Judicial Rulings

Illinois Supreme Court

Death penalty sentences overturned

KILLING a fetus in Illinois is not murder according to a 5-2 ruling February 23 by the Illinois Supreme Court, which voided the death penalty in the second sentencing case heard under the 1977 death penalty law. The dissenting justices argued that killing a fetus in Illinois is murder because public policy under the abortion statutes grants the fetus the right to life from the moment of conception.

The case, People v. Alan Greer, stemmed from the 1978 death of Greer's live-in girlfriend who was 8 1/2 months pregnant. Greer was convicted of the double murder of his girlfriend and her unborn fetus by the Massac County Circuit Court, which sentenced Greer to death. A double murder is one instance when the death penalty may be used. Since the high court ruled the killing of an unborn fetus is not murder, Greer no longer may receive the death sentence.

In the majority opinion, Justice Robert C. Underwood said, "The extent to which the unborn child is to be accorded the legal status of one already born is one of the most debated questions of our time, and one to which we do not find any completely consistent response. As the State points out, the protections and remedies of tort law have expanded to include the unborn. . . . On the other hand the United States Supreme Court has held that the unborn, whether or not viable [generally six months after conception], are not persons protected by the fourteenth amendment to the United States Constitution. Furthermore, a woman's constitutional right to privacy prevents the State from interfering with her decision to abort a previable fetus, even though that decision ordinarily results in its death."

"... After considering the status of the unborn in the common law, the uniform decisions of the courts of last resort in our sister States, and the attitude toward the unborn reflected in our abortion statutes, we conclude that taking the life of a fetus is not murder under our current statute unless the fetus is born alive and subsequently expires as a result of the injuries inflicted."

The high court said the General Assembly could clarify public policy by amending the definition of an individual in the criminal code to include the fetus; that would make the abortion statutes consistent with the criminal code. Without that consistency, however, the court said it was forced to rule as it did.

But Justice William G. Clark, in one dissent, argued, "[I]t is not necessary to plumb the depths of one's reason to reach the conclusion that it is wrong for there to be such a sizeable gap in our criminal law that a person may destroy a viable, 8 1/2 -month-old fetus with impunity. ... I believe the viability argument takes on even greater force in the instant context, where a violent attack was made which destroyed the fetus. Such an attack should be punishable as murder."

Clark further said, "The General Assembly did not intend to provide for the instant situation in the Illinois Abortion Law of 1975, so of course there is no explicit statutory section which defines the acts involved here as murder.

". . . It seems clear then that the General Assembly did intend to extend the protections of the law, including the criminal law, to the unborn. Extending the protection of the criminal law to, at the least, viable fetuses, would in no way infringe upon the mother's right to privacy. . . ."

In another death penalty case, the high court overturned the death penalty on February 23 and ordered a new trial for William Roderick Hill, the first person sentenced to death under the 1977 death penalty law. He was convicted of the murders of two Chicago men, one murdered in 1974 and the other in 1975; however, the court said the 1977 law does not apply to murders committed prior to the effective date of the 1977 law.

Product liability

IN a 4-3 decision February 23, the Illinois Supreme Court ruled that manufacturers are not liable in failure-to-warn cases unless they knew or should have known their products were dangerous. That means consumers can no longer collect damages in such cases unless they prove manufacturers negligent to a certain extent.

The dissenting justices attacked the majority's decision on the grounds that requiring proof of negligence in failure-to-warn cases goes against long-standing strict liability principles.

The case, Robert E. Woodhill v. Parke Davis & Co., centers on Parke Davis' liability for its prescription drug, Pitocin, which was given to Ellen Woodhill in 1973 to induce labor while her unborn fetus was in high station. The Woodhill child was born with brain damage, permanent blindness and quadroplegia, which the Woodhills claim was caused by the drug.

To collect for damages under strict liability, the consumer usually is required to prove that the product itself was at fault; that it was defective, lacked a warning, or that the warning was inadequate. To collect under negligence, the consumer usually is required to prove that the manufacturer was at fault; that the manufacturer knew or should have known that the product was dangerous.

The Woodhills, attempting to collect under liability, claimed that Parke Davis knew or should have known that Pitocin was dangerous if given to induce labor when the fetus was in high station and thereby liable for failure to warn adequately. Parke Davis argued that they did not know, nor could have known — because no one knew at the time — that the drug was dangerous in that situation. The high court

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agreed with Parke Davis, arguing that it is "reasonable" to require consumers to prove manufacturers negligent to a certain extent, otherwise liability laws would make manufacturers the "virtual insurers" of their products.

Clark said, "[A] logical limit must be placed on the scope of a manufacturer's liability under strict liability theory. To hold a manufacturer liable for failure to warn of a danger of which it would be impossible to know based on the present state of human knowledge would make the manufacturer the virtual insurer of the product, a position rejected by this court in Suvada. [v. White Motor Co., 1969]."

Clark further stated, "This court is acutely aware of the social desirability of encouraging the research and development of beneficial drugs. We are equally aware that risks, often grave, may accompany the introduction of these drugs into the marketplace. We simply think, however, . . . where liability is framed by the manufacturer's duty to warn adequately of dangers which may arise from the use of a drug, that liability should be based on there being some manner in which to know of the danger. Otherwise the warning itself, which is the focus of the liability, would be a meaningless exercise," Clark said.

"Such a rule is entirely consistent with the principles of strict liability as first recognized and adopted as applicable to all products in Suvada . . . ," Clark said.

Justice Thomas J. Moran, writing for the minority, which included chief justice Joseph H. Goldenhersh and Justice Daniel P. Ward, said, "[T]he majority opinion . . . will open the door to allowing evidence of the defendant's [manufacturer's] use of due care in its testing procedures. This is directly at odds with the basic notion of strict liability, which permits the injured plaintiff [consumer] to recover without the burden of proving negligence.

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