*1 IN THE SUPREME COURT DiDonato v. Wortman no error. phase:
Guilt
Sentencing phase: hearing. new DiDONATO, Joseph ANTHONY MICHAEL Estate Administrator JR., WORTMAN, M.D., v. WILLIAM J. JOHN T. Edward DiDonato and HART, M.D.
No. 280A86 (Filed 1987) July wrongful § “person” 3—
1. Death death action —viable fetus as A “person” meaning viable fetus is a within the N.C. Act, Therefore, properly Death N.C.G.S. 28A-18-2. an action could be main- § wrongful tained for the a stillborn child. wrongful damages § 2. 7— Death death of recoverable fetus — 28A-18-2(b)(4)a. damages normally Lost income available under N.C.G.S. § in wrongful cannot be recovered an action for the death of a stillborn child. 28A-18-2(b)(4)b. may damages normally Nor available under N.C.G.S. § — services, companionship, c. loss of advice and the in like—be recovered an ac- However, wrongful tion for pain death of a viable fetus. suffering of a reasonably decedent fetus are recoverable if can be established, expenses, punitive and medical and funeral as well as and nominal damages, may appropriate. where be allowed § joinder parents’ 3. 3— death of viable with claims fetus — An action joined death of viable fetus must be with by parents claims based on the same facts the decedent’s their own right. concurring part dissenting part. Justice Martin joins concurring dissenting Justice Mitchell opinion. in this dissenting. Justice Webb plaintiff from the panel decision of divided APPEAL of Appeals, reported at 80 N.C. App. S.E. 2d 58 Grist, of Appeals affirmed an order entered
J., July the 17 County Civil Session MECKLENBURG Court, Superior dismissing plaintiffs claim for the 12(b)(6). 1A-1, pursuant a fetus Rule Heard Supreme Court December 1986.
James, Diehl, P.A., Judith by & S. Hemric and McElroy Gary Egan, plaintiff-appellant. E. Gordon, Crews, and by Golding & John G.
Golding, Meekins Lax,W. defendant-appellees. Andrew Lawyers, B. by Douglas Trial Academy North Carolina of Abrams, amicus curiae. EXUM, Justice. Chief of a child. wrongful is for the death stillborn
This an action alleges provided that doctors administrator Plaintiff defendant mother, to the child’s Norma DiDonato. Defendants care prenatal on 10 1982. On 26 the child would be born October estimated that born, yet Mrs. DiDonato 1982 the child had not been October healthy a fetal heart- an examination that revealed underwent had Mrs. days stopped later the heartbeat Four beat. baby by Plaintiff a stillborn section. DiDonato delivered Cesarean of was negligence proximate that cause alleges defendants’ child’s stillbirth. by this is whether question presented appeal
The sole 28A-18-2, Act, North allows Carolina’s We recovery for the of a viable but unborn conclude death child. does, we reverse the decision of that therefore however, hold, any We available Appeals. specula- will limited to those that are purely such action be addition, action for death of a tive. In we hold that any on the must be with action based same joined viable fetus by parents. facts decedent’s
I. states, Carolina, for wrongful In North as in most actions Estate, 262 solely virtue statute. re Miles death exist task, 647, 487 primary S.E. This Court’s 138 2d N.C. therefore, whether the state’s determine is recovery for the of a viable fetus. permits denied actions twice Appeals Our statute. Yow child under current death of a stillborn 292, denied, 419, Nance, 290 rev. App. 29 disc. N.C. (1976); Welch, App. S.E. 2d Cardwell IN THE SUPREME COURT denied, S.E. S.E. cert. 2d 623 2d holdings These have not been disturbed General however, Assembly. leery, legislative ap We must inferring really from what proval appellate legislative court decisions “Legislative silence. inaction has been called a reed upon ‘weak to lean’ to follow’ ‘poor beacon construing Singer, 2A N. Statutory statute.” (1984). Sutherland Construction assert with impossible degree assurance “[It is] (1) [legislative represents approval status quo, inaction] (2) inability how opposed agree upon to alter the status (3) (4) unawareness the status quo, quo, indifference (5) *3 or quo, status even political cowardice.” Johnson v. Transpor (1987) —, (Scalia, J., tation 2d Agency, U.S. L.Ed. dissenting). We cannot assume that our legislators spend their poring time appellate over so as not to miss decisions one fact, might wish to In correct. we have found evidence the legislature has ever considered the particular problem therefore, before us in this Our inquiry, case. must focus on the itself, words the statute the North public policies underlying Act, Wrongful Carolina’s Death common gov and law principles erning Court, its application. See v. Superior Summerfield (1985); Levin, Ariz. P. 2d Amadio 509 Pa. (1985) J., A. 2d 1085 (Zappala, concurring).
A. states, The pertinent Act part: (a) When the death of person is caused a wrongful act, another, would, neglect or default of such as if in- the lived, jured person him had have entitled to action for an therefor, damages person the or corporation would have been so . . . liable shall be liable an for action damages .... The amount . recovered such action . . shall be disposed of provided as the Intestate Succession Act.
(b) recoverable for death Damages wrongful act in- clude:
(1) care, for treatment Expenses hospitalization death; incident injury the resulting (2) for Compensation of the pain suffering dece- dent; IN THE SUPREME COURT
DiDonato Wortman decedent; (3) expenses of the The reasonable funeral (4) monetary value decedent present of the recovered, damages receive persons entitled to loss cluding compensation not limited to but reasonably expected: decedent,
a. Net income Services, care and assistance of protection, b. decedent, voluntary en- persons or obligatory, whether recovered, damages titled comfort, Society, companionship, guidance, c. en- kindly persons offices advice of decedent to recovered; damages titled (5) have punitive damages Such the decedent could survived, punitive he for had recovered through causing of the decedent wrongfully the death maliciousness, injury, negligence; wilful wanton or gross (6) jury finds. damages when the so Nominal 28A-18-2 N.C.G.S. § de- an exists if the action plain English, or some negligence could have maintained
cedent *4 States, 541 if he had survived. Nelson v. United other misconduct 1982). (M.D.N.C. in F. The real in interest Supp. party is is beneficiary for the wrongful death action the whom (1958); Estate, 248 re Ives’ N.C. sought. Patrick, v. 44 S.E. In the 2d Davenport fetus, ac- wrongful a beneficiaries of a death case of stillborn the necessarily are they be unless too parents, will the child’s tion 29-15(3)(1984). dead. See N.C.G.S. § [1] word The facts “person” in the this case require us to determine whether Act includes viable a fetus.1 the question, a answer to this provide clear-cut The statute does ap- ‘person’ legislature shall extend and be 1. word The has stated that “[t]he individuals, plied unless context politic corporate, as as to the to bodies well 12-3(6) (1986). contrary.” clearly to We find this definition shows to N.C.G.S. the § question us. resolving before of no assistance the IN THE SUPREME COURT DiDonato Wortman recovery by law regarding injuries
but case
children for fetal
is
instructive. Tort
claims
children
recover
fetal
state,
virtually
are
injuries
recognized
every
North
including
Carolina. Stetson
Easterling,
decisions,
logical
It would be
and consistent with these
would further
policy
deterring dangerous
the
conduct that un-
them,
derlies
allow such claims when the fetus does not sur-
vive.
construing wrongful
Courts
death statutes
similar
28A-18-2 generally
N.C.G.S.
have concluded that a viable fetus
§
is
the
among
“persons”
class
contemplated
statute’s
Amadio,
n.4,
authors. See
Pa.
224-25
It unlikely legislature is would want preclude recovery for the death a fetus when recovery for fetal injury not resulting in is permitted. death The unborn parents child’s here, real parties are the interest seek compensation of, to, complete loss rather than mere injury their off- Surely spring. would their find claim compelling as as that of child who seeks to prenatally recover for a inflicted but injury, nonfatal consequences vary could from moderate severe. moreover, legislature,
The has indicated that for purposes statute, death “person” possesses is someone who “human life.” preamble most recent revision of 28A-18-2 stated:
Whereas, valuable; inherently human is life Whereas, present so written and con- strued that damages recoverable from a who person aby caused act effectively are limited to such figure can be from expected calculated earnings deceased, which is far from an adequate measure the value Now, therefore, life; of human damages available for the [the of a person were redefined]. added). Sess. ch. (emphasis Laws A preamble viable *5 fetus, be, whatever legal might undeniably its status is alive and is, definition, undeniably human. It of capable independent life of its mother. A is genetically viable fetus complete can be taxonomically distinguished from non-human life forms. Again,
DiDonato Wortman under person that a viable fetus this is some evidence death statute. wrongful of although wrongful the face death conclude that We us, before case conclusively question answer the does
statute amending recovery legis- for fetal and the injuries concerning law fetal acknowledging per- toward point above both quoted lation sonhood.
B.
history
wrongful
begins
death actions
Anglo-American
Bolton,
Rep. 1033
Eng.
of Baker v.
English
with the
case
(1808),
no
an ac-
right
at common law there was
held that
this hold-
responded to
wrongful
tion
death. Parliament
for
belatedly —by enacting a wrongful death
ing
somewhat
—albeit
Viet.,
Act
9 & 10
ch.
as Lord
in 1846.
Campbell’s
known
fifty
legislatures have since followed suit. Pros-
93. All
American
(1984).
& Keeton on Torts 945
ser
its
statute short-
adopted
North Carolina
first
death
1,
1854,
ch.
9. At that
War. Revised
ly before the Civil
Code
§
time,
action to
recognized
would not have
probably
this Court
1946, nearly
child. Until
all
recover
for the death
a stillborn
who
had suffered
persons
prenatal
states denied
Stetson,
or not.
they survived
juries, whether
however,
II,
Following World War
there occurred
S.E. 2d at 533.
“
of a
abrupt
‘the most
reversal
well-settled rule
spectacular
”
on
history
of torts.’
Id.
Prosser
(quoting
the whole
law
(1964)).
everywhere
children
began allowing
Torts
Courts
to birth.
bring
injuries
prior
actions for
suffered
recognize an action
the first
state
Minnesota became
of a
Verkennes
behalf
stillborn child.
then,
Corniea,
more
229 Minn.
N.C.G.S.
N.C.G.S.
§
§
injury”
amount
for this
was determined
“pecuniary
recoverable
by deducting
living expenses
cost of the decedent’s
probable
years
from his
he
probable gross
during
income
would have
expected
been
to live had it not
for the
tort.
been
defendant’s
573,
Co.,
313
Purnell
R.R.
190 N.C.
130 S.E.
Rockingham
This
damages severely
income-focused measure of
limited recov-
Often,
ery in many
it altogether
cases
eliminated
in others.
evidence of
loss
pecuniary
was unobtainable where
decedent
child,
handicapped
was
person.
homemaker
Bowen v. Con-
Co.,
structors
(1973).
Rental
S.E.
789
Equipment
2d
Wrongful death actions
behalf
stillborn
fants were
because the pecuniary injuries stemming
denied
from
prenatal death
a viable
were “sheer
child
speculation.” Gay
394, 402,
146 S.E.
Thompson,
2d
Wrongful
amended the
Death Act
Bowen,
passing what was
known
“The
popularly
as
Wife Bill.”
N.C. at
plain Gay should control the outcome of this case.
The original purpose our Death Act was change the common law rule of no recovery for deaths of per- IN THE SUPREME COURT provides compensation tortfeasors. The statute sons victimized loss, helps estate for the decedent’s their beneficiaries *7 Brown, 654 S.W. 2d to conduct. v. dangerous O’Grady deter See (Mo. 1983). fifty years ago:
904 As Justice Cardozo said their roots in with the ar- dissatisfaction Death statutes have rule no It would be liability]. law chaisms of [common process if a or construction grudging misfortune narrow to very be exemplify perpetuate were to and evils when words to be There times uncertain are remedied. are consistency with a unity legislative policy wrought into law, generative impulse new itself a source is legal system. to the transmitted 350-51, 342, Co., 300 81 L.Ed. Towing U.S. Van Beeck v. Sabine 909). (1937) 685, 654 S.W. 2d at O’Grady, 690 (quoted statute, its legislative of our language objec broadly remedial history, recognition the statute’s meaning in the uncertainty compel us conclude tives permitting in favor of of the word should be resolved “person” en sa for the destruction a viable fetus ventre recover in Yow Appeals’ To decisions mere2 the extent that Court case, they holding in this with the and Cardwell are inconsistent are overruled.
II.
[2]
permits
case,
Although the
plaintiff maintain
has determined
an action for
death in this
28A-18-2
available under
Damages
does not end there.
matter
automatic;
will
legislature
per
are what the
statute are not
be
damages
recover
those
can
provided
mit the
beneficiaries
—recovery
prohibits
—and
fact
The law disfavors
proved.
v.
318
Bumgardner,
speculation.
on sheer
Jackson
damages based
(1986);
172,
v.
2d 743
Chesson
Container
N.C.
347 S.E.
Keickheffer
(1939); Dobbs,
337,
Co.,
150-57
D.
Remedies
(1973); E.
North
Law of
Hightower,
Damages
Carolina
be
Damages
proved
certainty,
must
a reasonable level of
Carter,
may
pure conjecture.
be
on
based
Norwood v.
152,
(1955) (“No
2,
may
substantial
guesswork
based mere
. . .
inference
without evidence
facts, circumstances,
justifying
data
an inference that
just
awarded are
compensation
and reasonable
suffered.”).
injury
Damage
speculation
awards based on sheer
effect,
render
the wrongful
would
death statute
in its
punitive
(1964),
Taggert,
N.J.
On the death of young child ... at least some facts as, can be to in shown aid estimating damages example,- its mental and physical condition.
But not even these proofs scant can be when the offered virtually child is stillborn. It is to impossible predict whether child, death, the unborn but for its would have capable been of giving to pecuniary benefit its survivors. recognize We that in damages any wrongful death action are some extent uncertain and But speculative. our in liberality allow- ing damages substantial where the proofs relatively are not speculative preclude should us from drawing a line where speculation becomes unreasonable. Graf, 43 A. N.J. at 2d at 144. When a child is we stillborn abilities, can know nothing about intelligence, its interests and other factors relevant monetary it might contribution —or IN THE SUPREME COURT beneficiaries in a —someday not have made
might an award such attempting A calculate jury action. Gay, “sheer speculation.” would be reduced damages at 429. lost income We therefore hold 28A-18-2(b)(4)a.can- normally available under damages N.C.G.S. § in an death of a stillborn action for not be recovered require Gay, To hold otherwise would us overrule child. correctly was we believe decided. normally under damages We hold recovered also 28A-18-2(b)(4)b. services, ad- companionship, & c.—loss
G.S. § —will not available an action for the like vice and of a fetus.3 The reasons are the same as viable is simply When a child stillborn we pecuniary case of loss. and other traits rele- anything personality know about its cannot it have been and what kind companion might to what kind vant An cover- might provided. damages have award of services necessarily specula- kinds of losses would be based ing these than reason. tion rather of a pain suffering that the convinced satisfactorily given but recent advances proved,
fetus can ever be to the and treatment technology relating observation medical útero, possibility cannot as a matter of life in we foreclose Thus, of a decedent fetus pain suffering law. reasonably Medical if can be established. are recoverable punitive damages, well as and nominal expenses, funeral as case, here other tort just proof as susceptible are appropriate. should be allowed where
III. by [3] defendants’ Finally, we note negligence that the have filed suit parents fetus recover allegedly for personal killed negli result of same suffered a the injuries allegedly Wortman, (Mecklenburg). No. This DiDonato v. gence. 84CVS4475 made to pay that defendants could be possibility raises the both actions. Such result punitive damages parents certainly not what the intend- unjust and would be Recovery anguish having at lost her child the mother’s mental 3. for injury brought right. personal in her own presumably action will be available in a King Higgins, 272 158 S.E. 2d N.C. See IN THE COURT SUPREME Wortman
DiDonato v. however, by joining the ac- simply problem, We can avoid this ed. ac- parents’ fetus with of the viable tion for injuries. tion for personal Hugh in Nicholson v. a similar situation This faced , Inc., 2d 818 295 266 S.E. Memorial Hospital,
Chatham case, her husband had been alleged In that plaintiff for loss by sought damages and she jured negligence, defendant’s we disal- to our decision in Nicholson had of consortium. Prior by the wife. We had for of consortium brought lowed claims loss so, in we were part, done because consortium, for loss of
concerned that to allow a wife’s action
action was
when the main
of that
particularly
component
service,
recovery. A
for lost
allow double
compensation
would
husband,
behalf,
for
in his own
would recover
loss
suing
wife,
consortium,
loss of
would
suing
his services while a
of the selfsame services.
recover
loss
Nicholson,
at 821. In
overruling
at
266 S.E. 2d
for wife’s loss of consor-
decision
the action
allowing
older
tium,
way
to avoid the
we determined in Nicholson that
best
recovery”
joinder
of the wife’s
compel
“double
was
problem
by the husband. Id.
injury
claim with
personal
“The reasons for re-
port S.E. 2d 203. in both the wrongful death action and parents’ separate per- injury sonal suit would togo parents.
For the most part, items of damage available wrongful death action and the parents’ personal injury suit do not overlap. The decedent’s funeral expenses, for example, are avail- able only the wrongful death action. Boulton v. Onslow County Educ., Bd. App. Similarly, recovery for the mother’s pain and suffering would be available only in parents’ lawsuit. however,
Punitive damages, would be available in both ac- tions. If the actions are tried separately, defendants could be punished twice for single act of negligence. parents, more- over, reap would a windfall not contemplated by the legislature when it permitted actions for wrongful death. We therefore hold plaintiff’s claim for the wrongful death of a viable fetus must be joined any with claims based on the same acts of alleged negli- gence brought by the parents their own right.
IV. To summarize: The legislature does not appear to have directly considered the question presented this case when adopted and amended North Carolina’s death statute. Therefore, it is the Court’s obligation construe the statute in a way that is consistent with both its language and the pur- broad poses it was intended serve. An examination of that language and those purposes leads us to conclude that the death of a viable 28A-18-2, fetus falls within the purview N.C.G.S. and that § this action must be allowed insofar as plaintiff seeks to recover damages that are not based on sheer speculation. Plaintiffs action must, however, for wrongful death joined with based same facts brought the decedent’s parents. Reversed and remanded.
Justice concurring in part dissenting in part. MARTIN I concur in holding of the majority that a viable unborn child is a “person” within meaning wrongful 28A-18-2(b). statute, issue, I On this deem it not inap- *11 IN THE SUPREME COURT
DiDonato v. Wortman me to this con- reasons that lead to set forth additional propriate clusion. Assembly rewrote the
In 1969 the General life” is stating with a that “human beginning preamble of recoverable dam- legislature expanded scope valuable. The decedent, society, of loss of suffering to include pain ages advice, comfort, guidance, kindly offices and companionship, that a contemplates The revised statute thus damages. punitive of will than under the range compensable much broader deaths be statute; is, now others than those includes “person” earlier worth. easily monetary or with wages provable who earn those by the policy of this state as public expressed Sig- infant is a recognizes person. in our statutes that an unborn infant, esse, capable a nificantly, person an unborn is “deemed estate whatever in the taking writing deed other (1984) 41-5 (emphasis manner as if he were born.” same added). N.C.G.S. § (1984) (unborn also 29-9 infant can inherit See N.C.G.S. § (1984) (unborn 31-5.5 child at testator’s property); N.C.G.S. § (1984) (unborn estate); 33-2 child can death can share N.C.G.S. § have guardian appointed). Forte, (1943), is also
State v. In Forte we held that an unborn infant has a “life structive. destroyed” when it has “so far advanced as capable being 538, 23 having in law as existence.” Id. at regarded separate at 843. S.E. 2d within mother’s baby developed A viable which has its —one it existence out- point capable independent
womb 1979) (5th womb, Dictionary 1404 ed. side its mother’s (and Black’s Law therein) clearly identity has an from separate cases cited — mother, medically legally. separate its The child has system; it is not a or an of the mother physiological “part” organ life. independent but has obviously beyond
The child here was well
full term and was
viable;
it
distinct existence and a
separate
therefore
had
destroyed within
enunciated in
capable
being
life
the definition
destroyed
capable
being
Forte. If an unborn child has a life
Forte,
law,
capable
of the criminal
as in
has a life
purposes
destroyed
civil standard of a
being
under
lesser
Negligent
death action.
destruction of such life must therefore be
compensable
a wrongful death action. These manifestations of
public policy
of our state are consistent with the
decision
Wade,
the United States Supreme
Roe v.
410 U.S.
denied,
(1973),
35 L.Ed. 2d
reh’g
U.S.
The recognition of a cause of action for wrongful of a fetus is also in accord with great majority the of the jurisdictions that have considered this issue. dissent, however,
I must from the opinion the majority with to respect The damages. majority correctly holds that a viable unborn fetus is a “person” within the of the meaning statute, wrongful death then inexplicably to attempts away cut part statutory damages provided within the statute. This the Court cannot do. The plaintiff in this death action is no any different from plaintiff; other the plaintiff entitled to recover such damages as are in proved accordance with the law. The trial judge may rule that plaintiff has to prove failed or one law, more elements of as damages a matter of but it is not for this to bar from plaintiff to trying prove all damages recoverable under the statute. IAs stated with regard to the limitation of in damages (1986):
Jackson v. Bumgardner, 318 N.C.
The better practice would be to allow the in trial court the first to instance address the issue of what are recoverable. appellate The division would then have a full evidentiary record upon which to make proper analysis as to damages rather than to formulate attempting an abstract majority rule. The has decided damage issues that have not been presented to us upon evidentiary record and which may never be so presented. Sound judicial discipline would dictate withholding such momentous decisions until all available evidence and arguments can be presented to the Precipitous judgments Court. are to be avoided. (Martin, J.,
Id. at
DiDonato to all apply of damages the same rule must have intended that this to usurp prerogative It is such actions. change rule rewriting the legislative function damages. majority opin- rule announced
Nor can I adhere of a viable upon ion that a action based the death wrongful death may have parents be tried with unborn fetus must left to the This is a matter better arising out of the fetal death. many con- are factors be of the trial There judge. discretion identity parties such as deciding question, sidered this involved. Defenses available act or acts negligent time constraints plaintiff, each defendant defendants actions, measurement within the different institute factors, a defendant damages, may vary. Protecting other on the can same evidence punitive damages from double paying re- case-by-case The blanket rule basis. accomplished at unworkable and majority would be best quired opinion worst unjust. *13 concurring dissenting this joins Justice MITCHELL opinion. Webb dissenting.
Justice I let that I have no ob- say At the outset me would dissent. if death action an unborn child jection allowing wrongful not I do believe the Legislature Legisla- had so prescribed. it has for us do for them. The ma- ture done so and it is error by has the error jority repealing part then compounded they statute do like. legislative
The silence as a begins denigrating majority It statutory tool in cannot add to the strength construction. this when we want use this canon construction result, Gardner, 444, 340 reach a S.E. 2d certain N.C. State (1986), it it when our convenience. Whatever ignore suits very I it majority general, thinks of this canon in believe 394, 146 S.E. 2d helpful this case. Gay Thompson, (1966), there no this Court held could be wrongful death of an unborn child there could be no proof because damage Assembly then The under Act as written. General
then amended the
to change
Act
the measure of
I
damages.
be
Assembly
lieve we have to assume the General
was aware of Gay
They
very
when the Act was
easily
amended.
could
have defined
person
they
to include an unborn person but
did not do so. Card
Welch,
390,
denied,
well v.
App.
213 S.E. 2d
cert.
(1975)
Nance,
N.C.
419,
I believe the majority committed further error hold- may ing although there be a death claim for an un- born person, we shall not allow some of the damages for which provides. This repeals part by judicial the statute fiat. I believe is error to do so. If there are to be wrongful death claims for persons, plaintiffs unborn should have what- ever damages may prove under the Wrongful Death Act.