Farley v. Sartin

Decision Date13 December 1995
Docket NumberNo. 22797,22797
Citation195 W.Va. 671,466 S.E.2d 522
CourtWest Virginia Supreme Court
PartiesKenneth FARLEY, as Administrator of the Estate of Baby Farley, an Unborn Child, Plaintiff Below, Appellant, v. Billy R. SARTIN and Lee Sartin Trucking Company, Inc., Defendants Below, Appellees.

Syllabus by the Court

1. A tortious injury suffered by a nonviable child en ventre sa mere who subsequently is born alive is compensable and no less meritorious than an injury inflicted upon a viable child who subsequently is born alive.

2. In light our previous interpretation of W.Va.Code, 55-7-5, and the goals and purposes of wrongful death statutes generally, the term "person," as used in W.Va.Code, 55-7-5 (1931) and the equivalent language in its counterpart, W.Va.Code, 55-7-6 (1992), encompasses a nonviable unborn child and, thus, permits a cause of action for the tortious death of such child.

Donald R. Jarrell, Wayne, for Appellant.

Steven K. Nord, P. Blake Benton, Offutt, Eifert, Fisher, Duffield & Nord, Huntington, for Appellees.

Roger Forman, Forman & Crane, L.C., Charleston, Susan J. Weiler, Kathryn Kolbert, Lynn M. Paltrow, The Center for Reproductive Law & Policy, New York City, for amicus curiae West Virginia Free.

CLECKLEY, Justice:

The plaintiff below and appellant herein, Kenneth Farley, as the Administrator of the Estate of Baby Farley, his unborn child, appeals from the September 8, 1994, order of the Circuit Court of Wayne County. This order granted a motion for summary judgment by the defendants below and appellees herein, Billy R. Sartin and Lee Sartin Trucking Company, Inc., and dismissed the plaintiff's case with prejudice. The issue presented to this Court on appeal is whether the plaintiff can maintain a cause of action under West Virginia's wrongful death statute, W.Va.Code, 55-7-5 (1931), 1 for the death of Baby Farley, who was eighteen to twenty-two weeks of gestation and, at best, of questionable viability in light of the evidence presented to the circuit court. Upon review, we conclude the plaintiff may maintain his cause of action regardless of viability and, therefore, we reverse the order of the circuit court.

I. FACTS AND PROCEDURAL HISTORY

On November 6, 1991, the plaintiff's pregnant wife, Cynthia Farley, was killed in an automobile accident she had with the defendant, Billy R. Sartin, who was driving a tractor trailer owned by the defendant, Lee Sartin Trucking Company, Inc. The deposition of Mrs. Farley's treating obstetrician, Dr. Gary Gilbert, which was the only medical testimony in the record, adduced the following. Mrs. Farley was probably eighteen weeks and a few days pregnant when calculated from the date of the first day of her last menses, although she could have been as far along as twenty-two weeks pregnant. 2 Baby Farley was neither large enough nor developed enough to survive outside the womb. 3 The plaintiff filed a wrongful death action as the Administrator of the Estate of Baby Farley. In response, the defendants filed a motion for summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure on the basis that Baby Farley was not viable at the time of death; therefore, the defendants argued Baby Farley was not a "person" under the wrongful death statute, W.Va.Code, 55-7-5. After reviewing the parties' respective motions and supporting memoranda, the circuit court granted summary judgment in favor of the defendants.

"The earliest surviving infant that [the doctor knew] of was right at 500 grams, which would have been about 22 weeks." Dr. Gilbert concluded that if Mrs. Farley had not been killed in the accident, he had "no reason to believe that she would not have a normal pregnancy."

The issue presented to this Court is narrow and one of first impression. Although the plaintiff first argues that this case presents a genuine issue of fact as to whether Baby Farley was a viable child at the time of the accident, we find the more critical issue is whether viability is the appropriate criterion to determine whether an unborn child is a "person" within the context of W.Va.Code, 55-7-5. 4 Our discussion and holding are limited to this issue only, and what we say in this opinion should not be considered as indicative of our views on other unrelated issues, especially those on abortion. For reasons that will follow, we find that viability is not the appropriate criterion to determine whether an unborn child is a "person" within the context of W.Va.Code, 55-7-5.

II. STANDARD OF REVIEW

We review a circuit court's entry of summary judgment de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Moreover, whether viability is the appropriate criterion to determine if an unborn child is a "person" within the context of the wrongful death statute is purely a question of law, and we give questions of law de novo and plenary review. See State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 776, 461 S.E.2d 516, 522 (1995) ("[a]s a result of this inquiry being strictly a matter of statutory construction, our power of interpretive scrutiny is plenary") (citation omitted); Burnside v. Burnside, 194 W.Va. 263, 265, 460 S.E.2d 264, 266 (1995) ("questions of law and statutory interpretations are subject to de novo review") (citation omitted).

As a result of this case being decided on a motion for summary judgment, we appropriately make certain factual assumptions in order to frame the legal issues. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, --- U.S. ----, ----, 115 S.Ct. 2407, 2412, 132 L.Ed.2d 597, 609-10 (1995). "We shall assume, as summary judgment procedure requires us to assume, that the sole reason for" the death of the nonviable unborn child was the accident and that Mrs. Farley would have had a normal pregnancy absent the accident. McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, ----, 115 S.Ct. 879, 883, 130 L.Ed.2d 852, 860 (1995). As part of our review, we find it necessary to begin our analysis of the legal issue presented by discussing the inception and evolution of wrongful death statutes.

III.

THE HISTORY OF WRONGFUL DEATH ACTIONS

A. Generally

At common law, there was no cause of action for the wrongful death of a person. Voelker v. Frederick Business Props. Co., 195 W.Va. 246, 250, 465 S.E.2d 246, 250 (1995); Swope v. Keystone Coal and Coke Co., 78 W.Va. 517, 522, 89 S.E. 284, 286 (1916). 5 In Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808), Lord Ellenborough wrote that "[i]n a civil Court, the death of a human being could not be complained of as an injury[.]" In essence, the cause of action died with the victim, and there was no compensation for the victim's dependents or heirs. W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, David G. Owen, Prosser and Keeton on Torts § 127 at 945 (5th ed. 1984). 6 Under this harsh rule, tortfeasors, who otherwise would have been liable for their victims' injuries, escaped all liability when the injuries were severe enough to kill the victims. Consequently, bereaved families of deceased victims often were left destitute. Keeton, et al., supra § 127 at 945. 7

Recognizing the problem with this result, the English Parliament passed the Fatal Accidents Act of 1846, commonly referred to as Lord Campbell's Act. 9 & 10 Vict. c. 93 (1846). This Act permitted recovery of damages by the close relatives of a victim who was tortiously killed. In his article Wrongful Death and the Lost Society of the Unborn, 13 J.Legal Med. 99, 100 n. 9 (1992), Gary A. Meadows wrote the Act, in essence, provided:

"[W]henever the death of a person is caused by the wrongful act, neglect, or default of another, in such a manner as would have entitled the party injured to have sued had death not ensued, an action may be maintained if brought within twelve months after [the] death in the name of [the] executor or administrator for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused."

Thus, by creating a cause of action for wrongful death, the English Parliament rectified the disparity between a tortfeasor's liability for injuries and for the more egregious harm, death.

Despite the passage of Lord Campbell's Act, courts in the United States subsequently advanced various rationalizations in support of denying a cause of action for wrongful death. 1 Stuart M. Speiser, Charles F. Krause, Juanita M. Madole, Recovery for Wrongful Death and Injury § 1:4 at 13 (3rd ed. 1992). T.A. Smedley stated that American judges formulated the rationalizations because they were "[u]nwilling to repudiate an established rule of law" and were "unsatisfied with the historical bases for the rule[.]" Wrongful Death--Bases of the Common Law It did not take long, however, until state legislatures began passing laws similar to Lord Campbell's Act. The first wrongful death statute was passed by New York in 1847. 8 22A Am.Jur.2d Death § 7 (1988). Currently, every state has created a cause of action for wrongful death. 1 Speiser, et al., supra § 1:9 at 32-33. (Citation omitted). A majority of these statutes are patterned after Lord Campbell's Act by establishing "a right of action for losses suffered by statutorily designated beneficiaries by reason of the death. Others, of somewhat varying types and specific provisions, may be broadly classified as statutes under which death damages are measured by the loss occasioned to decedent's estate by the death." 1 Speiser, et al., supra § 1:9 at 33. The first statute in West Virginia was passed in 1863, and "was the same in general purpose and effect as [Lord Campbell's Act]." Swope, 78 W.Va. at 522, 89 S.E. at 286. See also Voelker, 195 W.Va. at 250, 465 S.E.2d at 250.

[195 W.Va. 675] Rules, 13 Vand.L.Rev. 605, 617 (1960). The rationalizations announced by the various courts included the idea that it was inconsistent with legal policy to...

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