flynn, individually for his injuries and by Joyce Flynn, individually for her injuries against Defendant-Appellee, Patrick Vancil. The complaint alleged, under separate counts, a cause of action under the Wrongful Death Act (Ill Rev Stats, c 70, § 1) for the death of Rhonda Kay Flynn, a fourteen-day-old infant, and actions of negligence for injuries to Ronald E. and Joyce Flynn individually and Ronald E. Flynn for the funeral and medical expenses of Rhonda Kay Flynn, Ronald and Joyce being the parents of Rhonda Kay. The jury found in favor of all Plaintiffs, against Defendant, and separately assessed the damages for each Plaintiff, awarding zero damages with respect to the wrongful death count. The trial court entered judgment on this verdict and from that portion of the judgment finding the issues for the Administrator but finding no damages, Plaintiff appeals. The sole issue on appeal in this cause, certified by the trial judge and approved by opposing counsel, is “Can a jury verdict of liability for the death of a two-week-old female awarding no damages for the administrator for the benefit of the surviving mother and father be sustained where there is evidence of incurable congenital physical defect impairing the health of the child ?” The propriety of the jury verdict and judgment of the trial court depends upon the application of the rule that there is a presumption of substantial pecuniary damages where the survivor, entitled to bring a wrongful death action, stands in a lineal relationship to the decedent. The Wrongful Death Act provides for recovery of pecuniary loss only. In Wilcox v. Bierd, 330 Ill 571, 162 NE 170, pecuniary loss is held to mean what the life of the decedent was worth, in a pecuniary sense, to the survivors, and it was said that such loss is to be determined from the proof of the personal characteristics of the deceased, his prospects in life, his mental and physical capacities, etc. In City of Chicago v. Scholten, 75 Ill 468, it was held that in the case of a deceased infant, characteristics such as age, sex, health, mental and physical capacities, habits, education and experience, all of which tend to relate to the child’s future circumstances, may be considered in the enhancement of damages. Because these relevant characteristics are not yet identifiable in the case of an infant, the courts have, in such a case, allowed recovery without proof. Otherwise, great injustice would be done. But there is no authority which we have found which suggests that allowing a plaintiff to recover without proof requires denying to a defendant probative evidence which might mitigate or tend to reduce the presumed loss. To prohibit so-called “rebutting or mitigating evidence” would deny to the defendant the right to have the loss based upon the actual personal characteristics of the deceased infant. So, we hold that the negative can be shown and the defendant may introduce evidence which will lessen, or tend to lessen, the loss otherwise presumed. But, in the instant case, no such mitigating evidence was introduced. The problem in this Court arises solely upon the facts contained in the certified question. These facts are that the decedent was a female child, two weeks of age, suffering an incurable congenital physical defect which impaired her health. It is obvious that such facts, standing alone, are not sufficient to negative every individual characteristic, if, indeed, that is possible, which may have been possessed or later developed by the infant. Accordingly, we believe that the presumption of substantial pecuniary damages is not overcome by the certified question, and the jury’s finding of zero damages cannot stand. The judgment of the Circuit Court of Rock Island County is reversed and remanded for a new trial. Judgment reversed and cause remanded.