Williams v. Manchester

Docket No. 104524.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

MICHELLE WILLIAMS, Indiv. and as Special Adm’r of the Estate

of Baby Doe, Deceased, Appellee, v. JOHN C. MANCHESTER,

Appellant.

Opinion filed April 3, 2008.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman,

and Karmeier concurred in the judgment and opinion.

Justice Burke took no part in the decision.

OPINION

This appeal focuses on a wrongful-death claim that plaintiff,

Michelle Williams, brought in the circuit court of Cook County

against defendant, John Manchester. Plaintiff sought damages for the

death of her unborn child, Baby Doe. The circuit court entered

summary judgment in favor of defendant on that claim, but a divided

panel of the appellate court reversed. 372 Ill. App. 3d 211. We

allowed defendant’s petition for leave to appeal. 210 Ill. 2d R. 315(a).

We now vacate in part the judgment of the appellate court and

remand the cause to the circuit court for further proceedings.

I. BACKGROUND

The record, which includes plaintiff’s deposition testimony,

contains the following pertinent evidence. In October 2002, plaintiff

was 10½ weeks pregnant with Baby Doe, and she had been aware of

her pregnancy for approximately one month. Plaintiff had planned to

carry Baby Doe to term, and plaintiff and the child’s father had been

preparing for the birth.

On the night of October 15, 2002, plaintiff was a passenger in an

automobile (hereafter, plaintiff’s automobile) proceeding east on

Montrose Avenue in Chicago. Defendant was driving west on

Montrose. As plaintiff’s automobile was proceeding through the

intersection of Montrose and Western Avenues, defendant turned left,

attempting to proceed south on Western Avenue. The two vehicles

collided, with the driver’s side of defendant’s vehicle crashing into

that of plaintiff’s automobile. According to plaintiff, “[i]t was almost

like a head-on” collision. Plaintiff’s forehead broke through the

windshield. When plaintiff regained consciousness, a firefighter was

beside her in the automobile, and he extricated her from the

windshield. Plaintiff felt pain not only in her head, but also in her hip.

An ambulance took plaintiff to Advocate Illinois Masonic

Medical Center. According to plaintiff, she and Baby Doe’s father

met with a team of physicians and discussed her condition and

treatment options. The physicians informed plaintiff that she did not

suffer a spontaneous abortion and that the baby itself was not injured

in the collision; rather, “the baby was fine.”

However, the physicians informed plaintiff that she, herself,

suffered a broken hip and pelvis. As a result, according to plaintiff:

“[The physicians] told me that because my pelvic bone was

broke, they couldn’t be certain that I would hold the baby. If

I did choose to stay pregnant, I’d have to be bedridden and

then the bones would heal themselves and then they might

have to go back in and break them again. They couldn’t

promise that I would ever walk right. Pretty much everything

they were saying is, they couldn’t promise anything.”

Plaintiff further described the meeting as follows:

“They said that if the bones healed on their own, they might

have to go back in and rebreak them to set them again and I’d

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still have to have surgery but it would be afterwards; and they

couldn’t promise with x-rays and all that that [sic] the baby

would even be okay.”

Dr. Joanne Kirby, plaintiff’s emergency room physician, told plaintiff

that an X-ray had been taken of her, which, according to plaintiff,

“could cause disabilities in the child and mental problems.”

According to her deposition, plaintiff understood these physicians to

share the opinion that it would be best for plaintiff to terminate her

pregnancy. Further, when plaintiff ultimately decided to terminate her

pregnancy, no physician told her that it was a bad decision or that her

decision was not in the best interest of her health. Plaintiff’s hospital

record indicated: “Patient desires consultation with high-risk OB/fetal

specialist.”

Dr. James Keller, a high-risk obstetrician-gynecologist, testified

in a deposition, relying on several notes in plaintiff’s hospital record.

At the time of the accident, Dr. Keller was the director of high-risk

obstetrics at Illinois Masonic. On October 17 and 18, 2002, he met

plaintiff and consulted on her care, but did not actually provide any

treatment. He explained that, as a consulting physician, his role was

“[t]o make sure that [plaintiff] had as much information as possible,

to make sure that the orthopedic surgeon understood the relevant

issues, so that they could make a decision as to what the best course

of action would be.” The counseling that physicians at Illinois

Masonic give to patients is “nonjudgmental.” Dr. Keller explained

that physicians there “just make sure that the patient has the

information to make a decision. *** [O]ur overall goal is to be as

nonguiding as possible.”

In terms of plaintiff specifically, Dr. Keller needed plaintiff to

understand the following issues: plaintiff’s optimal therapy and the

attendant risks of that therapy on the fetus; the best course of

treatment for the fetus and the negative effects it would that have on

plaintiff; and possible “intermediate scenarios.” At the time of Dr.

Keller’s consultation, plaintiff had a viable pregnancy that could have

gone to term. However:

“To the fetus there’s the risk of her [plaintiff’s] drug and

radiation exposure prior to this point; to the mother there’s an

increase of prolonged immobilization with a pelvic fracture,

which carried short-term and long-term risks. The short-term

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risks would be mainly an increased risk of embolic

phenomenon, thrombosis and embolism, blood clots. The

long-term risks I would sort of defer to orthopedics, but they

said that the longer that she waited to repair the hip the worse

her outcome would be.”

Thus, Dr. Keller opined that there were “risks involved to the mother

and the fetus of continuing the pregnancy.”

Regarding Baby Doe’s exposure to radiation, Dr. Keller opined:

“With any individual fetus you won’t be able to say, well, this

is what would happen with this fetus; but in a general term, if

you want to know what’s the risk, there is no safe threshold

for radiation to a fetus, meaning that once she’s radiated there

is an increased risk of problems related to radiation.”

Dr. Keller explained that, generally, radiation exposure may cause

organs to develop incorrectly, existing organs to grow and mature

incorrectly, and an increased risk of childhood and adult

malignancies. Dr. Keller based his opinion on “general medical

knowledge” and an unidentified “whole body of literature talking

about the damages caused by radiation.” He explained that “it’s sort

of part of the general obstetric literature *** that radiation is a known

teratogen or cause of birth defects.”

However, Dr. Keller recognized that Baby Doe would not

inevitably have had problems because of the radiation to which it was

exposed up to the time of his consultation. Also, Dr. Keller could not

opine whether Baby Doe would have had problems even with

additional radiation exposure throughout the pregnancy. Indeed, Dr.

Keller answered in the affirmative the question: “There is no way

with absolute certainty to conclude what the ultimate effects of

radiation exposure is to a fetus?” Dr. Keller actually “had plenty of

patients who have had exposure to radiation who have delivered

perfectly healthy babies.” Dr. Keller would defer to radiology

specialists as to quantifying the amount of radiation to which Baby

Doe was exposed and the corresponding risk. Dr. Keller did not

consider himself an expert in medical radiation exposure so as to

render an opinion in this case. Although he stated that he could so

qualify himself through personal research and consultation with

radiology specialists, he did not plan to do so in this case.

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Dr. Keller read his consultation notes into the deposition record.

When he first met plaintiff, he discussed plaintiff’s case only

generally. He needed to know the impact of continuing the pregnancy

on her orthopedic treatment and what the alteration of such treatment

to benefit the fetus would mean to plaintiff’s long-term outcome. His

notes indicated: “Patient would like to continue pregnancy but not at

risk to her long-term outcome.” Dr. Keller’s notes indicated that he

would speak with plaintiff’s orthopedist “to get better idea of

drug/radiation exposure, risk of waiting, and then revisit with

patient.”

Dr. Keller also read into the record a note from plaintiff’s

orthopedist, Dr. David Beigler, which stated: “If child is desired, then

nonoperative care is recommended.” However, the note continued: “If

the fetus is not wanted,” termination of pregnancy “is suggested such

that ORIF or open reduction, internal fixation could be performed.

Similarly, if spontaneous abortion occurs, ORIF may be

contemplated.”1 Remembering his conversation with Dr. Beigler, Dr.

Keller testified: “it seems the gist of the conversation was that the

longer we waited the worse the long-term outcome for the mother is

going to be.”

After consulting with plaintiff’s orthopedist, Dr. Keller had a

second meeting with plaintiff. Baby Doe’s father was also present.

Dr. Keller discerned four options: (1) immediate pelvis surgery

without termination of pregnancy; (2) immediate termination of

pregnancy and, postrecovery, pelvis surgery; (3) delayed pelvis

surgery until second trimester of pregnancy; and (4) delayed pelvis

surgery until plaintiff gave birth. The first option put the fetus at risk

for loss as a result of the pelvis surgery itself, “as well as long-term

problems due to radiation/medicine which would be difficult to

quantify.” The third option would decrease the risk to the fetus of

drug and radiation exposure. However, the second option offered

plaintiff the “best chance” for a “good long-term outcome.”

1

“Open reduction” refers to cutting through soft tissue until a dislocated

bone can be reached and manipulated. 4 J. Schmidt, Attorneys’ Dictionary

of Medicine O–57 (2007). “Internal fixation” refers to fastening together

a fractured bone by such means as metal plates or screws, applied directly

to the bone. 3 J. Schmidt, Attorneys’ Dictionary of Medicine I–142 (2007).

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Essentially, the longer plaintiff delayed pelvis surgery, the worse her

long-term outcome would have been.

Dr. Keller’s notes indicated: “Long discussion with patient and

father of the baby. They understand all issues. I will put through PEC

papers.” Dr. Keller explained that “PEC” referred to the hospital’s

perinatal ethics committee. The health-care system of which Illinois

Masonic is a member has a policy not to terminate a pregnancy

unless, as Dr. Keller paraphrased, there is a significant risk to the

mother or the fetus. His last note, dated October 18, 2002, stated:

“Patient opts for termination of pregnancy. Paperwork forwarded.

Awaiting PEC results. Risk of D & C[2] discussed.” Dr. Keller had no

subsequent contact with plaintiff.

According to plaintiff’s deposition, the pregnancy was terminated

within one week after the accident. The pelvis surgery was performed

approximately two weeks subsequent to the accident.

Plaintiff timely filed a three-count complaint in the circuit court,

alleging that defendant’s negligence proximately caused the

automobile collision. In addition to seeking damages for her own

injuries, plaintiff, as administrator of the estate of Baby Doe, brought

an action pursuant to the Wrongful Death Act (740 ILCS 180/1 (West

2002)). Plaintiff alleged that she was pregnant with Baby Doe, and

that defendant’s negligence proximately caused the collision,

“ultimately causing” Baby Doe’s death. Plaintiff sought damages for

injuries to herself and Baby Doe’s father as next of kin. In her third

claim, plaintiff sought damages for defendant’s alleged negligent

infliction of emotional distress. Defendant filed an answer denying all

material allegations.3

2

“The abbreviation for dilatation and curettage, an operation in which the

cervix of the uterus is dilated by means of an instrument and the interior of

the uterus is then scraped out (curetted) by means of a curet (scraping

instrument).” 2 J. Schmidt, Attorneys’ Dictionary of Medicine D–1 (2007).

3

Defendant also filed a third-party complaint against Michelle Popec, who

was the driver of the automobile in which plaintiff was a passenger.

Defendant alleged that Popec’s negligent driving caused the accident. Popec

filed an answer denying all material allegations.

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Discovery adduced the above-recited evidence. Defendant moved

for summary judgment on plaintiff’s claims for wrongful death and

negligent infliction of emotional distress. Regarding the wrongful-

death claim, defendant argued that the accident, X-ray, or any other

potential risk to the fetus was not the proximate cause of the fetus’

death. Rather, Baby Doe’s death was the result of plaintiff’s voluntary

decision to terminate the pregnancy. Plaintiff voluntarily chose to

terminate the pregnancy so that she could proceed with the pelvis

surgery, “despite being provided options that would have allowed her

to postpone surgery and forego termination of the pregnancy.”

In response, plaintiff contended that defendant’s negligence was

the “cause in fact” of Baby Doe’s wrongful death because “but for the

defendant’s negligence the termination [of the pregnancy] would not

have occurred.” Plaintiff further contended that defendant’s

negligence was the proximate cause of Baby Doe’s death because

plaintiff’s decision to terminate the pregnancy “was a foreseeable

result of the defendant’s negligence.” Both defendant and plaintiff

relied on the depositions of plaintiff and Dr. Keller to support their

respective positions.

The circuit court entered summary judgment in favor of defendant

on the wrongful-death claim.

“The Court finds that based on the express language of the

Wrongful Death Act, Plaintiff cannot maintain a cause of

action on behalf of her fetus. In establishing proximate cause,

the Act does not take into consideration the reasonable

foreseeability of an injury or death, but, rather, focuses

primarily on whether a defendant’s conduct actually caused

the injury or death. Here, the evidence establishes that,

subsequent to the car accident, Plaintiff’s fetus was uninjured

and viable. Thus, Plaintiff could have continued with the

pregnancy. However, rather than continue with the pregnancy

and wait until later to address her own injuries, Plaintiff chose

to receive medical treatment at the sacrifice of her fetus,

thereby, terminating her pregnancy.”

The circuit court concluded that plaintiff’s termination of her

pregnancy was the actual cause of Baby Doe’s death, and defendant’s

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alleged negligence did not cause any injury or death to Baby Doe, as

required by the Wrongful Death Act.4

We observe that plaintiff shortly thereafter added a survival claim

(count IV), in which plaintiff, as administrator of Baby Doe’s estate,

sought damages for injuries to Baby Doe, “including radiation and

medication exposure,” as a result of defendant’s negligence.

Defendant moved for summary judgment. In her response, plaintiff

not only relied on Dr. Keller’s testimony, but also attached an

affidavit by Dr. Mark Edelman, a board-certified radiologist. Having

reviewed plaintiff’s hospital record, Dr. Edelman stated that plaintiff

received a CAT scan and pelvic X-rays and, consequently, was

exposed to radiation. “Based on a reasonable degree of radiological

certainty,” Dr. Edelman opined that Baby Doe’s radiation exposure

“prior to the pregnancy termination *** produced an increased risk

of future injury to the fetus, specifically neural tube deformity.” Dr.

Edelman opined that “the fetus was damaged in that it sustained with

a reasonable degree of radiological certainty an increased risk of

future neural tube deformity.”

The circuit court granted defendant’s motion for summary

judgment on this claim. The court found, inter alia, that the record

did not contain any “quantifiable evidence that the fetus was actually

damaged from the radiation exposure. *** Evidence that the fetus

may have been at risk for future deformities is purely speculative. A

risk of injury does not equate to an actual injury.” (Emphasis in

original.)

The circuit court found that these summary judgment orders were

final and that there was no just reason to delay enforcement or appeal

pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)).

4

However, the circuit court denied defendant’s motion for summary

judgment on plaintiff’s claim of negligent infliction of emotional distress.

According to the court, a jury could find that: (1) “it was reasonably

forseeable to expect that a pregnant woman who is injured in a motor vehicle

accident would be forced to put her fetus at risk in order to have her own

injuries treated”; and (2) “forcing an expectant mother to choose between

treating her own injuries and saving the life of her fetus, a decision she would

otherwise not be forced to make but for the defendant’s negligence, is a

severe and serious emotional injury.”

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A divided panel of the appellate court reversed the summary

judgment in favor of defendant on plaintiff’s wrongful-death claim.

372 Ill. App. 3d 211. The appellate court began its analysis of that

claim by observing that “[a]side from the additional element of the

occurrence of death, the elements of a wrongful death claim are

identical to those of a common law negligence claim.” 372 Ill. App.

3d at 223. According to the appellate court, the dispositive issue in

the appeal was “grounded in established tort principles surrounding

proximate cause.” 372 Ill. App. 3d at 223. The court concluded:

“[W]e cannot agree that, as a matter of law, it would be unforeseeable

that a pregnant woman, injured through a person’s negligence, would

agree to endure the medical consequences to herself, or the fetus for

that matter, regardless of their severity, simply for the sake of

maintaining the pregnancy.” 372 Ill. App. 3d at 234. The court held:

“Given the risks and alternatives communicated to her [plaintiff] by

her physicians, and the legality and availability of the choice she

made, the foreseeability of that choice must be determined by a jury

and not by a judge as a matter of law.” 372 Ill. App. 3d at 246-47.

We observe that the appellate court affirmed the summary

judgment in favor of defendant on the survival count. The court found

that, even if the increased risk of future harm can legally constitute a

present injury, plaintiff “did not make below and does not presently

make any attempt to show what antemortem damages Doe may have

incurred therefrom.” 372 Ill. App. 3d at 248. Recognizing that a valid

cause of action must generally include both injury and damages, the

appellate court concluded: “Thus, by declining to even address Baby

Doe’s antemortem damages, [plaintiff] has given us no basis on

which to find error in the circuit court’s order granting summary

judgment on her survival count.” 372 Ill. App. 3d at 248.

Justice Cahill dissented from both the reasoning and result of the

court on the wrongful-death claim. He disagreed that the controlling

analysis should be grounded in general tort principles surrounding

proximate cause. Rather, he opined that the court “must decide, as a

matter of law, whether the language of the Wrongful Death Act

permits a cause of action based on the facts of this case.” 372 Ill.

App. 3d at 249 (Cahill, J., dissenting). Accepting that Baby Doe was

a “person” within the meaning of the Wrongful Death Act, Justice

Cahill reasoned that “there can be no cause of action for wrongful

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death. Had the fetus not been aborted, there is no way of knowing

under the facts of this case whether the fetus had suffered an

actionable injury before death.” 372 Ill. App. 3d at 249-50 (Cahill, J.,

dissenting).

II. ANALYSIS

This matter is before us on the appellate court’s reversal of the

grant of summary judgment in favor of defendant on plaintiff’s

wrongful-death claim. The purpose of summary judgment is not to try

a question of fact, but rather to determine whether a genuine issue of

material fact exists. Bagent v. Blessing Care Corp., 224 Ill. 2d 154,

162 (2007); Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511,

517 (1993). Summary judgment is appropriate only where “the

pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a

matter of law.” 735 ILCS 5/2–1005(c) (West 2002).

In determining whether a genuine issue as to any material fact

exists, a court must construe the pleadings, depositions, admissions,

and affidavits strictly against the movant and liberally in favor of the

opponent. A triable issue precluding summary judgment exists where

the material facts are disputed or where, the material facts being

undisputed, reasonable persons might draw different inferences from

the undisputed facts. Although summary judgment can aid in the

expeditious disposition of a lawsuit, it remains a drastic means of

disposing of litigation and, therefore, should be allowed only where

the right of the moving party is clear and free from doubt. Adams v.

Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004) (and cases cited

therein). If the plaintiff fails to establish any element of the cause of

action, summary judgment for the defendant is proper. Bagent, 224

Ill. 2d at 163; Dardeen v. Kuehling, 213 Ill. 2d 329, 335 (2004). In

appeals from summary judgment rulings, review is de novo. Bagent,

224 Ill. 2d at 163; Roth v. Opiela, 211 Ill. 2d 536, 542 (2004).

A. Controlling Principles

Plaintiff brings her wrongful-death claim pursuant to the

Wrongful Death Act (740 ILCS 180/0.01 (West 2002)). Even when

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prompted by the dissent, the appellate court majority failed to

apprehend the statutory nature of a wrongful-death action. The

conflicting analyses of the appellate court in this case, and the

arguments of counsel before this court, indicate that a thorough

discussion of the Wrongful Death Act is necessary.

At common law, a cause of action died concurrently with the

death of the injured party, and there was no right of recovery after the

injured person’s death. Howlett v. Doglio, 402 Ill. 311, 319 (1949).

Also at common law, there was no cause of action to recover

damages for the death of another by wrongful act, negligence, or

default. Biddy v. Blue Bird Air Service, 374 Ill. 506, 513 (1940); see

generally W. Keeton, Prosser & Keeton on Torts §125A, at 940 (5th

ed. 1984) (“If the tortfeasor caused a victim’s death, relatives and

dependents of the victim who were deprived of financial support or

who suffered emotional loss, had no cause of action of their own”).

Therefore, at common law: “The result was that it was cheaper for the

defendant to kill the plaintiff than to injure him, and that the most

grievous of all injuries left the bereaved family of the victim, who

frequently were destitute, without a remedy.” W. Keeton, Prosser &

Keeton on Torts §127, at 945 (5th ed. 1984).

In 1853, the Illinois General Assembly enacted the Injuries Act

(1853 Ill. Laws 97), now known as the Wrongful Death Act (740

ILCS 180/0.01 et seq. (West 2002)).5 Section 1 of our Wrongful

Death Act currently reads exactly as it did when first enacted 155

years ago:

“Whenever the death of a person shall be caused by

wrongful act, neglect or default, and the act, neglect or default

is such as would, if death had not ensued, have entitled the

party injured to maintain an action and recover damages in

respect thereof, then and in every such case the person who or

5

In 1846, the British Parliament enacted what is familiarly known as Lord

Campbell’s Act, which served as the model for most state wrongful death

statutes. W. Keeton, Prosser & Keeton on Torts §127, at 945-46 (5th ed.

1984). The Illinois Wrongful Death Act is substantially a copy of Lord

Campbell’s Act. Hall v. Gillins, 13 Ill. 2d 26, 29 (1958); Nudd v. Matsoukas,

7 Ill. 2d 608, 612 (1956); 740 ILCS Ann. 180/0.01, Historical & Statutory

Notes, at 158 (Smith-Hurd 2002).

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company or corporation which would have been liable if

death had not ensued, shall be liable to an action for damages,

notwithstanding the death of the person injured, and although

the death shall have been caused under such circumstances as

amount in law to felony.” 740 ILCS 180/1 (West 2002).

In subsequent sections, the Act specifies in whose name and for

whose benefit the action shall be brought. It also establishes the time

limit in which the suit shall be commenced, the maximum amount

that can be recovered, and the manner in which proceeds are

distributed. 740 ILCS 180/2 et seq. (West 2002).

The primary rule of statutory construction is to ascertain and give

effect to the intent of the legislature. We look to the language of the

statute itself as the best indication of legislative intent. Kirwan v.

Welch, 133 Ill. 2d 163, 165 (1989); Metropolitan Life Insurance Co.

v. Washburn, 112 Ill. 2d 486, 492 (1986). Further, a statute in

derogation of the common law cannot be construed as changing the

common law beyond what the statutory language expresses or is

necessarily implied from what is expressed. In construing such a

statute, a court will not presume that the legislature intended an

innovation of the common law further than that which the statutory

language specifies or clearly implies. Russell v. Klein, 58 Ill. 2d 220,

225 (1974), citing Walter v. Northern Insurance Co. of New York,

370 Ill. 283, 288-89 (1938). Indeed, “statutes in derogation of

common law are to be strictly construed and nothing is to be read into

such statutes by intendment or implication.” Summers v. Summers, 40

Ill. 2d 338, 342 (1968).

In accord with these principles, this court has consistently

expressed its understanding of the Wrongful Death Act. Only four

years subsequent to its enactment, this court first construed the new

Injuries Act, observing that the statute created a new cause of action

“unknown to the common law, and should not be extended beyond

the fair import of the language used.” City of Chicago v. Major, 18

Ill. 349, 356 (1857). This understanding of the Act continues to the

present day:

“The Wrongful Death Act permits a recovery for the death

of an individual by wrongful act, neglect, or default, where

none existed at common law. *** [T]he Act is viewed,

traditionally, as creating the cause of action, which must be

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brought in the name of the representative, for the pecuniary

losses which a surviving spouse and next of kin may have

sustained by reason of the death of the injured person.”

Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 360

(1995) (collecting cases).

The Act alone is the source of the right to sue. The legislature, having

conferred a cause of action for wrongful death, has determined who

shall sue and the conditions under which the suit may be brought.

Wilson v. Tromly, 404 Ill. 307, 310 (1949); accord Hall, 13 Ill. 2d at

29 (observing that the legislature “created both the right and the

remedy”). Because this is a statutory action, where the right is

conditional, the plaintiff must bring the case clearly within the

prescribed requirements necessary to confer the right of action.

Hartray v. Chicago Rys. Co., 290 Ill. 85, 86-87 (1919). Also, this

court has repeatedly held that the Act “ ‘should be strictly

construed.’ ” Pasquale, 166 Ill. 2d at 360, quoting Wilson, 404 Ill. at

310; Kessinger v. Grefco, Inc., 251 Ill. App. 3d 980, 983 (1993)

(same). This appeal turns on one such statutory requirement.

An injury resulting from the wrongful act, neglect, or default of

another gives the victim, if she survives the injury, a right of action;

if the victim dies, the Act transfers the right of action to the victim’s

personal representative. “In either case the cause of action is the

same.” Crane v. Chicago & Western Indiana R.R. Co., 233 Ill. 259,

262 (1908). Based on the plain language of section 1:

“[O]ur cases have consistently interpreted the Wrongful

Death Act to require, as a condition for maintaining a

wrongful death action, that the decedent have been able to

bring, at the time of his death, an action for damages resulting

from the occurrence. Thus, in a variety of contexts, our court

has referred to the rule that a wrongful death action is barred

if the decedent, at the time of death, would not have been able

to pursue an action for personal injuries. [Citations.] In this

sense an action under the Wrongful Death Act may be said to

be derivative of the decedent’s rights, for the ability to bring

the wrongful death action ‘depends upon the condition that

the deceased, at the time of his death, had he continued to

live, would have had a right of action against the same person

or persons for the injuries sustained.’ Biddy, 374 Ill. at 513-

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14.” Varelis v. Northwestern Memorial Hospital, 167 Ill. 2d

449, 454-55 (1995).

If the decedent had no right of action at the time of his or her death,

the personal representative has none under the Wrongful Death Act.

Thus, the “injury” that the personal representative alleges caused the

decedent’s death must be the same “injury” that the decedent suffered

prior to his or her death. Biddy, 374 Ill. at 514; Crane, 233 Ill. at 262.

Further: “In disallowing wrongful death actions when the decedent

could not have maintained a claim for personal injuries at the time of

death, the Act attaches no significance to the particular reason why

the decedent’s claim would have been barred.” Varelis, 167 Ill. 2d at

460.

In the present case, the appellate court did not recognize this

requirement of section 1 of the Wrongful Death Act; indeed, the court

failed to cite to even one of the many decisions of this court so

holding, only some of which we cited above. The appellate court

began its analysis of the Wrongful Death Act by observing: “Aside

from the additional element of the occurrence of death, the elements

of a wrongful death claim are identical to those of a common law

negligence claim.” 372 Ill. App. 3d at 223. Responding to the dissent,

the court further observed that “the standards surrounding proximate

causation in ordinary negligence cases have always applied in

wrongful death cases, including the standards surrounding multiple

and intervening causes.” 372 Ill. App. 3d at 245.

These observations are correct–when viewed in isolation. As

earlier stated, based on the plain language of section 1 of the Act, the

representative’s wrongful-death action is derived from the decedent’s

cause of action and is limited to what the decedent’s cause of action

against the defendant would have been had the decedent lived.

“Obviously, this provision of the statute prevents automatic recovery

for every death. It incorporates into the statutory right of action the

familiar concepts of tort liability,–negligence, contributory

negligence, and the like.” Welch v. Davis, 410 Ill. 130, 132 (1951).

However: “Because the action is viewed as a creature of statute, its

conditions of liability proscribe the right of action itself and not

merely the remedy alone.” Pasquale, 166 Ill. 2d at 361. The statutory

requirement of an injury to the decedent is a mandatory prerequisite

to confer the right of action on the representative. In other words,

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general tort principles shape the decedent’s and, derivatively, the

representative’s remedy in the form of a cause of action. However,

the statutory requirement of an injury to decedent confers the right of

action in the first place. See Hartray, 290 Ill. at 86-87; Crane, 233 Ill.

at 262. We next consider what was–and was not–the actionable injury

in this case.

B. Baby Doe’s “Injury” Pursuant to Wrongful Death Act

The appellate court misapprehended the injury in this case for

which the Wrongful Death Act provides a right of action. The court

framed its analysis as follows:

“The parties concur that the primary issue in the case

before us is grounded in established tort principles

surrounding proximate cause. Specifically, the parties agree

that the primary issue presented in this case is whether a

party’s negligence causing injury to a pregnant woman may

make it foreseeable that she will decide to undergo an

abortion to facilitate her own medical treatment, so that the

original tortfeasor will be the proximate cause of the fetus’

death, or if the woman’s decision to abort becomes a

superceding cause of the fetus’ death thereby relieving the

original tortfeasor of liability for the fetus’ death.” (Emphases

added.) 372 Ill. App. 3d at 223.

Thus, the court expressly identified the “injury” in plaintiff’s

wrongful-death claim as Baby Doe’s death.

The appellate court’s statement of the issue and ensuing

proximate cause analysis ignores the plain language of section 1 of

the Wrongful Death Act as consistently interpreted by this court. As

the appellate court dissent correctly recognized:

“The majority’s proximate cause analysis and conclusion

that the negligence of [defendant] can be causally linked to

the abortion extends the reach of the wrongful death statute

beyond its plain language. Put another way, the proximate

cause analysis of the majority relies on a theory that the

‘death’ of the fetus is the ‘injury’ that supports the wrongful

death cause of action. The analysis, I respectfully submit,

writes out of the Wrongful Death Act the requirement that

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there must have been an actionable injury to the fetus with

recoverable damages that could have been maintained had

death not intervened.” 372 Ill. App. 3d at 250-51 (Cahill, J.,

dissenting).

We agree.

Although the appellate court viewed the dissent’s position as a

“novel ‘direct injury’ theory” (372 Ill. App. 3d at 244), it is clear from

our discussion of the Wrongful Death Act that the dissent was simply

applying the Act to the evidence in this case. Of course, on a certain

level, any death, by itself, creates a loss to the decedent’s next of kin.

However, a wrongful-death action is premised on the deceased’s

potential, at the time of death, to bring an action for injury. Varelis,

167 Ill. 2d at 457-58, quoting Wyness v. Armstrong World Industries,

Inc., 131 Ill. 2d 403, 411 (1989). In the present case, it was “not until

the death occurred could the court examine whether there was a

viable wrongful injury which would permit the case to proceed.”

Wyness, 131 Ill. 2d at 415. Having determined that Baby Doe’s death

itself is not the actionable injury in this case, this court’s long-

standing construction of section 1 of the Act “refers us at once to the

inquiry, whether an action could have been maintained by the child,

for the injury, had he survived it.” Major, 18 Ill. at 356.

The evidence of record discloses that Baby Doe could not have

maintained a claim for personal injury against defendant based on the

automobile collision itself. Initially, plaintiff’s physicians told

plaintiff that Baby Doe was not injured in the collision. Further, Dr.

Keller testified positively and unequivocally that Baby Doe did not

suffer any injury as a result of the accident itself. According to Dr.

Keller, plaintiff had a viable pregnancy that could have gone to term.

Indeed, in her brief before this court, plaintiff contends that she “has

never claimed that BABY DOE received injuries in the actual crash

but rather that they occurred in the hospital following the crash.”

In her brief, plaintiff first points to various statements in the

record in support of her contention that “had the fetus survived it

could have maintained an action against the Defendant for radiation

and medication exposure occurring in utero which was caused by the

Defendant’s negligence.” Significantly, however, at oral argument,

plaintiff expressly conceded that, for purposes of summary judgment,

the record did not contain sufficient evidence that Baby Doe suffered

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a present, actionable injury as a result of the radiation exposure. Drs.

Keller and Edelman did not opine that Baby Doe’s radiation exposure

resulted in an actual, present injury, but rather that the fetus incurred

an increased risk of future harm.

Plaintiff’s concession leaves us with her remaining contention.

Relying on Dillon v. Evanston Hospital, 199 Ill. 2d 483 (2002),

plaintiff posits, as a matter of law, that Baby Doe’s radiation exposure

is an increased risk of future harm and that “an increased risk of

future harm is a present injury” for which the fetus could have

brought an action for damages against defendant. This contention

lacks merit for two reasons.

First, as a matter of law, an increased risk of future harm is an

element of damages that can be recovered for a present injury–it is not

the injury itself. In Dillon, the plaintiff brought a medical malpractice

action arising from a broken catheter. Defendant physician inserted

a 16-centimeter catheter into a vein under the plaintiff’s clavicle. The

physician subsequently removed the catheter. However, unbeknownst

to the plaintiff or the physician, a nine-centimeter fragment of the

catheter broke off and remained in the plaintiff. The fragment

migrated to the plaintiff’s heart. The tip of the fragment became

embedded in a wall of a chamber of the plaintiff’s heart, with the rest

of the fragment floating therein. Defendants opined that it would be

more dangerous to attempt to remove the fragment than to leave it in

place. Dillon, 199 Ill. 2d at 487-88. The present injury was the

catheter embedded in the plaintiff’s heart. At issue in Dillon was the

availability and computation of damages for the increased risk of

future harm from the plaintiff’s present injury. Dillon, 199 Ill. 2d at

496-507. This court held that for a plaintiff to recover damages for an

increased risk of future harm in a tort action, the plaintiff must

establish, inter alia, that the defendant’s breach of duty caused a

present injury that resulted in the increased risk of future harm.

Dillon, 199 Ill. 2d at 506, citing Connecticut Civil Jury Instruction

No. 2–40(c). However, “the issue we deal with today is not the scope

of damages in a wrongful death action, but rather who may sue and

under what conditions.” Forthenberry v. Franciscan Sisters Health

Care Corp., 156 Ill. App. 3d 634, 636 (1987) (applying Wrongful

Death Act).

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Second, even if we were to convert or expand Dillon so as to

describe an increased risk of future harm as a present injury, plaintiff,

as a matter of fact, has not presented any evidence that Baby Doe was

injured as a result of the increased risk. In the context of Baby Doe’s

survival claim, the appellate court found that plaintiff failed to present

any evidence of damages. 372 Ill. App. 3d at 248; see Wyness, 131 Ill.

2d at 410 (observing that a “survival action allows for recovery of

damages for injury sustained by the deceased up to the time of

death”). As the appellate correctly observed, there can be no legal

injury without damages. 372 Ill. App. 3d at 248; see Zapf v.

Makridakis, 46 Ill. App. 3d 764, 766 (1977) (observing that proof of

damages “is essential for recovery in a suit for negligence”); Kerbeck

v. Suchy, 132 Ill. App. 2d 367, 370 (1971) (same); Franks v. North

Shore Farms, Inc., 115 Ill. App. 2d 57, 65 (1969) (“An action cannot

be maintained for an injury without damage”).

In summary, a wrongful-death action is a statutory, independent

cause of action that does not arise until after death. However, the

action is derivative of the injury to the decedent and is grounded on

the same wrongful act of defendant, whether it was prosecuted by the

injured party during his lifetime or by a representative of the estate.

The representative’s right of action depends upon the existence, in the

decedent, at the time of his or her death, of a right of action to recover

for such injury. Varelis, 167 Ill. 2d at 454-55; Crane, 233 Ill. at 262;

see Kessinger, 251 Ill. App. 3d at 987-88. Further, it is the

representative’s burden to bring the case within the prescribed

requirements in order to confer the right of action. Hartray, 290 Ill.

at 86-87.

In the present case, the record does not establish the threshold

requirement under the Wrongful Death Act that Baby Doe, prior to

death, had a present injury such that the fetus could have maintained

a cause of action against defendant. Any complaint regarding this

statutory prerequisite must be taken to the legislature. Plaintiff’s sole

contention is that Baby Doe suffered an increased risk of future harm

from radiation exposure. As a matter of law, such circumstances are

not actionable under the Wrongful Death Act and, even if they were,

this record is factually insufficient. Accordingly, plaintiff’s wrongful-

death claim fails and the circuit properly entered summary judgment

in favor of defendant.

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III. CONCLUSION

For the foregoing reasons, we uphold the circuit court’s entry of

summary judgment in favor of defendant on plaintiff’s wrongful-

death claim. Accordingly, that part of the judgment of the appellate

court, which reversed the summary judgment, is vacated, the

judgment of the circuit court of Cook County is affirmed, and the

cause is remanded to the circuit court for further proceedings.

Appellate court judgment vacated in part;

circuit court judgment affirmed;

cause remanded.

JUSTICE BURKE took no part in the consideration or decision

of this case.

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