Crosby v. Glasscock Trucking Co., Inc.

• Decision Date: 22 May 2000
• Docket Number: No. 25132.,25132.
• Parties: Charles W. CROSBY, Jr., Personal Representative of the Estate of Charles W. Crosby, III, Appellant, v. GLASSCOCK TRUCKING CO., INC., and Kristie J. Crosby, Respondents.
• Court: South Carolina Supreme Court

340 S.C. 626

532 S.E.2d 856

Charles W. CROSBY, Jr., Personal Representative of the Estate of Charles W. Crosby, III, Appellant, v. GLASSCOCK TRUCKING CO., INC., and Kristie J. Crosby, Respondents.

No. 25132.

Supreme Court of South Carolina.

Reheard July 23, 1997.

Decided May 22, 2000.

Rehearing Denied June 22, 2000.

Gregory A. Morton, of Donnan, Morton & Davis, P.A., of Greenville, for appellant.

Edwin B. Parkinson, Jr., and Alexander M. Bullock, both of Haynsworth, Marion, McKay & Guerard, of Greenville, for respondent Glasscock Trucking Co., Inc.

Michael J. Giese and Jack H. Tedards, Jr., both of Leatherwood, Walker, Todd & Mann, P.C., of Greenville, for respondent Kristie J. Crosby.

MOORE, Justice:

Appellant commenced this action for wrongful death in his capacity as personal representative of the estate of his stillborn child. The trial judge granted respondents' motion for summary judgment on the ground a nonviable stillborn fetus cannot maintain such an action. We affirm.

FACTS

Respondent Kristie Crosby was twenty weeks pregnant when she was injured in a automobile accident. The car she was driving collided with a truck owned and operated by respondent Glasscock Trucking Co., Inc. It is undisputed the fetus Kristie was carrying was nonviable at the time of the accident. The fetus was delivered stillborn later the same day.

DISCUSSION

Appellant commenced this action pursuant to S.C.Code Ann. § 15-51-10 (1976) which allows for a civil action to recover damages for the wrongful death of a "person."¹ When enacted, our wrongful death statute created a new cause of action in derogation of the common law rule that a tort action dies with the death of the injured person. In re: Mayo's Estate, 60 S.C. 401, 38 S.E. 634, 638 (1901). A statute creating a cause of action in derogation of common law is a statute of creation. Simpson v. Sanders, 314 S.C. 413, 445 S.E.2d 93 (1994); Hyder v. Jones, 271 S.C. 85, 245 S.E.2d 123 (1978). Such a statute must be strictly construed and its application must not be extended beyond the clear intent of the legislature. Davenport v. Summer, 273 S.C. 771, 259 S.E.2d 815 (1979).

Construing this statute, in West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958), we held a nonviable stillborn fetus cannot maintain a wrongful death action. West is still valid² and controls this case. To justify overruling West, the dissent posits hypothetically that a nonviable fetus could maintain a cause of action if born alive and therefore a stillborn nonviable fetus should have the same right. The fact that a fetus is born alive, however, is indisputable evidence that it is viable because it has in fact lived independently of its mother. See Hudak v. Georgy, 535 Pa. 152, 634 A.2d 600 (1993)

(infant born alive is a person and concept of viability is irrelevant when infant survives birth). Allowing an action by a nonviable but born-alive fetus is therefore fundamentally different from a case such as this where the fetus is not born alive.

A mother who is negligently injured by the same act that results in the stillbirth of her fetus may, of course, seek recovery for her own personal injuries. The dissent would have us go further by allowing an independent civil action on the fetus's behalf. Such an action could in fact be brought against the mother where the mother herself is alleged to be negligent in the death of her nonviable stillborn fetus, as in this case, or where the mother has exercised her right to a legal abortion. See S.C.Code Ann. § 44-41-20 (1985). Further, such a civil suit could encompass liability for personal conduct of the mother that allegedly affects the fetus. While we understand the devastating loss of an unborn child, we are not convinced of the soundness of such a policy.

Consistent with our decision in West, the majority of courts have held a nonviable stillborn fetus cannot maintain an independent wrongful death action. See, e.g., Gentry v. Gilmore, 613 So.2d 1241 (Ala.1993)

; Humes v. Clinton, 246 Kan. 590, 792 P.2d 1032 (1990); Kandel v. White, 339 Md. 432, 663 A.2d 1264 (1995); Thibert v. Milka, 419 Mass. 693, 646 N.E.2d 1025 (1995); Wallace v. Wallace, 120 N.H. 675, 421 A.2d 134 (1980); Coveleski v. Bubnis, 535 Pa. 166, 634 A.2d 608 (1993); Miccolis v. AMICA Mut. Ins. Co., 587 A.2d 67 (R.I.1991). Courts addressing this issue have invariably deferred to the legislature in rejecting a wrongful death action by a nonviable stillborn fetus. The dissent would have us join a minority of jurisdictions to judicially allow such an action, a minority that includes only West Virginia. Because a wrongful death action is a legislatively created one, we find deference to the legislature especially appropriate in this matter.³

CONCLUSION

We hold a nonviable stillborn fetus may not maintain a wrongful death action under § 15-51-10. Accordingly, the order granting respondents' motion for summary judgment is

AFFIRMED.

FINNEY, C.J., and WALLER, J., concur.

TOAL and BURNETT, JJ., dissenting in a separate opinion.

TOAL, Justice: I respectfully dissent.

The sole issue before this Court is whether a cause of action exists under the South Carolina wrongful death statute, S.C.Code Ann. § 15-51-10 (1976), for the negligently induced stillbirth of a nonviable fetus. The statute imposes three requirements for recovery: (1) the death of a person; (2) a wrongful or negligent act by the defendant; and (3) causation.⁴ This appeal focuses on whether Appellant can satisfy the statute's first requirement, death of a "person."

A. PRENATAL INJURY UNDER SOUTH CAROLINA CASE LAW

We have addressed the issue of civil recovery for prenatal injury and death on three occasions: West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958); Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960); and Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964).

In West v. McCoy, supra,

the defendant crashed his automobile into the rear of the plaintiffs car. The plaintiff was at the time about five months pregnant. As a result of the accident the plaintiff experienced cramps and vaginal bleeding. The plaintiffs doctor advised her to remain in bed. For about a month following the accident, the plaintiff continued to feel the fetal movements of her child. However, not long thereafter, the plaintiff suffered a miscarriage in which the fetus was born dead. The plaintiff brought a wrongful death action against the defendant. This Court recognized the prevailing common law view that a cause of action could be maintained where prenatal injuries resulted in disability or death after live birth, and where the infant was viable and capable of being delivered and remaining alive separate from its mother at the time of injury. In West, the Court noted that the fetus neither was viable at the time of the injury nor was it born alive. Thus, the plaintiff was precluded from suing for the wrongful death of her fetus. The Court expressly declined to decide whether it would follow the common law view that an action could be maintained by a child injured while en ventre sa mere⁵ and born alive.

In Hall v. Murphy, supra,

this Court answered the question left open in West. We held for the first time that a cause of action for wrongful death could be maintained for prenatal injuries occurring to a viable⁶ fetus in cases where the child was born alive and then died as a result of those injuries. We rejected the reasons previously advanced against recovery for prenatal injuries, e.g., the difficulty in determining a causal relationship between a prenatal injury and the death or the condition of the child, the possibility of fictitious claims, the belief that a child was not a person until born, and lack of precedent. We recognized that the inherent difficulty in proving a causal relationship between a prenatal injury and the damage which subsequently becomes apparent presents no insurmountable problem, at least in cases where the child is born alive. Further, questions about causation and reasonable certainty which will arise in these cases are no different from questions about causation arising in other negligence actions. This Court noted that a few courts had gone even further to hold that a cause of action could be maintained for injuries to a nonviable fetus later born alive. However, the Court in Hall declined to decide this issue since it was not before it.

In our last decision, Fowler v. Woodward, supra,

we abandoned the requirement of live birth and held that recovery could be had for the wrongful death of a stillborn, viable fetus. In Fowler, we commented on our wrongful death statute and its requirements as follows: "An action for wrongful death will lie, under the terms of the statute, when the death of a person is caused by the act, neglect or default of another and the act is such as would, if death had not ensued, have entitled the party injured to maintain an action." Fowler, 244 S.C. at 612-13,

138 S.E.2d at 44. We concluded, "we see no more reason why [the cause of action] should be cut off because of the child's death before birth, than if it died thereafter." Id. at 614, 138 S.E.2d at 45 (quoting State v. Sherman, 234 Md. 179, 198 A.2d 71, 73 (1964)).

In 1964, when we first recognized a cause of action in Fowler for the wrongful death of a stillborn, viable fetus, South Carolina was among a minority of jurisdictions to do so. At the time, the prevailing view among other jurisdictions was that an unborn fetus, whether viable or not, was not a "person" as contemplated under the terms of the wrongful death statutes enacted by state legislatures. Rather, it was only upon birth that a "person" was said to begin existence as a complete, separate individual. In earlier decisions, like West, courts understood that a viable fetus could exist apart from the mother if delivered at any point during the viability stage. See West, 233 S.C. at 375,

105 S.E.2d at 91 ("A fetus generally becomes a viable child between the sixth...