ELGIN - A state appeals panel agreed with a Kendall County judge’s ruling that an unborn fetus doesn’t qualify as a “person” under the Illinois state law spelling out when taverns and other liquor purveyors may be liable for deaths from DUI crashes and other alcohol-induced causes.
The ruling from the Illinois Second District Appellate Court, issued Feb. 24, arose from a case in which the family of a pregnant woman who died in a 2017 alcohol-involved car crash attempted to sue two taverns for damages related to the unborn child.
Justice Kathryn Zenoff wrote the panel’s opinion; Justices George Bridges and Susan Hutchinson concurred.
According to the decision, the crash happened June 30, 2017, on Ridge Road in Minooka when a southbound car driven by Jacob Kaminski crossed the center line and struck the car driven by Alexis Danley, who was headed the opposite direction. Danley died in the crash. Vonta Perry, father of the unborn child, was appointed special administrator of the baby’s estate to file a wrongful death complaint against Kaminski in La Salle County court.
After the Illinois Supreme Court consolidated the baby’s case with a pending Kendall County lawsuit pitting Danley’s estate against Kaminski and other defendants, Perry filed an amended complaint alleging two taverns — Bedrocks Craft Beer and Pizza and Skooter’s Roadhouse — violated the Liquor Control Act and caused Kaminski’s intoxication.
In November 2018, Kendall County Judge Stephen Krentz granted Bedrocks’ motion to dismiss, finding the baby’s estate wasn’t a proper plaintiff and the Liquor Control Act didn’t provide a cause of action for the death of a fetus. In June 2019, Krentz granted judgment on the pleadings to Skooter’s. Perry settled the wrongful death count with Kaminski, but appealed Krentz’s order disposing of the remainder of the case involving the fetus. Perry died while that appeal was pending, but Frances Herndon, the baby’s grandmother, took Perry's place.
Justice Zenoff wrote the complaint conflates the Liquor Control Act, often called the Dramshop Act, “with the Wrongful Death Act by incorporating allegations pertinent to a cause of action for wrongful death into the counts against Bedrocks and Skooter’s and praying for damages pursuant to the Wrongful Death Act.”
According to the panel, the Wrongful Death Act allows legal action to benefit a widow or next of kin, and only “in cases where the injured person himself could have maintained the action” had they survived. But “under the Dramshop Act, a spouse, children, parents, brothers and sisters — rather than ‘next of kin’ — may sue.”
Herndon's lawyers, during oral arguments on appeal, said the amended complaint sought damages only under the Dramshop Act. But the panel said the complaint stated eight different requests for damages of at least $50,000, which Zenoff wrote is “inconsistent with the limited damages recoverable” under that law.
“Given that the amended complaint repeats this prayer for relief eight times,” Zenoff wrote, “we reasonably infer that the amended complaint attempts to superimpose the Wrongful Death Act on the Dramshop Act. The only purpose for doing so is the recognition that the Wrongful Death Act provides for recovery for the wrongful death of an unborn fetus while the Dramshop Act contains no similar provision.”
The panel further said, though Herndon correctly asserts the Wrongful Death Act defines a fetus as a "person," per a 1980 amendment, the General Assembly hasn’t written such a clause into the Dramshop Act.
“We are not unsympathetic to Herndon’s arguments,” Zenoff wrote.
She indicated the plaintiffs and those sympathetic to their view should instead petition Illinois state lawmakers to change the Dramshop Act.
“Yet, we are the wrong forum in which to address these pleas," Zenoff said. "We simply do not possess authority to judicially amend the Dramshop Act.”
Representing the taverns and Kaminski in the matter were attorneys Robert F. Hogan and Anne-Marie Foster, of Nyhan Bambrick Kinzie & Lowry, and Scott J. Brown and Julie A. Teuscher, of Cassiday Schade, all of Chicago.
The plaintiffs were represented by attorneys John M. Spesia and Jacob E. Gancarczyk, of the Joliet firm of Spedia & Taylor.