*1 WITTY, Kimberly Individually and as

Surviving Baby Witty, Parent of Petitioner, Child,

Nonborn

AMERICAN GENERAL CAPITAL

DISTRIBUTORS, INC.,

Respondent.

No. C-4662. Texas.

Feb. 1987.

Rehearing 6,May Denied Melton, Stern, Jeffrey

Michal M. W. Hirschfeld, Houston, petition- Stem & er. *2 Ware, Terry an that causes an individual’s Michael G.

B. Lee Elkins, Mitchell, Tex.Civ.Prac. & Rem.Code Ann. Hous- death.” Frank W. Vinson 71.002(b) added). (emphasis Prior ton, respondent. § codification, provided recovery the Act ROBERTSON, injuries caus- “damages on account of the Justice. Tex.Rev. ing any (cid:127)person.” the death of General Kimberly Witty sued American (Vernon Supp.1941- art. 4671 Civ.Stat.Ann. Distributors, Inc. under the Texas Capital added). 1985) (emphasis Act, Tex.Civ.Prac. & Rem. Wrongful Death change in not intend substantive did 71.002, 1985 Tex.Sess.Law Code Ann. § by substituting Act the word “individu- (Vernon) (formerly Tex.Rev.Civ. Serv. 7159 in the recodifica- “person” al” for the word Statute, 4671); the Survival art. Stat.Ann. Ann. & Rem.Code tion. Tex.Civ.Prac. 71.021, Rem.Code Ann. Tex.Civ.Prac. & § (Ver- Serv. 7219 1985 Tex.Sess.Law § (Vernon) Serv. 1985 Tex.Sess.Law Furthermore, non). legis- we hold that 5525), art. (formerly Tex.Rev.Civ.Stat.Ann. intend the words “individual” lature did not damages the death of her fe- alleging to include an “person” to be construed or alleging property tus; alternatively fetus. unborn damage as a result of the destruction pure- is wrongful death cause of action A chattel, her the fetus. The Texas ly creature of statute. Witty’s held that claims The trial court Act, similar to those Wrongful Death because as a matter of law were barred states, Lord patterned after most Summary judg- was no live birth. Act, Act, Fatal Accident Campbell’s American granted in favor of ment was Viet., ch. 93 Sanchez & 10 appeals held that The court of General. (Tex.1983). Schindler, cause of action Witty had a Campbell’s Lord passage Prior trial court part of the and reversed common law Act, statutory there was contrary. judgment wrongful death. Rehearing, the Motion for S.W.2d 636. On Sanchez, “because noted As we appeals also held that Ms. court of reducing refinements difficulties anguish as a mental suffered claim for statutory form often into law doctrines tort was not loss of her fetus result of the either underin- legislation is result in Compensa- by recovery of Worker’s barred frequent- and which or overbroad clusive mental an- since it was not tion benefits which the ambiguous terms ly couched inju- physical guish from her own is the interpret, judicial decision court must part judgment We affirm that ries. law.” Id. at develop tort way to best denied the appeals which of the court of whether Nevertheless, determine we must reverse that of action. We survival cause fetus to an unborn legislature intended appeals' judgment of the court of wrongful death stat- our included within cause of which allowed wrongful death And, although our ute. dis- common law emotional action and the and must be in nature statute remedial tress action. construed, not rewrite the we liberally construing it. guise of in the statute Death Claim Wrongful history nothing in the find live birth We we held that an unborn intent that to demonstrate to have a cause required for a child scope within fetus be embraced Yandell action for aptly so stated dissent As the Sim statute. Delgado, 471 S.W.2d 117 R.I. Hospital, Newport Presley v. no live ilarly, there has been where J., dis- (1976) (Kelleher, A.2d clear, language of the unambigious way “in no conclusion senting), such precludes fetus is upon whether dependent The recent cod the death of a fetus. theological, or scien- philosophical, in the pro Death ification of upon the based sense, my belief nor is arising from tific “damages recovery for vides pronouncements Court’s ... scope unborn fetus within the our Despite the area of abortion.” the fact we have found great that “we have made strides in the none. field of the sciences and we have read with While it is true that ratio of better

great respect writings phi- of learned one, majority than two to of states losophers theologians, re- [must] permitting wrong have ruled in favor *3 member that such individuals cannot create ful death on unborn action behalf law, right job action at for this the fetus, the what cases reflect is an Legislature.” of the Id. opinion among honest difference given state courts as to the effect to be

In recognized Yandell we that until statutory similar birth, provisions. Kuhnke there is a live no cause of Fisher, 916, (Mont.1984). 683 P.2d personal action for injuries to the fetus. wrongful Since the cause 71.003, Rem.Code, Section Tex.Civ.Prac. & statute, upon death is agree based with provides application Supreme the California Court that little Act, stating subchapter that “[t]his gained would be analysis from an applies only injured the individual would jurisdictions. all Justus, decisions of other bring have been to entitled an action for 105, Cal.Rptr. at 565 P.2d at 130. if he had lived.” Tex.Civ.Prac. Choosing deny action, the cause of 71.003(a), & Rem.Code 1985 Tex. recognized Justus court (Vernon). Sess.Law Serv. 7160 The fetus has no cause of injury, action for the until when the last word shall have been said subsequent live consideration, birth. Under the in such paramount clear lan- statute, guage of the rights there is no cause of fact will still remain that [wrongful action for death where there would be no our ... death are to be act] Therefore, cause of action defined not other what courts have statutes, touching since there is no cause of said their own action for fetus, living meaning from the and intent of our there can be own no cause of reading from a action for of it. death of a fetus. Id. recognized

This has the fetus as having an existence separate from jurisdic The reasons asserted other tions, mother. dissent, Leal v. Kimberly Witty, C.C. Pitts Gravel Sand & Co., Leal, allowing appear compel the cause of action this However, court allowed a ling. argu cause of action for faced with same prenatal injuries where the child wrongful was born ments and a death similar statute ours, alive. Supreme Id. The common law the Florida Court held separate that, arguments of a compelling may existence fe as as the purposes be, tus for However, they liberty inheritance. were not at rewrite rule, Miller, 303, the universal as well as the rule in statute. Stern v. So.2d Texas, (Fla.1977). Only legislature is that such ability to is so take contingent upon subsequent empowered. child’s “We are confined to deter Galveston, birth. Ry. legislature’s Nelson H. mination of the & S.A. intent.” Id. (1890); 78 Tex. 14 S.W. 1021 see found that California Atchison, also Justus v. 19 Cal.3d arguments these same “would be relevant Cal.Rptr. 97, 106, 122, 131(1977). 565 P.2d upon if we were called to decide whether adopt proposed view of common law rule that the California should cause rights law; contingent upon judge-made a fetus were live of action as matter when, here, legis- persuasive we feel that they had there been the are not as wrongful wrongful lative intention to create a in this death action for death fetus, action for an unborn pure state is a creature of statute.” Jus specifically tus, would Cal.Rptr. so P.2d at stated. plaintiff question presented by has not directed case is “not our attention to The evidence intent to include of evolution of the common matter question Compensation

but rather intent.” sions Act. of the Worker’s Egbert Wenzl, legal 199 Neb. 260 N.W.2d creating There is no basis for dis- allegations of among tinction numerous sep- anguish mental claimed to suffered express respect We no arately aspects of a result of different the existence the fetus as a We, therefore, injury. reverse same philosophical either the or scientific sense. judgment of appeals’ of the court only hold no evi- We that we have found claim for which held common law dence that the intended to in- by recov- anguish mental not to be barred scope fetus clude a within of our ery Compensation of Worker’s benefits Therefore, death statute. judgment render that such claim barred cause of action maintained Compensation Act. under the Worker’s fetus under the right bring until the statute *4 by legislature.

is afforded the Destruction Chattel of remaining is that contention Survival Action denying her appeals the erred in court of being to there no evi addition damages recovery of cause for of action of intent to dence include her chat destruction of from the scope fetus within the of Survival Stat tel, Although hold that an the fetus. we útero, ute, dies in survival where fetus scope not unborn fetus does fall within damages may not action either do exist or Wrongful Death Act or the Survival part per recovered of the mother’s Statute, that a hold as a matter of we injury damages. sonal Medical and funeral of chat relegated fetus the status is expenses in expenses of the fetus are appeals did not address tel. The court of by the as a direct result of curred mother However, point raised a that issue. are, course, injury. of no lost her There and can addressed question of law only physi is wages fetus. Not Aquamarine Downer v. this court. See expe pain suffering may cal Inc., Operators, too in cur speculative, rience far but merit, neces it is not point has Since the technology, of is rent state medical of sary the court the cause to to remand proof support possibility not even the of appeals. the cause of action. part court of that We reverse Furthermore, decision in Yan- our wrongful allowing appeals’ judgment damages per dell allows law a common of action and death cause injuries only where there sonal to the fetus Judgment is anguish. claim for mental Yandell, 471 subsequent is a live birth. exists action that no cause of rendered Act at 569. Since Survival for the per merely allows cause of action for Witty’s claims and all death of a fetus sonal survive to the estate of anguish are barred the Workers’ mental deceased, precludes such action Yandell Furthermore, no cause Act. Compensation there is birth. where no live in this for destruction exists case We, therefore, ap- affirm the court of The remainder of of a chattel. action. peals denial the survival is affirmed. appeals’ judgment Anguish Common Law Mental HILL, J., KILGARLIN, C.J. joined Kimberly Witty’s common law claim J., RAY, dissent. anguish mental as a result of suffered KILGARLIN, Justice. of her under the the loss fetus barred dissent, although I wish unhesitatingly Compensation Worker’s Act. The mental not nec- —no, it were fervently yearn—that

anguish by Witty Ms. suffered court opinion, essary; for with injury as a result of the acci suffered old common resurrected the provi- unbelievably dent. Such is covered profitable course, maxim that it is law more position our new result-oriented to kill than to injure. directly defendant A dead contrary to this court’s decisions in nothing, fetus is now worth one injured past Wrongful Death Act cases. Where and later born alive sue. See Prosser legislature did the “demonstrate an intent” Keeton, (5th The Law Torts ed. loss of inheritance is a recoverable 1984). One would assumed damages element death as this recognition our belated a cause of action court allowed Yowell? Where did the prenatal injuries in Leal v. C.C. Pitts legislature “demonstrate intent” (Tex. Sand & Gravel S.W.2d 820 of a deceased child could recov- 1967), age finally Texas had entered the anguish society er for mental and loss of enlightenment, tardily, penul albeit as the companionship in a Now, adopt timate state to the cause. case as this court mandated Sanchez? consign ages ourselves to the dark of tort Where did the “demonstrate an again dis will merit dubious injuries resulting intent” that states, being tinction of one of the last were actionable under the ever, accept already Death Act as this court determined in thirty-six jurisdictions: Leal? Where did the “demon- wrongful death action for the death strate intent” that under the negligent fetus at hands of a tort- corporation Death Act a is a as this (I might point feasor. out the ratio is leg- decided Paiz? Where did the simply 4V2to “better than islature “demonstrate an intent” a fe- *5 one,” to suggests. two as the court surviving Wrong- tus was a child under the 505.) S.W.2d at ful as this court concluded in reaching result, its the court has not Nelson? only precedent; Texas misstated it has ab circularity The court’s rule is fur- interpret dicated our responsibility to stat ther manifested the failure of the court responsibility utes—a consistently point to evidence that the accepted past. E.g., Piper in the Yowell v. an demonstrated intent that the words “in- Corp., (Tex.1986) 703 S.W.2d 630 Aircraft “person” do dividual” not include a fe- (loss of damage inheritance is a recoverable Yet, any reasoning, tus. without Act); under the Death Sanchez analysis, proclaims discussion or its Schindler, (Tex.1983) v. 651 S.W.2d 249 that the did not intend an un- (damages wrongful for death of child are “per- born fetus to be an “individual” or loss); to pecuniary not limited Leal v. C.C. proper reading prece- son.” A of Texas Pitts & (wrongful Sand Gravel Co. dent, cognizance develop- of the historical action can be statutory maintained bene tort, appreciation of ment of this our ficiaries for prenatal injuries of infant re interpreter role as the constitutional sulting death); Hugo, Schmeltzer Co.& inescapable statutes leads me to the conclu- Paiz, 563, 141 (a (1911) 104 Tex. S.W. 518 sion that the a stillborn fetus corporation meaning is a within the of action its have a cause for Act); Death Nelson v. death. Galveston, H. Ry. 78 Tex. S.A. (1890)(a S.W. fetus at time incorrectly interprets court The Yandell Wrong its father’s death recover as a (Tex.1971),say- Delgado, 471 S.W.2d 569 beneficiary). ful Death Act ing proposition stands for that prerequisite live is a for a child to Instead, birth the court announces a rule new prenatal injuries for have a cause of action regarding interpretation of statutes. However, in death. even curso- Apparently, longer interpret we can no ry reading the sole of Yandell reveals that legislative history statute unless there is in the whether a fetus had demonstrating an issue case was intent to who is to be injury by the be viable the time embraced statute. am sure that pro- injury in order for the to be constitutional scholars will view this sustained Yandell, 468 Delgado nouncement with sheer amazement. Of actionable. Worth), prenatal injuries, (Tex.Civ.App. cause of action for — Fort curiam, stated, per dissenting opinion 471 S.W.2d writ n.r.e. court “[t]he ref'd (Tex.1971). Furthermore, Yandell, ap the court of civil Justice Cadena [in and the suit was survived peals] comprehensively presents the case brought personal injuries, recognition right of a wrong issue in a death. Id. The live birth agree prenatal injuries and we are ... death context could not have been be ful dissent, opinion.” In his ment with his Id. court because there was fore Yandell separate ex Justice Cadena no death involved. istence of the unborn child stated child is the doctrine that the unborn example of the circular and In another mother Leal v. of its is absurd. C.C. logic opinion, used in its tortured Gravel, Inc., 413 S.W.2d Pitts Sand & oranges apples adds {Yandell’s 1967). (Tex.Civ.App. Antonio requirement personal for a suit birth — San language Thus, why it is clear the bulk of the Act) heirs can and concludes because on cases from other court’s relies in- only bring an action “if the individual result reached jurisdictions. The bring jured entitled to would have been law. No doubt court has no basis in Texas Kimberly Witty if he had action lived” overwhelming majority jur- because Baby Witty’s death. no cause of action for opposition, the court states isdictions are unbelievably states “since analysis gained from an “little would be injuries living of action for jurisdictions.” decisions of all other fetus, there can be no cause But, contradiction, 727 S.W.2d at 505. fetus.” proceeds rely opinions on the court then the court can overlook the fact How from other states’ courts bolster five survived, Yandell, Baby Witty had decision. brought cause of action for its could have court uses as further arguments Clearly, beyond me. holding, reduced to support for its when is no cause premise the court’s that there *6 conclusion, essential, (1) based are: a raw living fetus is a of action for inheri- premise that because solely on the of the court’s misstatement of birth, on live rights were conditioned tance authority, sole Texas Yandell. that all common law rule was the universal hand, Leal, in this court On other upon contingent rights fetus were of a wrongful death confronted with a was (2) of no manifestation arising prenatal from claim intent, legislature had intended if the case, I note that in this S.W.2d at 821. covered, it have said would fetuses all of two sentences devotes so. Leal, saying dismissing by the case it law, for the common Let us first address prenatal inju- a cause of action for allows in- legislature did not arguing that the in Leal, alive. But ries to a child born by the to be covered tend fetuses days prior dy- only two infant survived that the com- the court asserts Death au- ing. at 820. We stated: Id. “[S]ome rights “the of a fetus rule was mon law recognize a cause of action thorities do not upon live contingent birth.” were the fetus is injuries unless From this the court deduc- S.W.2d at 505. injury, and that other at the time of viable legislative intention been the es “had there child is do not do so unless the authorities wrongful death action for to create questions These are not before born alive. ” fetus, have legislature would unborn (emphasis are reserved. Id. at us and specifically so stated.” 727 S.W.2d at 505. added). the com- arguable that fact, It is more than summary treatment despite rights of fetuses to not limit holding mon law did precedent by the Leal Blackstone, William alive. Sir those born fetus is an individual under that a time of the American writing at about the recognizing the Wrongful Death Act. Revolution Rights Persons,” Nelson, “Of the of did not wander off into the realm interpreting said: of intent to deter- mine that a fetus was a begins Life in contemplation ... of law beneficiary. soon as an infant is able to stir in the a[s] mother’s For if quick womb. a woman is on Nelson court relied several land- her, anyone with child ... beat One, English authority. [and] mark cases for whereby the child body, dieth her Woodford, Thelluson v. 4 Ves.Jr. child; (Ch.1798), she is delivered of Eng.Rep. a dead was a monumental murder, which, though opinion, including recitation antient of argument, counsel’s manslaughter. law homicide or over one hundred length. pages Sitting by special invita- Blackstone, 1 W. *129 Commentaries Loughborough, tion Lord Chancellor Sir Blackstone continued: Buller, justice formerly Francis mere, An infant in ventre or in sa King’s Court of a judge Bench but womb, is supposed mother’s in law to be Pleas, responded the Court Common many purposes. capable born for It is to the contention that an infant in ventre having legacy, or a surrender non-entity, saying: sa mere awas copyhold may estate made to it. It see, Let us non-entity what this can do. guardian it; assigned is en- may recovery, though He be vouched in a abled to have an estate limited to it’s purpose making him an- use, and to take afterwards [sic] may swer over value. He be an execu- limitation, as if it were then may tor. He take under the Statute born. 22 & Distributions. 23 Ch. II. c. 10. He Id. *130. may may take devise. He be entitled charge raising portions. under a He It is difficult to “something” fathom how may injunction; have an and he could the victim of a homicide or guardian. have a manslaughter person is not a at common 320-21, Eng.Rep. Id. at comprehension law. It likewise defies how “something” which could be as Hardwicke, speaking Lord Chancellor object legal guardi- estates or have a Hodson, 114, 117, Eng. 2 Atk. Wallis v. an could be person in the eyes (Ch.1740), Rep. said that an infant common law.1 The irony this entire in ventre mere was a sa in rerum (in discussion of the things) common law it “so relates natura nature to the both rules common and civil is that was, she Court, purposes, all intents Texas almost one hundred child, as as if born in the much father’s life years ago, performed a similar exercise. time.” conclusion, Galveston, Its in Nelson v. *7 H. Ry. & S.A. was that under the com- Hobby Edwin concluded his Justice Nel-

mon sufficiently law a fetus was analysis of the common law son with what being to warrant considered a equally persuasive is a most statement as surviving language pertain- child under the quoted relates to this case. He from Doe Lancashire, 49, 61, ing to 5 Durn. & East R. statutory beneficiaries of Texas’ (K.B.1792), Eng.Rep. where the Wrongful Death Act. The court would Bench, King’s through Justice have us believe that Nelson stands the Buller, said: is no distinction be- “[t]here proposition that for purposes of inheri- tween a child in ventre sa mere one tance,- ability of by the a fetus to take born,” actually joined his dependent upon or descent is devise its colleague, Justice Grose. being bom alive. The court would do well to reread Nelson to it really recognize ascertain what the law the If common did might born, thus holds. also add that the in fetus as one er; and, may philosophically or 1. The court leaves us in a vacuum how to scien- chattel; identify though legally a fetus. We are it is tifically "person,” told one. but, separate existence from its moth- person, the court in its assess- prior legislative has erred bound the inaction in an ment of the common and therefore its area like tort law has traditionally developed primarily through judi the legislative inactivity that been deduction process.” Sanchez, cial 651 S.W.2d at 252. amounts to no to be intent for fetuses Sanchez also observed Texas Wrongful covered under Death Act is Wrongful patterned Death Act was after weakened, But, severely destroyed. if not Campbell’s Lord The Act. Fatal Accident spite contrary, of all the authority to the Vict., (1846). 9 & 10 ch. 93 The let us assume the common law is as this court Lord Camp Sanchez conceded that says, legislative court and examine intent bell’s limited thusly. To do so start we should with Nevertheless, pecuniary loss. Id. at legislature Penal Code enacted but far clearer intent to with prior to of Texas’ years passage four its contrary than we in Witty, Sanchez first death statute. rule. pecuniary abolished loss Code, Chapter IX of entitled “Of Additionally, the should refer Homicide,” legislature provided “[t]he opinions, Whittlesey another of recent person upon alleged whom the homicide is Miller, S.W.2d 665 committed, in exist- to have been must be refusing legislature to to defer to the es- ence actual Tex.Pen.Code art. birth.” a wife’s for loss of consor- tablish claim White, (1856); Digest, Oldham Laws & tium, this court said: (1859); Paschal, Digest Texas responsibil- judicial Such an abdication of Texas, I, If the Laws Vol. article 2206. light ity longer is no for in called per- found it to limit legislature necessary social present realities. law not upon whom a could be com- sons homicide static; and, courts, whenever reason alive, not infer mitted to those born can we demand, pri- equity have been One, things? not another cate- two changing the mary instruments for com- gory “persons” in existence than those through mon law a continual re-evalua- so, If by actual birth? that is a concession light concepts in tion of common law person, that a fetus was but current conditions. legislature did not “the intend to follow espousers How Id. at 668. law,” subject antient make it the as contained in and Whittle- views Sanchez Two, legislature found it homicide. align Witty sey can themselves qualify necessary in the 1856 Penal Code to champion torpidity in the judicial those who alive, “person” why to one bom did not the inexplicable face of inaction qual- contain same me. February ification? Law of 1860 ch. Moreover, closely in a related case Gammel, 4 H. Laws 1860 Tex.Gen.Laws Gravel, Witty, Leal C.C. Pitts Sand argued it not be Texas Can Inc., doing this court but inter what was a similar that had intended Texas’ Death Statute? preting “person,” have said limitation on it would allegation in case was that an so, contrary to the assertion occurring útero, to fetus while in not intend the “that did days in death two after ‘person’ con- words ‘individual’ actionable under the strued to include an unborn fetus.” twenty years predecessors of Act. Our course, again 504. Of I remind matter for cry did not out “this is a ago *8 support- court that it no evidence offers decide,” to instead inter but legisla- ing its own determination of lack of language preted of intent. tive any per of “injury causing the death son,” encompass injuries a fetus. If to to intent, the legislative to In obeisance unnecessary to de the Leal court found of do well read more San court would to issue of to the on the fer Schindler, court con chez v. which the fetus, why we? to a should judicial decision is cedes states way develop Note, strongly, That case Leal to tort law. and note best very issue we not be court “reserved” also states court should “[t]his

511 today, lived, before us of viable injured exposed a fetus to infant was liabili- ty. clearly inequitable. before birth. 419 at This is S.W.2d 822. One can only assume that had that court considered example inequity Another caused issue at hand to have been a properly this distinction is the oft- illustrated so, matter it would have said appellate hypothetical cited Ohio of court’s we, reserving instead of so the issue pre- the two twins who suffer simultaneous twenty years later, question could duck the injuries, prior dies natal one moments by answering legisla- “no demonstration birth and other dies moments after tive intent.” Ashmore, birth. See 109 Ohio Stidam v. 431, 434, (1959). 108 167 N.E.2d App. The Arizona Court con nearly Both situations involve identical argument fronted legisla with similar problems relating proof damages preemption tive when held that the statu causation; proof yet, under the rule tory beneficiaries of a fetus could maintain recovery announced is al- death action. That court stated twin, lowed for the latter birth may participate common law in the “[t]he requirement recovery would bar for the growth and evolution of a statutorily cre first twin. action, pronounce especially ated where its inequities, In addition to ments do not constitute or the obvious ‘drastic radical development brief review of the of the “live upon existing directly or law’ incursion[s] requirement birth” it is shows that outdat- contradict either or words ex century, ed. Before middle of this pressed legislative intention.” Summer any pre- courts did not allow Superior v. Maricopa field Morrison, Involving natal Torts 467, 473, County, 144 Ariz. P.2d 698 31 Cosmology, the Unborn —A Limited (1985) (citation omitted). agree 718 Baylor L.Rev. 134-35 interpretation the Arizona court. The final leading case, v. Dietrich Inhabitants Death Act rests with this 14, Am.Rep. Northampton, Mass. court. (1884), common controlled American In areas such as tort “this court has Morrison, sixty years. than more always interpret endeavored to laws permitted supra, at 138. Sanchez, Texas to inequity.” avoid child, alive, bom main- Moreover, “because the injuries tain an action for sustained while reducing difficulties in refinements of tort Kotz, child útero. Bonbrest into statutory law doctrines form often re- (D.D.C.1946).. F.Supp. 138 After Bon- legislation sult which is either underin- brest, jurisdictions overruled the “Dietrich frequent- clusive overbroad and which is celerity one Rule” with such writer ly ambiguous couched in terms which the noted, “[sjeldom such a been interpret, judicial court must decision is the overwhelming firmly rapid and reversal of way develop best tort law.” Id. authority as in the trend established to- requirement allowing recovery inju- prenatal The “live birth” advanced ward Morrison, supra, infant.” perpetuates inequity, the court ries viable omitted). (citation recognizes, yet dismisses. The illogic of amply this distinction is illustrat- Nevertheless, jurisdictions some still re comparison ed of Yandell and this required lied on Dietrich and Yandell, injured case. the fetus was prerequisite to maintain born alive prior viability, yet to its because it was ing E.g., torts. alive, born an action could maintained 17, Skelly 155 Neb. Drabbels Oil the child sustained in úte- (1951). However, about N.W.2d case, ro. S.W.2d at 570. In our Drabbels, began to the trend time alive, fatally fetus was not born but was change overwhelming majority and an Thus, injured viability. after because Mrs. jurisdictions have since abolished the “live fetus died before American requirement. See birth” Verkennes General, decision, by today’s protected, Corniea, Minn. 38 N.W.2d 838 *9 defendant, (1949)(first while the Yandell was no where the hold 512 recognize legal protection requirement). Currently, worthy

“live birth” thir in- ty-five states and the District of Columbia previously protect- terests which were not brought allow death actions to be (Second) ed at all.” Restatement Torts stillborn, on behalf of viable fetuses.2 (1965). presents 1 e This case comment § Only eight yet type do states allow this opportunity us with to be consistent remaining of recovery.3 jurisdictions defining history by with that “individual” passed question. have not on the With its Death Act to include a decision, joined the court has a distinct any legislative fetus. In the absence minority jurisdictions cling to an intent, duty it is our to inter- constitutional requirement gen anachronistic that has its pret prevent in a manner to statute Ironically, esis in 1884. while this court inequity. has instead The court chosen sep a fetus has an concedes that existence rule abdicate its role and announced a mother, arate from its basis deprive of law which tortfeasors to allows was that Dietrich for the death right to recover could because fetus was be allowed of their I cannot and will unborn children. merely body. of the mother’s 138 a result. would hold concur (cid:127)Mass, at 17. par- that under our Furthermore, problems concerning while a cause ents are entitled to assert proof damages may causation and for death unborn. 1884, existing legitimate been concern technology should be to meet medical able HILL, C.J., RAY, J., join in this challenges these raised cause of dissenting opinion. logic legal action. nor fact Neither medical supports imposing require- the live birth

ment in death suits for history development

“The entire tendency

tort law shows a continuous Olson, (Okla.1976); Shores, 95, Per Libbee v. 2. 550 P.2d 924 Eich v. Town 293 Ala. 300 of Gulf 258, Clinic, (1974); Superior 518 So.2d v. 268 Or. P.2d 636 354 manente Summerfield 467, Levin, 199, County, (1974); Maricopa 144 Ariz. 698 Pa. 509 501 A.2d Amadio v. Markiewicz, (1985); P.2d Hatala v. 26 Conn. (1985); Presley Newport Hospital, 712 v. 117 1085 358, (1966); Sup. Worgan Greg 177, A.2d 406 v. (1976); 224 Fowler v. Wood R.I. A.2d 748 365 258, Ferrara, Inc., (11 go Terry) 50 Del. 128 608, ward, (1964); S.E.2d 42 Nelson 138 244 S.C. (1956); Community A.2d 557 Greater Southeast (Utah 1975); Peterson, P.2d 1075 Vail v. 542 Williams, (D.C.1984); Hospital A.2d v. 482 394 Vermont, Hospital lancourt Medical Center v. Lassiter, 712, App. 91 Ga. S.E.2d 100 Porter v. 87 138, (1980); Moen v. Han Vt. 425 A.2d 92 139 Baldazo, 570, (1955); 103 P.2d Volk v. Idaho 651 597, son, (1975); 266 Bald 537 P.2d 85 Wash.2d (1982); Brandenberg, Chrisafogeorgis 11 v. 55 431, Butcher, W.Va. 184 S.E.2d 428 win v. 155 Sears, 368, (1973); N.E.2d 88 v. Ill.2d 304 Britt (1971); v. State Farm Mutual and Kwaterski 487, (1971); Ind.App. 277 N.E.2d 20 Dunn v. 150 14, Co., Wis.2d 148 N.W.2d Auto Insurance 34 Inc., (Iowa 1983); Way, Rose 333 N.W.2d 830 (1967). Additionally, both Tennessee and 107 143, Manion, (1962); Hale 189 Kan. 368 P.2d 1 v. permit Death Statutes South Dakota Couch, (Ky.1955); Mitchell v. 285 901 maintained an action to be Pierre, (La.1981); 402 So.2d Danos v. St. 633 (1980); 20-5-106 S.D. §Ann. fetus. Tenn.Code Sherman, 179, State Odham v. 234 Md. ex rel. (1985 Supp.). Ann. 21-5-1 Codified Laws Lines, (1964); Greyhound 198 Mone v. A.2d 71 354, Inc., (1975); Mass. 331 N.E.2d 368 916 564, 122, Atchison, Cal.2d P.2d Justus 19 565 v. 130, Morse, Mich. 785 O’Neill v. 385 188 N.W.2d Garwood, (1977); Cal.Rptr. v. 139 97 Hernandez 365, Corniea, (1971); v. 229 Minn. 38 Verkennes — Fisher, (Fla.1980); v. Kuhnke 390 So.2d 357 Horn, (1949); Rainey v. 221 Miss. N.W.2d 838 (1984); -, Egbert v. P.2d 916 Mont. 683 269, Brown, (1954); O’Grady 654 72 So.2d 434 v. 573, Wenzl, (1977); 260 N.W.2d 480 Neb. 199 (Mo. 1983); Yup, v. White 85 Nev. S.W.2d 904 527, 303, (1964); Taggert, 204 A.2d N.J. 140 v. 43 Graf (1969); Poliquin 617 v. Mac 458 P.2d 478, Friedberg, N.Y. 24 N.Y.2d 301 v. Endresz 104, (1957); Donald, 135 A.2d 249 101 N.H. (1969); Gay Thomp N.E.2d 901 S.2d Hospital, St. Vincent 95 N.M. Salazar (1966); son, S.E.2d 266 N.C. McBane, (1980); Hopkins v. P.2d Tire Va. Lawrence v. Craven Ashmore, (N.D.1984); N.W.2d Stidam v. S.E.2d 440 (1959); App. Ohio 167 N.E.2d 106 Evans