Amadio v. Levin

Petitioner, WILLIAMS, Jean Baker McCLAIN, M.D. Edward J. Pennsylvania.

Supreme Court Dec. 1985. GRANTED, No. of Appeal

Petition Allowance Docket 1985. Appeal W.D. A.2d 1085 Amadio, Regina

Joseph Administrators Ad Prose- AMADIO and Amadio, Deceased, InAnd quendum of the Estate of Jennifer Wife, and Parents and Right, as Husband Their Own Amadio, Deceased, Appellants, of Jennifer Natural Guardians Columbi, M.D., LEVIN, M.D., Harvey Martin Daniel J. M. Bare, M.D., Zeluck, Wesley Appellees. M.D. W. Pennsylvania. Supreme Court Argued Jan. 4, 1985.

Decided Dec. Follows, Schwartz, Jill M. Alan Philadelphia, for appel- lants. Stahl, Hook, B.

Stanley Cohen, P. Gregory Susan M. Philadelphia, appellees. NIX, C.J., LARSEN, FLAHERTY,

Before and McDER MOTT, HUTCHINSON, PAPADAKOS, ZAPPALA and JJ. THE

OPINION OF COURT PAPADAKOS, Justice. upon called to decide whether a again

Once this Court is Wrongful exists our Death Act1 right recovery under on a stillborn child who died and Survival Statute2 behalf en ventre sa mere. injuries as a received result complicated and can be summa- quickly The facts are not child of rized. Amadio was full-term unborn Jennifer due delivered Joseph Regina (Appellants), and Amadio to be 15, 1979, September 28, 1979. On October Jennifer Hospital, Philadelphia, Pennsyl- at Methodist stillborn born fully was a matured delivery, At Jennifer vania. pound eight ounce female. proportioned seven perfectly Amadio, in 22, 1981, Joseph Regina September On Prosequendum Ad right, as Administrators their own Jennifer, Trespass Complaint the estate of filed against Philadelphia County, Court of Common Pleas of M.D., Levin, obstetricians, Harvey M. Daniel Mrs. Amadio’s Zeluck, Bare, Columbi, M.D., and W. M.D., Wesley Martin J. that, claiming negli- as a result of their (Appellees) M.D. ex- expenses, medical burial there were incurred gence, life, and earnings, enjoyment a loss of loss penses, anguish. mental physical pain and Complaint by filed Preliminary to were Objections seeking trespass action Appellees arguing Appellants’ Amadio en ventre sa injuries done to Jennifer recovery Opinion prohibited By mere as a matter law. was 9, Act, 1976, 586, 142, 2, July Wrongful P.L. No. § 1. The Death Act 1978, 27, 8301(a), currently provides: § 42 Pa.C.S. effective June 8301 Death Action. § brought damages (a) may to be recover General Rule—An action by wrongful neglect act or or for the death an individual caused negligence of another if no action for unlawful violence or by during brought injured his lifetime. was individual 2, 9, 1976, 586, 142, Statute, July P.L. No. Act of 2. The Survival 1978, 8302, 27, currently provides: June 42 Pa.C.S. § effective Action. § 8302 Survival proceedings, personal, or shall survive All of action or real causes defendant, plaintiff or or the death of one more the death of joint plaintiffs or defendants. 202 26, 1982,

Order of February Joseph Honorable P. Craig Objections sustained Preliminary and dismissed Appel- wrongful lants’ death and survival action. A timely appeal Court, Superior Pa.Super. to 472 A.2d followed 10, 1984, its Per Curiam Order February Superior Court affirmed order of the trial court. We accepted allocatur our prior review decisions and evaluate their viability light of the current advance of medical knowl- edge light and in trend in majority our sister states in permitting wrongful survival and death on actions behalf of en sa injured stillborns ventre mere. Scott v. Kopp, Court,

Prior decisiоns of this v. Philadelphia Transporta- Marko (1981), A.2d tion Company, (1966), Pa. Carroll Skloff, (1964), Pa. A.2d 9 uniformly lie, held order that in for a survival action to there must be birth, being, life in independent surviving which could brought prior have to death. reasons Five were cited for usually limiting wrongful survival and death ac- tions to children born alive.

First, the Court surmised the real of such objective compensate parents lawsuit of the deceased child distress, for their emotional and that parents since already ability right had the in their action, own institute such an only it would duplication permit parents to file a second action behalf of the estate of child. Second, because death derivative, actions are and since the Court refused to that a acknowledge stillborn child the wrongful was an individual under death or surviv- statutes, it al was concluded that the Acts were intend- ed to for the provide recovery by estate of a stillborn child.

Third, extending causes of actions to estates the of still- problems was felt to increase born children of causation and damages.

Fourth, prior out of era cases arose when most filing did not jurisdictions permit such actions. Prior

203 Carroll 1964, only jurisdictions decision in seven our 3). (See of action. our Footnote the cause recognized children born Fifth, only reasoned that since alive it was Laws, Intestate descent our may property by take under already Legislature had limited assumed that the Court instances where of causes of actions to those the creation by the recognized of a child was the existence estate of intestacy. laws decisions re- urge prior us to abandon these

Appellants an action for at birth order to maintain quiring survival mere, adopt ventre sa and injuries caused en fatal dealing death requires only majority view ventre sa mere. child is viable en occur when the injuries holdings, change prior Upon thorough review our actions, these permitting of our sister states the attitude knowledge has arguments that medical Appellants’ and against position formulated our since we first advanced actions, that the time has we conclude maintenance those states and the twenty-eight us our sister join for arrived wrong- recognize that survival District Columbia lie children by ful actions estates stillborn death en ventre received viable children injuries they fatal while relied seen, formerly reasons sa mere3. As will be noted, denying right holdings to maintain already our 3. As former wrongful at time when most states death actions arose survival and among similarly our sister states has denied such claims. That trend injuries ago changed permitting incurred long in favor of actions during gestation. jurisdictions Today, join following twenty-nine other we children for lie of stillborn hold that actions estate they Eich death incurred while were en ventre sa mere. v. Town of Shores, 95, (1974); Ala. 293 300 So.2d 354 Hatala v. Mar Gulf kiewicz, 358, (1966); Conn.Supp. Worgan Greggo 26 224 A.2d 406 v. Ferrara, Inc., (Del.Super.1956); 128 A.2d Simmons v. 557 How Lassiter, (D.D.C.1971); University, F.Supp. ard Porter v. 323 529 91 712, (1955); Ga.App. Chrisafogeorgis Brandenberg, 87 S.E.2d 100 v. 487, Sears, 368, (1973); Ind.Aрp. Britt v. 150 Ill.2d 304 N.E.2d 88 55 143, Manion, (1972); Kan. 368 P.2d 1 Hale 189 277 N.E.2d v. Couch, (Ky.1955); (1962); Odham v. v. S.W.2d Mitchell Lines, (1964); Greyhound Sherman, Mone v. 234 Md. Morse, (1975); Inc., O’Neill 385 Mich. 331 N.E.2d 916 368 Mass. Corniea, (1971); 229 Minn. Verkennes v. 188 N.W.2d (1949); Horn, Rainey 221 Miss. So.2d 434 N.W.2d 838 204 deny maintenance of such longer actions no are per-

suasive. Kneale, Sinkler v. have,

We since our decision 401 Pa. 267, (1960), recognized 164 A.2d 93 that a child en ventre sa separate mere is a individual from the concep- moment of tion, permitted and have that child to injuries sue for during received when gestation the child is born alive. Sinkler Implicit holding in our acknowledgement en child ventre sa mere is an with right individual prenatal to be free If injury. a child en ventre sa mere is then, a fortiori, an individual at the time of its injury, child is an individual also when those injuries cause its death, and it no makes difference liability under wrongful death and survival statutes whether the child dies the injuries just prior just to or after birth. short, birth” or “still “live birth” of a child will no longer be determinative of that child’s status as an individu- under wrongful al our survival death To statutes. with Sinkler consistent body knowledge medical it, underpinning acknowledge we a child en ventre sa mere “individual,” to be an “having existence a separate as conception.” Sinkler, creature from the moment of 273, Henceforth, at 164 A.2d injuries at received child en while ventre sa mere can form the basis survival or death actions as maintained on behalf of a child born alive. Live birth can no longer limiting be a prerequisite the maintenance of such an action. This is 527, (1954); Yup, (1969); Poliquin White v. v. 85 Nev. P.2d 458 617 MacDonald, Ashmore, 104, (1957); v. 101 N.H. Stidam 135 A.2d 249 Olson, 431, (1959); App. Evans 109 Ohio N.E.2d 106 v. 167 P.2d 550 Clinic, (Okl.1976); 258, Libbee v. Permanente 268 Or. 518 P.2d 636 (1974); 177, Presley Newport Hospital, v. (1976); 117 R.I. A.2d Woodward, 608, Fowler v. (1964); Moen v. 244 S.C. 138 S.E.2d 42 Hanson, Butcher, (1975); Baldwin v. 85 Wash.2d 537 P.2d 266 (1971); W.Va. 184 S.E.2d 428 Kwaterski Statе Farm Mutual Company, Auto Insurance (1967); 34 Wis.2d 148 N.W.2d 107 Indemnity Corporation, Wascom v. American (La.App. 383 So.2d 1037 1980); Hospital, v. St. Vincent Salazar 95 N.M. 619 P.2d 826 Inc., Vermont, (1980); Hospital Vaillancourt v. Medical Center Brown, (1980); O’Grady Vt. 654 S.W.2d 904 McBane, (Missouri 1983); Hopkins v. (N.D.1984). 359 N.W.2d 862 in Mr. dissent Scott v. with Justice Larsen’s consistent at drawing a line the Id., argues against where he Kopp, period child, arbitrary or other viability, of a its some birth the action should and ‍​​‌​‌‌‌​​​‌‌‌‌‌‌‌​‌​​‌​‌​‌​‌‌‌‌‌‌‌‌‌‌‌​‌​‌​‌​​‌‌‍that gestation, instead concludes of of production and the evidence orderly to trial let proceed causation, injury prove disprove the adversaries damages in each case. past, wrongful in the our death and

As we have observed action, a cause of but statutes create derivative survival are in and as purpose, those statutes remedial nature accomplish construed to the liberally objec- such should be act, against provide of which is to a cause of action tive the the whose tortious conduct caused death another. one right bring action to those children By limiting an alive, reading a giving we were statute narrow born much rule of the com- thereby perpetuating the criticized it “more for the defendant profitable mon law which made Prosser, kill him.” plaintiff than to scratch Law of Ed.1971); Brown, Torts, (4th O’Grady S.W.2d 1983). (Missouri, require- abandoning arbitrary the former “live birth” By ment, the wrongful a death we feel liberal construction longer accomplished. No will and survival statutes will be legal sanction a doctrine that enables a tortfeasor who we rendering one escape liability, death to while causes full consequences in its an- wrongdoing is less sevеre whose negligence in a death or other swerable Hopkins his victim survives birth. merely because 1984). McBane, (N.D., 359 N.W.2d such create difficulties prior Our concern that actions examination, also give closer must establishing proof, upon wrong should obtaining way. Difficulty proof action, once it is determined right bring never bar does, indeed, exist. caution of action Our that cause suit of the estates of extending right on behalf have had to do with our may partly stillborn children litigation problems type unfamiliarity with in proving damages any but such difficulties spawn, would greater cannot be deemed or different in character from attending difficulties the determination of case of an injured child who survived delivery few minutes, hours or These days. actions have part been time, our law for some and we are confident experience gained from handling such matters has matured point our bench to the when we can now extend applica- tion these cases to cases where child is born dead due causing death en sa injury while ventre mere. This Court’s former the real objective view of these compensate lawsuits was to parents their deceased children parents’ twice emotional distress is not only incorrect, if accepted, merely perpetuates but the notion a inseparable that child is from its mother en while ventre lumped sa mere. That view medical and funeral costs incurred due to the to injury the child as elements of damages the by recoverable mother. Once the child is recognized individual, a separate however, as medical and funeral costs incurred as well as any economic losses are estate, recoverable child’s by not mother. dissent, In his as in the majority opinion he authored in Kopp, Scott (1981), Pa. A.2d 487 Mr. Justice Flaherty argument makes the illusory parents same that be given opportunity receiving will a double recovery. Clearly, not today this is the result our decision and the explain dissent does imaginary what double recov- is. ery parents The fact that will normally be the primary damages beneficiaries of recovered for the wrongful death way of their child does in no hold them out as avaricious or seeking a recovery. double recognize we wrongful

Since child’s death is a mother’s, from that of the separate injury the child’s compensable damages death and the child’s proper estate is the to seek party recovery for the decedent and expenses child’s funeral medical and pecuniary losses Wrongful under Death Statute and for the loss of earning power less the costs of maintenance and for the pain suffering decedent’s and under the Survival Statute. child’s suffering by and caused their parents’ pain The pain unless the has never been recoverable negligent death accompanied physical or a result of suffering by 490, 431 494 Pa. at parent. Kopp, to See Scott v. injury 290, 35 A.2d Philadelphia, at Vincent v. A.2d Co., 231 Mining (1944); D’Jorko v. Coal Berwind-White pain speaking, parent’s A. Strictly Pa. as only of its child is recoverable suffering the loss an injury because of damages an element of the suffered parent’s injury person parent. to the sustained independent child’s nothing to do with the deceased has not a suffering and as such is pain injuries possible the deceased child’s element recoverable estate. recovery it that the makes clear

Today’s holding merely is no different than afforded estate of a stillborn dies of a child that within recovery afforded estate its release from its mother’s womb. view seconds of our sister states let throughout the current attitude losses, it their prove the stillborn’s estate representatives of such claims could deny illogical would be continue established, them for the child permit we when survives an instant. birth bring denying right reason for

Our final statutes of the intestate which interpretation involved an not since a stillborn could provide were construed to distribution, for scheme by take no distribution wrongful existed. under survival or death action awarded logic merely this confused Skloff, Carroll v. Id. While procedure action right to maintain an with substantive assets, its effect was to use rules distribute estate limit how estate qualify descent and distribution for accumulated individuals. may assets be no intestacy provided by Legislature The scheme or of an estate. quality quantity way regulates limits whereby may It a scheme distributions merely provides regulate for It does not who made one who dies intestate. in it estate, only share leave a distributable who may may and, find accordingly, concluding we no difficulty since en individual, a child ventre sa mere is an a stillborn’s estate which for injuries recovers under the wrongful death or survival statutes would distribute these by assets (20 rules of intestate succession seq.). Pa.C.S. et § In summary, today prior we our holdings in Scott reverse Kopp, (1981); 494 Pa. 431 A.2d 959 Marko v. Philadelphia Transportation Company, Pa. (1966); A.2d Skloff, Carroll v.

(1964), and extend estate a child born dead the right to institute a survival death action for death-dealing injuries suffered while en ventre mere. sa doWe not decide the criminal if liability, any, attendant upon causing the mere, death a child en ventre sa such case us today. before We Superior reverse Court’s Order affirming the trial sustaining Appellees’ court’s Objections, and Preliminary remand case this to the trial court for proceedings. further

McDERMOTT,J., ZAPPALA, J., joined Majority Opinion.

ZAPPALA, J., filed a concurring in which opinion McDERMOTT,J., joined.

NIX, C.J., dissenting filed a opinion which HUTCHIN- SON, J., joined.

FLAHERTY, J., a dissenting opinion. filed HUTCHINSON, J., filed" a dissenting opinion in which NIX, C.J., joined.

ZAPPALA, Justice, concurring. question case is whether there exists a cause negligence behalf a stillborn child which prosecution survives for parents/administrators un- Act, der the Survival Pa.C.S. and whether § parents of.a stillborn child can have a cause action under Act, Wrongful Death 42 Pa.C.S. 8301. The battle lines on this issue been fairly prior have in clearly drawn side amassed on each reasoning and the arsenals cases I am part unchanged. most remained have join majоrity the result therefore with and agreement of the how- question, of the opinion. importance Because ever, previous decisions I am not satisfied overrule (1981) 487, 431 A.2d 959 Court, v. 494 Pa. Kopp, Scott vintage, complete without a recent being especially is, The difference competing considerations. analysis I that our emphasis, one of but am convinced perhaps, only our deci- explain the reasons underlying responsibility holdings other by simple is not met reference to sions Were the dissenting opinions. filed previously courts or to among attitude” reflecting “change substantial trend these ac- recognize states sufficient reason to our sister differently; tions, have been decided Kopp Scott v. would indicated, Larsen there dissenting opinion Justice as the case allowing such actions when that jurisdictions were Missouri, intervening years, In the four decided. was Idaho, Ohio, have Dakota, Iowa, Arizona been and North list, that the trend hardly but it can be said added to the than we decided Scott. overwhelmingly different when now for the opinion any justification the lead offer Neither does was ad- reasoning which same present acceptance did not command Larsen in by Justice Scott but vanced if significance, any, it Nor does address majority. Wrongful Pennsylvania’s differences between language or the jurisdictions, the statutes other Death Act and Acts. Wrongful Death and Survival distinction between among fundamen- are stability, which Consistency thorough а more require our jurisprudence, interests of tal rigorous change if is to withstand substantial explanation my reasons separately write detail I therefore scrutiny. v. Philadel- overruling Marko Kopp; Scott joining (1966); Co., 124, phia Transportation A.2d Pa. Skloff, Carroll Amadio Regina record, Appellant to the According- Jennifer, on October girl, term baby of a full delivered was five twenty fifteen 15, 1979. The birth between days term beyond and the child was stillborn. She and her Joseph husband Amadio filed a medical malpractice action against the Appellees, the attending physicians. The es- sence of the complaint was the doctors had been negligent in their treatment and that the negligence was the cause of the child’s in dying the womb. The action was brought counts, in four by Regina and Joseph each in his right, own and parents/administrators as on behalf of Jen- nifer under the Wrongful Death and Survival Acts. The granted trial court the Appellees’ demurrers to the counts asserting the wrongful death and survival claims. The Superior Court affirmed on the Scott v. Kopp. authority Kopp, Scott v.

In plaintiff-wife was eight months pregnant at the time of an automobile allegedly accident caused by the defendant. As a result of the collision the child died in the womb and was stillborn days two later. by Marko v. This held Court the case governed was Philadelphia Transportation Co. and Carroll v. Skloff, and permit refused to wrongful survival or death actions in the case of a stillborn infant. Opinion of the Court “emphasizеd a points” made Mar- of the significant few Carroll, ko and otherwise deferring to the “clarity and brevity” of those opinions. 494 Pa. at 431 A.2d at 960.

The first of these points was that objective “the real the lawsuit was to compensate the parents the deceased Id. The second point was that a for emotional distress.” strictly survival action is derivative and that in order for independent such an action to lie “there must have been an birth, in being, surviving which could have brought life Id., death.” prior 494 Pa. at 431 A.2d at 961 original). The final point emphasized in Scott (emphasis was that a death action is also derivative basically provide and not intended to recovery by estate of a child. Although stillborn the live requirement birth was acknowledged to be somewhat arbitrary, Court found it advantage have the of establishing legal to a certainty living existence of a person qualified bring the action. Marko, plaintiff, passenger on the defendant’s trolley, pregnant six months when because negligence electricity passed of the defendant a current of through body, resulting the death of the infant her causing distinguished Court her to be stillborn. The cases allowing alive, to a child born recovery prenatal injuries proof noting problems different causation dam- observing clearly permit that such cases child ages, loss compensated for the it will suffer whereas the brought compensate to the of case was surviv- present type parents. ing by plaintiff-father against action a a involved аn

Carroll opera- alleging that in the course of physician defendant had negligently the infant been plaintiff’s on the wife tion on the derivative nature of destroyed Relying in útero. actions, the determined wrongful and survival Court death life in independent being did not as an qualify that fetus prior to death. It the action could have instituted which provision Death Act’s Wrongful also that the observed applica- according to the rules recovery of a for distribution the not to apply intent that Act indicated an intestacy ble follow children said to because infants. This was stillborn law, not, Pennsylvania take under sa mere could en ventre subsequently unless born devise or descent property others from which could not have an estate and thus alive denying for the additional reasons might take. Noted as and proof of of causation problems action were the cause in the case speculative unreasonably damages, considered damages, and children, punitive character stillborn the in their own parents to the recovery availability independent actions. opinion reit- dissenting Flaherty present in his

Justice opinion Scott. On reasoning majority of the erates distress is for emotional compensation that assumption present, as the and of lawsuits such “real objective” for these separate own actions their parents have for same recovery injury damages, it is concluded permitted be the guise should not of a derivаtive action on child. I find several analysis. behalf flaws in this I Initially, have serious reservations as to the propriety any making assumption plaintiffs’ about motives for proceeding Regardless, however, with an action. the as- made sumption contrary to the alleged facts is, therefore, pleadings passing unwarranted. on a demurrer, a court is to accept well-pleaded bound as true all facts any plaintiff. draw inferences favor assumption

This also fails answer the question present- parents ed. Whether have do not a common have law action their arising for own emotional distress out of negli- gence causes a fetus no bearing which stillborn has on whether the death wrongful also exists, separate or whether a cause of action should be allowed on behalf of the deceased child. One need only cases involving examine the death child of a already recognize born to death survival brought by parents/administrators actions did pre- clude, precluded by, and were not their separate own ac- negligent tions for See, infliction emotional distress. Burd, (1979) e.g., (Opinion Sinn A.2d 672 announcing Court).1 the the judgment of right parents

Neither is the of the for emotion- recover in al distress cases such this as is suggested. as clear as the Nothing in record indicates that a case intentional infliction emotional of distress could be made out. More important, development the of the of negligent law inflic- been, best, tion of emotional distress has at uneven since its first in recоgnition Niederman v. 436 Pa. Brodsky, surprising It is not that Chief Justice Nix understand the "[does] applicability of Sinn in this Dissenting Opinion context.” n. 2. at proceeds premises analysis His from the the child does "[w]here birth, transpired not survive all of the critical events while the child body,” part “[a]ny was a the mother’s and to the child trauma en body carrying the ventre sa mere child, a trauma to mother by can which be claimed in action in her own mother is, course, right." Dissenting Opinion precisely It at 1102. these which, premises disagree explained with which I as in this Concurring Opinion, supported. I believe are not well (1970). exclusively It been confined to has almost A.2d alleges as a result plaintiff psychic injury in which cases negligent a traumatic act. See Sinn actually witnessing Burd, at n. 404 A.2d at 682-83 n. 15. 166-67 the “zone of ignored not to as difficulties are And not) (or demonstrating danger” concept necessity regard this injury. as as mental well physical negligent by omission defend- charging case present from and Scott significantly differs Marko ant doctors endangering accidents both involved vehicle which Indeed, implicitly ac- Flaherty child. Justice mother and significance these difficulties Scott. knowledged reassuring n. A.2d n. 2. The 494 Pa. at 490 at 961 given present notwithstanding, the contrary dictum to I hard either of of the law find it to conceive how state father, parents, bring could himself especially these allowing recovery for expansive even the most rule within See, negligent e.g., infliction of emotional distress. Tebbutt 1010, 483 Virostek, N.E.2d 65 N.Y.2d N.Y.S.2d that these Finally, analysis this fails that it concludes аddressing adequately duplicative actions are without of the actions. For damages elements of in each different in an recoverable example, expenses, a claim for funeral death, not be avail- wrongful apparently would action contemplated by any parents as part able and loss of would loss of income Flaherty.2 Neither Justice as elements of earning be considered capacity properly they action as would damages parent’s personal injury in a prof- death survival actions. While such as recovery circumstances possibility erred some conscience, logically stand might assuage it cannot would be damages of other which recovery as a bar to full "recoverable”, Scott, only but because of the were 2. these negligence causing the stillbirth was an chance occurrence that accident, by Insurance Act of covered the No-Fault Motor Vehicle auto 176, 301, 1009.301, 19, 1974, 489, repealed by P.S. July § No. P.L. 1, 12, 1984, 8(a), February October P.L. No. effective § Act of n. Pa. at n. 431 A.2d at 962 1984. See 494 if only present available actions were allowed. As a general statement of policy, potential for duplication of some damages is insufficient reason to bar distinct causes of action designed to vindicate different interests. In this particular case, I think it an unconscionable distortion of the presented matter for our consideration to intimate that permitting these actions to proceed would result in a wind- fall double-recovery plaintiffs. to the

The second major objection permitting wrongful death and survival actions on behalf of a stillborn child is the “derivative” nature of such actions. According to this .

reasoning, neither Act provide “was intended to a recovery in cases person where the on whose behalf the suits were brought alive,” was never purposes of monetary ‍​​‌​‌‌‌​​​‌‌‌‌‌‌‌​‌​​‌​‌​‌​‌‌‌‌‌‌‌‌‌‌‌​‌​‌​‌​​‌‌‍“[f]or recovery, stillborn child was never Dissenting alive.” J. at 2. See also Scott v. Kopp, Opinion of Flaherty, Carroll v. Pa. at Skloff, 961; 431 A.2d at 415 Pa. at 202 A.2d at 10-11. reasoning This succumbs to the fallacy of petitio principii, commonly identified as circular reason- ing or begging question. Thus a fetus is not considered legal have certain rights because it has not been born. could not be No reason in logic is given why rights these they are not. birth, ascribed a child only before question When the presented is whether legal or not rights ascribed, should be that question cannot be answered sim- ply by stating that the law does not do so.

The Wrongful Death Act provides that action may brought, procedures under prescribed [a]n by general rules, to recover for the death of an individual caused the wrongful neglect act or or un- lawful negligence violence or if another no action for damages was brought by the injured during individual his lifetime. 8301(a). Pa.C.S. Such an action only exists for the § children,

benefit of the spouse, or parents of the deceased individual, among any whom recovery is distributed aсcord- ing to the distribution, rules of intestate 8301(b), although in the spouse, children, absence of a parents the personal bring of the deceased is authorized representative medical, nursing, funeral for hospital, action “reasonable of necessitated expenses administration expenses 8301(d). causing of death.” injuries reason § provides simply Act The Survival personal, or of or real proceedings, causes “[a]ll plaintiff of or of the defend- the death the shall survive or plaintiffs ant, joint of one or more the death defendants.”

42 Pa.C.S. related, separate- these statutes must be

Though integrally present case. purposes ly considered new cause action. Act does not create a The Survival rule an action Rather, abrogates it law the common then, fetus, In case of a on death of a the party. abates on a cause of action is whether there existed question Act, which, to the pursuant fetus plaintiff behalf of the as death. the plaintiffs would survive (1960), Kneale, 401 Pa. 164 A.2d Sinkler driving negligent alleged that the defendant’s complaint occupied who plaintiffs, a caused collision which plaintiffs struck, Among injured. car that was were gesta- month one approximately an infant who was was of action Her cause at the time of the accident. tion (then syndrome affected with Down’s asserted that she was as result suffered a injuries termed mongolism) because claimed negligence. defendant’s She humiliation, $100,000 expenses, medical pain, suffering, reversed earning capacity. and lost We earnings, lost action, repudiating a to this cause of grant of demurrer 138 Mass. Northampton, case of “lead” Dietrich on the view (1884) and other cases which were based the mother and unable part the unborn child is cause of action. separate maintain a child plaintiff was that the facts One Sinkler fact controlling Whether had survived birth. of action existed was that a cause our determination explicit Opinion application made of the Court. Strict stare decisis would of the doctrine of make this case binding precedent only for other cases in which the child alive, plaintiff holding shedding light was born no whether or not a similar result should obtain in the case of Sink- following a child Nevertheless there arose stillborn. ler a statement of the holding in that case that a cause of only if child prenatal injuries action for existed was subsequently born alive. Carroll v. 415 Pa. at Skloff Philadelphia Transportation Marko v. 11; at A.2d Co., 420 Pa. at 216 A.2d at 503. Sinkler was the

The reasoning separate focus of the child, identities of the mother and and the concomitant possibility separate injuries damages. and distinct (a) The to injury cause action was found arise out of (b) damages. to the child and the resultant It not was essential, relevant, recog- to the reasoning even which nized plaintiff a cause action that the child had been born alive, although may important particu- it have been to that plaintiff lar child’s case at least some of the dam- because humiliation, ages (e.g., expenses) claimed medical be- only birth, before, apparent came after not related to were the condition of her life after birth.

It appear “requirement” would the live identi- birth Sinkler was based following fied on the of live presence in those cases of action birth where a cause succeeded practical on the generally accepted difficulty proving prior damages the existence of and causation. birth both Carroll v. action, In it stated that a survival Skloff claim being grounded a which the deceased could have lifetime, during necessarily requires his an inde- maintained pendent being life in could instituted the action which have death, prior “quite obviously” the case where the stillborn, child is 415 Pa. at 202 A.2d at 11. The conclusion, however, not from “obviousness” this derives Sink- logical reasoning begging question. but from ler we acknowledged developing the child itself a existence as regarded having mother’s “is as womb separate creature conception.” from the moment of added). 164 A.2d at from (Emphasis Apart Pa. at dispute, meaning this can other than present have no that, unborn, “independent born or the child is an whether question “independent then is life” life”. whether have This prior inquiry could instituted an to death. physical capacity comprehend cannot be directed to the the filing complaint, and direct of a for it cannot be doubted persons there are numerous actions mаintained by acting representative capacity plaintiffs suffering (e.g. or that these legal infancy, incompetence), disabilities plaintiff. actions would survive the death of the disabled can this inquiry Neither be related to whether cause damages action and all claimed thereunder “accrued” be- fore the victim died. This notion is availability belied damages an estate action of for loss bringing survival earning power. they depend Because victim’s died, having these would not have been available prior I Accordingly, to the victim to his death. am unable in necessity independent to ascertain of “an life how being brought prior which could have the action to death” representa- the maintenance of an action precludes by child, tive of a stillborn unless it be assumed that live birth prerequisite is a to the existence of a cause of action. Yet question of whether a cause of action can accrue surely by assuming to an unborn child cannot be answered that cause of action cannot accrue to an unborn child. Because Carroll which Sinkler was in “logic” distinguished flawed, supportable unless that fundamentally is otherwise distinction should be abandoned. Transportation Co. Philadelphia

Marko attempted Sinkler, how it differed from the case where a explain and birth, prob- in in child died terms of the difference before if loss. Even proof pecuniary lems of of causation and when Marko decided, it can- these differences existed exist. The courts seriously argued they not still be and in some recognized the value long have elsewhere testimony, particular- respects indispensability expert medical malpractice litigation in where “reasonable ly Proof of degree certainty” medical standard controls. should to the same standard where the subject causation be is the defendant’s conduct caused a child question whether manner, pecuniary In like loss to proof to be stillborn. dies in útero readily subject child the deceased who in applied methods and standards other cases. the same Ritter, Fries v. 470, 112 A.2d 189 generally See 381 Pa. to estate of (1955) earning power award for lost (approving thereto); despite proof regard total absence of with child White, (1982) (ap- McClinton maintenance). earnings use of statistics for proving difficulties as to Indeed, it must be conceded that the same present causation and would attend the proving only the child case and one which survived birth instant, allowing there is no concern the cause yet about in the latter case. Scott line drawn response any offered will criticism, and that arbitrary subject in some sense establishing advantage the line at birth “has the drawing living person there was a legal certainty to a existence,” 431 A.2d at carries little 494 Pa. at redundance, I avoiding weight. Mindful of the virtue of long ago, hope has been said elsewhere repeat what impact сlear the full of these repeating that the will make largely accepted have been but nevertheless concepts which as 1960 early noted this Court as ignored. previously As merely part that a child in the womb is recognized Sinkler individual, is in fact a distinct body its mother’s but dissenting at from the v. Kneale. We quoted length there Brogan Jersey Supreme of the New of Chief Justice opinion Kline, 489, 684 26 A.2d Court Stemmer N.J.L. that Stemmer 1942), had overruled (E. noting A. been & Galbraith, 31 N.J. v. Brennan & the interim Smith (1960), Brogan prevailing. view dependence by there is a close it is a fact that While mother, it is not of the organism child on the unborn and the child are two that the mother disputed today entities; and the unborn has separate distinct that child system separate its of circulation of the blood and own mother; that no apart from the there is communication systems; circulation that the heart between two beat child not tune with of the is of the is that mother but there no rapid; dependence by more is the child on except might mother for sustenance. It be remarked depends that even after the child for sus- here birth upon upon mother or third party. tenance It is mother, fact that an unborn child is of the but part mother, rather in the unborn state it lived with developed might say, conception and from its own we distinct, separate personality. Pa. at 164 A.2d at 96. The essence this view of in the independent beings

mother and child as was distilled questioning Michigan Supreme Court: rhetorical die and the or the fetus die If the mother can fetus live live, one only how can it said there mother be other, If can one and not the life? tortious conduct injure owing duty can it there is not a to each? how be said Morse, 385 Mich. 188 N.W.2d O’Neill approach partakes it thought And lest be realities, from it should detached intellectual machinations prac- on obstetrical leading noted that the medical text speaks in terms. tice identical the fetus can be we entered an era which

Happily, have pa- as our second rightfully considered and treated tient____ emerged now therapy have diagnosis Fetal More- possess. the obstetrician must legitimate as tools over, employ can of tools obstetrician number each year____ increases address the needs of fetus years ago a few would dreamed—even Who have —that Or, that fetus as physician? could serve the we could be monitored well-being of the fetus growth health could be the status of fetal accurately and that addressed? MacDonald, Obstetrics, (J. & P. p. vii Pritchard

Williams Ed.1980). 16th II,

Since World War in the especially last two dec- ades, knowledge of fetal development, function envi- ronment has increased As remarkably. important an consequence, has acquired fetus the status of a patient given who should be the same care by physi- cian that long given pregnant we have woman. sham, therefore, Id. at 169. Unless Sinkler was a Court already acknowledged has the existence of a distinct in life the child developing itself the mother’s womb. is, therefore, There “legal no certainty” gained by be impоsing requirement upon recognition of birth that life.3

“The drawing alternative to line is arbitrary anywhere course, recognize while, the cause of action generally maintaining the not-insubstantial causa- proving burden tion in each case.” Scott v. 494 Pa. at 431 A.2d Kopp, Larsen, J.). at 964 An (Dissenting Opinion illusory “certainty” only whose benefit is a reduced caseload for the cannot judicial system permitted deny injured parties opportunity prove damages. and recover their requirement live aid the “might judiciary hardly birth but Co., justice.” Todd v. 341 F.2d Sandidge Construction (4th Cir.1964). progression Even with the of medical and technical knowledge, likely alleging prenatal it is that most cases injury following will be asserted live birth of the child the damages readily provable. order that asserted be more circumstance, however, This should not obscure the funda- mental notion that cause of action accrues to the individ- ual on the occurrence of In the injury causing damages. case the and deter- present damages alleged apparent were damages to the child’s are prior minable birth. Where another, incurred of the conduct of recov- because Supreme I further note the observation of the Court of Arizona that longer necessarily the moment of birth is no determined nature. doctor, given drugs "The advances of science have armed with just scalpel, power to determine when ‘birth’ will occur.” Sum- Court, (Ariz. Superior 144 Ariz. P.2d merfield 1985). because of precluded should not be for those ery occurrence, occurrence, arbitrary of an failure over that This is true where control especially later event. alleged large measure the hands event in instance the law I am aware of no other wrongdoer. is made of a cause of action very existence where upon analy- Based this subsequent. subject to a condition prenatal injuries of action for sis, I conclude that the cause upon to the child in v. Kneale accrues identified Sinkler later live regard to the injuries of the without occurrence Act, and, sur- to the Survival pursuant the child birth of death occurs before the child whether the the death of vives or after birth. begin must wrongful death action of the

Consideration common law no statement that at repeated the often with wrongful death. In- existed to recover right of action (1971); 206 Penn- 282 A.2d Ewing, v. collingo (1858). It has been Zebe, 33 Pa. 318 v. sylvania Railroad rule, stated explicitly that this first convincingly established 493, 170 Bolton, Reports 1 Campbell’s in as such Baker v. common (1808), developed early out of the 1033 Eng.Rep. Moragne States merger doctrine”. See “felony law 1772, 26 L.Ed.2d Lines, Inc., 375, 90 398 U.S. S.Ct. Marine consti- conduct (1970). According precept, to this where violation, civil a criminal wrong and private tuted both a theoretically precluded for the tort was both recovery felony. sovereign’s prosecution practically by Eng. Butcher, Reports Yelverton’s Higgins See as less “The tort was treated (Q.B.D.1606). Rep. Crown, and was against the оffense important than Moragne, into, by, felony.” merged pre-empted punishment “the Additionally at 1778. at 90 S.Ct. U.S. forfeiture of the felon and the the death felony for the was had Crown; thus, the crime after to the property of his proper- felon or his remained of the nothing punished, been Both intentional a civil action.” Id. to base ty on which at com- felonies being considered homicides negligent law, maintaining no a possibility mon there was civil in conduct which resulted death. action Moragne general proposition as a in It was stated rule in justification historical marshaled for [t]he existed in this In limited instanc- England country. never adopt vestige felony-merger American did es law doctrine, that a until delayed effect civil was However, country after the criminal trial. not include forfeiture of felony punishment property; did therefore, in- nothing, there even those limited stances, suit. subsequent civil bar Id. Although appellate at no early at 90 S.Ct. point, appear cases found on this would have been statement of the law this Commonwealth accurate see Piscatau revolution, immediately following decades qua Turnley, Bank v. (Phila.Dist.Ct.1836). 1 Miles 1860, Act of Act of 71 of the Criminal Procedure Section 31, 1860, 427, this abandon statutorily March P.L. affirmed See doctrine. 1 Pa.C.S. 1929. felony-merger ment of the § also, See 1790, 9, (“[n]o Art. 19 attainder Pa. Const. of § offender, except during the life of the shall work ... presently, Commonwealth.”), Pa. of estate to the forfeiture Furthermore, part only Art. Const. “[t]he § in England of thе statutes of as were common law and such 14, 1776 Pennsylvania May in force the Province adapted to the circumstances properly which were this Commonwealth inhabitants of shall be deemed from and after in in this Commonwealth have force been 1503(a). (Emphasis 1 add 10, 1777.” Pa.C.S. February § also, Act of Jan. 1, 2. See 1 L. ed). Sm. §§ v. Bolton Because Baker not decided until con- properly never have been in that case can holding binding on the England a of the common law part sidered Additionally, because of this courts Commonwealth. of the part decision was never a underlying rationale in the Pennsylvania, the circumstances” of “adapted law rule that the com- supporting the of other reasons absence for intentional right no of action to recover permits mon law death, persuasive causes a case conduct which negligent longer recognized. no be that the rule should is made rule by elementa- the result dictated striking departure from existing law in of remedies. Where the law

ry principles compen- are violations of which imposes primary duty, notions of nothing ordinary they injury, if cause sable should be nonactionable suggests that a violation justice death____ enough to cause it was serious simply because exists, the decision primary duty already Because the causing for violations death is recovery to allow whether It is true that the harms to a remedial matter. entirely in the cases: the case assauged are nоt identical two harmed is made person physically mere injury, death, harm, those his the case whole for while to re- and children—seek usually spouse closest to him— they depended. total loss of one on whom cover for their 381-82, This differ 90 S.Ct. at 1778. 398 U.S. at Moragne, recognize support a total refusal fairly ence alone cannot causing negligent injury in the case of a an actionable tort ordinary from Indeed, departure rule is such a death. to harsh long subject it has been justice notions Gillett, Reports 8 See, Law Osborn e.g., criticism. Bramwell, dissenting); W. (1873) (Lord Exchequer (4th at 901-02 of Torts Prosser, of the Law Handbook the unani ed.1971). the reason behind no doubt was Such rule, Eng beginning legislative disapproval mous Vict., Act, 9 C. Campbell’s & land with Lord holding cases Pennsylvania that the appears Since it recover for a no action to recognize law would the common which, reasoning of doubtful wrongful death were based decided, unquestiona- is cases were when those soundness I would be necessary it presently, no were value bly justice cases and hold those to overrule prepared In parallel such an action. permit the courts requires possibili- set forth wherein previously analysis with child en ventre sa mere to the separate injury ty to the regard redressable without legally to be determined 224

later condition of the birth, child’s I live would accordingly hold that such an injury causing death would be actionable in like any manner as other wrongful injury causing death. follow, For the howеver, reasons which I do not it believe necessary to unsettle the dust which over the years has accumulated legal on this anomaly and seemingly petrified it as a fixture our my law. In judgment the cause of pursued action here is by authorized the Wrongful Death Act.

In determining application of the Wrongful Death Act, the starting point must be the language of the statute.4 many jurisdictions recognized which have child, death action in the case of language a stillborn of the statute providing key for the action recognition, contained the espe to this cially where an prenatal injuries child born alive for recognized. already patterned Campbell’s These statutes after Lord Act, provide act, damages for an neglect action for where the would, ensued, default is such as death had not have entitled the if party injured to maintain respect an action to recover Court, thereof. Superior (Ariz.1985) v. 698 P.2d 712 Summerfield 12-611]; Chrisafogeorgis [Ariz.Rev.Stat.Ann. Brandenburg, § v. 55 368, (1973) 70, ]; ‍​​‌​‌‌‌​​​‌‌‌‌‌‌‌​‌​​‌​‌​‌​‌‌‌‌‌‌‌‌‌‌‌​‌​‌​‌​​‌‌‍Ill.2d 304 par. (1971) N.E.2d 88 ch. 1 [Ill.Rev.Stat. Hamilton, 143, (1962) Hale v. 189 Kan. 368 P.2d 1 [Kan.Stat.Ann. (1959 ]; Supp.) Sherman, § 60-3203 State ex rel. Odham v. 234 Md. 179, (1964) 67, (1957) ]; 198 A.2d 71 [Md.Ann.Code art. 1§ O’Neill v. Morse, 130, (1971) [Mich.Comp.Laws 385 Mich. 188 N.W.2d 785 Ann. 600.2922(1) ]; Corniea, 365, § Verkennes v. 229 Minn. 38 N.W.2d 838 (1949) 573.02]; Horn, 269, Rainey [Minn.Stat.Ann. § v. 221 Miss. 72 (1954) (1942) ]; Brown, So.2d 434 O’Grady Ann. 1453 [Miss.Code § v. (Mo. 1983) (Vernon 654 S.W.2d 904 [Mo.Ann.Stat. § 537.080 1982 ]; 527, Supp.) (1969) Yup, White v. 85 Nev. P.2d 617 [Nev.Rev.Stat. 41.080]; 150, Hospital, § v. St. Vincent 95 N.M. P.2d Salazar (1980) (1978) ]; McBane, Hopkins 41-2-1 [N.M.Stat.Ann. § v. (N.D.1984) 32-22-1]; N.W.2d Werling Sandy, [N.D.Cent.Code § v. 45, (1985) 2125.01]; 17 Ohio St.3d 476 N.E.2d 1053 Rev.Code [Ohio Olson, (Okla.1976) [Okla.Stat., 12, Evans v. 550 P.2d 924 tit. § 1053 (1971) ]; Clinic, Libbee v. Permanente 268 Ore. 518 P.2d 636 (1974) (1973) ]; Presley Newport Hospital, [Or.Rev.Stat. § 30.020 (1976) (1969) ]; R.I. 10-7-1 [R.I.Gen.Laws § Fowler Woodward, (1964) 244 S.C. 138 S.E.2d 42 Ann. [S.C.Code (1962) ]; Butcher, § 10-1951 Baldwin v. 155 W.Va. 184 S.E.2d 428 (1971) ]; (1931) 55-7-5 [W.Va.Code § Kwaterski v. State Farm Mutual Co., (1967) Auto Ins. 34 Wis.2d 148 N.W.2d 107 [Wis.Stat.Ann. Following anаlysis posited § 895.03]. similar to that herein re Act, garding Pennsylvania’s type Survival it has been held that this wrongful death statute creates a cause of action in the case of a fetus

225 “individual”; Act is drawn in of the terms long recovered for “the death an individual” so may be brought injured during individual “by no action was as given lifetime.” The word “individual” is further his An is a Assembly. the General “individual” definition person”, distinguished “per- from the term “natural broader partnership, “a and associ- corporation, son” which includes ation, person.” as well as a natural Pa.C.S. meaning into terms in investigation of the used

Further however, in help, determining little whether the statute is of en ventre sa mere to a child they not can be read include reasoning previ- later The same circular who is stillborn. if identified is encountered the branches this lexico- ously According tree traced roots. logical are back in Dictionary, and as referenced Black’s Law Gray Pollock not person” of the law a “natural is development in the being, being rights human to whom simply a human but a legal concept as a duties are ascribed. “Personhood” and subject of the but from humanity arises from the Law and to the Black’s ascription rights subject. duties citing 1968), Pollock, (4th First Dictionary ed. Gray, Nature and Sources Jurisprudence Book Law, given every is that “not example ch. II.5 The is person capable for a being person, human necessarily beings human duties, may well rights and there no the case with slaves having legal rights, as was English law.” Id. (In jurisprudence distinc- Amеrican “persons” seems to have beings” tion between “human usage in common passed synonymity their largely away, context.) legal present in all but the being usage mirrored party if death not ensued the it can be said that had stillborn because (the fetus) able an action. injured would been to maintain have (5th ed.1979) citing Dictionary Roe see Law 5. But Black’s (1973) Wade, 93 S.Ct. 35 L.Ed.2d U.S. “person”. Because Court proposition is not a that an unborn child purposes “person” only sought that case to define Constitution, that defini- United States Fourteenth Amendment Furthermore, reasoning binding of the Court here. tion is not and, subject widespread at least as to critism Roe has been from internal incon- protectibility children suffers of “viable” unborn sistency. however, previously explained, As the of question whether (and duties) or a legal rights not to ascribe child in the womb cannot be statement logically answered with the duties) (and the not legal rights law does ascribe the child in the womb. More is demanded. gainsaid

It cannot be the is “person” capable word of being understood as synonymous being” with “human re- the gardless of state of or gestation development; even less can it denied may be that the be used refer to a word being beyond human the of point “viability”. decisions of the in thirty jurisdictions nation, courts three of the conclusive, though not witness to fact that bear the this is proposition specious. not Where the of a words statute are of more one capable meaning than it the cоurt’s ascertain, function to of by application recognized rules of construction, statutory of the meanings which several best effectuates intent of the General Assembly enacting the legislation.

The primary objection against the interpretation upon Act us urged by Appellants “nothing is that in the legislative history judicial interpretation of the Wrongful Death Act ... even a expresses hint that there was an intent to create right a of action for a stillborn fetus.” Appellees Brief Dissenting at 5. Opinion See also at 1104. Flaherty, proves J. To mind this my argument too much. by The statute its does no than terms more create a cause of designate generally beneficiaries of such an action. Whether a fetus was or can considered an or “person” give “individual” whose death could rise to such an action is nowhere reflected the statute’s lan- guage.6 My reading legislative of the history great (1884), Although Northampton, Dietrich v. 138 Mass. 14 is often cited proposition for the that at common law a fetus not considered was a person, in that case Justice Holmes did no more than set out inconclusive, conflicting from indications the common law. Even this was discussion no more than dictum. The ultimate resolution of case, question premise in that case was deduced from the that “no know, that, survived, we so far as has ever decided if the infant it injuries could an maintain action for received it while in its reveals an judicial surprisingly not interpretation bulk resolution regаrding proper indiction any absence reference to legislature never made simply issue. The be found problem “The to this cannot problem. solution or divine which us assume methodology requires in a probably issue which most legislative intent Rather, in a the solution must be found considered. never statute, general to further the the best method study statute, such a legislature adopting goal application.” principles governing its Sum- common law (Ariz.1985). Court, 712, 720 698 P.2d Superior merfield to a quest application of statute situa- proper This legislature at time contemplated by tion this within bounds of Court’s entirely enactment is the way infringes prerogative role and in no the traditional laws of the Common- legislature the to establish the of present of it noted that the By way example, is wealth. others “children” used statute and numerous the word biological status of the reference to the marital without understanding the of the era and parents. From common from it that the General Assem- may case law be concluded expressed “illegitimate” no to whether bly intention as “children”; indeed, if come the children could within word said intention was almost anything may it be Co., 407 Pa. certainly otherwise. Frazier v. Oil Chemical Nevertheless, any change without Act, having following occurred terminology application Court on Supreme decisions of the United States see, “legitimacy”, e.g., equal protection clause Louisiana, 20 L.Ed.2d 391 U.S. 88 S.Ct. Levy “chil- (1968), safely can assumed that the it be word “illegit- include рresently interpreted dren” would be imate” children. courts have presented, to the facts applying the law those circum- precisely

never limited their consideration legislation. Such adverted to the drafters by stances course, was, rejected by This mother’s womb.” Id. view at in Sinkler v. Kneale. Court approach unduly would be restrictive and allow for little growth the law. The admixture of common law and code, of judicial legislative decision and enactment which has system characterized our justice surely centuries allows more flexibility. Where the legislature has acted particular precise field and the situation which later arises was not or could not have been contemplated, the court fulfills its function first by determining whether the novel situation is field generally by legisla- within the covered or separate type tion ais of matter within realm of (or, different legislative authority perhaps, common law rules). Assuming situation is within the field covered, determine, the court must in the manner of the law, common whether the new case is like so the cases addressed explicitly by rule of the statute that the same applied, rule must whether it is so from different those clearly cases within the statutory terms that rule govern. course, should not This analysis, is accom- plished by reference to and legislative ascertainment of the intent.

“When the words of the statute are not explicit, the intention Assembly General may be ascertained (1) considering, among other mаtters: The occasion and statute, (3) necessity remedied, The mischief to be (4) ..., object (6) be attained The consequences [and] a 1 particular 1921(c). interpretation.” Pa.C.S. As § indicated, wrongful previously death were statutes unani- in mously presumed enacted of the rejection common law barring rule for an recovery wrong obvious which it made profitable “more for plaintiff the defendant to kill the than Prosser, Torts, (4th to scratch him.” W. Law of 127 § Ed.1971). our in Given determination that a child the womb may cognizable be the victim of legally injury a separate any mother, from to injury objective the the salutary statute is apply frustrated if we fail to it in this situation. who, quite simply, physician Stated the in treating preg- a woman, slight nant makes a mistake which would expose liability him to birth, were the child to survive to live would

229 rule allow such survival. A legal a disincentive to have to unborn permits physician escape liability which intol- reaching child from birth is by preventing child that judicial system the offered “certainty” erable. testifying pales by comparison, of such a rule support dixit, any a shell devoid of merely rule is ipse fact content. object of the support

Further for the view that in the allowing the action case by is attained statute best expres- from garnered previous judicial stillborn fetus is Wrongful Death action. It was of the nature of sions contemplated cause of action ago made clear that “the long produces death is the tort which statute by Pennsylvania the tort.” dеath caused Centofanti 558, Co., 90 A. Railroad “is this cause Although right proceed facts, concurring injured upon the conditioned negligence, or by said violence death was occasioned party’s him,” brought by Birch and that no suit Cincinnati, Railway, and St. Louis Pittsburg, Chicago (1895), action itself 339, 346, A. Pa. negligence. Addition- out or arises unlawful violence implicit Assembly’s is the General of note ally worthy life, and for human capacity recognition elsewhere See, 1953, P.L. of June death, prior e.g., to birth. Act (Vital seq., et I, seq., 35 P.S. 450.101 art. et § § 450.105(4) death); 20 Pa.C.S. Statistics) (fetal especially, § Act); 18 Pa.C.S. (Uniform Gift Anatomical § Act) (Abortion especially, Control seq., 3201 et § of care where 3202(b)(4) precise standards (necessity § death unborn may actions do result physician’s child). of the Act interpretation contrary for the

Support 1922(4) provides in 1 which found Pa.C.S. concededly has court of last resort when a may presumed it “[t]hat statute, the General language used construed mat- subject same on the statutes Assembly subsequent placed upon such construction to be the same ter intends language.” The Wrongful Death Act was variously amend- ed after Marko and Carroll and after Scott no change with in whole, relevant terminology. however, On the noting is required statute not of a class to be strictly remedial, construed but rather “liberally construed to effect objects promote and to justice,” 1 Pa.C.S. [its] 1928, I it believe proper strike the of balance these considerations favor of recognizing present as action being allowed by the statute.

For foregoing I agree prior reasons that our cases precluding wrongful death and survival actions behalf of stillborn children should be overruled and present case be reversed and remanded to the of Court Common Pleas Philadelphia County for proceedings.7 further J.,

McDERMOTT, joins concurring in this opinion. NIX, Justice, dissenting. Chief again being upon We are parameters called to extend the of our tort This a unique request, law. is not nor is it a parochial years trend. Within the last fifty expansion throughout law tort this country, it particularly as relates to recovery negligently inflicted has injury, been significant. See, e.g., Negligent Emotional Infliction of Liberalizing Distress: Recovery Beyond the Zone Dan Rule, ger (1984); Lambert, Chi-kent L.Rev. 735-53 Developments: Trends and Touchstones Tort Liability, Some Recent Changes in the Wade, (1970); A.T.L.A. 378 Torts, Law Extension (1967); York, 38 Miss.L.J. 565 Field, Restitutional Remedies Tort U.C.L.A. L.Rev. In this instance we being upon are called recognize a cause of this consistently Court has 1960’s. Scott v. acknowledge refused to early since the Kopp, Marko v. Philadel (1981); Pa. A.2d 959 phia, Skloff, Carroll v. (1966); Complaint case Because asserts that Jennifer was "viable" allegedly negligent at the time conduct the defendants caused death, questions implicating her ity” involved circumstances "viabil- ways day. in other must be left for another propitious time to 202 A.2d This is Pa. of concepts and the tort reappraise clarify objectives the to law. of negli- one the comрensation injured

The because the American merely another is a reflection of gence of If or through one citizen inadvertence justice. sense of to damage appropriate it is causes to another carelessness as near as offending to restore the victim require party prior state. Tort law was never to his or her possible enrich, to occasion for provide to unjustly intended aspirations. Hopefully, all fulfillment of fanciful thinking, ‍​​‌​‌‌‌​​​‌‌‌‌‌‌‌​‌​​‌​‌​‌​‌‌‌‌‌‌‌‌‌‌‌​‌​‌​‌​​‌‌‍paramount is American ethic still work jurisprudence. be reflected American should therefore possess did not offending party frequently Because loss, for the compensate to the victim fully the wealth However, availability of concept of insurance evolved. recoup justify funds to for losses was not intended magnify or to the extent claim overstatement loss. has concept “deep pocket” of a become

Regrettably, the influenced deci frequently this area and has pervasive and as to the of action should arise as to when a cause sions The for the claimed loss. recovery to allow appropriate from the “desire to insure springs “deep pocket” theory can reach a defendant with injury of tortious that victims Ellis, adequate compensation.” provide sufficient wealth Damages, in the Law Punitive Fairness and Efficiency also, Cole, Punitive 1, at 64. See Sales 56 S.Cal.L.Rev. Its Origins. A That Has Outlived Damages: Relic tendency This motive has had Vand.L.Rev. the extent to finding liability and the basis of the obscure justified. can be reimbursement which thinking of those Moreover, fallacy with another basic recovery is the expansion of tort propose who unlimited public that it is the consumer recognize failure inflationary spiral for the the loss ultimately must bear with escalat- frequent judgments in its More follows wake. holders, policy that all awards creates a situation ing not the insurance companies, ultimately must meet. costs, rising generated by increasing numbers suits law and higher judgments, are provided tolerable occa- sion for the injury justifies and the recovery reflects the actual loss. If either is out kilter an undue burden unfairly passed on to the innocent citizen policy holders.

Turning case, to the I instant agree would with the majority that it would to preclude be unfair a just recovery for an injury negligently expiration caused because the of to, life prior child occurs after, rather than birth. However, I do not such a disparity believe in does fact exist. 1 legitimate The of compensatory damages elements follow- ing from the injury are recoverable in either event. The only is difference that where the expires child before birth these are elements subsumed in the claim of mother. pain suffering

The and emotional distress caused by the negligently induced trauma sustained by the child that survives the birth would fall the claim brought within on of that Wrongful behalf child in the Survival or Death Act, Wrongful 9, Actions. 1976, Death Act of July P.L. Compensatory dаmages, injury in all cases civil or breach of contract, damages give compensation are those awarded to pecuni loss; is, ary put plaintiff position, that in the same so far as it, money can do as he or she would have been if the contract had performed Sedgwick Damages been or the tort not committed. (9th ed., 25). p. Donaldson, Shippen, Bussy Chief Justice in v. 4 Dall. 207, 206, (1800), compensation, 1 802 L.Ed. said of “As to the assess damages, legal principle, compen ment of it is a rational and that the equivalent injury sation should be to the ... it will be found safest to it, indemnification, proper legal adhere to in all cases for a in the Palmer, 96, shape Forsyth (1850), damages.” v. 14 Pa. 97 Chief observed, actual, Justice specula Gibson “The measure is the not the primary compensation; tive The loss. end is and not of every injurious may consequence that have been suffered Chief ..." "machinery Justice Gibson further observed that of law” “legal injury" necessarily imperfect; sets in motion “is for much vexation, inflicted, suffering, anxiety is often which be cannot Thus, subjected Kirkpatrick to its action." as noted in v. & Kountz 376, (1872), Lyons, compensation being Pa. the true "[actual] law, purpose employed, it is obvious that the means in other words, compensation truly the evidence to ascertain must be such as 263, generally Incollingo Ewing, reaches this end." See A.2d 206 2, 27, 1978, 8301; 42 Pa.C.S. 586, No. effective June § § 9, 1976, Statute, Act of P.L. No. July Survival § 27, 1978, 42 8302. Where the Pa.C.S. child effective June birth, of the critical events transpired all does survive body. Any a the mother’s part the child was while mere the child en ventre sa trauma to the trauma child, which can be carrying of the mother body right. her own that mother claimed an science, the propo medical which same advancements cause of action offer as of the creation this new nents extension, (see e.g., Scott reasons for such one of the J., Kopp, supra (Larsen, A.2d at at dissent impact full identify equally are accessible ing)), offending body of the mother.2 upon force an unfair appear at first blush may

Thus what the child stillborn and in treatment between the disparity reality neither unfair alive, analysis is upon a closer born unhappy In the event disparity. produce nor does it birth, legitimate losses all child does not survive compensable recoverable. are

II. urged here falls extension concern that the My second It legislature and the courts. province of the within being requested to are appear presently that what would we legislative to the appropriately do addressed is matter of government. branch implies concurring opinion if Zappala his that

2. I note that Justice survives, bring action could each an child both mother child Burd, citing injury decision in Sinn v. this Court’s for this same 146, (1979). I do that not understand A.2d 672 I must confess Pa. applicability In Sinn mother and child of Sinn in this context. forces, arising by distinctly albeit from the different were assaulted itself, by the vehicle whereas The child was struck same incident. impact See frоm the of the event. mother’s emotional distress arose 401, (1970). Brodsky, Pa. 261 A.2d 84 generally, v. Niederman right question Additionally, no to the mother’s recover there is as body her under The trauma was to thus the emotional distress. resulting unquestiona- impact therefrom is rule emotional distress the bly Torts, Keeton, Law 54 at § W. Prosser & W. The recoverable. Torts, (5th ed.1984); (Second) of § Restatement 362-63 v. Kopp, supra, Scott held parents we of a received en child stillborn who died as the injuries result of ventre sa mere had no right recovery behalf child under the Pennsylvania Statute Wrongful Survival or Act independent Death since there was no life being, birth, surviving brought which could have prior the action to death. See also Marko Philadelphia Transportation Company, supra; Skloff, supra. Carroll v. The statutes controlling the case instant are similar substantially of the Scott decision.3 those in effect at time consistently We have held that where the Court last given resort has interpretation to a statute and the legislature unchanged, presumed thereafter leaves it it is DiGirola- legislature accepts interpretation. mo Apanayage, Com- 557, 454 Pa. (1973); 312 A.2d 382 Wanamaker, monwealth v. 77, (1972); Act, 9, 1976, Wrongful 586, 142, 2, July 3. The Death Act of P.L. No. § 27, 1978, 8301(a), currently June provides: effective 42 Pa.C.S. § § 8301 Death Action. (a) may brought General damages Rule—An action be to recover by neglect for the death of an individual caused act or negligence or unlawful violence or of another if no action for damages by brought injured during his individual lifetime. Statute, 142, 2, July The Survival Act of P.L. No. § 27, 1978, 8302, currently provides: effective June 42 Pa.C.S. § § 8302 Survival Action. proceedings personal, All causes of or real or survive shall defendant, plaintiff death or the or the death of one or joint plaintiffs or more defendants. corresponding prior statutes read: brought may party injured § 1601. Action be after death of negli- Whenever death be shall occasioned unlawful violence or gence, damages brought by party injured and no suit for life, during deceased, any his or her the widow such or if there be widow, personal representatives may no maintain an action for and recover for the death thus occasioned. 15, 1851, Wrongful April Death Act of P.L. 12 P.S. § § (Repealed), and Actions survive which proceedings, personal, except All causes of action or real actions libel, plaintiff for slander or defendant, shall survive the death or of the joint plaintiffs or the of one death or more defend- ants. 1972, 164, 30, 508, 2, Pennsylvania Survival Act of June P.L. 20 § No. § Pa.C.S.A. 3371.

235 Hos- Labor Relations Board v. Uniontown Pennsylvania Ass’n., 432 Common- (1968); pital 146, Pa. 247 A.2d 621 Inc., Products, v. 78, wealth Willson 412 Pa. 194 A.2d 162 Commission, 407 Pennsylvania Turnpike v. Rader (1963); Philadelphia, v. City Cali 609, (1962); A.2d 199 Pa. 182 Estate, 400 In Loeb’s re (1962); 290, A.2d 824 406 Pa. 177 McDowell v. Good Chevrolet- 368, (1960); 207 A.2d Pa. 162 Cadillac, Inc., 397 Pa. 237, 497 154 A.2d to amend Assembly ample opportunity has had General ac- and survival permit statutes death these our infants since decision tions on behalf stillborn supra, Skloff, fact, in v. ago. Carroll twenty years over 1981, Health Welfare Representatives’ the House of Wrongful Death amendment proposed Committee 1981, to Statute, 1727, Bill allow House No. Session action, bring but the House fetus to a cause stillborn within the Committee proposal allowed this to remain legislative at 1981-82 certain death the end face that, decision majority’s it is clear until the session. Thus legislature’s had correctly gauged this Court today, intent. has entered perspective, majority

Viewed from this recognized long statute-making, realm a function Sulcowe, 416 Pa. Davis v. performed by to be Court. Pennsylvania v. Thresher Dally 138, (1964); 205 A.2d 89 Co., Casualty Insurance men & Farmers’ Mutual Pa. 374 rel. Cartwright ex Commonwealth 476, (1953); 97 A.2d 795 v. 1 Cartwright, (1944); 350 Pa. 40 A.2d Pa.C.S.A. 1921(b). public policy is a principle

It cardinal that fundamental through legislative be ascertained and articulated should v. edict. Parker Children’s through judicial fiat and not Philadelphia, 483 Pa. Hospital of (1978); A.2d 932 Olin Glancey Casey, (1972); v. 288 A.2d 812 Pa. Stores, Inc., v. Cross Corp. Mathieson Chemical White Alliance, Republic Lurie v. (1964); Pa. Scranton, Hayes Pa. 61, 192 (1963); 412 Pa. A.2d 367 Genoe, Mamlin (1946); 477, 47 A.2d 798 236 (1941). illustration,

A.2d 407 For majority appears assign this “new of upon viability cause action” based This in option viability fetus. of as opposed favor conception one of upon ques touches the most controversial tions of day. Clearly, our disputes this nature cannot Mason v. be satisfactorily by resolved court decisions. Cf. Pennsylvania Hospital, Western 484, 493, 499 Pa. A.2d 453 and dissenting); Speck 974, (1982) (Nix, J., concurring 980 Finegold, v. 77, 93, 110, 497 (1981) (Nix, J., Pa. 439 A.2d 122 dissenting opinion). semantics,

When we cut through the essence presented right issue is the to transmit a property interest death, after this case a chose аction. we Although have a protected right constitutionally possess and dis pose lifetime, 5; our property during U.S. Const. Amend. Hough, Parker v. I, 1; 7, Pa. Const. Art. 420 Pa. 215 A.2d § Andress Board Zoning Adjustment v. (1966); 667 City Philadelphia, 77, 410 (1963); Pa. 188 A.2d 709 Sandy Lunnemann, Park Civic Association 396 Pa. ford 537, Commonwealth v. (1959); 152 A.2d 898 338 Zasloff Samuel, 457, Williams v. (1940); Pa. Pa. 332 265, 2 834 (1938), A.2d our right pass after property In Re death must statutory be accordance with law. Estate, Collins (1958); 393 Pa. 142 A.2d 181 Estate, Re Tacks 545, 548, (1937); 325 Pa. 191 A. Estate, Boyd’s In Re 504, 507, 691, (1921); 113 A. Estate, Crossley’s 524, 527, Pa.Super. A.2d also, Wills, See Page (1939). Page, 3.1 W. Here, existing provided statutes have for such a Kopp, Scott v. supra; Marko Philadel transmittal. supra. phia, supra; Skloff, Carroll v. I can no fanthom upon reason for this legislative Court to intrude the clear jurisdiction presently recognized where fact cause of fully fairly compensate available to the loss. reasons, For the I above stated dissent.

HUTCHINSON, J., this joins dissenting opinion. FLAHERTY, dissenting. Justice case, lawsuit whether question presented and Survival brought Wrongful our Death under may child en by a injuries allegedly received Acts as a result child to be caused the allegedly sa mere which ventre I the stillborn, from again is before us. dissent once view. majority’s Wrongful

The of the matter is this: neither crux provide nor intended Death Act the Survival Act was person where the whose behalf recovery cases mone- purposes For of was never alive. brought suits are Further, alive. stillborn child was never tary recovery, a parents injuries emotional distress which stillbirth suffered as a result allegedly child stillborn in their parents in actiоns brought are recoverable Kopp, decision in Scott v. rights. prior Our own (1981), reaffirmed. A.2d should be case is that it the Scott reaffirming The advantage protects administered rule which easily a clear and provides all, after are parties. parents, The the interests all injury, have an such as this one who parties a case only behalf recover are to sue on their own they and able disadvantage of injuries they may have. whatever majority approach overruling the case Scott a double to receive parents provides opportunity recovery. suffering disappointment

No and terrible one doubts learn- experience upon parents would expectant most which stillborn, wrong if a were their child was ing that wrongdoer stillbirth, caused the which committed But not twice! damages parents. to the liable should be affirmed. court should be The decision of the lower Justice, HUTCHINSON, dissenting. I believe Zappala’s exegesis,

Contrary Mr. Justice entirely creatures were and Survival Acts Death Wrongful Consid- States. statute, England and the United both them and the absence interpretation of ering settled our legislative response, I the majority believe incorrectly ven- policy tures into areas more to the properly legislature, left since especially tort for the pain suffering parents who have lost their child compensable are in their Keaton, tort W.P. own action. See Prosser Keaton on Torts, The Law 125A

NIX, C.J., joins opinion. in this

In re OF FAITH M. ADOPTION and Victoria M.

Appeal of Paula D. COSNEK. Supreme ‍​​‌​‌‌‌​​​‌‌‌‌‌‌‌​‌​​‌​‌​‌​‌‌‌‌‌‌‌‌‌‌‌​‌​‌​‌​​‌‌‍Pennsylvania. Court of

Argued Sept. 1985.

Decided Dec.

Case Details

Case Name: Amadio v. Levin

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 4, 1985

Citation: 501 A.2d 1085

Court Abbreviation: Pa.