Duncan v. Flynn
| Decision Date | 09 March 1978 |
| Docket Number | No. 51299,51299 |
| Citation | 358 So.2d 178 |
| Court | Florida Supreme Court |
| Parties | Morace C. DUNCAN, Petitioner, v. John D. FLYNN, M.D., et al., Respondents. |
Robert Orseck of Podhurst, Orseck & Parks, Susan Goldman, Miami, and Wagner, Cunningham, Vaughan & Genders, Tampa, for petitioner.
John I. Van Voris and Charles P. Schropp of Schackleford, Farrior, Stallings & Evans and T. Paine Kelly, Jr. and Claude H. Tison, Jr. of MacFarlane, Ferguson, Allison & Kelly, Tampa, for respondents.
Morace Duncan has brought to us for review a decision of the Second District Court of Appeal 1 holding (1) that an unborn fetus is not a "person" within the meaning of Florida's former Wrongful Death Act, 2 and (2) that a child is not "born alive", for purposes of the wrongful death statute, until he or she acquires an existence separate and independent from the mother. The district court's ruling on the first point is entirely consistent with our recent decision in Stern v. Miller, 348 So.2d 303 (Fla.1977), which resolved the question by holding that an unborn viable fetus is not a "person" within the meaning of Florida's Wrongful Death Act. 3 We adhere to our holding in Stern, and regard that decision as dispositive of the first issue.
As to the second point, Judge Scheb's opinion below has carefully and thoroughly evaluated the case law and policy considerations applicable to the determination of when a child is considered to be "born alive" for purposes of the wrongful death statute. We agree with his decision, adding only that his interpretation of this statute is generally consistent with the legislature's definition of "live birth" for record-keeping purposes under the vital statistics law. 4
We adopt as our own the opinion of the Second District Court of Appeal as to when life commences for purposes of the wrongful death statute, and accordingly discharge the writ of certiorari.
It is so ordered.
I must respectfully dissent from the majority opinion which affirms in totality the decision of the District Court of Appeal, Second District. Although I do concur, as I did in Stern v. Miller, 348 So.2d 303 (Fla.1977), with the determination that an unborn, viable fetus is not a "person" under Florida's former wrongful death act, I cannot agree with the position of the District Court that as a matter of law, in order to constitute "live birth" so as to give rise to a cause of action for wrongful death, a child must acquire a separate and independent existence of its mother which may only be accomplished by expulsion of the child's body from its mother with evidence that the cord has been cut and the infant has an independent circulation of blood.
The facts are succinctly stated in the decision of the District Court:
Petitioner sued to recover for the wrongful death of his baby son who died during the process of delivery and alleged that due to respondents' negligent failure to recognize in advance that a Caesarean section would be required, the baby died during the course of childbirth. The trial court entered summary judgments for all the respondents on the wrongful death claim and explained:
" . . . (T)here can be no claim for the death of the unborn fetus, John Norris Duncan, and the court having determined that there are no genuine issues as to any material fact as to that claim which is a part of plaintiff's third amended complaint, that defendants are entitled to a judgment as a matter of law."
The District Court of Appeal, Second District, affirmed the judgment of the trial court.
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State Of Conn. v. Courchesne, No. 17174.
...born alive is an issue to be decided by the finder of fact. See, e.g., Duncan v. Flynn, 342 So.2d 123, 124 (Fla.App.1977), aff'd, 358 So.2d 178 (Fla.1978); State v. Elliott, supra, at 234, 43 P.3d Bennett v. State, supra, at 636. 88. Section 1 of the Uniform Determination of Death Act of 19......
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State v. Courchesne, (SC 17174) (Conn. 6/15/2010)
...alive is an issue to be decided by the finder of fact. See, e.g., Duncan v. Flynn, 342 So. 2d 123, 124 (Fla. App. 1977), aff'd, 358 So. 2d 178 (Fla. 1978); State v. Elliott, supra, 234; Bennett v. State, supra, 88. Section 1 of the Uniform Determination of Death Act of 1980 provides: "An in......
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In re Guardianship of JDS
...to Wixtrom. 2. In re T.W., 551 So.2d 1186, 1190 (Fla.1989); Hernandez v. Garwood, 390 So.2d 357, 358 (Fla.1980); Duncan v. Flynn, 358 So.2d 178, 178 (Fla.1978); Stern v. Miller, 348 So.2d 303, 308 (Fla.1977); Love v. State, 450 So.2d 1191, 1193 (Fla. 4th DCA 1984); and Styles v. Y.D. Taxi C......
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Singleton v. Ranz
...which injuries can form the basis for a legal action, and which cannot. 1 Hernandez v. Garwood, 390 So.2d 357 (Fla.1980); Duncan v. Flynn, 358 So.2d 178 (Fla.1978) and Stern v. Miller, 348 So.2d 303 (Fla.1977).2 Stokes v. Liberty Mutual Insurance Co., 213 So.2d 695, 700 (Fla.1968); Simon v.......
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Negligence cases
...6. Unborn Viable Fetus: An unborn viable fetus is not a “person” within the meaning of Florida’s Wrongful Death Act. Duncan v. Flynn , 358 So.2d 178 (Fla. 1978). See also Tanner v. Hartog , 696 So.2d 705 (Fla. 1997). 7. Injuries Caused by Tortfeasors in Separate Accidents Occurring Close in......