79 So. 3d 597
Ala.2011Background
- Mack, mother of an unborn child Baby Mack, sues Carmack and Taul for wrongful death following a collision at an intersection in Birmingham while Mack was 12 weeks pregnant.
- Carmack allegedly left turn on red despite knowing it violated law and visibility of opposing traffic; Taul's vehicle hit Carmack's vehicle, injuring Mack and her fiancé Reginald Thomas.
- Mack miscarried Baby Mack on September 18, 2007, during hospitalization after the crash.
- Mack and Thomas filed suit for negligence and wantonness; Mack asserted a wrongful-death claim on behalf of Baby Mack.
- Trial court granted Carmack’s motion for summary judgment on the wrongful-death claim; the court denied the fetus wrongful-death claim, citing pre-viability limits.
- Alabama law later amended homicide statutes to include unborn children in utero at any stage of development; appellate reversal was pursued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Wrongful Death Act permits a claim for death of a previable fetus | Mack relies on Brody Act amendment and prior case law to permit recovery for previable fetal death. | Legislature amended homicide statute only; wrongful-death act remains limited by viability rules (Lollar/Gentry). | Yes; wrongful-death action may be brought for previable fetal death; Lollar and Gentry overruled. |
| Whether Alabama should harmonize criminal and civil wrongful-death statutes regarding unborn children | Legislative change to homicide statute expresses intent to protect unborns at any stage, aligning civil remedies. | No direct amendment to Wrongful Death Act; historical interpretation should stand. | Harm prevention and legislative intent require extending Wrongful Death Act to previable fetuses. |
| What is the proper standard of review for summary judgment in this context | Court should view evidence in the light most favorable to Mack and deny summary judgment on wrongful-death claim. | Record shows no viable wrongful-death claim under prior precedent; judgment proper. | Standard applied; appellate court reverses and remands for proceedings consistent with the opinion. |
Key Cases Cited
- Gentry v. Gilmore, 613 So.2d 1241 (Ala. 1993) (viability-based limitation on wrongful-death action for fetus pre-viability)
- Lollar v. Tankersley, 613 So.2d 1249 (Ala. 1993) (fetus death prior to viability not recoverable under Wrongful Death Act)
- Huskey v. Smith, 289 Ala. 52 (Ala. 1972) (recognizes wrongful-death action for prenatal injury where statute aims to prevent homicide)
- Wolfe v. Isbell, 291 Ala. 327 (Ala. 1973) (rejects strict viability-based distinction; may recover when fetus born alive after prenatal injury)
- Eich v. Town of Gulf Shores, 293 Ala. 95 (Ala. 1974) (rejects live birth prerequisite; protects prenatal-life damages under wrongful-death statute)