Toth v. GoreeToth v. Goree
Lead Opinion
This cause of action arises out of an automobile accident which occurred on November 1, 1970. As a result of this accident, Betty Liggens allegedly suffered a miscarriage. The fetus was not "viable”. Prior to the trial of this action, defendant brought a motion for summary judgment pursuant to GCR 1963, 117 on the basis that this action was not maintainable as Baby Liggens was not medically viable. On September 24, 1974, the Honorable James N. Canham entered an order granting defendant’s motion for summary judgment. Plaintiff appeals from this order. There was no written opinion.
The decedent was a three-month-old infant en ventre sa mere.
The only issue presented in this case is whether a three-month-old infant en ventre sa mere, not
The word person has not previously been interpreted this broadly under this act in Michigan.
MCLA 600.2922(1); MSA 27A.2922(1) reads as follows:
"Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.”
Even though the wrongful death act is for the benefit of certain persons, the cause of action is a derivative one whereby the personal representative of the deceased stands in the latter’s shoes. Maiuri v Sinacola Construction Co,
Womack v Buchhorn,
None of the cases allowed recovery for the death of a three-month-old nonviable fetus that was not born alive. However, several jurisdictions did expressly prohibit recovery for the death of a nonviable fetus that was not born alive.
The discussion by the O’Neill Court of prenatal life more aptly describes a viable fetus. The Court stated, supra, at 135:
"The instructive dissent of Mr. Justice Boggs, in Allaire v St. Lukes Hospital, 184 Ill 359 (56 NE 638 ), at 368, was written in 1900. His view has been largely adopted in this country.
"The majority in that case held:
" 'That a child before birth is, in fact, a part of the mother and is only severed from her at birth, cannot, we think, be successfully disputed.’
"Justice Boggs wrote:
" 'Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that though within the body of the mother it is not merely a part of her body, for her body may die in all of its parts and the child remain alive and capable of maintaining life when separated from the dead body of the mother.’ ”
The nonviable fetus by definition is deemed not capable of living outside its mother’s womb. The court further stated at 137:
"A fetus having died within its mother’s womb is dead; it will not come alive when separated from her. A fetus living within the mother’s womb is a living creature; it will not die when separated from her unless the manner, the time or the circumstances of separation constitute a fatal trauma.”
While much of the language in O’Neill is ambigú
O’Neill v Morse, supra, at 133, also discussed the case of Womack v Buchhorn, supra, in connection with the first section of the wrongful death statute:
"In Womack, we overruled, Newman v Detroit,281 Mich 60 [274 NW 710 ] (1937), and held that a common-law action does lie in this state for prenatal injuries.
"Womack being the applicable rule of common-law tort liability, we have only to apply the wrongful death statute to the facts of this case.
"The obvious purpose of the statute, originally enacted as1848 PA 38 , is to provide an action for wrongful death whenever, if death had not ensued, there would have been an action for damages. Womack settled the question of whether, if death had not ensued, Baby Boy Pinet would have had an action for damages.”
In Womack an action was brought on behalf of an eight-year-old surviving child for prenatal injuries suffered during the fourth month of pregnancy. However, Womack should not be read out of context to give significant legal existence to a nonviable fetus. As was stated in People v Nixon,
"The Womack decision is sometimes mistakenly cited for the proposition that the Court recognized the unborn child’s 'right to live’. This is not the case, for as the Court clearly stated: 'The only issue in this case is whether a common-law negligence action can be brought on behalf of a surviving child negligently injured during the fourth month of pregnancy.’ (Emphasis supplied.) Womack, supra, 719-720. Thus the Womack decision would appear to be limited to those cases where there is a live birth. If there is a live birth, then
While Womack does give a cause of action for prenatal injury, that action is not without limits. Those limits are drawn. The infant must have been born alive as in Womack or have been viable as in O’Neill in order to have an action brought in the infant’s own behalf, whether as a common-law action or as a wrongful death action.
The Womack Court itself failed to point out the key element of survival. The Court attributed the following to a Massachusetts case, supra, at 722, n 4:
’’MASSACHUSETTS allows an action for wrongful death of a non-viable fetus (3-1/2 months), holding that a non-viable fetus is a 'person’ within the meaning of the Massachusetts wrongful death act. Torigian v Watertown News Co, Inc, 352 Mass 446;225 NE2d 926 (1967).”
However, a later Massachusetts case, Leccese v McDonough, 361 Mass 64;
"The requirement that the foetus be born alive, stated expressly in the Keyes case, 340 Mass 633, 636; [165 NE2d 912 (1960)] lays down a sensible and easily*303 administered rule under our statute. In recognizing the possibility of recovery under c. 229 § 2 (as amended), for a viable foetus born alive in the Keyes case, and for a foetus nonviable at the date of injury but later born alive (see the Torigian case, 352 Mass 446;225 NE2d 926 [1967]), we went as far in revising the rule in the Dietrich case, 138 Mass 14 [1884], as the statutory language reasonably permits. If a foetus is born alive, it becomes a 'person’ with at least the theoretical possibility of survival and of enduring the consequences of prenatal injury throughout its life. A foetus not born alive seems to us to incur no such risk of continuing injury and also not to be a 'person’ within our interpretation of the legislative intention. If there are to be changes in the bases for recovery in this type of statutory action, we think that they are for legislative rather than judicial determination.” (Footnote omitted.)
Once an infant survives birth and thus becomes a "person,” the infant would have had a cause of action "if death had not resulted”.
Moreover, the O’Neill and Womack cases must be read in light of more recent developments in the case law. Roe v Wade,
Finally, the statute itself, MCLA 600.2922; MSA 27A.2922, should not become the object of judicial legislation. If Michigan is to become the first jurisdiction to allow recovery under the wrongful death act on behalf of an unborn three-month-old nonviable fetus, it is a determination for the Legislature.
"This is a problem for the legislatures of the various states. They must decide the problems in the light of the moral issues, the conflicting rights of the mother and child, the extent of medical knowledge and the interests of the state.”9
In view of the aforementioned considerations, we hold a three-month-old infant en ventre sa mere, not born alive, is not a 'person’ within the wrongful death act. MCLA 600.2922; MSA 27A.2922.
Affirmed. Costs to the defendant.
Notes
The above facts were stipulated to by the parties and are adopted herein.
Although the complaint indicates the fetus was four months old, the filed deposition of the treating doctor, Samuel E. Strong, M.D., as well as the parties’ briefs, indicates the fetus was actually three months old.
A fetus is "viable” when it is "potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Roe v Wade,
The only exception to the above limits in the various jurisdictions is found in a ruling by the Court of Appeals of Georgia in Porter v Lassiter, 91 Ga App 712;
ALASKA: Mace v Jung,
The Massachusetts statute reads in relevant part: "Chapter 229, § 2, as amended, reads in part (emphasis supplied): 'A person who (1) by his negligence causes the death of a person in the exercise of due care, or (2) by wilful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted * * * shall be liable in damages in the sum of not less than five thousand nor more than fifty thousand dollars, to be assessed with reference to the degree of his culpability and distributed as provided in section one; except that * * * [exceptions not relevant].”
Admittedly, the public policy of this state on abortion has been subordinated to the changed circumstances resulting from Roe v Wade. See People v Bricker,
Consider the implications of allowing such conflicting rights along with the abolition of intra-family immunity in Plumley v Klein,
McGarvey v Magee-Womens Hospital,
Dissenting Opinion
(dissenting). Until recently, Michigan law imposed no liability for prenatal
The majority draws limits on these recent decisions, limits which I am certain are unjustified. In Womack v Buchhorn, supra, the Michigan Supreme Court joined the majority of American jurisdictions that allow a person to recover for prenatal injuries. The plaintiff in Womack was not viable at the time of the injury, but, as far as the opinion indicates, this presented no problem for the Court.
Womack was a common law action for prenatal injuries, brought by a child who survived his injuries. Before us now is a statutory action for wrongful death. But the actions are related. O’Neill v Morse, supra, and the language of our wrongful death statute shows the relationship. The first section of the statute, MCLA 600.2922; MSA 27A.2922, reads:
"(1) Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover*306 damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.” (Emphasis added.)
The Supreme Court in O’Neill declared that the purpose of the statute was "to provide an action for wrongful death whenever, if death had not ensued, there would have been an action for damages”,
Mr. Justice Holmes, sitting then on the Massachusetts Supreme Judicial Court, authored the first American opinion on tort liability for prenatal injuries in Dietrich v Inhabitants of Northampton, 138 Mass 14 (1884). A woman, four to five months pregnant, fell upon a defective highway and suffered a miscarriage. The premature infant died within minutes of birth. The administrator of his estate brought an action, but the court would not allow it. Holmes questioned whether a duty could be owed "to one not yet in being”, and stated that "as the unborn child was a part of the mother
Though Dietrich has been effectively overruled, see Keyes v Construction Service, Inc, 340 Mass 633;
" 'Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that though within the body of the mother it is not merely a part of her body, for her body may die in all of its parts and the child remain alive and capable of maintaining life when separated from the dead body of the mother.’ ”
This provided a means by which to avoid the undeniably harsh results that occur when the legal existence of a fetus is denied.
However, the influence of Boggs’ dissent was not felt for some time. In 1923, a Louisiana court used analogies drawn from that state’s civil code to allow recovery for the wrongful death of a child who died, soon after birth, from prenatal injuries. Cooper v Blanck, 39 So 2d 352 (La App, 1923).
Though the decision was rendered in 1923, it
For a time, courts continued to emphasize viability when children brought actions for prenatal injuries. See, e.g., Mallison v Pomeroy,
It is true that a few jurisdictions have held that an action for the wrongful death of a nonviable fetus cannot be maintained. Three of the jurisdictions mentioned in footnote 5 of the majority’s opinion have expressly held that there is no action for the death of a nonviable fetus. Alaska: Mace v Jung,
The same footnote refers to the Iowa case of McKillip v Zimmerman,
"We are not persuaded the case at bar should be decided on the viability theory. It has been severely criticized as unsound by legal commentators.”191 NW2d at 708 .
Birth, the court thought, was a prerequisite for maintaining a wrongful death action.
Birth is the line discoverable from the cases on wrongful death. Where the action has been denied, the majority of courts have been unwilling to find
The Supreme Court of New Jersey fully appreciates the historical role emphasis on viability played. In Smith v Brennan, 31 NJ 353;
"Although the viability distinction has no real justification, it is explainable historically. The Dietrich case announced a theory that an unborn child was part of its mother. The first dissent from this proposition, by Justice Boggs in the Allaire case pointed out that an*311 unborn child who could sustain life apart from its mother could not be considered part of her. The logical appeal of Justice Boggs’ approach, coupled with the understandable conservatism of the earlier courts who broke with the Dietrich theory, resulted in a rule of recovery limited by the viability distinction. But the usefulness of that distinction has disappeared with the modern repudiation of the Dietrich theory. And since it has no cogent medical reason to support it, and no relevancy to the harm resulting from prenatal injury, we do not believe that it has any place in the determination of the question of liability for wrongful conduct.”
"The primary dispute [in wrongful death actions], of course, centers on the relevancy of birth.” Gordon, The Unborn Plaintiff, 63 Mich L Rev 579, 593 (1965). In the dispute, the Michigan Supreme Court has sided with those courts that have allowed wrongful death action even if there has been no birth. "The phenomenon of birth is an arbitrary point from which to measure life.” O’Neill v Morse, supra,
The majority admits that "much of the language in O’Neill is ambiguous as regards viability”. I thing that O’Neill shows that just as birth is deemed irrelevant, so should viability. I recognize that it was not a necessary implication of Womack v Buchhorn, supra, that fetuses be included in the wrongful death act. But since the Supreme Court in O’Neill has viewed Womack as expanding the definition of "person” in the wrongful death act to include the unborn, surely "person” must include the entity involved in Womack, a nonviable fetus.
In O’Neill, the Supreme Court took note of the public policy to protect the property right of the unborn. It was pointed out that there is statutory, authority for the appointment of guardians ad litem for unborn persons. MCLA 600.2045; MSA 27A.2045. The analogy from the protection of the
The narrow question this case presents is how broad is the word "person” in our state’s wrongful death act. The constitutional question decided in Roe v Wade,
The Michigan Supreme Court has given Roe a more restrictive reading. In Larkin v Wayne Prosecutor,
"The wilful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter.”
The Court pointed out that the statute "is related only peripherally to the issues decided in Roe v Wade and Doe v Bolton [
If "The phenomenon of birth is an arbitrary point from which to measure life”, O’Neill,
My position, that a nonviable fetus should be considered a person under the wrongful death act,
I would remand for the plaintiff to put forth his proofs.