Cowe by Cowe v. Forum Group, Inc.

• Decision Date: 02 August 1989
• Docket Number: No. 41A04-8810-CV-332,41A04-8810-CV-332
• Parties: Jacob E. COWE, by Ann COWE, Parent and Guardian, Appellant (Plaintiff Below), v. FORUM GROUP, INC., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 962

541 N.E.2d 962

Jacob E. COWE, by Ann COWE, Parent and Guardian, Appellant (Plaintiff Below), v. FORUM GROUP, INC., Appellee (Defendant Below).

No. 41A04-8810-CV-332.

Court of Appeals of Indiana Fourth District.

Aug. 2, 1989.

Rehearing Denied Sept. 20, 1989.

Dennis V. Panarisi, Marion, for appellant.

John T. Murphy, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee.

CHEZEM, Judge.

Case Summary

Appellant Jacob Cowe, appeals the granting of appellee's, Forum Group, Inc's., motion for summary judgment on Issue IV of his complaint.

We reverse.

Issue

I. Whether there was a genuine issue of material fact regarding the liability of Forum Group for the support of Jacob Cowe or for the failure to provide prenatal care of Jacob Cowe.

Facts

Melanie Meredith is a profoundly retarded adult who is unable to speak and has no muscle control. She requires complete custodial care. During the relevant time, Melanie was a resident of and in the care of the Riverview Manor Nursing Home and was approximately 34 years old. Riverview Manor is a private nursing home in Marion, Indiana, owned by Forum.

During July or August of 1985, Melanie conceived a child and on March 25, 1986, she delivered a son, Jacob E. Cowe. Jacob was subsequently adopted by Ann Cowe who is currently his parent and guardian.

Another resident of Riverview Manor, Wayne Anthony Morgan, admitted he had sexual intercourse with Melanie more than once during July or August of 1985. Wayne was charged with rape and subsequently pleaded guilty but mentally ill to the offense. Jacob contends that he is the son of Melanie and Wayne, however, Forum does not concede to such contention.

Jacob's complaint originally contained six counts and included four plaintiffs: Melanie Meredith, Jacob E. Cowe, and Richard and Violet Meredith, Melanie's parents. On February 8, 1988, Forum filed a motion for summary judgment against all plaintiffs and on May 10, 1988, the motion was granted against counts II-V and all plaintiffs, save Melanie.

Jacob filed a motion to correct errors for his claims which were in count IV of the complaint. The trial court denied his motion on September 8, 1988. Jacob now appeals that ruling.

Discussion

Jacob appeals count IV only; therefore, any arguments against summary judgment for counts II, III, and V are waived.

We note that, because the trial court did not grant Forum's motion for summary judgment on count I of the complaint, count I survives for trial. Count I included Melanie's prayer for relief due to Forum's negligent care: failing to protect her from rape, sexual assault, battery, and abuse. Melanie seeks damages for physical injuries, hospital expenses incurred during her pregnancy, pain and suffering, and compensatory and punitive damages. Any damages possibly awarded to Melanie will in no way inure to Jacob.

When deciding whether summary judgment is appropriate the trial court must accept as true all facts alleged by the nonmoving party and resolve all doubts against the moving party. To determine whether summary judgment is appropriate, we must decide whether any genuine issues of material fact exist and whether the moving party is entitled to a judgment as a matter of law. Ind. Rules of Trial Procedure Rule 56(C); English Coal Co., Inc. v. Durcholz (1981), Ind.App., 422 N.E.2d 302. Also, "a defendant seeking summary judgment must demonstrate [that] the undisputed material facts negate at least one element of the plaintiff's claim. This is true even where, as here, the plaintiff would have the burden of proof at trial." McCullough v. Allen (1983), Ind.App., 449 N.E.2d 1168; Sanders v. Townsend (1987), Ind.App., 509 N.E.2d 860, 862. Therefore, once the nonmoving party, Jacob, has pleaded and alleged all the elements of his cause of action (as Jacob has done) the defendant and moving party, Forum, has the burden of setting forth evidence showing that at least one element of Jacob's claim is undeniably nonexistent.

Neither Forum, as the moving party, nor Jacob, in resisting the motion for summary judgment, has filed supporting affidavits, depositions, answers to interrogatories, admissions, affidavits, or testimony. The parties are relying solely upon pleaded matters.

A fact is material for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiffs' cause of action. Delk v. Board of Com'rs. of Delaware County (1987), Ind.App., 503 N.E.2d 436. In reviewing a motion for summary judgment, we stand in the position of the trial court and consider the same matters. Moll v. South Central Solar Systems (1981), Ind.App., 419 N.E.2d 154.

With respect to the case at hand, Indiana Code 34-1-1-11 states that "no person shall maintain a cause of action or receive an award of damages on his behalf based on the claim that but for the negligent conduct of another he would have been aborted." On first impression this statute seems to suggest that no wrongful life cause of action could exist for Jacob. However, a more accurate interpretation would be that to disallow Jacob's cause of action, Jacob must be arguing that he would have or should have been aborted. Jacob is claiming no such thing. Rather, Jacob contends that but for Forum's negligence he would not have been conceived. This is quite different than arguing that but for Forum's negligence he would have been aborted. Now that he has been conceived and born, Jacob contends that Forum owes him damages for its negligent conduct.

Jacob's claim is based on imputed paternity, wrongful life, negligence, and prenatal tort. Jacob argues that Forum is obligated to pay his support until he reaches 21 years of age. We note that if Jacob is allowed to recover support we would limit Jacob's claim for support because Jacob has been legally adopted by Ann Cowe. Once Jacob was adopted, any and all responsibility for Jacob's well-being, financial and otherwise, was laid upon the shoulders of Jacob's adoptive parent. Indiana Code 31-3-1-9 makes this clear:

After such adoption such adopting father or mother or both ... shall be jointly and severally liable for the maintenance and education of such person. Id.

In addition, any responsibilities of the natural parents cease:

The natural parents of such adopted person ... shall after such adoption be relieved of all legal duties and obligations due from them to such person and shall be divested of all rights with respect to such person ...

Id. Therefore, if Jacob recovers support as damages, he may only recover support for the unspecified time between his birth and his adoption.

I

We find no merit to the claim of imputed paternity. The paternity of Jacob is not at issue; this is not a paternity action. The record does not reflect that a paternity action was previously instituted to establish Wayne as Jacob's father. Wayne has no duty to support an illegitimate son unless and until his paternity is established by law. See, Farmer v. Minor (1986), Ind.App., 495 N.E.2d 553, 556.

II

Jacob's second theory for relief is a wrongful life action. A wrongful life claim has not yet been recognized in Indiana; however, California, New Jersey, and Washington recognize wrongful life actions. Wrongful life refers to a cause of action brought by or on behalf of a child where the child does not allege that a physician's negligence caused the child's deformity. Rather, the claim is that but for the negligent conduct of the physician, the child would not have been born to experience the pain and suffering attributable to the deformity. Harbeson v. Parke-Davis, Inc. (1983), 98 Wash.2d 460, 656 P.2d 483, 494. Harbeson continues and expands the definition of the action to include "negligent performance of a procedure intended to prevent the birth of a defective child: sterilization or abortion." According to I.C. 34-1-1-11, supra, Indiana statutory law could not allow the inclusion of an ineffective abortion as a wrongful life claim. However, we can and do approve the remainder of the definition of a wrongful life cause of action presented in Harbeson.

We would also expand the wrongful life cause of action to encompass Jacob's unusual situation. We now recognize a wrongful life cause of action to include a situation where, as in Jacob's case, both parents are so severely mentally or physically impaired as to render them incapable of affirmatively deciding to have a child or to care for a child and where but for the custodian's negligent care of both parents, the child would not have been conceived.

We agree with the general view expressed in Procanik by Procanik v. Cillo, (1984) 97 N.J. 339, 478 A.2d 755, 763, which suggests that we need not become preoccupied with the metaphysical consideration of whether a defective life is worth less than no life at all. Our decision to allow a wrongful life cause of action is predicated on the needs of the living. Jacob was born alive and lived a period of time without a parent to support him. Forum's negligence was allegedly the proximate cause of Jacob's situation.

III

Jacob's third theory is negligence. We find no Indiana case law on point; instead we will refer to analogous cases. Garrison v. Foy (1985), Ind.App., 486 N.E.2d 5, establishes for parents a wrongful pregnancy cause of action in Indiana. The facts in Garrison are not similar to the case at hand; however, the policy considerations are.

As in any other negligence action, Jacob must allege the existence of the three elements of negligence: (1) a duty on the part of Forum; (2) a breach of or failure to perform that duty; and (3) damages or injuries proximately resulting to Jacob. Garrison, supra at 7 and 8. For purposes of summary judgment, once Jacob alleges the elements of negligence, Forum has the burden of presenting evidence that at least one of these elements do not exist.

Jacob alleges that Forum had a duty to protect Melanie from rape and to diagnose her pregnancy (thereby realizing Jacob's existence). This...