Parents' loss of child, minor or adult, presumes loss of future earnings

ILLINOIS has become the first state to establish a presumption of pecuniary loss through loss of the society of an adult child resulting from wrongful death. Chief Justice William G. Clark's opinion (Justice Ben Miller not participating and Justices Thomas J. Moran and Howard C. Ryan dissenting in part) was handed down October 17 in the case of Ballweg v. City of Springfield (Docket Nos. 61486 and 61574 cons.).

The plaintiff was killed in a boating accident when the mast of an all-metal catamaran contacted an overhead power line. The administrator of her estate brought suit. Several issues were raised before the Supreme Court, but the most significant is probably the award of damages for loss of society of an adult child. Clark notes: "Although no State allows for a presumption, some States do allow parents to recover for the loss of society of an adult child."

The decision in Ballweg follows a similar decision concerning minors: "In Bullard, we concluded that parents are entitled to a presumption of pecuniary injury in the loss of a minor child's society but did not decide 'whether the loss-of-society presumption applied to children who have reached the age of majority' (Bullard v. Barnes (1984), 102 Ill. 2d 505, 517). However, we do so today."

Clark gave some inkling of the court's reasoning: "We refuse to draw a line based solely on the age of a child. We fail to see how a presumption of loss disappears upon a child's 18th birthday. The return on the parents' investment in their children is very real, even though it may not be in the form of money. When children are killed, the parents' investment of money and in affection, guidance, security and love is destroyed. Society recognizes the destruction of that value, whether the child is a minor or an adult. The intent of Bullard was to recognize the intrinsic value of children to their parents regardless of which way financial support is flowing at death."    F. Mark Siebert

Determinate sentencing for juveniles

PUNISHMENT of delinquent minors through incarceration, rather than their rehabilitation, seems to be one possible interpretation of the portion of the Juvenile Court Act pertaining to sentencing (Ill. Rev. Stat. 1983, ch. 37, secs. 705-10 and 705-11). Though not specifically stated, it seems implied in the decision of the Illinois Supreme Court handed down October 17 in the case of People v. S.L. C. (Docket No. 62301).

The statute provides that delinquents in the custody of the Juvenile Division of the Department of Corrections remain in that custody until age 21 unless the department terminates its custody earlier. Rehabilitation has traditionally been seen as the goal of this provision since punishment as an alternative is available under the section allowing prosecutors to try serious, violent crimes by juveniles in criminal court. In the present case a juvenile court judge in Henry County orally committed an adjudicated delinquent to the custody of the Department of Corrections for one year. The written order did not contain the time limitation.

On appeal the juvenile argued that this constituted an unlawful increase of the sentence. The appellate court framed the issue as "whether a trial court may commit a juvenile who has been adjudicated a ward of the court to the [department] for a determinate period terminating prior to the juvenile's 21st birthday." It found this to be possible and the Supreme Court affirmed upon the state's appeal.

Under the statute a trial court may terminate the department's custody prior to the juvenile's 21st birthday on its own initiative or upon appeal of interested parties. The appellate court found that it follows from this that the trial court may impose a determinate termination of custody at the time of sentencing. Justice Howard C. Ryan's opinion summarized: "The Juvenile Court Act does not expressly require the trial court, if it plans to commit a delinquent minor to the Department, to do so for an indefinite term. Nor does the Act expressly prohibit the trial court from committing the delinquent minor to the Department for a definite term. Nowhere does it grant sole authority to the Department to determine whether its custodianship will terminate before a minor attains the age of 21."

On the matter of rehabilitation vs. incarceration the court put the ball in the legislature's court: "The amici curiae [the Department of Corrections and the Prisoner Review Board] argue that commitment of a delinquent minor to the Department for a determinate term impedes their ability to fulfill the purpose of the Juvenile Court Act — that of rehabilitation — and substitutes the principle of incarceration for rehabilitation. However, whether a trial judge is in a better, worse, or equal position to the Department to determine when a minor will be rehabilitated or has been rehabilitated and to determine if, and at what time, the Department's custodianship should terminate prior to a minor's attaining the age of 21 are not questions for this court. Those questions involve policy considerations presumably debated and weighed by the legislature when it enacted the Juvenile Court Act."                           F Mark Siebert

More on retaliatory discharge

RETALIATORY discharge has been progressively clarified by a series of decisions of the Illinois Supreme Court beginning in 1978. The latest, in a decision written by Justice Ben Miller and handed down October 17, concerns claims against public entities. It appears in Boyles v. Greater Peoria Mass Transit District (Docket No. 62074).

The plaintiff claimed that she was fired in retaliation for claiming for injuries under the Worker's Compensation Act. The court held that the mass transit district, as a public entity, is immune from punitive damages under the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev Stat. 1983, ch. 85, sec. 2-102).

The plaintiff can seek compensatory damages since a successful action might result in a broader award than that available under a collective-bargaining agreement.             F. Mark Siebert

Confusing interest computations for loan prepayment

DISCLOSURE of the annual percentage rate in a loan agreement may be deceptive when the prepayment provisions call for interest computation by the Rule of 78's. There is no legal bar, to this situation, however, according to the decision handed down October 17 by the IIinois Supreme Court in Lanier v. Associates Finance, Inc. (Docket No. 62187).

The plaintiff claimed that use of the rule yielded an interest charge more than $4,000 larger than a charge computed according to the actuarial method, which resulted in a rate on the loan higher than that stated in the contract. Since the contract did not spell out provisions of the Rule nor reveal the higher charges, she claimed a violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev Stat. 1981, ch. 12 1/2, secs. 261 through 271).

The court applied provisions of the federal Truth in Lending Act (15 U.S.C. secs 1601 through 1665 (1982)). Justice Ben Miller's decision pointed out, "There is no requirement under the . . . Act that the APR figure equal the interest percentage at each interim period in the loan if the borrower chooses to pay his credit obligation prior to its due date" The Consumer Fraud Act exempts from liability "conduct which is authorized by Federal statutes and regulations."

Miller concluded: "We decline . . to restrict or prohibit use of the Rule of 78's on public policy grounds, but we urge the legislature to promptly consider this matter which reflects an apparent injustice under the law as currently exists."                         F. Mark Steibert

28/January 1987/Illinois Issues