Coveleski v. Bubnis

• Decision Date: 16 November 1993
• Citation: 535 Pa. 166,634 A.2d 608
• Parties: Karen COVELESKI, Administrator Prosequendum of the Estate of Baby Coveleski, Deceased, and in her own Right, as Mother and Natural Guardian of Baby Coveleski, Deceased, Appellants, v. Vincent A. BUBNIS, Jr.; Zerbe Township; Raymond L. Bowers, Sr., t/d/b/a Corner Tavern; and Consolidated Rail Corporation, Appellees.
• Court: Pennsylvania Supreme Court

Page 608

634 A.2d 608

535 Pa. 166

Karen COVELESKI, Administrator Prosequendum of the Estate of Baby Coveleski, Deceased, and in her own Right, as Mother and Natural Guardian of Baby Coveleski, Deceased, Appellants, v. Vincent A. BUBNIS, Jr.; Zerbe Township; Raymond L. Bowers Sr., t/d/b/a Corner Tavern; and Consolidated Rail Corporation, Appellees.

Supreme Court of Pennsylvania.

Argued May 10, 1991.

Submitted Feb. 24, 1993.

Decided Nov. 16, 1993.

John J. Robinson, for appellants.

David B. Marateck, for Raymond Bowers, Sr. t/d/b/a Corner Tavern.

Charles H. Saylor, for Zerbe Twp.

David C. Eaton, Geoffrey Shuff, for Consolidated Rail.

Joey Storaska, for Vincent Bubnis.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

MONTEMURO, Justice.

The issue raised in this appeal is whether an action for wrongful death and survival can be maintained on behalf of an eight week old fetus.

On January 3, 1986, Karen Coveleski was a passenger in a Jeep that plunged into a ravine on the property of Consolidated Rail Corporation. At the time of the accident, Ms. Coveleski was approximately eight weeks pregnant. Since the fetus may have been damaged in the crash, or would be damaged by subsequent medical treatment for other injuries caused by the accident, Ms. Coveleski consented to undergo an abortion.

Ms. Coveleski brought actions against Vincent Bubnis Jr., the driver of the Jeep Zerbe Township, where the accident took place; Conrail, and Raymond Bowers Sr., t/d/b/a The Corner Tavern, which served alcoholic beverages to Bubnis prior to the accident. In addition to the actions brought for her own injuries, she brought wrongful death and survival actions on behalf of the fetus. Bubnis agreed to settle Coveleski's claims; however, the remaining defendants filed preliminary objections in the nature of a demurrer to the wrongful death and survival claims. The trial court sustained the objections, and dismissed the complaint filed on behalf of the estate of the fetus. The Superior Court affirmed. Coveleski v. Bubnis, 391 Pa.Super. 409, 571 A.2d 433 (1990). We granted allocatur, and now affirm.

An action for wrongful death and survival may be maintained on behalf of an "individual," which is defined to mean a "natural person." 1 Pa.C.S.A. § 1991. The survival act provides that all causes of action shall survive the death of the plaintiff. Thus the issue presented is whether a fetus, which is not born alive, ¹ and is incapable of sustaining life outside the womb, is a person for the purposes of the wrongful death and survival acts.

In Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1986) we joined the majority of jurisdictions which recognized a cause of action for a fully developed stillborn. In so doing, we rejected our previous line of cases that limited the right to bring a cause of action to those children born alive. We found that it was illogical to permit a cause of action to be maintained on behalf of a child that survived only an instant, while denying the same right to a fully developed fetus which, prior its demise, was capable of an independent existence. However, it is clear from reading both the majority and concurring opinions in Amadio that the issue of whether a cause of action exists for a non-viable fetus was not decided. ² We decline to extend liability under our wrongful death and survival acts any further.

In Amadio, we found significant the trend in the law in other jurisdictions recognizing an action for wrongful death for a viable fetus. It would, however, be anomalous to read Amadio as precedent for placing Pennsylvania by itself as providing a wrongful death action for an eight week old fetus. Currently, there is no jurisdiction that provides a cause of action for the death of an eight week old fetus that is not born alive, absent express legislative direction. Only Georgia recognizes a cause of action prior to viability. Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955) (cause of action after fetus has quickened, which usually occurs after the twelfth week of gestation). In fact, every other jurisdiction that has faced this issue has rejected an action for wrongful death for the demise of a fetus prior to viability. See, e.g., Akl v. Listwa, 741 F.Supp. 555 (E.D.Pa.1990) (predicting Pennsylvania would not recognize cause of action for the death of an eight-week fetus); Baby Foy v. Morningstar Beach Resort, Inc., 635 F.Supp. 741 (D.V.I.1986) (16-18 week fetus is not a person within the meaning of wrongful death act); Mace v. Jung, 210 F.Supp. 706 (D.Alaska 1962) (same); Gentry v. Gilmore, 613 So.2d 1241 (Ala.1993) (no cause of action for 13-week fetus); Green v. Smith, 71 Ill.2d 501, 17 Ill.Dec. 847, 377 N.E.2d 37 (1978) (no cause of action for 14-18 week old fetus); Humes v. Clinton, 246 Kan. 590, 792 P.2d 1032 (1990) (no cause of action for death of 16 and one-half week fetus); Fryover v. Forbes, 433 Mich. 878, 446 N.W.2d 292 (1989) (no cause of action for death of 16 week fetus); Rambo v. Lawson, 799 S.W.2d 62 (Mo.1990) (no cause of action for death of 12 week fetus); Wallace v. Wallace, 120 N.H. 675, 421 A.2d 134 (1980) (same); Miccolis v. AMICA Mut. Ins. Co., 587 A.2d 67 (R.I.1991) (no cause of action for death of five week fetus); West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958) (same).

We too reject a cause of action for wrongful death on behalf of a non-viable fetus, and like other jurisdictions, we will defer to our legislature for any substantial expansion of the scope of liability. For example, the Illinois legislature, in response to the court's reluctance to expand liability for the death of a fetus that dies prior to viability, amended its Wrongful Death Act. See, Lollar v. Tankersley, --- Ala. ----, 613 So.2d 1249 (1993) citing Smith v. Mercy Hosp. & Medical Ctr., 203 Ill.App.3d 465, 148 Ill.Dec. 567, 560 N.E.2d 1164 (1990) (appeal granted 136 Ill.2d 554, 153 Ill.Dec. 384, 567 N.E.2d 342 (1991). The amended statute now provides in relevant part:

The state of gestation or development of a human being when an injury is caused, when injury takes effect, or at death, shall not foreclose maintenance of any cause of action under the law of this State arising from the death of a human being caused by the wrongful act, neglect or default.

Ill.Rev.Stat.1989, ch. 70, par 2.2 as amended in 1980. Likewise, it should be left to our legislature, not our courts, to create a cause of action on behalf of a fetus that is incapable of an independent existence.

We recognize that wherever we draw any line of demarcation, it is difficult to justify a distinction between two points, infinitesimally close together, yet stationed on opposite sides of that line. For example, in Amadio, we rejected the line previously drawn at birth in part, because of the difficulty in distinguishing between the death of an infant that survives only an instant, and a fetus which dies only a moment before birth. Now that a new line has been drawn at viability, the pressure to avoid all possible arbitrary results is again brought to bear. It is difficult to justify a distinction between a fetus that dies a moment prior to viability, and a fetus that dies a moment after viability.

Mr. Justice Larsen has argued that this dilemma is solved by removing all limits on liability. Amadio v. Levin, 509 Pa. at 205, 501 A.2d at 1087 citing Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981) (Larsen, J. dissenting). However, even though placing any limit on liability is susceptible to the...