Weitl v. Moes

WEITL, Gregory Weitl, Linda B. and Ro b Bennett, Bennett, Jr., erta Robert

Gregory Weitl, Jr., by E. their mother friend, Weitl, Grego

and next Linda

ry Weitl as Administrator of Estate Weitl, Kelly Appellants, MOES, Ramsey, R. John

John Albert M. Hospital

Dolan and St. Francis Sisters, Appellees.

Franciscan

No. 64843.

Supreme Court of Iowa.

Oct.

Jim D. DeKoster Cohrt, of Swisher & Waterloo, and Timothy White, S. Cedar Rapids, appellants. William M. Tucker and Richard M. Tuck- Phelan, er Tucker, Boyle Mullen, & City, Walter C. Winston, Schroeder of Reuben, Schroeder & Mason City, Edward Gallagher, Jr., J. of Gallagher, Langlas & Gallagher, C., Waterloo, P. and James E. Walsh, Jr., Clark, Walsh, Butler & Waterloo, appellees.

Nick Critelli Foxhoven, of Critelli C., P. Moines, Des for amicus curiae Association of Trial Lawyers of Iowa.

ALLBEE, Justice. dismissed Counts appeal III and IV. This followed. important questions presented Two are (1) appeal: whether a child Appellate jurisdiction. I. maintain an action for loss of soci-

ety companionship parent when the Before considering the ap- merits of this injured by party, the tortious act of a third peal, we jurisdictional must address a issue. (2) wrongful and whether a death action being question There some as to whether lies in behalf of a fetus which is stillborn appeal this is from a judgment, final due injury to a tortious to the mother. required by R.App.P. 1(a), Iowa we asked court, recognition prior prece- Trial in parties to submit briefs on that issue. dent, found that neither cause of action is parties argue opposing views as Iowa, cognizable accordingly and dis- finality to the of trial court’s order dismiss missed two plaintiffs’ petition. counts of ing two petition. of four counts of the See We wrongful affirm the dismissal of the R.App.P. 1(a) (b). Iowa and But even as claim, death but reinstate the action for loss suming that the judg order was not a final parental society companionship. and ment, we have may, determined that we allegations plaintiffs’ petition, should, grant appeal and an in this case accept purposes which we as true for of this pursuant R.App.P. 1(c). to Iowa That rule appeal, may be summarized as follows. permits papers us to treat the upon which Weitl, children, Linda a mother of three appeal equivalent is taken as the of an stages was in the late pregnancy when application interlocutory appeal under she was hyper- treated for bronchitis and turn, R.App.P. 2. Rule allows us hospital ventilation at defendant in Novem- to entertain appeal an from an interlocuto ber improper diagnosis 1977. As a result of ry ruling upon finding ruling that the “in treatment defendant doctors and rights volves substantial materially and will hospital, experienced Linda respiratory and affect the final decision and that a determi produced cardiac arrest. This incident se- nation of its correctness before trial on the vere, permanent damage perma- brain merits will better serve the interests of Linda, nent blindness in and also caused her justice.” We find that those criteria are fetus, fetus to be stillborn. The which has present met in the case. given Kelly, very name nearly full capable being term and was born II. parental Child’s action for loss of alive at the time of the incident which consortium. produced injury. Linda’s A. plaintiffs’ In Count I petition, Linda outset, As stated at the impor- the- first damages injuries seeks for her own and for presented by tant issue appeal this support loss of her services and to her chil- whether this court should an inde- husband, dren and Gregory husband. Her pendent right of action in a child Weitl, to recover damages asks for for loss of consorti- companionship for the loss of um and expenses for Linda’s medical parent injured tortiously who has been Count II. request Defendants did not dis- party. a third addressing par- Before missal of those counts. specific arguments, ties’ helpful it will be Linda’s three minor children seek recov- background examine the and current status ery in Count III family for “loss of relation- of this asserted cause of action in Iowa and ship, association, loss of companionship elsewhere. care, attention, kindness, maternal guidance, recently, comfort and solace Until a child’s cause of their moth- of action society.” er’s pur- parental On behalf of the for loss of fetus’s consortium was un- estate, ported Gregory sues in known to Count IV for the common law. See Hankins v. death of the Derby, (Iowa 1973). stillborn fetus. 211 N.W.2d defendants, On motiоn of some however, trial court years, Within the last two two majority that the The Hankins concluded recognized a cause such jurisdictions “clearly permits statutory provision Daniel O’Con quoted Ferriter v. of action. See Inc.,-Mass.-, 413 N.E.2d Sons, damages nell’s all of the elements Weber, Mich. (1980); Berger v. by plaintiff” and that limits asserted “[i]t jurisdic (1981). All other in which and proeedurally only the manner the issue have have considered tions which whom, cause of proper party by ” law. the common so extend declined to . maintained. . . may be action (1976 Annot., 69 A.L.R.3d generally Thus, Hankins in fact de- Supp.1981). provided a section 613.15 termined that similarly court Derby, In Hankins recovering damages for statutory means of recognize such declined consortium, but child’s loss of 211 N.W.2d at in the child. cause of action that, by operation of the held also acknowledging impor- While 585-86. the child’s such any claim for maintaining interest tance of a child’s injured par- brought by the must be behalf conceding relationships, and family viable ent or his estate. action carried cause of that the asserted ma- appeal,” the Hankins “great emotional recognition of the that

jority declared B. recovery properly more right child’s of principal argu- advance two Plaintiffs legislative determination. an issue for support their contention that ments in of addition, In the court 585. N.W.2d at dismissing the claim of erred in trial cоurt recog- “inhibited” from that it was stated parental loss of consor- Linda’s children for by section of action nizing such a cause 613.15, First, they urge that section tium. 613.15, 211 N.W.2d at 585. Code 1971. Hankins, interpreted be declared un- as in unchanged in remains That which assert that the constitutional. Plaintiffs Code, provides: the current interpreted Equal the statute as violates spouse of Injury of death or —measure the fourteenth amend- Protection Clause of damages be- recovery. for any In action denying independent by ment a child’s negligent injury wrongful or cause of the consortium, parental of action for cause woman, there shall be no or death permits par- while Iowa law otherwise restrictions, recovery and disabilities or separate action for loss of a child’s ent’s thereof had on account consortium, damage as of be- see Iowa R.Civ.P. as well as in cases same manner negligent injury wrongful or spousal cause of the action for loss of she, or In addition or death of a man. consortium, Buhrow, see Fuller v. estate, may her re- her administrator (Iowa 1980); Acuff v. N.W.2d 674-76 services, nursing and physician’s cover for Schmit, 78 N.W.2d 480 expense, in the case of both hospital and Alternatively, plaintiffs ask this court to men, ap- person, or the and such women interpretation the Hankins of sec- abandon administrator, may the recover propriate a common lаw tion 613.15 and spouse support as or value of services and by paren- cause of action a child for loss of be, both, parent, as the case or injury the tortious of tal consortium due to proper; pro- jury deems such sum as parent. his vided, however, recovery for these ele- plaintiffs challenge the constitu- Because damage may by had ments of not be tionality interpreted 613.15 as of section children, such, per- any spouse and as of Hankins, necessary reexamine that administrator, it is who, is enti- son or whose correctly whether it to determine same. decision tled to recover juncture, damage pleaded that three Significantly, At this we also note 1. the elements specifically by that in Hankins stated in the case at bar are word- dissenters Linda’s children majority’s they disagreed identically with determina- asserted the child ed to those recovery Hankins, permitted plaintiff N.W.2d tion that section 613.15 in Hankins. See damage. 211 those elements of at 581-82. interpreted parent-child In the context to bar child’s inde- relation- we ships, find no reason to assume pendent for loss con- legislature intended loss of “services” as perceived We note that sortium. Code, used section “inhibiting” effect section 613.15 was not a different of “serv- loss decision, the sole basis for the Hankins ices” former Iowa R.Civ.P. We con- 8. challenge to that no constitutional the stat- provision strued latter to include loss Thus, presented ute was in that case. companionship society. interpre- closer examination Hankins (Citations omitted.) Also, in appropriate tation of section 613.15 Schmitt Lines, Inc., Truck Jenkins this time. (Iowa 1969), four members of an We find that several difficulties inhere in equally apparently pa- divided court viewed First, the Hankins view of the statute. “guidance” part rental “affection” and as provides injured per- section 613.15 of the “services” referred to in section 613.- “may son recover value services and support parent, both,” or spouse as was, contrary A view of the statute how- “recovery for these elements of dam- ever, expressed Fuller, by this court in cited age may spouse not be had case, earlier. observed that such, children, any person who ... consortium in Iowa “are limited to (Emphasis entitled to recover same.” add- compensation intangible for the loss of such ed.) Because the statute is worded so as company, cooperation, elements as affection apply equally spouses children, to and aid” and that these are be distin- spouse’s independent must bar a action for guished tangible from the elements —medi- consortium it the ac- if indeed bars child’s cal expenses, support services and —covered However, independent tion. claims for Fuller, by section 613.15. 292 N.W.2d at spousal regularly brought consortium are in Fuller, turn, by Acuff, is supported 675. in spouse, by noninjured Iowa as evi- 274, 78 Iowa N.W.2d at by Gregory’s denced even claim in the case where this court made similar statement See, Fuller, g., at bar. e. 292 N.W.2d at and noted that the value of services 674-76; Acuff, 78 N.W.2d spousal in a included consortium claim in 480. It has never been held that section Iowa. 613.15 bars those claims. Thus, emerged, two cases lines of difficulty A second is that even construing one in “services” section 613.15 Hankins states that 613.15 section covers intangible damage to include elements of in damages “all of by the elements of asserted the context of a child’s loss of plaintiff” e., compan- in that case —i. loss of consortium, construing and the other care, attention, kindness, ionship, society, same word in the same statute to exclude guidance, only comfort and solace —the ele- intangible such elements when claim damage ments of mentioned in the statute spouse’s for a loss of consortium. Because expenses itself are medical the “value meanings, the statute cannot have two de- support spouse parent, of services and or pending on party applied, whom it is “support” or both.” Because fi- refers to which must determine was in- nancial providing maintenance and the by legislature. tended comforts, aрpar- material the Hankins court C. ently construed the word “services” in- intangible damage clude the elements Research convinces us that word pleaded respect, in case. In this Han- in “services” section 613.15 meant was not kins buttressed Iowa-Des Moines Na- society, to include com Co., tional Bank v. Trucking Schwerman panionship any intangible related (Iowa 1980), in damage which comprise elements which a con this court said: sortium claim in Iowa. might have maintained that “the husband section 613.15 to version of

The earliest society.” wife’s action for loss of his was enacted ‍​​​‌‌‌​​‌​​‌‌​​​‌​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌​​‌‌​​​‌‌‌​​‍Iowa statutes appear in the Sess., G.A., Lane, at 376. 174 Iowa at 156 N.W. 34th ch. § 1911. See however, time, acknowledged, that he husband’s The court Prior to that his maintained an action for loss for loss could not have cause of action services, firmly established as a the 1911 statute of her because wife had become Mowry v. exclusively law. part placed right common of action of Iowa’s (1876) (husband, of her es- Chaney, 43 Iowa hands of the administrator as administrator suing right and not in own Id. at 156 N.W. tate. estate, her recover for loss of could

of wife’s was simi- The 1941 version of the statute injury and society during period between Walker, interpreted in larly DeMoss Co., Stage death); McKinney v. Western (1951), where an 48 N.W.2d 811 Iowa (“husband might (1857) main- sought recovery for estate administrator any loss sus- separate action tain his seventy-seven-year-old dece- loss of being consequence of de- by him in tained not- a mother. court dent’s services as [negligently society of the prived of the in the statute “services” as used ed that Note, wife”); injured] Loss of Consortium menial household to a woman’s referred (1960). Iowa, Drake L.Rev. her services as “administrator labor and prior the estate of the law Under affairs of her home.” Id. the internal have an income of her a woman who did not N.W.2d at 813. The court denied little able to recover or noth- own would be recovery for loss of the woman’s services wrongful death. This was be- ing for her there was no evidence that she because measured, damages were any cause such to her regularly provided such services women, present by the value children, living both men and were adults all of whom have accu- Furthermore, the decedent would of the estate their own homes. Id. untimely death. See mulated but for though the woman’s death terminated her Druker, Question Damages Result- relationship with her children and thus re- Changes, Legislative ing Recent companionship, From sulted in their loss of her Presuma- Drake L.Rev. for “loss the court observed situation, remedy legislature bly to this society” were not recoverable under forerunner of section 915, in 1911 enacted the statute. Id. at 48 N.W.2d at 814. See 613.15, jury, the first which allowed a Westcott, 25, v. 32 F.R.D. 27-28 also Medd time, a woman’s consider the value of (N.D.Iowa 1963) (Iowa appear cases to indi- making a “services as a wife or mother” whose wife survived for four cate that man Sess., 1911 wrongful death award. See dying injuries “inde- months before had G.A., 163, 1. A successor 34th ch. § by pendent action not eliminated 613.11 § 1941, the value of an passed in allowed predecessor immediate of section 613.- [the “ injured to be considered woman’s services affection, for loss of wife’s ‘love and 15]” ” injury not also where her did result in cases society, companionship and consortium’ Sess., G.A., 297, 49th ch. in death. 1941 months, during those but that he could not 1; The Code § § claim for loss of her aid and serv- Acuff, 276, ices); 248 Iowa at 78 N.W.2d 1916, after the initial years five In action for (right bring independent allowing recovery for the value of a “clearly at com- loss of consortium existed enacted, this court woman’s “services” mon law so far as the husband was con- inapplicable to apparently the statute found cerned, we find no statute which de- and society. spouse’s a Lane claim for loss of same.”); Druker, supra, prives him of the 317, 318-19,156 N.W. Steiniger, v. 174 Iowa (Iowa long that loss of at 112 court has held 375, (1916). Jacobson v. Fuller- But see predeces- its 1195, 1201-02, 358, “services” in section 613.15 and ton, 165 N.W. pecuniary and not one sors refers to “a loss (1917). wife 359-60 Because the deceased ... loss of on a consideration of period be- based in Lane had survived for some deаth, companionship.”). society and injury tween the court stated authorities, foregoing along 2792, Code, The with his minor child. § Revision Acuff, Fuller and demonstrate that this of 1860. may This statute have been based original court’s and more consistent con- common law rule that a father was struction of “services” in section wages 613.15 and entitled to the earned a minor predecessors applies only its has been that it child and to the economic value of his serv- tangible spouse par- to the services of a ices. See Pawnee Farmers’ Elevator Co. v. Powell, 1, 7, ent. In the four times 836, the statute has been (1924); 76 Colo. 227 P. superseded,2 amended or legislature Buster, 623, has Ky. Meredith v. once longstanding (1925); indicated that this City S.W. Stewart v. Therefore, construction was incorrect. Ripon, 38 Wis. In hold that the did not intend sec- framers of the Iowa Rules of Civil Proce- tion apply 613.15 to to claims for loss of dure decided to make the part statute a society, companionship and the other intan- Sess., G.A., the rules. See 1943 50th eh. gible elements that come under the rubric

of “consortium” in Iowa. To the extent our Eventually, this court in a 5-4 decision prior cases are inconsistent with this hold- construed the term “services” in rule 8 to ing, they are overruled. Our resolution of “companionship include society.” question it unnecessary makes to con- Keokuk, City Wardlow v. appellants’ sider challenge сonstitutional (Iowa 1971). Any debate over that section 613.15. moot, construction would now be because years two after the Wardlow decision rule 8 D. explicitly was amended “compan- include Having determined that section 613.15 ionship Sess., society.” See 1973 65th decision, inhibiting upon has no effect our it G.A., ch. 676-78. remains for us to decide whether we should parent’s independent existence of a independent an action a child action for loss of consortium under rule parental for loss of consortium due to a presents problems. spousal certain While a party’s injury third parent. tortious consortium possibly claim be distin analysis Our must take into account the guished from a child’s claim for loss of existence of related causes of action under consortium on a number of noted, Iowa law. person As a married see, grounds, g., e. Borer American Air maintain an action lines, Inc., 441, 448, 19 Cal.3d Cal.Rptr. injured loss of consortium of spouse. 563 P.2d Russell addition, parent may sue for “loss of Co., Transportation Salem 61 N.J. 505- services, companionship result- (1972), 295 A.2d parent’s ing injury to or death of a minor claim for loss of the ap child’s consortium child.” Iowa argue R.Civ.P. 8. Plaintiffs pears to be more distinguish. difficult to In logic that and fairness demand extension of case, a recent the Supreme California Court a right similar of to the child. “[ujnpersuaded stated that it was any examining Before argument, that we legal find parent’s distinction between a claim it beneficial to review the evolution of rule for loss of a child’s consortium and a child’s 8. The rule originally an 1860 parent’s claim for loss of a consortium.” parent Borer, under which a 444, 138 was allowed to recov- Cal.Rptr. 19 Cal.3d at expenses er “the and actual loss of service” 563 P.2d at being equivalent 860. There no resulting wrongful injury law,3 or death of of our rule 8 under California the legislative changes, 2. For a (1952) (constru discussion of these ho 425, 242 P.2d 971, 977 generally ing see -311); Druker, at 108-09. supra, Idaho Code §§ 5-310 Wash.Rev. (Supp.1981). Code Ann. § 4.24.010 Apparent jurisdictions two Only other than Iowa have Wisconsin is the ly, state in which the allowing injured highest statutes the of an recognized parent child court has such a explicitly to recover for loss of the child’s and common law action in the See Shock parent. Yost, See v. companionship. Hayward Prier, Ida- v. ley 66 Wis.2d 225 N.W.2d 495 relationship quality parent-child deny both proceeded court then damages; be to contest the issue in Borer and order of action child’s cause damages remote and companion cause the would be action a parent’s cause of uncertain; Ange and because it ease, Superior of Los would be anoma Court Baxter Cal.Rptr. protect against negligent interfer County, lous to les 19 Cal.3d the existence of interest in com Given ence with a child’s 563 P.2d 871 protect we must face is question first when Iowa law does not panionship rule which policy considerations interference whether interest from intentional that weighing viewed as action. by way other courts of an alienation of affections cause of against recognition Luhman, of the child’s Wheeler v. 305 N.W.2d See jurisdiction persuasive addition, in a 1981). inability action remain (Iowa recognized parent’s already intangible which has money compensate losses of action. denying cause reason for has cited as a Borer,

recovery. 19 Cal.3d at 138 Cal. E. Rptr. 563 P.2d at 862. traditionally the reasons A number of law, unper- we are In the context of Iowa of ac rejecting the child’s cause given for arguments, they by these because suaded convincing, even in the absence tion are not weight to a carry greater no relation recovery. argu parental right of they in relation to child’s claim than would exists, ever a precedent if ment that no parent’s spouse’s or claim. There would recovery, denying is no worthy reason for greater incentive for a defendant be no light Berger. Ferriter and longer valid in quality underlying rela- attack the recognition of such a that The contention than tionship in the ease of a child’s claim legisla question for the cause of action is a parent’s spouse’s in the case of a there is that the action for loss ignores ture the fact claim, yet possibility has not de- and that of the common is a creation of consortium recognizing either of the terred us from law, development of the com uncertainty and remote- latter claims. proper sphere of our within the mon law is incompensability ness of and the responsibility. We observe authority and present parent’s claim of the loss are legislative not await this court did of a child’s consortium no less than for loss rule abrogate the common law action to situation, they would be in the converse suing for loss prevented a wife from which yet parent’s rule 8 allows the claim. Final- Acuff, 248 Iowa spousal consortium. See spouse against negligent ly, protect we merit is Also without 78 N.W.2d 480. relationship interference with the marital recognition argument “floodgates” recognize we a cause of do will right of action force of the child’s spousal for intentional alienation of action by siblings, claims court to similar Mickelson, Fundermann v. affections. See relatives or friends. grandparents, other (Iowa 1981). We find no 304 N.W.2d 790 should have no trouble We believe a court be- anomaly here. The distinction is not to the two limiting the cause of action torts; negligent tween intentional parent- relationships, husband-wife why person there is no reason could not child, likely to suffered is in which the loss resulting loss оf consortium recover Weber, greatest. 82 Mich. Berger physical inju- from an intentional or mental (1978), Ap. Rather, deny ry spouse. to his or her aff’d, (1981). N.W.2d 424 411 Mich. recovery when the consortium is lost be- voluntarily argued spouse abandons that cause It has further been relationship, encourage- marital with the should be denied be- child’s cause of action party, we allow recov- ment of a third but to attack the cause would lead defendants Annot., ship, generally Love, (1975). Tortious Interfer- 51 Ind.L.J. 592 n.4 (1976). Relationship: Loss A.L.R.3d 553 ence With the Parent-Child Society Injured Companion- of an Person’s See, ery Borer, is lost number of g., when the consortium because the children. e. injured involuntarily by is a spouse Cal.Rptr. third Cal.3d at at 563 P.2d apply (injured A similar would party. distinction in at nine woman’s children sued consortium). Thus, context of a claim for loss child’s of for loss of her defend- parental argue, consortium. recognition ants of a cause of action parental expose for consortium would tort- denying As further reason for child’s to feasors a “substantial accretion of liabili- action, point of cause defendants out that ty arising single .. . out of a transaction.” gives the common law a child no enforce- is also this It contended that increase in against parent anything able claim his for potential liability be a cost ultimately would They argue support. other than basic whole, by society borne as a both through recognition “right” parental of a child’s to higher premiums insurance and as a result society, companionship training would of a rise in the of number uninsured tort- require courts to allow children to sue their Borer, feasors. See Cal.3d at willfully or parents negligently failing for 862; Cal.Rptr. Russell, at 563 P.2d provide parent- those elements 61 N.J. at 295 A.2d argument relationship. child This also First, merit. lacks we observe that arguments While these persuasive are spousal parental abstract, existence of consorti- they when viewed in the lose force opened um claims in Iowa has not light parental door in of the fact that consortium damage by persons spouses suits whose damages have heretofore available in provide children or fail or refuse ade- under interpreted section as in Second, quate companionship. it is not nec- interpretation Under Hankins. of the essary legally that an based on a reject, interest be today which we a tortfeasor in enforceable entitlement order to be com- parental could be held liable the loss of Schmitt, pensable damages, children, his by consortium suffered victim’s 664; only one Schwerman, need show that there was see 288 N.W.2d at certainty receiving a reasonable benefits pursued the claim be only by could unreasonably with which injured parent the tortfeаsor in- parent’s a deceased Haesemeyer, terfered. See Frohwein Plainly, potential estate. the tortfeasor’s 1978) (Iowa (recognizing ‍​​​‌‌‌​​‌​​‌‌​​​‌​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌​​‌‌​​​‌‌‌​​‍same, liability regardless is the of who Thus, brings cause of action for interference practical effect, claim. bequest); with a recognition McPeek Western Union independent our of a child’s ac- Co., 356, 362-63, Telegraph 78 tion for loss consortium would not (1899) (holding N.W. defendant liable potential liability; increase a tortfeasor’s negligently causing plaintiff fact, to lose a refusal such an action at reward); Note, winning chance time would result in a restriction of Right to Loss of Child’s Sue for a Parent’s liability, rejection our because Love, Companionship Care and Caused interpretation Hankins means section 613.- Parent, Injury Tortious to the 56 B.U.L. longer no as a available means of principle Rev. This recovering parental damages. consortium parent inherent in has rule for a no more Perhaps principal difficulties with legal entitlement to his child’s recognizing an consortium ac- companionship than a child to that does child, opposed tion to an action that parent. his injured pursued only by parent, procedural are and administrative. Certain

F. that, fact problems arise from the because group injured parent Another each child concerns based on of an would have action, perceive independent right multiplici- what as a valid distinction be- parent’s ty litigation single tween the claim and the child’s could result injured claim: An par- child has two incident. While the same be said of a ents, injured parent may any independent but an under parent’s have claim rule the likely Hicks, Inc., join are to parents is more 38 Wis.2d

fact that injured with claims the child’s their rule 8 N.W.2d 599-600 parents usually in are con- claims since the joinder, Even in the poten absence of the lawsuit. trol Because minor of child’s problem may tial overlapping recovery of injured par- control child is never in of his by jury be solved instructions which make lawsuit, possibility separate ent’s of damages clear that for the children’s loss of points at different in time brought lawsuits companionship and are not to be particularly because increased. This so injured parent’s included in the award and Code, provides of which section pursue that the children are entitled to an period on minor limitations independent recovery. claim for such If the expire he child’s claim before reach- cannot jury is made aware children have es nineteen. action, perceive own their it will consequences potential of Possible compensate to par need their loss in the multiplicity of suits include an increase in B.U.L.Rev., supra, suit. 56 ent’s at 735-36. litigation сosts, on additional burdens an parent join Where both and child in one already-crowded system possi- court and suit, provide such instructions would bility injured parents with that settlements Berger, additional benefit noted 82 Mich. discouraged will be because children’s App. at 129: “Rather independent be claims would not extin- juries having than make blind calculations guished. Arguably, possibili- there is also a determining of the child’s loss in an award ty awarded to the child in a parent, openly to the a child’s loss could be independent subsequent overlap suit may argued jury in court and the could be in already parent, with those awarded to the to structed consider the child’s sepa loss jury in parent’s may because the case rately.” enlarged to its award somewhat com- Finally, parent’s even where the and chil- pensate companionship loss for the of suf- joined action, claims dren’s are in one there fered the children. problem finding equitable way is the of an possible problems A solution to these apportion damage awards among the would, join- requirement compulsory be a of children. Idea.:/, various awards would be der of the with child’s consortium claim his proportion allocated to the value of socie- injured parent’s Love, supra, claims. ty lost, companionship that each child 626-28; B.U.L.Rev., supra, at 732-33. greater which be for some childrеn recognized Other causes courts have new of However, than for others. this would cre- action for consortium loss of on the condi- proof problems might ate serious tend joined tion that such be claims with those of produce family Love, disharmony. su- the primary Shockley tort victim. See v. Thus, pra, equal at 624-26. apportion- Prier, 394, 404, 66 Wis.2d ment ultimately award (1975) (parent may maintain action for preferable. deemed loss “provided, of child’s consortium condition, parent’s that the cause of action combined with that the child for the G. personal injuries.”);

child’s v. Ekalo Con- drawbacks, Having possible examined the America, Corp. structive Service N.J. we weighing turn considerations in favor (1965) (“In recognizing 215 A.2d recognizing independent a child’s action consortium, a wife’s claim for loss of loss consortium. may, course, joinder upon condition it First, we note that there has ”). with her husband’s claim.... The alter- growing to recognize trend minor require joinder native children would be whenev- having feasible, er making pos- identities and joinder without re- quirement sessing rights See, certain their Lilly absolute. See Diaz v. Eli own. e. Co., 153, 162-63, Carey g., Population 364 Mass. 302 N.E.2d Services Interna- (1973); Fitzgerald tional, Meissner U.S. 97 S.Ct. (1977); recognition claim, L.Ed.2d 675 Tinker v. Des Moines not from of the but from District, Independent Community School earlier, its denial. As noted under the Han- 393 U.S. 89 S.Ct. 21 L.Ed.2d 731 decision, damages kins parental for loss of B.U.L.Rev., supra, at 742-43. consortium have been available in Iowa Recognition aof child’s cause of action for way of section 613.15. Now that we have parental loss of consortium be would in rejected that statute as a vehicle for the Moreover, keeping with that trend. unless injured parent damages to recover those disparity sound reasons exist for in treat- behalf, the child’s denial of the child’s cause ment, ought children to be accorded the of action family would leave a with no protection same legal and the same redress seeking means of redress for the child’s wrongs enjoy. done them as adults intangible, very real, but losses. B.U.L.Rev., supra, at 742. present provides example case addition, right a of recov- consequences Alleged- of such a denial. ery parent’s for a loss aof child’s consorti- ly negligence, because of defendants’ Linda um, not for a parent’s and child’s loss of a Weitl is now severely blind and brain dam- consortium, runs counter to the fact that in aged. permanent. Both conditions are As any disruption parent-child relation- result, her likely three children are to be ship, probably it is the child who suffers totally deprived any meaningful relation- most: ship with may her. While Linda seek dam- years Since the child in his formative ages on their behalf for loss of her “serv- requires develop emotional nurture parent, ices” damages as a such pro- would love, properly, the loss of care and com- only tangible vide services such panionship likely a more severe cooking, laundering, as keeping the children adult; effect on him than on an safe, clean and and transporting them to society strong has a seeing interest appointments and activities. On the other that development the child’s emotional hand, may Linda’s husband find he proceeds along Moreover, healthy lines. employ person needs to who can enter position an adult is in a better than a personal into a relationship with the chil- adjust child to to the loss family provide dren and them with companionship love, member’s companionship care and guidance; may he need to curtail his through his capable own resources. He is . working hours, income, and thus his in or- developing relationships new spend der to more time with the children hope replacing some of the emotional himself; may he eventually find one or deprived. warmth of which he has been more of the children to be in need coun- child, however, A relatively powerless seling problems arising for emotional relationships to initiate might new the loss of companionship maternal mitigate the deprivation. effect of his guidance. Yet compensatory none of these Legal redress be child’s possible mеasures if the children are mitigating means of the effect of his loss. denied for loss of their mother’s B.U.L.Rev., supra, at 742. See also Com- companionship. ment, The Child’s Cause of Action for Loss Consortium, 5 U.San.Fern.V.L.Rev. Finally, we believe there would be merit (1977). Although damages can nev- requiring paren- for loss of replace parent’s er companionship, com- separately tal consortium be awarded to the fort, guidance, they affection and help can child, injured parent rather than to the compensate for the effects of those losses in required by separate Hankins. Such a allo- ways, a number of as will be demonstrated helps money cation ensure that will subsequent in our discussion. actually be used to benefit the child whose weighing compensate,

Also loss it recognizing favor of intended to rather child’s being purpose cause of action is the than fact that used for some other change more drastic law parent. our would result Iowa,

H. right to maintain a suit for wrongful purely death statutory, there analysis, In the final we conclude recognizing being that the reasons a child’s no such action at Egan common law. cause of action for loss of consorti Naylor, v. (Iowa 1973); 208 N.W.2d 917 outweigh any problems um in Iowa such an Major v. Burlington, Rapids Cedar & may present. Accordingly, action we hold Railway, Northern 115 Iowa 88 N.W. that a an minor has cause of (1902). generally 815 Justus v. Atchi society compan action for loss of the son, 564, 572-75, 19 Cal.3d Cal.Rptr. 139 ionship parent tortiously injured who is (1977). 565 P.2d party significant third so as to cause a action, which affords this cause of disruption parent-child or diminution of the 611.20, provides: section “All causes of ac relationship. tion shall survive and brought be not We limit under this cause withstanding the person death of the enti period of action to the child’s minori tled or liable to the same.” ty, recognize we that adult children par also benefit from their wrongful death statutes Unlike ent’s companionship. We do so many states, Iowa’s death statutes have group because minors are the likely most always been of the type. “survival” Fitz suffer disruption real harm due to a of the gerald Hale, v. 1194, 1196, 2A1 Iowa parent-child addition, relationship.4 In such (1956). N.W.2d Such a statute a requirement provides parity with rule does not create a new cause of action in a which parent’s limits the consortium dam survivors; rather, decedent’s preserves ages period to the minority. child’s rights whatever and liabilities a decedent Lastly, multiplicity because of the respect had with to a cause of action at the litigation that could otherwise result when time of his Wright Daniels, death. injured parent children, has a number of (Iowa 1969), N.W.2d overruled on recognition condition our of the child’s grounds, Crabb, other Shook v. 281 N.W.2d cause requiremеnt of action on a 616, 618, (Iowa 1979); Cardamon v. joined child’s claim injured par be with his Hospital, Iowa Lutheran ent’s claims whenever feasible. If a child’s brought consortium claim is separately, The cause of burden will plaintiff be on the child preserved to show action thus is deemed to accrue to why joinder was not feasible. the decedent’s representative estate “at the time it would have accrued to the deceased Wrongful III. death of a fetus. 611.22, if he had survived.” § Code. important The other question we consider wrongful Because a death action in Iowa appeal on this is whether this court’s deci- purely statutory, our sole task is to con- McKillip Zimmerman, sion in strue the survival statute to determine if (Iowa 1971), should be overruled. plaintiff comes within its terms. McKillip wrongful héld that no death action McKillip, 191 N.W.2d at 708. We may be maintained on behalf of a fetus courts, majority in construing alive, which is not born because a fetus is their state death or survival stat- “person” not a meaning within the of our utes, have contrary reached a result survival section The Code. ; McKillip however, We are McKillip significant satisfied that correctly number decided. of states minority adhere to the view.5 See Love, supra, (“As 4. See persons apt a matter of those who are most to have sus- policy legislatures may genuine loss.”) ... some courts (footnote omitted). tainеd a potential want to confine the class of [consorti- plaintiffs par- um] to minor children and their According to the citations listed in the dissent right ents. This would limit to recover to division, to this about one-third of the states highest ques- whose courts have considered the Annot., (1978 explain, 623. For will generally 84 A.L.R.3d reasons we we be- Wrongful vary death Supp.1981). meaning statutes lieve this was the wording state and are from state to had in when it mind enacted our survival likely vary intended as well.6 statute.

Therefore, what courts have other said Initially, we note that an unborn fetus provisions their state code cannot about generally was not considered a conclusive as to ours. We must make an Hicks, common law.7 Kilmer v. 22 Ariz. independent determination of the intended App. 529 P.2d meaning of our own statute. Sanders, State ex rel. Hardin v. 538 S.W.2d statute, construing When a this court has 336, (Mo.1976). legislature If the in a limited role. We must for the “[search] abrogate pur tended to that rule for the legislative by intent as shown what the pose wrongful death actions under the said, legislature rather than what it should presumably survival it would have might R.App.P. or have said.” Iowa specific by made that intention clear ref 14(f)(13). judiciary The should not rewrite erence to the unborn in the statute. guise construing a statute under the it. area, legislature In the criminal our has changes in “If a law are desirable from a specific not hesitated to be whеn it intended standpoint policy practicality, or mere it apply a statute to to fetuses. Murder is them, legislature is for the to enact not for killing person” as the defined of “another incorporate by interpreta- the court to them aforethought, with malice The § Monroe, tion.” State 36 Code, but feticide and related crimes are (Iowa 1975). Bearing principles these separately specifi- treated in statutes that mind, reexamining we turn to the task of cally 707.7-.10, refer to fetuses. See §§ “person” our construction of the term conclude, The From Code. this we as did section 611.20. Justus, the California court in that when ordinary meaning legislature legal

The of the word per- the intends “to confer “person” being sonality human who has “at fetuses unborn for certain limit- recognized identity” by purposes, expresses spe- tained individual ed that intent in Welch, terms; being appropriate corollary, born alive. Cardwell v. 25 cific and 390, 392, course, N.C.App. [legislature S.E.2d 383 of is that when the denied, (1975), speaks generally ‘person,’ cert. 287 N.C. ... it im- S.E.2d minority recovery denying changed every juris- tion follow the for the rule rule has been in almost wrongful States, recovery death of a fetus. In diction. most is said to viable, permitted only be if the fetus was or (Second) 6. The Restatement of Torts § quick, injuries at least when the were sus- (1979) Comment f states that whether an ac- tained, though squarely few courts havе so wrongful tion for be maintained “will death of a stillborn fetus can development, generally op- In held. posed a recent depend upon language commentators, by per- some States applicable by statute and its construction parents mit the of a stillborn child to main- determining the court in intended to whether the statute is tain an action for death because of create the cause action. The action, however, prenatal injuries. Such an language general of the statutes varies and no appear par- would ents’ interest and is thus consistent with the to be one to vindicate the rule can be stated for their construction.” Wade, 113, 161-62, 7. In Roe v. 410 U.S. fetus, most, represents only view that the the 705, 731, 147, 182, S.ct. States 35 L.Ed.2d the United potentiality Similarly, of life. unborn Supreme pertinent made Court these recognized acquiring children have been observations: rights by way or interests of inheritance or abortion, In areas other than criminal property, other devolution of represented and have been any theory law has been reluctant to endorse that birth or to accord by guardians ad litem. Perfec- life, it, recognize begins as we before live involved, again, gen- tion of the interests has legal rights unborn erally short, upon contingent live birth. except cept narrowly defined situations and ex- recognized the unborn have never bеen rights contingent upon when the are live persons in the law as in the whole sense. example, birth. For the traditional rule of (Footnotes omitted.) prenatal injuries tort law denied the child was bom alive. That pliedly plainly but excludes such ex fetuses.” delicto dies with either or both [of] Justus, Cal.Rptr. 19 Cal.3d at parties, prosecution but the thereof 107, 565 P.2d at 132. commenced or against continued or their respective representatives.” § The McKillip’s holding that a fetus is not a Code 1851. See also §§ within the of section 1851; Code, Code § Revision of that,’ 611.20 is reinforced the fact By terms, its this statute applied years decided, ten since that case was only to those who were or could have been legislature responded by has not changing “parties” to a tort cause of action at the legislative statute. While such silence death, time of and therefore ap- would not conclusive, is not consider it as ply ato fetus. There is no reason to believe some evidence legislature is satis- legislature, in enacting the 1873 McKillip fied with the construction of the version, any intended change substantive statute. Mortgage Corp. See General phrase when it “person used the entitled Campbell, “parties.” liable” instead of The fact the intervening period has Plaintiffs adhering contend that passed legislation considered and other re- McKillip preclude will our recognizing a lating fetuses, to the death of as noted live-born infant’s cause of prenat- action for above, significance lends additional to its injuries, al if and when question such a failure to amend the survival statute to comes before Although us.8 we do not inti- Sess., G.A., include fetuses. See 1976 66th mate what our decision would inbe such a 1245(1), 707-10; Sess., ch. §§ 67th case, we do not believe our construction of G.A., ch. 2-4. §§ the statute would mandate such a result. argument Plaintiffs’ is McKillip

We that based on the is fact that recovery factually distinguishable wrongful for from the death under case at sec- tion generally bar 611.20 is because the fetus in McKillip allowed when the was not decedent injury, viable at the time would have been able to N.W.2d at recover alleged for the wrongful while alleged the Weitl fetus act “had to be he sur- injury.” Egan, vived the nearly However, viable and full term. we at legislature do not believe Plaintiffs contend that a cause intended to prenatal injuries, include recognized even a viable fetus within if the class action Iowa, “person[s]” would be one under that a section 611.20. stillborn fetus Had could brought have had it intended to include one survived those class injuries. Therefore, another, they argue, of fetuses and not there would must preserve either greater been even this specifical reason to cause of action for ly estate, the fetus’s refеr to such or we prepared fetuses in the statute. must be say the cause of action does not The history of supports section 611.20 also exist in Iowa. our conclusion “person” that a fetus is not a within meaning Except statute. We agree do not that our construction of for a changes few punctuation minor presents the statute such a dichotomy. grammar, present section 611.20 is iden- argument Plaintiffs’ begs question. tical to the version of the statute which Taggert, See Graf v. 305-06, 43 N.J. appeared first in the Iowa Code of 1873. 204 A.2d language Compare 611.20, The Egan § Code 1981 with construes section 611.20 and therefore § The Code 1873. An earlier applies only version to a decedent who is a of the statute did not contain the word within the of the statute. Plain- “person,” but said that “no cause of action argument tiffs’ erroneously assumes that a 8. Whether such negligently a cause of action prenatal injuries should be inflicted if the recognized yet has not generally Annot., decided in Iowa. infant is born alive. See Virtually jurisdictions all (1971 that have Supp. considered A.L.R.3d 1230-32 question 1981). now allow Trial “person” to whom the “had he court’s dismissal of Count III of fetus is a reversed, plaintiffs’ petition is its dismissal language Egan applies. With- survived” affirmed, IV of Count case is assumption, argument fails. out proceedings for further remanded consist- Furthermore, that courts in at we note opinion. appeаl ent with this Costs of this difficulty no least four states have had appellants shall be taxed one-half to denying recovery for death of a appellees. one-half to fetus, already those states had PART, AFFIRMED IN REVERSED IN ac recognized a infant’s cause of live-born PART, AND REMANDED. Graf, injuries. prenatal tion for 43 N.J. UHLENHOPP, J., 142, 145; concurs. 204 A.2d at Endresz v. 478, 483, 486, Friedberg, 24 N.Y.2d 301 N.Y. REYNOLDSON, HARRIS, J., C. J. 65, 68, 71, 901, 903, 905 S.2d 248 N.E.2d I II. in divisions and concur (1969); Cardwell, N.C.App. at McCORMICK, J., in division I concurs 383-84; Skloff, Carroll S.E.2d in divisions II and and concurs in the result 47, 48-50, (1964).9 Pa. 202 A.2d III. n SCHULTZ, McGIVERIN, J., whom with argue Plaintiffs also it would be III, J., but joins, in divisions I and concurs incongruous to immunize a tortfeasor from division II. dissents liability injures he when an unborn fetus LARSON, J., I stillbirth, concurs in division and badly enough im- to cause but to II, result dissents from of division but pose liability injured when the fetus less REYNOLDSON, J., and division III. C. First, severely and thus born alive. to division HARRIS, J., join in dissent argument premature note that be- III. yet whether cause this court has to decide LeGRAND, J., I, joins concurs in division liability imposed in the latter should be McGIVERIN’s, J., in dissent as to division Second, assuming we de- case. even would LARSON’s, J., II and dissent as to division case, impose liability plain- in cide to such III. argument properly tiffs’ would more be ad- ‍​​​‌‌‌​​‌​​‌‌​​​‌​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌​​‌‌​​​‌‌‌​​‍McCORMICK, (concurring spe- Justice legislature, dressed to the because it attacks cially). policy grounds.10 As we section 611.20 on noted, the stat- our role is construe in I and the result I concur in division it, legislature ute as we believe the intended opinion. I II III of the court’s divisions and

not to debate its wisdom. in the join II for the reasons stated division Derby, v. dissenting opinion in Hаnkins fetus, Accordingly, we hold that a wheth- (Iowa 1973). join I 586 89 N.W.2d not, er viable or is not a within the authority McKillip v. division III on the doing, of section 611.20. In so we (Iowa 1971), Zimmerman, 191 N.W.2d 706 repeat McKillip the admonition in that we correctly was decided. which I believe express opinion regarding no the existence McGIVERIN, (dissenting part). Justice person biological, of a fetus as a in a reli- gious philosophical or 191 N.W.2d at sense. I concur in divisions I and III of the solely majority opinion 709. The matter before us has been but dissent from division statutory one of construction. II. Recently, Kopp,-Pa.-, parents expend

9. in Scott v. or the state to considerable (1981), Pennsylvania Supreme money A.2d 959 the sums of on his behalf. These reasons holding allowing recovery] Court reaffirmed its in Carroll. do not the exist where [for Graf, child is stillborn.” 43 N.J. at responded argu- responses argu- 10. One court has to a similar A.2d at 146. Persuasive to the by noting Endresz, ment that in the case of a child born ment are also made in N.Y.2d prenatal injuries, 483-85, 68-70, alive with “the child bears the 301 N.Y.S.2d at 248 N.E.2d at wrong physical Carroll, 903-04; mark of defendant’s as 415 Pa. at 202 A.2d deformity handicap mental which could him for life; him, require the rest of his and could his upon appropriate rests

My Boyer, dissent to division II three here. In we found that First, grounds. interpretation by sovereign the of the modification status of im- Derby, munity legislature, court in Hankins N.W.2d was matter for the 1973), 613.15, Code, (Iowa originated section the doctrinе Stewart, “all of damages to cover of the elements courts. 278 N.W.2d at 295. In (the minor) plaintiff” including asserted said: society, care, companionship, loss of atten present Two make considerations the case tion, kindness, guidance, comfort and solace contributory negligence] [modification was a correct one. See Iowa-Des Moines likely judicial an even less candidate for Co., Trucking National Bank v. Schwerman First, change. the had not (Iowa 1980); N.W.2d Schmitt directly inserted itself into issue of Inc., Lines, Truck Jenkins sovereign immunity prior Boyer; (Iowa 1969). Thus, the deter solely remained almost a creature of the mination, Hankins, that section 613.15 hand, legisla- courts. On other provides a statutory recovering means of ture has become involved in areas of for a child’s loss con comparative contributory negligence. long brought by sortium as as the claim is Similarly, present Id. legisla- case injured parent or his estate need not be present tive involvement is section 613.15 disturbed here. See 211 N.W.2d at 586. Iowa R.Civ.P. precedent. We should follow that concluding A reason for second that we Second, interpreted section change requested should not seek the Hankins, equal protec- does not violate does not gener- there seem to be the tion clauses U.S.Const. Amend. XIV and agreement al change for a need I, sec. 6. Constitution Art. The stat- Boyer. that existed at the time of permits recovery by ute minor child for desirability that case the change of such parent loss of consortium only but questioned, not even the means

procedurally requires the recovery ac- accomplishing it divided the court. brought by parent, par- tion be or the Comparative negligence, other ent’s estate. hand, has not been welcomed with the unanimity, although same Third, the cur- this is an area where we should rent adoption, trend toward its there action, legislative await such is if needed. still resistance to the Hankins, among doctrine 211 N.W.2d at 585. See Fuller v. some courts. Buhrow, 672, (Iowa 1980); 292 674 N.W.2d Madison, 284, Stewart v. 295-96 Stewart, N.W.2d Only 278 two (Iowa 1979). Fuller, In refused usurp we to states independent have extended an cause the the to duty of consider modi- recovery action to children for of loss of contributory fication the neg- doctrine of parental society due injury parent. to ligence comparative negligence in favor of change We should not the law of this state the latter doctrine had been when is agreement there so little adopted thirty-five Fuller, other states. change necessary. is See Duhan v. Mila 292 at N.W.2d 673-74. It follows that we nowski, 1078, 1082, 75 Misc.2d 348 N.Y.S.2d here, similarly should restrain ourselves be- (1973). 701 cause only two other states allowed a majority recognizes The complexity minor child’s cause of action uncertainty of their solution to this for loss of consortium. Nevertheless, matter. they have embraced Stewart, legal also refused to abandon a theory only has received scant contributory negligence approval doctrine of I elsewhere. must continue to analogy drew Boyer High position an v. Iowa adhere to our in Stewart: “Wheth- Association, School Athletic adopt theory er Iowa basically should is (1964), justify N.W.2d 606 one policy, refus- which would better be han- al. 278 analogy through legislative pos- 295-96. That dled process, if permit it. The fact is the did not intend to available for sible, of its means with all presumed to have legislature could not be N.W.2d at input that decision.” into “intent,” way or the other on had an one Therefore, decline to extend I would issue, paucity of medical because of the to children independent cause of action Justus v. At knowledge at the time. See com- the loss of to recover for chison, 564, 579, 19 Cal .3d 565 P.2d parent who has been tor- panionship of a J., (1977) (Tobriner, Cal.Rptr. injured by party. third tiously Sears, concurring); Ind.App. Britt J., (1971) (“since SCHULTZ, joins this dissent. 277 N.E.2d 24-25 pre-natal injuries and death actions for LARSON, (concurring part and Justice jurispru Indiana were then unknown in dissenting part). dence, gave very probably our lawmakers I and in the result I concur in Division creating thought they were no to whether from Division III. Division II. I dissent pre-natal pre-natal injury or an action for major of the Lines, The issue under Division III death”); Greyhound Monе v. n.8, whether we overrule ity opinion is not 331 N.E.2d n.8 Mass. because, 658; majority points Note, McKillip (1975); Kader, as the supra at fetus, out, case, involving Annot., a nonviable Ac U.Cinn.L.Rev. Rather, Child, the issue is distinguishable. Death of Unborn 84 A.L.R.3d tion for (1978). expand the rule of whether we should recovery McKillip deny for a viable fetus interpretation of statutes these Contrary well. assertions as Llewellen, is discussed in K. circumstances majority, recovery is not mandat denial of (1960): The Common Law Tradition 374 statute; it is in fact ed our survival policy of a statute is of two differ- [T]he very purpose. to its And a denial inimical one hand there ent kinds. ... On the commit Iowa to of this claim would further consciously drafts- are ideas before the minority undeniably the rule at what is men, committee, legislature: recognition claims on be time when the cured, goal to known evil to be a known rapid children is so half of unborn Here talk of “intent” is be attained.... pronounced that courts and writers alike reasonably . . . realistic. phenomenon.1 This trend is have noted the increasing- But on the other hand-—and that, by the fact of the seven illustrated gains age lan- ly any in —its jurisdictions addressing the for the issue upon guage is called to deal with circum- time 1973 and six ruled first between uncontemplated utterly stances while one denied in favor of quest passage. time of its Here the Kader, Pre it. The Law of Tortious originally intended properly for the sensе Wade, 45 Mo.L. Natal Death Roe Since originally to by the for the sense Rev. it, put into but rather sense light Interpretation quarried of section 611.20. out of it in I. which can be language purposes can majority does not contend the new situation. Broad expressly impliedly beyond far details known or 611.20 either indeed reach section fetus; drafting. .. . recovery it at the time of prohibits for a viable knowable primarily quest does not run legislature in 1851 sound merely contends that the [T]he Lillo, 56, recovery, large (N.D. g., F.Supp. extent on this trend. relied to a 182 62 1. E. Wendt v. Prosser, 1960) (“Seldom the Law of also W. Handbook of law has there been See Iowa 1946, 55, (1971) (beginning overwhelming in “a 336 trend in such a relative- Torts at § such an recovery allowing rapid ly period for has been in the series of cases” short of time as there recovery prenatal injuries allowing prenatal is for or death where the child trend toward Wendt, alive, infant.”) diversity “brought up injuries what was till viable a about to a born case, prenatal abrupt spectacular of a reversal involved a claim for death the most that time law, history which Iowa an issue of the viable fetus under well settled rule in the whole of a Judge yet torts”). our court. had not Graven, been decided law of concluding allow such in Iowa would 276 527, 617, It runs (1969);

in terms of historical intent. in 458 P.2d 622-23 Vaillan be made terms of what words can to Hospital, court v. Medical Center 139 Vt. bear, making light 138, 92, in new (1980)’; sense in the 425 A.2d 94 Baldwin v. originally Butcher, 431, 428, what was unforseen. 155 W.Va. 184 S.E.2d 431 Note, (1971); 994, 21 Villanova L.Rev. 1002 generally Eich v. Town of Gulf Shores, See (1976). aptly As Justice Cardozo stated: 95, 99, 354, (1974) 293 Ala. So.2d Death statutes have their roots in dissat- (“It necessary is often to life into breathe existing with the they laws lest stale isfaction archaisms of the become [com- shelfworn.”); Sutherland, liability]. 2A mon-law rule of no ... It Statutes and Statutory Construction at 228 would be a misfortune if a narrow or § (1975) (“Legislative process are often grudging standards were to construction general capable couched in terms are exemplify perpetuate very which evils embracing embrace and intended to fu- to be remedied. There are times when applications ture which are not and cannot wrought uncertain words are to be into be foreseen at the time of enactment. consistency unity legislative with a interpreted a Therefore to law, be which policy is itself a a source of include or situations which circumstances generative impulse new transmitted to were unknown or at the did not exist time system. legal enacted.”) when was Towing Co., Van Beeck Sabine 300 U.S. “per It must be conceded that the word 350-51, 342, 452, 456, 685, 57 S.Ct. 81 L.Ed. subject son” section 611.20 to more (1937). Kader, interpretation. supra one than at purpose” What is the “broad the sur- 657; Note, U.Cinn.L.Rev., supra at 272. vival statute which Professor Llewellen Compare Hicks, 552, Ariz.App. Kilmer v. says legisla- will fill the void of ascertained (1975) (“person” 529 P.2d clear purpose tive “intent”? The of section 611.- unambiguous; held to exclude viable clearly provide remedy 20 was a for a fetus) Corniea, with Verkennes v. 229 Minn. inflicted, wrong Cardamon v. Luther- Iowa (1949) (“per 38 N.W.2d Hospital, 256 Iowa unambiguous; son” clear and held to in (1964), 234-35 since common fetus). instances, clude viable In such law liability there no for unclear, where the word death, Prosser, W. Handbook Law of with, provided has this court in (1971). Torts To construe § alia, principles ter two of construction: Sec “person” then, narrowly, perpetu- word 4.6(1), 1981, provides tion The Code ates the void in the common it allows law: court, a ambiguous, statute is “[i]f go unremedied, wrong a for in the nor- determining legislature, the intention of the of events healthy mal course infant would sought consider object .. . to be [t]he have been born. obtained,” similarly provides and section 4.2 Another consideration supports also “liberally statute must be construed ” reading broad context: promote objects. a view with . . . its Although this court has not presented principles 4.6(1) of sections 4.2 and issue, with virtually every jurisdiction applied by have been this court our sur facing permitted issue See, has g., Blakeley vival statute. e. v. Estate Shortal, prenatal injuries when the fetus born Prosser, 336-37; Wood, supra alive. § Wood v. 132, 113 Annot., Liability (1907) (section Injuries, N.W. Prenatal 611.20 1222,1228 legislation majority is remedial A.L.R.3d and “should liber ally present purpose); suggests might construed” to effect case even its ac cord, Sherman, recovery prenatal injuries, State ex rel. for Odham v. 234 allow when 179, 71, (1964); presented, Md. 198 is denying A.2d 73 Mone v. such a case while still Lines, 354, Greyhound arguen- 368 Mass. 331 N.E.2d it for Assuming, a stillborn child. 916, (1975); Yup, do, 917 n.4 White v. 85 Nev. this court such a would arrive at

277 1980, conclusion, resulting anomaly is obvi- when Professor Kader’s article was twenty-four published, he stated that states greater the harm inflicted ous: “the and the District of Columbia allowed recov- opportunity for exoneration of better it,2 97, ery, Eich, thirteen denied and thirteen states 293 Ala. at 300 the defendant.” 355; White, yet had the matter. accord, 538, not considered Id. at 85 Nev. at So.2d Today 644-45. the number of states allow- 622; Ashmore, 458 P.2d at v. 109 Stidam ing recovery for a viable fetus has risen to 431, 434, 106, App. Ohio 167 N.E.2d 108 deny twenty-eight, while ten it. Both 47; (1959); Kader, Note, supra at 646— Mexico, opt- Louisiana and New which have Family J. Law 297 And 15 recovery ed for on behalf of stillborn chil- injury consider the case of a simultaneous completed, dren since Kader’s research was where one a minute to unborn twins dies applicable have statutes to the death of delivery, the other a minute after. before “persons”; permitting the third state recov- Recovery would be allowed for one twin but interim, Vermont, ery in the has a statute amazing other under this ration- for the applicable to “one” whо is killed. ale. rule, majority allowing recovery majori- upon by the The distinction relied fetus, is behalf of a viable followed ty Campbell-type the Lord death between following jurisdictions: Eich v. Town of pro- statutes and Iowa’s “survival” statute Shores, Gulf 293 Ala. 300 354 So.2d recovery impediment vides no here. Un- (“minor (1974) fetus); child” includes Gorke person- der a survival statute the claim of Clerc, Conn.Sup. v. Le 23 181 A.2d 448 representative springs not from the al (1962) fetus); (“person” includes viable person original death of the but from the Ferrara, Inc., Worgan Terry Greggo v. 11 him, injury the claim for which sustained (Super.Ct. 557 50 Del. 128 A.2d merely is transferred to the executor or ‍​​​‌‌‌​​‌​​‌‌​​​‌​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌​​‌‌​​​‌‌‌​​‍1956); University, v. Howard 323 Simmons recognize, virtually If we as administrator. (D.D.C.1971) F.Supp. (“person” includes has, every jurisdiction injury that an to a fetus); Lassiter, Ga.App. viable Porter v. child, compensable is as to a fetus live-born (1955) (“person” 87 S.E.2d 100 includes perfectly compatible it is with our survival fetus); Chrisafogeorgis Brandenberg, v. merely personal statute to substitute (1973) (“person” Ill.2d 304 N.E.2d 88 representative pursue the claim when the Sears, fetus); Britt v. includes viable doing prevented by is death from decedent (1971) (“child” Ind.App. 277 N.E.2d 20 reasoning in so. This was in fact the Gorke “capable includes a fetus Clerc, Conn.Sup. v. Le 181 A.2d life”); Manion, Hale 189 Kan. v. (1962), which allowed Couch, P.2d 1 Mitchell v. 285 S.W.2d survival-type for a viable fetus under a (Ky.1955) (“person” fe includes viable statute. cogent . . tus: most reason . “[t]he majority II. The rule. Iowa’s referencе entity holding a viable unborn child an unique in section 611.20 to a is not general within the word statutes; among the various states’ death because, biologically speaking, ‘person’ is fact, recovery only most statutes allow if is, fact, presently existing such a child Kader, “person.” supra the decedent was a being”); person, living human Danos v. overwhelming majority at 642-43. The of Pierre, (La.App.), cert. So.2d fetus, facing courts the issue held a (La.1980) granted, (“person” 384 So.2d 985 person,” stage viability, is “a fetus); least ex includes seven-month old State “one,” child,” equivalent Sherman, “a under 234 Md. rel. Odham Moreover, respective (1964) (“person” their death statutes. fe A.2d 71 includes viable Lines, jurisdictions allowing tus); Greyhound the number of recov- Mone v. 368 Mass. (1975) (“person” ery prenatal steadily increasing. N.E.2d 916 in- death noted, McKillip denying recovery ously distinguishable Iowa is shown to be a state Zimmerman, upon McKillip present case. based However, (Iowa 1971). previ- N.W.2d 706 278 fetus); Morse, O’Neill v. 385 ful death action to

eludes viable be maintained for the 130, (1971) (“person” child.”). 785 generally Mich. of an death unborn fetus); James, v. Harper includes viable Verkennes Cor 2 F. The F'. Law of Torts niea, 365, (1949) 38 18.3, 229 Minn. N.W.2d 838 at 1028 § (“person” fetus); Rainey viable v. includes rule, minority denying coverage for 269, Horn, (1954) 72 221 Miss. So.2d 434 fetus, jurisdic viable is followed in these fetus); (“party” viable White v. includes Hicks, 552, Kilmer 22 Ariz.App. tions: v. 527, Yup, (1969) (“per 85 458 P.2d 617 Nev. (1975) 706 (“person” 529 P.2d excludes via fetus); Poliquin son” viable v. includes fetus); Atchison, ble Justus v. 19 Cal.3d MacDonald, 104, N.H. 101 135 A.2d 249 564, 122, Cal.Rptr. (1977) 565 P.2d 139 97 (1957); Hospital, v. St. Vinсent 95 Salazar (“minor person” fetus); excludes viable 150, (Ct.App.), N.M. 619 826 cert. de P.2d Miller, (Fla.1977) v. Stern 348 303 So.2d nied, 409, 631 (1980) 96 N.M. P.2d 315 (“person” fetus); excludes seven-month old (“person” fetus); includes viable v. Stidam Sanders, ex rel. Hardin State v. 538 S.W.2d Ashmore, 431, App. 109 Ohio 167 N.E.2d 106 (Mo.1976) (“person” 336 excludes viable fe (1959) (“person” fetus); includes viable Ev tus); Egbert Wenzl, 573, v. 199 Neb. 260 Olson, (Okl.1976) (“one” ans v. 550 P.2d 924 (1977) 480 (“person” excludes viable fetus); includes v. viable Libbee Perma fetus); 303, Graf Taggert, v. 43 N.J. 204 Clinic, 258, nente 268 Or. 518 P.2d 636 (1964) construed; (“person” 140 A.2d (1974) (“person” fetus); includes viable wrongful death action not be main Presley 177, Newport Hospital, v. R.I. 117 tained behalf of fetus because determi (1976) (“person” 365 A.2d 748 includes fe- “pecuniary injuries resulting nation tus); Woodward, Fowler v. 244 S.C. speculative); death” too Endresz v. Fried 138 (1964) (“person” S.E.2d 42 includes via- berg, 24 N.Y.2d 301 N.Y.S.2d 248 fetus); Peterson, ble Nelson v. 542 P.2d (1969) (“decedent” 901 N.E.2d excludes sev 1975); (Utah 1075 Vaillancourt Medical v. fetus); Welch, en-month old v. Cardwell 25 Hospital, Center 139 Vt. A.2d 92 425 N.C.App. denied, cert. S.E.2d (1980) (“person” fetus); includes viable (1975) 287 N.C. (“per S.E.2d Hanson, Moen v. 85 Wash.2d 537 P.2d fetus); son” excludes viable Kopp, Scott v. (1975) (“minor child” includes viable -Pa.-, (1981) (wrongful A.2d 959 fetus); Butcher, v. Baldwin 155 W.Va. death action not be maintained on (1971) (“person” 184 S.E.2d 428 via- includes eight-month fetus); Hamby behalf old fetus); ble Kwaterski v. State Farm Mutu- McDaniel, (Tenn.1977) S.W.2d Co., al Auto Insurance Wis.2d fetus; (“person” excludes viable based on (1967) (“person” N.W.2d 107 includes viable view that Tennessee death statute fetus). strictly construed); to be Lawrence v. Cra- addition, support allowing for the rule Co., ven Tire 210 Va. 169 S.E.2d 440 by weight legal favored (1969) (“person” fetus). excludes viable See, commentary. g., Dooley, e. 1 J. Mod- Iowa, noted, as previously has followed the 14.04, em Tort Law at 299 § S. minority rule as to a fetus. nonviable Speiser, Recovery Wrongful Death 2d McKillip Zimmerman, 191 N.W.2d 706 (1975) (“The § at 564 opinions n.35 (Iowa 1971). recent permitting recovery by cases are far majority opinion says a viable fetus Kader, ones.”); supra better reasoned 666; is not our Note, under survival stat- U.Cinn.L.Rev., supra ute; however, 272; jurisdictions Annot., nineteen supra 84 A.L.R.3d at 416-17 (“In expressly noted above attempting compare held evaluate viable fe- conflicting arguments, “persons” purposes tuses are various would of their appear statutes, persuasive arguments respective . . . the more death while only six are permitting wrong- those they which favor have held are not. legislature effectively

3. The (Supp.1977), Tennessee over- See Tenn.Code Ann. § Hamby ruled the decision in 1978. amended 1978 Tenn.Pub.Acts ch. § 1.8. sup viability, “person” is a scope, effect of Roe v. Wade. In within its III. The port of its assertion that an unborn child supported by great weight view of au- law, majority at common thority. Accordingly, application of the quotes length v. Wade. That at from Roe McKillip rule of should not be extended to however, case, right involved a woman’s the facts of this case. pregnancy; her it was not an terminate ruling I would reverse the addressed in privacy action for death. The permit pro- Division III and the matter to woman, which was the interest of basis ceed to trial. here; Wade, of Roe v. is not involved fact, personal no interests are advanced REYNOLDSON, ‍​​​‌‌‌​​‌​​‌‌​​​‌​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌​​‌‌​​​‌‌‌​​‍J., HARRIS, J., C. majority’s except view here those of a join in this dissent. tortfeasor, escapes liability. who Further more, Wade, the statement in Roe v. LeGRAND, (concurring Justice part “person” under the fourteenth amendment dissenting part). child, does not include an unborn 410 U.S. opin- I in division I concur of the court’s at at 35 L.Ed.2d at S.Ct. join ion. I Justice McGiverin’s dissent as to finding, purposes preclude does not our II, join division and I Justice Larson’s dis- statute, of our survival that it does. Words sent as to division III. interpret used in different contexts differently. ed At least six of the states “persons”

which have held under their viable,

death statutes included unborn chil

dren, have done so since Roe v. Wade was Danos, (La.);

decided: at 1021 So.2d

Salazar, 830; 95 N.M. at 619 P.2d at 917;

Mone, 368 Mass. at 331 N.E.2d at

Libbee, 639; at at Or. P.2d 753;

Presley, BISHOP, Appellant, 117 R.I. at 365 A.2d at Lewis D. 94; Vaillancourt, 139 Vt. at 425 A.2d at Kader, supra (“Opinions see at 659 since KEYSTONE AREA EDUCATION AGEN advocating recovery Roe v. Wade [for CY NO. 1 and the Individual Members ignore viable either Roe or distin fetus] Board, Raymond Bodenstiner, Thus, guish it.”) allowing the trend toward Schultz, Withers, Mary Kenneth J. Bill recovery has not been blunted that deci Jaggard, Hoth, beth Rubin A. James K. Kader, supra sion. Cramer, Eugene Tully, J. Edward R. argued It has Roe v. Wade Duesing, Ganshirt, Appel and John F. actually favors for a viable fetus lees. recognition because of its that a state has “important legitimate interest No. 64191. life,” potential “compel- which becomes a Supreme Court of Iowa. ling” point viability, interest at the 162-63, 35 L.Ed.2d U.S. S.Ct. at 21, 1981. Oct. Kader, supra at 183. See where taking the author discusses several cases approach. necessarily While I do not view,

adopt it further demonstrates questionable

that Roe v. Wade at least

authority denying recovery

present case. give present-day

If we are to

our survival we must conclude that child, stage

an unborn at least at the

Case Details

Case Name: Weitl v. Moes

Court Name: Supreme Court of Iowa

Date Published: Oct 21, 1981

Citation: 311 N.W.2d 259

Docket Number: 64843

Court Abbreviation: Iowa