Wiersma v. MAPLE LEAP FARMS

property remains If a lessee of real 1996 SD expiration after the possession thereof In Matter of the Certification of a accepts lessor rent from hiring and the Question him, Law parties presumed are have from the United States hiring and on the same terms Court, Dakota, renewed the District District time, exceeding year. one for the same Division, Southern Pursuant to the Pro 15-24A-1, statutorily LBM’s of SDCL and concern [¶ 45] Because lease visions period, end of each six-month renewed ing federal action racquetball rights LBM had in the leasehold September equipment through club A. Beth WIERSMA John receiving authority from LBM 1990. After Wiersma, Plaintiffs, M. negotiate behalf for a settlement on his Bank equipment,2

the sale of Rushmore State exchange property on the released its hen $12,500 September FARMS, foreign on for mere LEAF MAPLE further notice to or the consent of business, Defendant. remaining rights LBM.3 leasehold While No. 19017. necessary

may not worth the amount full, pay LBM’s loan the trial court should Supreme Court of South Dakota. ruling have them and erred considered LBM no loss. Argued March 1995. trial court have found the [¶ 46] The jury’s excessive based on the value award Reassigned Sept. 1995. rights. prop- LBM’s leasehold for the trial er solution would been Decided 1996. Feb. grant court to a new trial if the verdict was by prejudice, passion

influenced or for damages.

LBM to consent to reduction Partnership, Highmore Farm Ltd.

Smith (citations (S.D.1992)

omitted). possession Property necessity obtaining to release their consent obtain of the Real however, Property; provided, par- rights. Personal of said acknowledge Property and ties the Real Bank, possession Property presently are in the dated

Personal letter to State Loftus’ Rushmore 2. djh/a LBM, 5, 1990, Supreme Family Courts September Inc. stated: of Fitness Center agreement pursuant lease to a I, hereby James Loftus authorize Ronald expired lessor with Seller as which June negotiate State a settlement Rushmore Bank LBM, event Inc. fails refuses In the my equipment sale of all now on behalf Property the Real and Personal surrender Supreme Courts Health Club located in voluntarily Property Au- to Seller before the entire Jackson Blvd. I understand 1, 1990, gust required or in the event Seller is responsibility agree my to continue debt possession legal regain to initiate payment set Rushmore State Bank. forth Property Property, the Real Personal option Closing may be at the Date extended its State Bank released 3. At the time Rushmore later Seller until not than October $144,- lien, outstanding loan balance was added). LBM's (Emphasis Appraiser words, Widdoss had estimated 681.98. John agreement purchase In even the personal property within rights the value of acknowledged of LBM the real $75,570. racquetball club at personal property property and the (S.D.1994). inter We

510 N.W.2d legislative with intent. pret statutes accord Whalen, Whalen (S.D.1992). intent is derived from the Such ordinary plain, popular of statu tory language. Id. must be deter “[IJntent whole, as a mined from the statute as well as relating subject.” to the same enactments (citing Paving Dept. v. Id. Border States of Revenue, (S.D.1989); 437 N.W.2d Appeal Systems, AT T 405 N.W.2d & Info. of (S.D.1987); Meyerink v. Northwestern Freeman, Jr., L. Kauf- Rodney and Gerald Co., Public Service 391 N.W.2d Freeman, man, Jr., Churchill, Manolis, of Tobin, (S.D.1986); Simpson v. Shelton, Huron, Kludt, plain- for Kaufman & (S.D.1985)). appear statutes “[W]here tiffs. conflict, responsibility give it is rea our Davenport, of Ev- Thomas M. Frankman both, if possible, sonable construction to Smith, Falls, ans, for Hurwitz & Sioux defen- give provisions effect to all under consid dant. eration, construing together them to make ” Whalen, them ‘harmonious and workable.’ (on KONENKAMP, reassignment). Justice 490 N.W.2d at 280. question 1] In answer to certified us, Court, guide con- rules to we [¶ 5] we With these the United States District of in Dakota clude cause action exists 21-5- question. the certified SDCL address death of a nonviable unborn for child. injury per- Whenever child, son, including an unborn shall be FACTS by act, neglect, or de- 2] Beth Wiersma contracted salmo fault, act, neglect, or default is eating a Ma poisoning portion after nella party in- such as would have entitled Leaf cordon bleu. When ple Farms’ chicken jured to maintain an action and recover 8, 1990, hospitalized on she she was October thereto, damages respect if baby Her pregnant. was 7.3 weeks died ensued, every then and such 21 re an ultrasound test on October útero: which, who, person corporation agree, All vealed no fetal heart sounds. liable, if death had not would have been viable, living incapable thus child was ensued, or administrator or executor husband, and her outside the uterus. Beth person as such adminis- the estate of such John, court on brought an action circuit liable, executor, to an shall be trator death, claims, multiple including wrongful damages, notwithstanding for un Maple for the loss of their against Leaf although injured, death of the Maple child. Leaf removed suit born under the death shall have been caused and then the United States District Court in law to a such circumstances as amount summary judgment. Unit filed motion for against such felony; when the action is Judge District Court John B. Jones ed States executor, damages re- administrator or question following legal for our certified the against the shall be a valid claim review: person. estate such deceased a cause of provide Does 21-5-1 involving an this section action for death of unborn action under miscarriage child where a at 7.3 weeks the exclusive unborn child shall alleged been caused lawfully mar- the mother or the benefit by wrongful act omission? (Empha- child. parents ried added.) sis DISCUSSION presume Legislature never intends to We Statutory Analysis I. enactments, where surplusage use its so give possible the law must be construed of a statute The construction [¶4] West Commu- provisions. to all its US effect Critchfield, question law. is a Stover Comm’n., organism species nications v. Public Utilities 505 tes as “an individual of the (S.D.1993) (citing sapiens N.W.2d Nelson homo from fertilization until live S.D., 22-l-2(50A). City School Bd. Hill birth.”3 SDCL This later def (S.D.1990)). phrase “including inition, an un- not controlling, while reinforces our born added amendment interpretation of what in “person,” broadening modifies the word thus tended. persons loss a class whose acknowledge juris majority [¶ 7] We Interpreting death claim be asserted. recognize wrongful dictions decline to pre-1984 version of this we held viability. actions for children in útero before “person” the term included a viable unborn Gilmore, (Ala.1993) Gentry v. 613 So.2d 1241 Question fetus. In re Law Certification (no fetus); a 13-week-old for (Farley), U.S. Dist. Court Columbia, Ferguson v. District 629 A.2d (S.D.1986).1 interpret 42 To now (non-viable (D.C.App.1993) fetus); 15 Humes only child” to mean viable fetus would Clinton, 590, (1990) v. 246 Kan. P.2d 792 1032 adding nothing result in the amendment to (12-week-old fetus); Forbes, Fryover v. 433 “person,” negate the term and would 878, (1989) (12-week- Mich. 446 N.W.2d 292 legislative purpose expanding the class of fetus); Wallace, old v. Wallace 120 N.H. persons the statute. (1980) (12-week-old fetus); 421 A.2d 134 [¶ 6] When a statute’s Co., Guyer Hugo v. Publishing 830 P.2d 1393 clear, unambiguous, certain and our function (14-week-old fetus); (Okla.Ct.App.1991) Cov us plainly confines to declare its as Bubnis, v. eleski 535 Pa. 634 A.2d 608 Communications, expressed. US West 505 (8-week-old (1993) fetus); Miccolis AMI (citing Appeal N.W.2d 123 AT & T Co., (R.I.1991) (5- CA Mut. Ins. 587 A.2d 67 (S.D. Systems, 405 N.W.2d 24 Information fetus); McCoy, week-old West v. 233 S.C. 1987)). ordinary “Unborn” as defined in its (1958) (5-week-old fetus). 105 S.E.2d 88 means, popular sense not born or interpret Yet none of these authorities brought being; into still within the mother’s child,” term similar to “unborn but instead delivered; womb; yet yet to come or consider whether a nonviable child útero be, Dictionary future. Webster’s New World “person,” falls within the definition of “minor 1980). (2dCollegeEd 1544 Legislature Our person,” “natural gen or “one.” See embryo chose not to use or fetus or some Annotation, erally, Shapiro, R. Right Sheldon medico-legal designation in its 1984 to Damages Maintain Action to Recover revision to the but instead chose Child, Death Unborn 84 ALR3d 411 simply Clearly, “unborn child.”2 its intent in using any this term was to child still include womb; jurisdictions

within a mother’s no distinction was recognized [¶ Other made between viable and Fur wrongful nonviable. action for the death of a thermore, Legislature subsequently Lassiter, has nonviable fetus. See Porter v. 91 (1955)(cause defined “unborn child” in Ga.App. our criminal stat- 87 S.E.2d 100 Farley including This Court stated the 1984 ture from a nonviable fetus in its defi- change amendment did or alter the basic wrongful nition of a under our State's 21-5-1, merely provided substance of SDCL but well, act. death Other states have done it as as operate. clarification on how the statute to Clearly, physicians discussed below. neither nor Farley, ques- 387 N.W.2d at 44. wrongful can be mothers held liable for death whether, Farley tion in was to the 1984 performed when an abortion is with the mother’s amendment, provided the statute a valid cause of consent. See SDCL Ch. 34-23A. action for the death of a viable unborn child. Id. Hence, any Farley at 43. reference to Legislature adopted 3.The 1995 this definition to 1984 was amendment mere dicta and not bind- be used in fetal assault and homicide statutes. ing legal precedent as in this case. 22-16-1.1; 22-16-15, -20; 22-18-1.2, illegal, -1.3. These laws do not surely declare Roe acts aware of progeny, which cause the terminology Wade and its death an unborn child if but chose this abortion, perhaps viability during any were avoid the acts committed distinction. See lawful unlawful, (regulating performance SDCL Ch. 34-23A which woman con- abortions). Nothing prohibits Legisla- in Roe sented. causing to end at “quickened,” ligently, fetus has after the action exists womb); stage. There would be an inher- the same occurs within or movement Center, right giving the mother the Mercy Hosp. and Medical ent conflict Smith v. pregnancy yet holding 148 Ill.Dec. terminate the (1990)(viability brought fetus not nec that an action behalf N.E.2d action); essary wrongful death maintain under the the same fetus Co., Inc., omitted). added)(footnote v. Monkem S.W.2d (Emphasis Connor act. (Mo.1995)(parent has claim valid Goree, Mich.App. Toth v. See viability).4 child” before death of “unborn (1975) progeny. its 1.205(2) § not mandate does While distinguish matters rationale. Two result, express would an particular law, First, Michigan’s unlike South Dakota’s 537.080, § [wrongful amendment of grants a wrongful death statute cause of cannot avoid the conclusion we statute] action for the death an unborn child the courts to legislature intended lawfully parents, married mother or interpret “person” within Second, fun child. and more parent to allow natural death statute analy damentally, rights of abortion use for the his state a claim sis, applicability no A simply has here. child, viability. unborn even to or her decision, to a mother’s choice abort sanctions (footnote omitted). Connor, at 92 898 S.W.2d Parent someone else’s. See Planned interpreted unique their own These courts Casey, 505 U.S. S.Ct. hood statutes, although and these decisions (1992). accept Maple If we 120 L.Ed.2d necessarily instructive, they are not au- be in fatally argument, someone could Leafs analysis. in our Based our thoritative nonconsensual, jure by a an unborn child 21-5-1, we conclude the reading of SDCL liability be act and still avoid civil encompass clearly to Legislature intended yet child was not viable. This cause the term children in the nonviable would, give ironically, the tortfeasor the To would contravene child.” hold otherwise rights to terminate same civil as the mother meaning and intent. plain the statute’s rejected a An Illinois Court a pregnancy. Rights Analysis II. Abortion [¶ 9] stating argument, similar contends, Maple Leaf “[i]t [¶ 10] Clearly, pregnant a woman who chooses to provide a would be inconsistent pregnancy defen- her and the terminate of a nonviable fetus action for death woman, a caus- assaults dant who time under South Dakota and at same fetus, similarly ing her are not the death of place up abortion take law allow an abor- A consents situated. woman pregnancy....” See SDCL the 24th week right, has at least tion and the absolute abortions). (regulating This ar 34-23A Ch. pregnan- during the first trimester of Michigan: gained in gument has favor pregnancy. terminate the cy, to choose to intentionally can terminate If the mother privacy in termi- interest A woman has months, at three however, nating pregnancy; defendant her fetus, it regard rights of the be- has such interest. no justify increasingly hold- difficult comes Ford, 163 Ill People v. ing person third liable to fetus (1991). 1189, 1199 unintentionally, N.E.2d neg- .Dec. unknowingly and but development gestation or of a general pro- state enacted The Missouri caused, being injury being when an is holding human that the life of each human visions effect, death, pro- injury shall not begins conception; an takes unborn children have health, life, any well-being; foreclose maintenance and interests tectable arising State from the parents under the law this children have natural unborn health, by wrongful life, being a human caused protectable and well- death of in the interests act, neglect generally default. being child. See Mo. of their unborn (Smith-Hurd par. § also Ill.Ann.Stat.Ch. Illinois has statu- 180/2.2 Rev.Stat. 1.205 70, par. 1992)(original Ill.Rev.Stat.Ch. version at claim for a torily authorized (1991)). 2.2 nonviable fetus: Moreover, concept of of a nonviable fetus. The of SDCL viability “Viability” law. is outmoded tort 21-5-1 turning point developmental

as a was em injury per- Whenever the priva son, braced abortion cases to balance the child, including an unborn shall be cy against her rights of a mother as act, by wrongful neglect, or de- purpose, viability child.5 For fault, act, neglect, default is purely arbitrary milestone from which such party as would have in- entitled legal reckon a child’s existence. jured to maintain an action and recover thereto, damages respect if death had Viability of course does not affect the ensued, every then and such legal question of the existence the un- which, corporation person who, or the born, and therefore of the defendant’s liable, would have been if duty, unsatisfactory and it is a most crite- ensued, or rion, the administrator or executor of matter, it depend- since is a relative person the estate of such as such adminis- ing on the health of the mother child executor, liable, trator or shall be to an many other matters addition to the damages, action for notwithstanding stage development. injured, death of although W.Page al., Keeton et ProsseR and Keeton the death shall have been caused under (5thEd § 55 at 369 on The Law Torts such circumstances as amount in law to a 1984)(footnote omitted). felony; against and when such South Dakota’s death statute executor, administrator or damages re- preserves parents in their interests against shall valid claim remedy unborn child and authorizes when a person. However, of such estate deceased party wrongfully third ends their child’s life involving an action under this section before birth. Parents seek redress re- unborn shall child be for the exclusive gardless of whether their unborn child was of lawfully benefit the mother or the mar- viable. We answer the District Court’s Cer- parents (Empha- ried of the unborn child. Question, “yes.” tified added.) sis MILLER, C.J., SABERS, J., [¶ 13] important [¶ It phrase 17] is to note the concur. “including an unborn child” modifies the “person.” grammatical word position The of AMUNDSON, J., [¶ 14] dissents. clause the sentence broadens the term GILBERTSON, J., having [¶ 15] not been “person,” expanding “persons” of class a member of the Court the time this case eligible wrongful a assert death claim. considered, participate. did However, the words “unborn child” are not AMUNDSON, (dissenting). anywhere Justice defined within SDCL ch. 21-5.1 I [¶ 16] would hold SDCL 21-5-1 does Noting controversy the tumultuous a wrongful authorize claim for the child,” over definition of right protects "liberty wrongful The to abort a mother's South Dakota's death statute at issue. right privacy” First, interest” and “fundamental statutes, newly enacted assault SDCL voluntarily choosing to end her -1.3, in the require specifically 22-18-1.2 the "un- trimester, First, Fourth, first reflected in born child” to be “born alive" anas element of Fifth, Ninth and Fourteenth Amendments to the the offense. A fetus is viable is if it able to be Wade, U.S. Constitution. See Roe v. 410 U.S. exists, "born alive.” Unless this condition 93 S.Ct. 35 L.Ed.2d 147 presumably inapplicable. statute is The lan- guage provisions two is as follows: Subsequent filing of this the 1995 provides: "Any person SDCL 22-18-1.2 who legislature adopted a definition of "unborn pregnant bodily a assaults woman and inflicts 22-l-2(50A), SDCL be used in con- injury subsequently on an unborn child iswho junction with fetal assault and homicide statutes. 22-16-1.1; guilty simple Bodily bom -20; alive is 22-18-1.2, assault. -15 and child,’ injury does not include the provides: inducement -1.3. That definition "'Unborn organism species an individual unborn child's birth when of the homo sa- done bona fide piens added.) purposes." (Emphasis from fertilization until live birth.” medical Still, applied "Any person this definition cannot SDCL 22-18-1.3 retroac- who tively legislative as an great indication intent under assaults a woman and inflicts wrongful provi- child” their clause unborn of a definition renders absence face. the conflict we now sions alleviate a con ambiguous. Accordingly, court should Nevertheless, question of what consti- gestation unborn point of sider at what larger an “unborn child” within tutes “person,” relying related a on child becomes under “person” is defined classification Laws, chapters of Dakota Codified South this statute. law, precedent Dakota case Geib, 20] The Illinois overcame Sander El [¶ See jurisdictions. a by providing mean- Ass’n, this definitional burden ston, Frost Professional. persons ing for of unborn the class (S.D.1993) statutory (interpreting jurisdiction’s by death statute. by reviewing other enactments re language jurisdiction only is which statuto- Illinois John Morrell & subject); lating same rily recognizes a death action for Labor, Dept. Co. the Illinois nonviable fetus. The (S.D.1990) (court jurisdic may look to other statute states: impres guidance on tions for cases of first gestation development The or state sion). caused, being injury is human when an effect, death, injury shall takes of the South Dako- chapters Neither 19] cause of not foreclose maintenance (SDCL ch. ta Codified Laws vital records arising under the law of this State (SDCL 34-23A), 34-25), eh. nor abortion de- by being of a human from the death Instead, they specifical- fine “unborn child.” act, neglect default. ly explain set forth mandates par. ch. 2.2. Ill.Rev.Stat. statutory scheme. of the term within Appeals in Many legislatures and used terms Illinois defined Court of Center, Mercy Hosp. Smith v. and Medical “gestational age such as “fetus”2 death, (2) design bodily to effect and in injury on an child Without serious who subsequently guilty aggravated passion, bom but alive heat of manner; cruel unusual added.) (Emphasis assault.” Next, statutes, death, (3) fetal SDCL 22- design the 1995 homicide Without a to effect but -20, 16-1.1, -15 and involve some level crimi- dangerous weapon; means of recklessness, markedly nal which is intent (4) resisting Unnecessarily, either while negligence-based absent from the attempt by killed to commit language provision. of is as these statutes failed; attempt or after such shall have crime follows: (5) Unnecessarily, resisting an either while provides: is "Homicide fe- SDCL 22-16-1.1 attempt by pregnant a woman to either com- knew, reasonably person a if tal homicide attempt mit crime or after such shall have a known, bearing an should have that a woman failed. pregnant and the unborn child was degree Manslaughter a 1 in the first is Class justi- child without lawful death of the unborn felony.” person: and if the fication provides: "Any reckless SDCL 22-16-20 (1) the death of or do Intended cause being, including un- killing one of human bodily injury to the woman serious child, by procurement anoth- the act or of born child; or or the unborn which, provisions chapter, this of er under (2) acts would cause Knew taken manslaughter nor in the first is neither murder bodily injury preg- death or serious homicide, degree, justifiable nor excusable nor child; nant woman her unborn manslaughter degree. Man- in the second (3) design perpetrated any When degree slaughter is a Class 4 in the second by person engaged in the com- effect death felony." any felony. mission of felony. homicide is a Class B Fetal chapter “fe- Although defines the term neither apply to acts which section does not This tus,” ascertained related can be of those the death an unborn child if acts cause parlance. statutory via definitions or medical abortion, during any lawful or were committed “death defines “fetal death” as unlawful, SDCL 32-25-1.1 pregnant woman con- to which the complete expulsion prior or extraction sented.” concep- product of human from its mother of tion, "Homicide is SDCL 22-16-15 pregnancy[.]” irrespective of the duration of manslaughter degree perpe- first Dictionary defines "fetus” as Stedman’s Medical trated: product conception from the end of the (1)Without “the of design by a effect death eighth to moment of birth." Stedman's week engaged in commission of a while 1976). (23rd Dictionary, involving 516 ed. turpitude; Medical moral misdemeanor 794 465, 567, fetus); Wallace, 675,

203 148 Ill.Dec. 560 Wallace v. 120 N.H. 421 (1990), interpreted (1980) (no N.E.2d 1164 statute 134 A.2d cause of action for a 12- “creat[ing] fetus); Co., a cause action for the Guyer Hugo week Pub. 830 injured (no at a fetus time (Okl.App.1991) P.2d 1393 cause of action thereby clearly conception, establishing after fetus); Bubnis, for a 14-week Coveleski v. child, pur- for status of the unborn 166, 170-72, 608, (1993) 535 Pa. A.2d 634 610 ” Act, poses ‘person.’ of a (no as that Id. fetus); cause action for an 8-week 471, 571, 148 Ill.Dec. at 560 N.E.2d at Co., Miccolis v. Mut. Ins. AMICA 587 A.2d additionally 1168. The court Smith held that (R.I.1991) (no 67 cause of action a 5-week viability of the fetus need be established fetus); 369, McCoy, West v. 233 S.C. 105 carry to maintain burden for recov- (1958) (no S.E.2d 88 of action cause for 5- 478-80, ery.3 Id. at 148 Ill.Dec. at 560 fetus). week N.E.2d at 1173. “Viability stage 24] of prenatal Eli law, Evolving Georgia 22] case also development capable [is] which the fetus recognizes wrongful death action for a non independent if existence removed from its Lassiter, In viable fetus. Porter v. Ga. Housing mother’s womb.” McCaskill v. Au 712, 716-17, 100, 103 (1955), App. 87 S.E.2d thority, Pa.Super. 615 A.2d Georgia appeals recognized court of that a (1992) (citations omitted). The United States exists after fetus has Court, Supreme in Planned Parenthood v. “quickened,” or occurs movement within the 833, 857-60, Casey, 505 U.S. 112 S.Ct. remaining jurisdictions womb. All sustaining 2810-11, (1992), 120 L.Ed.2d 674 held that previable fetuses, the cause of viability now occurs between 23-24 weeks recovery condition on “live birth.” See Nan gestation, supported by a conclusion well cy Field, Evolving Conceptualizations E. of medical literature. Property: Proposal A to De-Commercialize Despite language, similar none Tissue, Value Fetal 99 Yale Law Jour majority jurisdictions statutes in the use (1989) nal, 169, (citing 172-3 Danos v. St. the term “unborn child” as does South Dako- Pierre, (La.1981); 402 So.2d En Instead, jurisdictions deny ta’s. 478, 485, v. Friedberg, dresz 24 N.Y.2d on interpreting “per- action based the word (1969)). N.E.2d N.Y.S.2d son,” “minor Gentry, or “one.” See overwhelming majority juris [¶ 23] The 1241; Tankersley, 613 So.2d Lollar v. dictions, however, reject the existence of a (Ala.1993); Guyer, So.2d 1249 830 P.2d 1393. death action for fetus interpreting [¶ 26] In Gilmore, viability. Gentry v. 613 So.2d 1241 agree South Dakota’s I with the (Ala.1993) (no action for a 13-week comments Supreme of the Alabama Court Columbia, fetus); Ferguson v. District spoke Lollar when it of the be- differences (no 15 (D.C.App.1993) A.2d cause action statutory tween various schemes: fetus); Clinton, for a non-viable v. Humes (1990) (no 590, 246 Kan. 792 P.2d placed by 1032 cause The constructions the courts in fetus); Fry upon action for death of a 12-week our wrongful leg- sister states death Forbes, 878, over v. jurisdictions 433 Mich. respective islation in their (1989) (no 292 cause action for 12-week counsel caution in our consideration of the Lawson, fetus); Rambo v. question 799 S.W.2d 62 whether a fetus that has never (Mo.1990) (no of action viability cause 12-week attained is a “minor child” within majority People 3. The cites to the Illinois case species individual of the human from fertilization Ford, 766, 163 Ill.Dec. until birth." 163 Ill.Dec. at 581 N.E.2d at N.E.2d 1189 In (citing tins criminal the par. Ill.Rev.Stat. ch. 9- ruling 1.2(b)(1)). court was on a claim that the criminal The Ford court further went on to being prose- statute under which any viability defendant was state that this definition erased re- quirement kota, cuted was that unconstitutional in it violated the the in criminal arena. In Da- South court, equal protection up- legislature viability clause. The Ford in the has also eliminated holding constitutionality hand, point- the of this in the criminal arena. On the other viabil- legislature ity ed that the out had defined the in was not eliminated the South Dakota "any wrongful criminal statute that unborn child is death statutes. Wrong- previously addressed in unborn have been contemplation [the Alabama the Farley, In this court held Act, § 6-5- Dakota. AlaCode ful Death “person” expression unborn child was a that viable Without a clearer 391].... intent, the 21-5-1.4 Id. at legislative reluctant to hold within of SDCL we are cognizable A action cause of action 44. death § 6-5-391 creates a Although fetus’ Id. the of a fetus that has on viable behalf. for the death viability. Farley occurred action attained never 21-5-1, add- the 1984 amendment to SDCL 613 So.2d at 1252-53. child,” “including ing the clause an unborn issue, my opin- The heart of the court referred to that amendment and ion, action for whether an supporting finding case a cause of law no sustainable life can stand where exists for “viable” unborn children. considering negligent In the time of act. argue statutory 30] Wiersmas question, Court the District Columbia “including phrase an unborn child” should Ferguson, A.2d at Appeals, “viability.” be with- limited stated: specific legislature guidance out from the concept underlying survival stat- our defining sway I would merely representative is ute is that majority jurisdictions’ from the rationale bringing a that decedent could lawsuit action to that stan- which limit the cause of brought had he or she not died. I a cause of action for dard. would limit emerges mother Where fetus “person”5 to a viable capacity developmental to sur- Question in and answer Certified vive, theory of a it would contradict the negative. provide survival action to representative of fetus. Absent contrary legislative in- indication of clear

tent, it would anomalous view brought one could have been

action as the fetus had fetus died capacity developed fetus never place. to survive the first 1996 SD GRODE, Appellee, Bruce A. Plaintiff and Wrongful statutes are remedi- nature, objective to al in created with the against whose provide a cause of action GRODE, M. Defendant Rose causes the death of another. tortious conduct Appellant. Ass’n, Hosp. Farley Marty v. Mount See (S.D.1986). However, as Fer- No. 19013. reasoned, illogical recog- it is guson court Supreme Court of South Dakota. wrongful death nize a cause of action for initially where sustainable life exists. no Considered Briefs Oct. inconceivable, It absent A.2d at 17. is also Decided Feb. direction, specific legislative how this court can extend fetus, protect yet medi-

death of a nonviable practitioners legal performing

cal abortions 32-23A. liability.

from tort SDCL ch. parameters of South Dakota’s

[¶29] regard

wrongful death statute with important still Farley It is to note that Mother question was: "Did 4. The certified 21-5-1, amendment, pro- prior to its she causes of action for loss have numerous death of vide a cause of action personally this ordeal. sustained from child?” 387 N.W.2d 43. viable unborn

Case Details

Case Name: Wiersma v. MAPLE LEAP FARMS

Court Name: South Dakota Supreme Court

Date Published: Feb 14, 1996

Citation: 543 N.W.2d 787

Docket Number: None

Court Abbreviation: S.D.