Chatelain v. Kelley

• Decision Date: 20 November 1995
• Docket Number: No. 95-450,95-450
• Citation: 322 Ark. 517,910 S.W.2d 215
• Parties: Joanne CHATELAIN, f/k/a Joanne Mote, and Daryl Mote, Appellants, v. Lawrence A. KELLEY, Appellee.
• Court: Arkansas Supreme Court

Page 215

910 S.W.2d 215

322 Ark. 517

Joanne CHATELAIN, f/k/a Joanne Mote, and Daryl Mote, Appellants, v. Lawrence A. KELLEY, Appellee.

No. 95-450.

Supreme Court of Arkansas.

Nov. 20, 1995.

Frank H. Bailey, Mt. Home, for appellants.

Constance G. Clark, Fayetteville, for appellee.

NEWBERN, Justice.

At the end of a full-term pregnancy in 1989, appellant Joanne Mote, whose name is now Joanne Chatelain, was admitted to a hospital for delivery of her child. While she was awaiting delivery, an emergency Caesarian section became necessary, and Dr. Lawrence A. Kelley, the appellee, was to perform the procedure. Ms. Mote and her then-husband, appellant Daryl Mote, alleged the child was stillborn due to a delay in the operation caused by Dr. Kelley. They sued Dr. Kelley and the hospital for wrongful death.

After a voluntary nonsuit in 1992, the complaint was refiled against Dr. Kelley only. The Trial Court concluded that an unborn fetus is not a "person" for purposes of the Arkansas Wrongful Death Statute, Ark.Code Ann. § 16-62-102 (Supp.1993), and granted Dr. Kelley's motion for summary judgment. We affirm the judgment.

As it did in 1989, § 16-62-102 provides in significant part the following:

Wrongful death actions--Survival.

(a)(1) Whenever the death of a person shall be caused by a wrongful act, neglect, or default and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, then, and in every such case, the person who, or company, or corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death may have been caused under such circumstances as amount in law to a felony.

* * * * * *

(b) Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.

Whether the death of a fetus is the "death of a person" in the context of the law of wrongful death is an issue of first impression in Arkansas. As reported in B. Lingle, Comment, Allowing Fetal Wrongful Death Actions in Arkansas: A Death Whose Time Has Come?, 44 Ark.L.Rev. 465 (1991), a majority of the states which have considered the issue have interpreted similar legislation to hold that the death of a fetus qualifies as the death of a person. A significant minority of jurisdictions have, however, concluded to the contrary. See also S. Speiser, C. Krause, and J. Madole, Recovery for Wrongful Death and Injury (3d Ed.1992 and Supp.1995); Annot., 40 A.L.R.3d 1222 (1971).

Typical of the majority view is the strong opinion in Summerfield v. Superior Court, 698 P.2d 712, 144 Ariz. 467 (1985). The Arizona Supreme Court reviewed the history of the issue from Justice Holmes's pronouncement in Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242 (1884), that no action would lie for the death of a fetus because it was part of its mother rather than an independent being, though present-day pronouncements to the contrary. The Arizona Court pointed out that the law clearly would allow a cause of action for a prenatal injury resulting in the death of a child born alive, and it is thus illogical to say that a prenatal injury resulting in the death of a viable fetus should not form the basis of a wrongful death claim. The Court stated that "with regard to the issue of recognizing a loss to the survivors, viability is a less arbitrary and more logical point than the moment of birth."

A common thread in the cases adopting the majority view is that the action for wrongful death is "remedial" in nature and is thus to be interpreted liberally with a view to accomplishing its purposes of compensating injured persons and deterring harmful conduct. See, e.g., Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982).

Cases espousing the minority view include Duncan v. Flynn, 342 So.2d 123 (Fla.App.1977), in which it was held that there must be a live birth to sustain a claim with respect to a prenatal injury to a fetus under a wrongful death law. The Court referred to its earlier opinions where it held that once a child is born alive, he or she is a "person" who can maintain an action for damages resulting from any prenatal injuries that were suffered. The holding was that a live birth must have occurred either through complete expulsion in a vaginal delivery or complete removal in Caesarian section, for acquisition of a "separate and independent existence" from the mother.

In addition to drawing the recovery line at "live birth," other courts in the minority have considered legislative enactments in other areas of the law which have treated injuries to stillborn fetuses differently from injuries to those born alive. In Giardina v. Bennett, 111 N.J. 412, 545 A.2d. 139 (1988), the New Jersey Supreme Court noted how the state legislature distinguished between persons and stillborn infants and fetuses when it had the opportunity, particularly in the Uniform Anatomical Gift Act. [See Ark.Code Ann. §§ 20-17-601 through 20-17-617 (Repl.1991 and Supp.1993).] The Court observed that "the Legislature has in other ways dealt with the consequences of the prenatal condition," such as allowing children, once born, "to acquire rights or interests by way of inheritance or other devolution of property." Also, at the time the New Jersey Wrongful Death Act was enacted, a fetus was not considered a person. Under these circumstances, it was held that the legislature "never intended to create a derivative action in favor of the survivors of a fetus never born alive...."

The Iowa Supreme Court was also constrained by its rules of statutory construction when it made its decision in Weitl v. Moes, 311 N.W.2d 259, (Iowa 1981), distinguished on other grounds in Audubon-Exira Ready Mix v. Illinois Gulf Railroad Co., 335 N.W.2d 148 (Iowa 1983). The Iowa Court observed that a "person" is a human being who has "attained a recognized individual identity" by being born alive. It was noted that Iowa, unlike some other states, had a "survival" kind of wrongful death statute. The Court stated:

Such a statute does not create a new cause of action in a decedent's survivors; rather, it preserves whatever rights and liabilities a decedent had with respect to a cause of action at the time of his death. [Citations omitted.] The cause of action thus preserved is deemed to accrue to the decedent's estate representative "at the time it would have accrued to the deceased if he had survived."

Our § 16-62-102 is also a "survival" kind of statute. Under the Iowa wrongful death statute, a cause of action only accrues when a person, once "living," has died. The Court engaged in a statutory analysis similar to the New Jersey Supreme Court's opinion in the Giardina case. It examined the Iowa Code and noted that in other areas the "legislature has not hesitated to be specific when it intended a statute to apply to fetuses." Since an earlier decision in which a fetus was determined not to be a person, the Iowa legislature had not amended the wrongful death statute to include fetuses.

Another concern expressed in the minority jurisdictions has been measurement of the recovery. In New Jersey when Graf v. Taggert, 43 N.J. 303, 204 A.2d 140 (1964), was decided, the damages that could be recovered under the wrongful death act were limited to pecuniary loss. Without reaching the question whether a fetus was a "person," the Court declined to recognize that a cause of action could be maintained because damages would be too speculative: "It is virtually impossible to predict whether the unborn child, but for its death, would have been capable of giving pecuniary benefit to its survivors." Id. 204 A.2d at 144.

In Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901 (1969), the New York Court of Appeals echoed the same concern, saying, "If the fetus is stillborn, speculation as to causation and particularly loss suffered is unreasonably increased." The New York Court also perceived a risk of double recovery and said:

[S]ince the mother may sue for any injury which she sustained in her own person, including her suffering as a result of the stillbirth, and the father for loss of her services and consortium, and additional award to the "distributees" of the foetus would give its parents an unmerited bounty and would constitute not compensation to the injured but punishment to the wrongdoer.

Various reasons have been held to justify adhering to the "live birth" rule in these states. One has been the difficulty in moving the line from live birth to viability. The Court in the Endresz case stated:

It is argued that it is arbitrary and illogical to draw the line at birth, with the result that the distributees of an injured foetus which survives birth by a few minutes may have a recovery while those of a still born foetus may not. However, such difficulties are always present where a line must be drawn. To make viability rather than birth the test would not remove the difficulty but merely relocate it and increase a hundredfold the problems of causation and damages. Thus, one commentator aptly observed that (Wenger, Developments in the Law of Prenatal Wrongful Death, 69 Dickinson L.Rev. 258, 268), "since any limitation will be arbitrary in nature, a tangible and concrete event would be the most acceptable and workable boundary. Birth, being a definite, observable and significant event, meets this requirement."

In addition to this line-drawing problem, courts have also considered the different situations of the stillborn fetus and the child who survives birth and must live with his or her injuries. The Endresz case is an example. In Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d. 122 (1977), the California Supreme...