Farley v. Sartin

The plaintiff below and appellant herein, Kenneth Farley, as the Administrator of the Estate of Baby Farley, his unborn child, appeals from the September 8,1994, order of the Circuit Court of Wayne County. This order granted a motion for summary judgment by the defendants below and appellees herein, Billy R. Sartin and Lee Sartin Trucking Company, Inc., and dismissed the plaintiffs ease with prejudice. The issue presented to this Court on appeal is whether the plaintiff can maintain a cause of action under West Virginia’s wrongful death statute, W.Va.Code, 55-7-5 (1931), 1 for the death of Baby Farley, who was eighteen to twenty-two weeks of gestation and, at best, of questionable viability in light of the evidence presented to the circuit court. Upon review, we conclude the plaintiff may maintain his cause of action regardless of viability and, therefore, we reverse the order of the circuit court.

I.

FACTS AND PROCEDURAL HISTORY

On November 6, 1991, the plaintiffs pregnant wife, Cynthia Farley, was killed in an automobile accident she had with the defendant, Billy R. Sartin, who was driving a tractor trailer owned by the defendant, Lee Sartin Trucking Company, Inc. The deposition of Mrs. Farley’s treating obstetrician, Dr. Gary Gilbert, which was the only medical testimony in the record, adduced the following. Mrs. Farley was probably eighteen weeks and a few days pregnant when calculated from the date of the first day of her last menses, although she could have been as far along as twenty-two weeks pregnant. 2 Baby Farley was neither large enough nor developed enough to survive outside the womb. 3 *673 “The earliest surviving infant that [the doctor knew] of was right at 500 grams, which would have been about 22 weeks.” Dr. Gilbert concluded that if Mrs. Farley had not been killed in the accident, he had “no reason to believe that she would not have a normal pregnancy.”

The plaintiff filed a wrongful death action as the Administrator of the Estate of Baby Farley. In response, the defendants filed a motion for summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure on the basis that Baby Farley was not viable at the time of death; therefore, the defendants argued Baby Farley was not a “person” under the wrongful death statute, W.Va.Code, 55-7-5. After reviewing the parties’ respective motions and supporting memoranda, the circuit court granted summary judgment in favor of the defendants.

The issue presented to this Court is narrow and one of first impression. Although the plaintiff first argues that this case presents a genuine issue of fact as to whether Baby Farley was a viable child at the time of the accident, we find the more critical issue is whether viability is the appropriate criterion to determine whether an unborn child is a “person” within the context of W.Va.Code, 55-7-5. 4 Our discussion and holding are limited, to this issue only, and what we say in this opinion should not be considered as indicative of our views on other unrelated issues, especially those on abortion. For reasons that will follow, we find that viability is not the appropriate criterion to determine whether an unborn child is a “person” within the context of W.Va.Code, 55-7-5.

II.

STANDARD OF REVIEW

We review a circuit court’s entry of summary judgment de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Moreover, whether viability is the appropriate criterion to determine if an unborn child is a “person” within the context of the wrongful death statute is purely a question of law, and we give questions of law de novo and plenary review. See State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 776, 461 S.E.2d 516, 522 (1995) (“[a]s a result of this inquiry being strictly a matter of statutory construction, our power of interpretive scrutiny is plenary”) (citation omitted); Burnside v. Burnside, 194 W.Va. 263, 265, 460 S.E.2d 264, 266 (1995) (“questions of law and statutory interpretations are subject to de novo review”) (citation omitted).

As a result of this case being decided on a motion for summary judgment, we appropriately make certain factual assumptions in order to frame the legal issues. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, — U.S.-,-, 115 S.Ct. 2407, 2412, 132 L.Ed.2d 597, 609-10 (1995). “We shall assume, as summary judgment procedure requires us to assume, that the sole reason for” the death of the nonviable unborn child was the accident and that Mrs. Farley would have had a normal pregnancy absent the accident. McKennon v. Nashville Banner Pub. Co., — U.S. -, -, 115 S.Ct. 879, 883, 130 L.Ed.2d 852, 860 (1995). As part of our review, we find it necessary to begin our analysis of the legal issue presented by discussing the inception and evolution of wrongful death- statutes.

*674 III.

THE HISTORY OF WRONGFUL DEATH ACTIONS

A.

Generally

At common law, there was no cause of action for the wrongful death of a person. Voelker v. Frederick Business Props. Co., 195 W.Va. 246, 250, 465 S.E.2d 246, 250 (1995); Swope v. Keystone Coal and Coke Co., 78 W.Va. 517, 522, 89 S.E. 284, 286 (1916). 5 In Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808), Lord Ellenborough wrote that “[i]n a civil Court, the death of a human being could not be complained of as an injury[.]” In essence, the cause of action died with the victim, and there was no compensation for the victim’s dependents or heirs. W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, David G. Owen, Prosser and Keeton on Torts § 127 at 945 (5th ed. 1984). 6 Under this harsh rule, tortfeasors, who otherwise would have been liable for their victims’ injuries, escaped all liability when the injuries were severe enough to kill the victims. Consequently, bereaved families of deceased victims often were left destitute. Keeton, et al., supra § 127 at 945. 7

Recognizing the problem with this result, the English Parliament passed the Fatal Accidents Act of 1846, commonly referred to as Lord Campbell’s Act. 9 & 10 Viet. c. 93 (1846). This Act permitted recovery of damages by the close relatives of a victim who was tortiously killed. In his article Wrongful Death and the Lost Society of the Unborn, 13 J.Legal Med. 99, 100 n. 9 (1992), Gary A. Meadows wrote the Act, in essence, provided:

“[Wjhenever the death of a person is caused by the wrongful act, neglect, or default of another, in such a manner as would have entitled the party injured to have sued had death not ensued, an action may be maintained if brought within twelve months after [the] death in the name of [the] executor or administrator for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused.”

Thus, by creating a cause of action for wrongful death, the English Parliament rectified the disparity between a tortfeasor’s liability for injuries and for the more egregious harm, death.

Despite the passage of Lord Campbell’s Act, courts in the United States subsequently advanced various rationalizations in support of denying a cause of action for wrongful death. 1 Stuart M. Speiser, Charles F. Krause, Juanita M. Madole, Recovery for Wrongful Death and Injury § 1:4 at 13 (3rd ed. 1992). T.A. Smedley stated that American judges formulated the rationalizations because they were “[u]nwilling to repudiate an established rule of law” and were “unsatisfied with the historical bases for the rule[.]” Wrongful Death — Bases of the Common Law *675 Rules, 13 Vand.L.Rev. 605, 617 (1960). The rationalizations announced by the various courts included the idea that it was inconsistent with legal policy to judicially calculate the value of human life; that permitting wrongful death actions would lead to endless cases with large verdicts; that, in accord with Christianity, human life is sacred and it would be revolting to compensate its loss with money; and that it is impossible to calculate the pecuniary value of human life. 1 Speiser, et al, supra § 1:4 at 13 (citations omitted); Smedley, supra at 617-19.

It did not take long, however, until state legislatures began passing laws similar to Lord Campbell’s Act. The first wrongful death statute was passed by New York in 1847. 8 22A Am.Jur.2d Death § 7 (1988). Currently, every state has created a cause of action for wrongful death. 1 Speiser, et al, supra § 1:9 at 32-33. (Citation omitted). A majority of these statutes are patterned after Lord Campbell’s Act by establishing “a right of action for losses suffered by statutorily designated beneficiaries by reason of the death. Others, of somewhat varying types and specific provisions, may be broadly classified as statutes under which death damages are measured by the loss occasioned to decedent’s estate by the death.” 1 Speiser, et al, supra § 1:9 at 33. The first statute in West Virginia was passed in 1863, and “was the same in general purpose and effect as [Lord Campbell’s Act].” Swope, 78 W.Va. at 522, 89 S.E. at 286. See also Voelker, 195 W.Va. at 250,465 S.E.2d at 250.

B.

Prenatal Torts and Wrongful Death

With the enactment of wrongful death statutes, recovery became a matter of statutory right. Sheryl A. Symonds, Wrongful Death of the Fetus: Viability is Not a Viable Distinction, 8 U.Puget Sound L.Rev. 103, 104 (1984). The common law did not permit recovery for prenatal torts in general, e.g., Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242 (1884), overruled, Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d 926 (1967); 1 Speiser, supra § 4:33 at 180; Symonds, supra at 106, and courts remained hesitant to allow wrongful death actions for unborn children. Barbara E. Lingle, Comment, Allowing Fetal Wrongful Death Actions in Arkansas: A Death Whose Time Has Come?, 44 Ark.L.Rev. 465, 468 (1991).

In Dietrich, a woman who was in her fourth or fifth month of pregnancy slipped and fell as a result of a defective highway. The woman miscarried the infant which was said to have lived for a few minutes. Justice Oliver Wendell Holmes, Jr., writing for the Supreme Judicial Court of Massachusetts, stated he was unaware of any case “that, if the infant survived, it could maintain an action for injuries received by it while in its mother’s womb.” 138 Mass, at 15, 52 Am. Rep. at 243. Justice Holmes expressed the opinion that the unborn infant was “a part of the mother at the time of the injury” and any damage to the infant “which was not too remote” to deny recovery altogether was recoverable by the mother. 138 Mass, at 17, 52 Am.Rep. at 245. This approach, that an unborn infant was not “an independent biological entity” from its mother, is referred to as the “ ‘single entity’ view[.]” Lingle, supra at 468-69.

The lack of remedy for a tortiously injured unborn child neither went unnoticed nor avoided criticism. Justice Boggs’ dissent in Allaire v. St. Luke’s Hospital 184 Ill. 359, 56 N.E. 638 (1900), 9 is credited with starting the movement to abolish the theory that a tortfeasor owes no duty to an unborn child because the child “was not in existence at the time of [the] action[.]” Keeton, et al., supra § 55 at 367, 368 n. 13. Justice Boggs stated that he knew of no cases at common law where a plaintiff was able to recover damages for injuries the plaintiff suffered while in the womb. However, he quoted Lord Mansfield as stating: “ ‘The law of England would be an absurd science were it founded upon precedents only. Precedents,’ he observed, “were to illustrate principles, and to give them a fixed certainty.’ 1 Kent, Pomm. *676 477.” 184 Ill. at 368, 56 N.E. at 640. Justice Boggs continued by explaining that “ ‘a principle newly applied is not supposed to be a new principle. On the contrary, it is assumed that from time immemorial it has constituted a part of the common law of the land, and that it has only not been applied before because no occasion has arisen for its application.’ ” 184 Ill. at 369, 56 N.E. at 641. (Citation omitted).

The argument at common law was that “an unborn child was but a part of the mother, and had no existence or being which could be the subject-matter of injury distinct from the mother, and that an injury to it was but an injury to the mother[.]” 184 Ill. at 370, 56 N.E. at 641. Nevertheless, Justice Boggs recognized the fact that “[mjedical science and skill and experience” known at that time dictated a different result. In this respect, Justice Boggs related:

“A foetus in the womb of the mother may well be regarded as but a part of the bowels of the mother during a portion of the period of gestation; but if, while in the womb, it reaches that pre-natal age of viability when the destruction of the life of the mother does not necessarily end its existence also, and when, if separated prematurely and by artificial means from the mother, it would be so far a matured human being as that it would live and grow, mentally and physically, as other children generally, it is but to deny a palpable fact to argue there is but one life, and that the life of the mother. Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive, and capable of maintaining life when separated from the dead body of the mother.” 184 Ill. at 370, 56 N.E. at 641.

See also Meadows, supra at 106-07. Justice Boggs concluded this passage by asking the question: “If at that period a child so advanced is injured in its limbs or members and is born into the living world suffering from the effects of the injury, is it not sacrificing truth to a mere theoretical abstraction to say the injury was not to the child but wholly to the mother?” 184 Ill. at 370, 56 N.E. at 641.

It was not until 1946 that an American court departed from the Dietrich approach. In Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C. 1946), the United States District Court for the District of Columbia addressed the question of whether a child could maintain a right of action upon the allegation that she was injured because of professional malpractice when she was taken from her mother’s womb. 65 F.Supp. at 139. Although the district court distinguished its case from Dietrich on the basis that the child in Bonbrest suffered “a direct injury” by the tortfeasor, the district court went on to state:

“As to a viable child being ‘part’ of its mother — this argument seems to me to be a contradiction in terms. True, it is in the womb, but it is capable now of extrauterine life — and while dependent for its continued development on sustenance derived from its peculiar relationship to its mother, it is not a ‘part’ of the mother in the sense of a constituent element — as that term is generally understood. Modern medicine is replete with cases of living children being taken from dead mothers. Indeed, apart from viability, a non-viable foetus is not a part of its mother.” 65 F.Supp. at 140. (Footnote omitted). 10

The district court determined that logic and justice require “ ‘that a child, if bom alive and viable[,] ... should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother.’ ” 65 F.Supp. at 142, quoting Montreal Tramways v. Leveille, 4 Dom.L.R. 337 (1933). (Emphasis added in Bonbrest). To permit otherwise would allow a wrong to be inflicted for which no remedy *677 exists. 65 F.Supp. at 141. In making this holding, the district court rejected arguments that permitting a cause of action would result in other cases being filed in bad faith and may result in “insuperable difficulties of proof.” 65 F.Supp. at 142-43. It is clear from the language and analysis that both the “single entity view” and the no-duty rule were disavowed in Bonbrest.

Following Bonbrest, “a rapid series of cases, many of them expressly overruling prior holdings, brought about a rather spectacular reversal of the no-duty rule.” Keeton, et al., swpra § 55 at 368. (Footnotes omitted). Indeed, today, every jurisdiction permits recovery for prenatal injuries if a child is born alive. 11 Restatement (Second) of Torts § 869 App., note, subsection 1 at 79 (1982); Keeton, et al., supra § 55 at 368. In addition, it generally does not matter whether the injury occurred prior to or after the point of viability. Restatement (Second) of Torts § 869 and emt. subsection 1(d) at 276-77 (1977); 62A Am.Jur.2d Prenatal Injuries: Wrongful Life, Birth, or Conception § 18 (1990).

Courts have offered various rationales for refusing to require proof that the unborn child was viable at the time of injury. Some have relied on “the fact that an unborn child is biologically separate from its mother from the time of conception.” 62A Am.Jur.2d, supra § 19 at 413. This approach, referred to as the “biological theory,” presumes that an unborn child is not a “legal person” until birth, but it imposes “conditional liability” for an injury “which becomes unconditional or complete upon the birth of the injured separate entity as a legal person.” 62A Am.Jur.2d, supra § 19 at 413. If an unborn child dies prior to birth, no liability attaches because no damage was inflicted on a “legal person.” 62A Am.Jur.2d, supra § 19 at 413, citing Puhl v. Milwaukee Auto. Ins. Co., 8 Wis.2d 343, 99 N.W.2d 163 (1959), overruled on other grounds In Re Estate of Stromsted, 99 Wis.2d 136, 299 N.W.2d 226 (1980).

Other courts confronted with an injury suffered by an unborn child who subsequently is born alive refuse to hinge liability on fetal viability because they have concluded that an injury sustained “prior to viability is no less meritorious than a claim for one sustained afterward.” 62A Am.Jur.2d, supra § 19 at 413, citing Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222 (1966). The child suffers the same harm regardless of when the injury occurred and, therefore, should be able to obtain the same relief. 62A Am.Jur.2d, supra § 19 at 413, citing Smith v. Brennan, 31 N.J. 353,157 A.2d 497 (1960).

Despite the fact that recovery generally is allowed for prenatal injuries for a child “born alive,” courts disagree upon whether they will permit recovery for injuries causing the death of a child en ventre sa mere. Although some jurisdictions do not permit a wrongful death action to be maintained for the death of an unborn child, 12 the majority of jurisdictions now do permit a wrongful death action if the unborn child had reached the point of viability. 13 See Restatement (Second) of *678 Torts § 369 App., supra subsection 2 at 80-81; Symonds, supra at 108; 1 Speiser, supra § 4:35 at 187. 14

C.

General Reasons Cited for Denying Recovery for the Tortious Death of a Viable Unborn Child

Jurisdictions that originally denied a wrongful death action for a child en ventre sa mere did so for a number of reasons that now are rejected by the majority of courts. One reason for not permitting a cause of action was the lack of precedent. See White v. Yup, 85 Nev. 527, 536, 458 P.2d 617, 623 (1969); Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis.2d 14, 21, 148 N.W.2d 107, 111 (1967). There now, however, is plenty of precedent; the clear weight of authority currently allows a cause of action for the tortious death of a viable child en ventre sa mere. See note 13, supra. Obviously, courts heeded the teachings of Lord Mansfield and Justice Boggs that stare decisis does not require static doctrines but instead permits law to evolve and to adjust to changing conditions and notions of justice as well as to varied sets of facts. Allaire, supra.

A second popular reason given to deny recovery is the “single entity” theory as expressed in Dietrich, supra. However, through medical science and technology, we know that this reason lacks support, and it too has been rejected by the majority of jurisdictions. See, e.g., White, 85 Nev. at 536-37, 458 P.2d at 623; Kwaterski 34 Wis.2d at 21, 148 N.W.2d at 111; see also 62A Am.Jur.2d, supra § 19 at 413.

A third reason articulated for denying recovery for the wrongful death of a child en ventre sa mere is that it would lead to fraudulent claims and difficulties in proof of causation and damages. However, courts generally have concluded that such risks do not justify a bar to legitimate claims. In Danos v. St. Pierre, 402 So.2d 633, 638 (La.1981) (on rehearing), the Supreme Court of Louisiana explained: “The denial of valid claims in *679 order to discourage fraudulent ones and to avoid difficult problems in determining causation and fixing damages not only is totally illogical, but also disregards the very essence of the judicial process.” See also Espadero v. Feld, 649 F.Supp. 1480,1485 (D.Colo.1986); Hatala v. Markiewicz, 26 Conn.Sup. 358, 360-61, 224 A.2d 406, 408 (1966); Mone v. Greyhound Lines, Inc., 368 Mass. 354, 360, 331 N.E.2d 916, 919 (1975). 15

A fourth reason traditionally given for denying recovery for the wrongful death of a child en ventre sa mere is based upon the argument that the Legislature should determine this issue and the courts should not expand the scope of liability beyond what was contemplated when the wrongful death statute was enacted. In response, courts have concluded that it is incumbent upon them to give meaning to the term “person” as used in wrongful death statutes and, in the absence of specific legislative language, that responsibility requires courts to supplement the law (i.e., fill in the statutory interstices) regardless of what conclusion is reached. In Summerfield v. Superior Court, 144 Ariz. 467, 475, 698 P.2d 712, 720 (1985), the Supreme Court of Arizona stated it is unlikely that its legislature ever referred to the “fetus/person issue” when it promulgated the first wrongful death statute in 1887. Therefore, the Arizona court concluded:

“The solution to this problem cannot be found in a methodology which requires us to assume or divine a legislative intent on an issue which most probably was never considered. Rather, the solution must be found in a study of the statute, the best method to further the general goal of the legislature in adopting such a statute, and common law principles governing its application.” 144 Ariz. at 475, 698 P.2d at 720.

See also Espadero, 649 F.Supp. at 1483; Britt v. Sears, 150 Ind.App. 487, 494-95, 277 N.E.2d 20, 24-25 (1971); Danos, 402 So.2d at 638; DiDonato v. Workman, 320 N.C. 423, 434, 358 S.E.2d 489, 495 (1987); 84 A.L.R.3d 411, 418 (1978) (“it appears reasonable to assume that when the wrongful death statutes have been enacted, legislators have generally given no thought to whether deaths of unborn children were intended to be included or excluded, and it is thus inappropriate to regard the issue as simply one of legislative intent”).

D.

General Reasons Cited for Permitting a Cause of Action for the Tortious Death of a Viable Unborn Child

Upon the belief that it was necessary to look beyond the often nonexistent legislative intent, courts have focused much of their attention on the language of the wrongful death statutes, the goals and purposes behind their enactments, and other protections afforded unborn children at common law and by statute. A 'wrongful death statute, such as W.Va.Code, 55-7-5, see note 1, supra, imposes three prerequisites for recovery. First, there must be a death of a “person.” Second, the death must “be caused by [the] wrongful act, neglect, or default” of another. W.Va.Code, 55-7-5, in part. Third, the deceased “person” must have been entitled to a cause of action for damages if death had not occurred. In the context of an unborn child, the general question to be asked is whether the unborn child would be able to maintain a cause of action if the unborn child had lived.' See DiDonato, 320 N.C. at 426, 358 S.E.2d at 491 (“[i]n plain English, an action for wrongful death exists if the decedent eould have maintained an action for negligence or some other misconduct if he had survived”). See also Summerfield, 144 Ariz. at 475, 698 P.2d at 720; Werling v. Sandy, 17 Ohio St.3d 45, 47, 476 N.E.2d 1053, 1054 (1985).

As previously stated, every jurisdiction now permits a cause of action for prenatal injuries to a viable unborn child who is born alive. Keeton, et al., supra § 55 at 368. Thus, many courts have determined that if a viable unborn child can maintain a cause of action for injuries sustained if born alive, it only is logical that the phrase “person” within the context of a wrongful death statute should include a viable unborn child who *680 would have been born alive but for the tortious injury inflicted causing death prior to birth. See Summerfield, 144 Ariz. at 475, 698 P.2d at 720; O’Grady v. Brown, 654 S.W.2d 904, 910 (Mo.1983); DiDonato, 320 N.C. at 427, 358 S.E.2d at 491; Werling, 17 Ohio St.3d at 48, 476 N.E.2d at 1055; Evans v. Olson, 550 P.2d 924, 928 (Okla.1976).

In addition, wrongful death statutes were enacted to preserve and protect human life by deterring tortious conduct and to provide damages when such conduct results in death. Espadero, 649 F.Supp. at 1483; Volk v. Baldazo, 103 Idaho 570, 574, 651 P.2d 11, 15 (1982). The disparity that results from not permitting a wrongful death action for the death of a viable unborn child while allowing a recovery for injuries if the unborn child is born alive creates the same injustice as existed prior to the enactment of wrongful death statutes. In essence, with no wrongful death cause of action for a viable unborn child, a tortfeasor is given immunity from liability for a greater harm. Wade v. U.S., 745 F.Supp. 1573, 1579 (D.Hawai'i 1990); Mone, 368 Mass, at 361, 331 N.E.2d at 920.

Some courts also have recognized that their legislatures have taken measures to protect the interests of unborn children in other areas of the law. See, e.g., Volk, 103 Idaho at 573, 651 P.2d at 14 (“[pjosthumous children are treated as if living at the death of their parent for the purpose of inheriting future interests.... A guardian ad litem may be appointed for unborn persons.” (Citations omitted)); Britt, 150 Ind.App. at 496, 277 N.E.2d at 26 (“with respect to health regulations concerning deaths a stillbirth is treated exactly the same as any death of any human being”); Werling, 17 Ohio St.3d at 47, 476 N.E.2d at 1054 (“[tjhe rights of an unborn child are no strangers to our law.... The intestate rights of a posthumous child are recognized”). Compare W.Va.Code, 42-1-8 (1923) (“[pjosthumous children to take”); W.Va.Code, 41-4-1 (1972) (“[wjhere no child living when will made”); W.Va.Code, 16-5-20 (1969) (“[fjetal death registration”). Extending that recognition to inclusion of the unborn as “persons” in wrongful death statutes is consistent with these legislative determinations.

E.

Recognition of a Cause of Action for the Tortious Death of A Viable Unborn Child in West Virginia

In West Virginia, we recognized the right of the sur