Lead Opinion
This is an interlocutory appeal pursuant to D.C.Code § ll-721(d) (1981)
In relevant part, the District of Columbia’s Wrongful Death Statute, D.C. Code § 16-2701 (1981), and Survival Statute, D.C.Code § 12-101 (1981), provide:
[w]hen ... the death of a person is caused by the wrongful act ... of a person ... and the act is such as will, if death does not ensue, entitle the person injured ... to maintain an action ... the person ... is liable to an action for damages for the death....
D.C.Code § 16-2701 (1981).
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[o]n the death of a person in whose favor ... a right of action has accrued for any cause prior to his death, the right of action ... survives_
D.C.Code § 12-101 (1981).
A cause of action for wrongful death arises only if the deceased could have brought a cause of action for injuries if death had not ensued; and a cause of action for injuries survives the deceased’s death only if the cause of action accrued prior to death. Thus, inherent in the precise statutory question before us is the common law question of whether the deceased in this case could have pursued a common law action for prenatal injury had death not ensued, and whether the action accrued prior to death.
The first reported common law decision passing upon the right of a child to recover damages for prenatal injury was decided by Justice Oliver Wendell Holmes writing for the court in Dietrich v. Inhabitants of Northampton,
The Dietrich decision and its rationale that a fetus is not a “person” with an existence apart from its mother, although severely criticized as unjust and in fact incorrect, was followed for over a half a century in the United States and England. 1 J. Dooley, Modern Tort Law § 14.02.50 (1982); W. Prosser, Law of Torts § 55 (4th ed. 1971). Judge Matthew McGuire, of this
Although this court has never considered this question, we note that every jurisdiction in the United States has followed Bon-brest in recognizing a cause of action for prenatal injury, at least when the injury is to a viable infant later born alive. W. Prosser, supra § 55; 1 Dooley, supra § 14.01 et seq.; 40 A.L.R.3d Liability for Prenatal Injuries § 1222, 1230 (1971). We adopt the Bonbrest rationale as the law of this jurisdiction and recognize the right of a viable fetus to be free of tortious injury and hold that a child born alive has a cause of action for such injuries. Hence, plaintiff in this case meets the common law requirement of the statutes in that, assuming the allegations in this case to be true, a negligence action for prenatal injury accrued to Baby Boy Williams at the time of injury; and had he survived, he could have maintained an action for those injuries.
Having determined that a viable fetus is a “person” under the common law with the right to be free of non-fatal tortious injury, we turn now to the precise question raised in this case, i.e., whether the viable fetus is also a “person” under our wrongful death and survival statutes. Appellant argues that whatever the common law liability for prenatal injury when a child is born alive, the statutory nature of the wrongful death and survival statutes precludes liability for fatal prenatal injury. Appellant contends that the statutes must be strictly construed as derogations of the common law and that the legislature could not have intended “person” to mean an unborn child because at the time the statutes were enacted the common law did not recognize a fetus as a “person” for purposes of civil liability.
Contrary to appellant’s contention, at least since Calvert v. Terminal Taxicab Co.,
Alleviation of the common law rules followed two separate theories, both of which have been adopted by the District of Columbia. The first is the “new cause of action” theory, represented by our wrongful death statute. This approach recognizes that the tortious killing of a person creates a financial hardship on close family members who could reasonably have expected financial support from the deceased.
The survival act, on the other hand, proceeds upon a different theory and foundation. It recognizes that liability to the victim should not be extinguished by the fortuitous event of death. The action provided for by the survival statute, therefore, does not arise from the death but from the injury itself. The act does not create a new cause of action for designated beneficiaries, but preserves for the benefit of the decedent’s estate, the cause of action which the deceased would have had, had he not died. Id. at 925; Jones v. Rogers Memorial Hospital,
Although the statutes are independent causes of action focusing on different injuries, i.e., the loss to the decedent’s estate and the pecuniary loss to the family, both statutes are predicated upon and coexist with the presence in the deceased of a common law right to damages prior to death. Thus, absent legislative direction to the contrary, this court looks to the common law, not the statutes, to determine whether under the wrongful death statute a viable fetus is a “person injured” who could have maintained an action for damages had he lived, and whether under the survival act the fetus was a “person” to whom a cause of action accrued for injury prior to death.
Undoubtedly the legislators who originally enacted the wrongful death statutes in 1885 and the survival statute in 1785, gave no thought whatsoever to whether or not a viable fetus was a “person,” given the limited medical knowledge at the time and the absence of common law jurisprudence in this area. See, e.g., Kwaterski v. State Farm Mutual Insurance Co.,
Modern courts, however, have given legal meaning to the word “person” by holding that a child born alive has a cause of action for prenatal injury. And just as Justice Holmes in Dietrich, supra, looked to the common law of 1884 to interpret the word “person,” this court also looks to the common law. However, because the wrongful death and survival statutes did not “freeze” the common law, see, e.g., Justus v. Atchison,
Inherent in our adoption of Bonbrest is the recognition that a viable fetus is an independent person with the right to be free of prenatal injury. The liability for prenatal injury recognized in Bonbrest arises at the time of the injury. If a viable fetus is a “person injured” at the time of the injury, then perforce the fetus is a “person” when he dies of those injuries, and it can make no difference in liability under the wrongful death and survival statutes whether the fetus dies of the injuries just prior to or just after birth. To hold otherwise would perpetuate the very evils the statutes were intended to prevent — that an injury would be inflicted for which no remedy existed and a tortfeasor would escape liability by inflicting injury so severe that death results. Accord, e.g., Eich v. Town of Gulf Shores,
We note that our conclusion that a cause of action exists for the tortious prenatal death of a viable fetus is in accord with the weight of legal commentary, see, e.g., 1 J. Dooley, Modern Tort Law § 14.04, at 299 (1977); 1 S. Speiser, Recovery for Wrongful Death § 4.38, at 564 n. 35 (2d ed. 1975), as well as the overwhelming majority of jurisdictions that have considered this issue. See
In summary, having determined that a viable fetus is a person under the common law, it follows that injury to the fetus resulting in death is actionable under our wrongful death and survival statutes. We therefore affirm the trial court’s order denying dismissal for failure to state a cause of action and remand this case for further proceedings.
Affirmed and remanded.
Notes
. By order dated March 10, 1983, this court granted permission to appeal.
. Our holding on this point is limited to circumstances where it is alleged that the fetus was viable at the time of injury. We state no opinion as to the existence of a cause of action for injuries to a fetus prior to viability. See, e.g., Bennett v. Hymers,
Dissenting Opinion
dissenting:
I respectfully dissent — not on the merits, but on the ground that this court should not reach the merits. In my judgment, the issue presented in this appeal should be resolved by the legislature, not by this or any court.
I have no quarrel with the majority’s decision to adopt the rule announced in Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946), as the law of the District of Columbia, and I would join in that decision if Bonbrest had any bearing on the outcome of this appeal. But Bonbrest does not apply to this case. The issue there, as my colleagues correctly state, was whether the law would recognize “a cause of action for prenatal injury, at least when the injury is to a viable infant later bom alive.” Ante at 396 (emphasis added). The instant case, however, presents a different issue: whether a stillborn or aborted fetus has a cause of action under our survival and wrongful death statutes for the injuries which caused it to be stillborn or aborted. Bonbrest does not answer that question.
To decide this case the court must determine whether a stillborn fetus can be regarded as a “person” within the meaning of the survival and wrongful death statutes. Both statutes are of venerable age; the latter is almost 100 years old, the former almost 200. My colleagues infer, and I agree, that the legislatures which enacted those statutes “gave no thought whatsoever to whether or not a viable fetus was a ‘person’ _” Ante at 397. Unlike my colleagues, however, I believe that we should not rush to fill this legislative vacuum by construing either statute in a manner beyond the contemplation of the legislature that enacted it. If this case required us to consider whether a plaintiff such as
The impact of the court’s decision in this case cannot be underestimated. It is certainly not limited to medical malpractice claims but applies across the board to any kind of allegedly tortious conduct resulting in the “death” of a viable fetus. One can readily foresee, for example, the case of a father who, disagreeing with his wife’s decision to have an abortion, files suit in the name of his aborted child against the doctor who performed it. Surely no thinking legislature would tolerate such a suit, but under the court’s decision today it would be permissible. Other scenarios, equally disturbing, come quickly to mind. I fear that my colleagues, in expanding the coverage of these two statutes, have shown themselves to be worthy rivals of Pandora.
I know that most of the courts which have considered the question have ruled in favor of recognizing a cause of action on behalf of a stillborn, formerly viable fetus. But there is also a respectable line of authority to the contrary. E.g., Kilmer v. Hicks,