Gonzales v. Mascarenas, 06CA1903.

• Decision Date: 12 June 2008
• Docket Number: No. 06CA1903.,06CA1903.
• Citation: 190 P.3d 826
• Parties: Shantel GONZALES, Plaintiff-Appellee and Cross-Appellant, v. Veronica G. MASCARENAS, Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

190 P.3d 826

Shantel GONZALES, Plaintiff-Appellee and Cross-Appellant, v. Veronica G. MASCARENAS, Defendant-Appellant and Cross-Appellee.

No. 06CA1903.

Colorado Court of Appeals, Div. V.

June 12, 2008.

Anderson, Hemmat & Levine, LLC, Chad P. Hemmat, Ethan A. McQuinn, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Lapin & Associates, P.C., James B. Lapin, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge ROY.

Defendant, Veronica G. Mascarenas, appeals the wrongful death jury verdict in which she was found fifty percent liable for injuries suffered by an unborn child in an automobile accident. Plaintiff, Shantel Gonzales, cross-appeals the trial court's denial of several of her motions in limine regarding allegedly prejudicial evidence. We affirm.

Plaintiff, who was a passenger in defendant's vehicle, was twenty to twenty-two weeks pregnant at the time of the accident. Because she was pregnant, plaintiff was taken to a hospital for observation and examination where she remained for two days. One day following her discharge from the hospital, she suffered massive vaginal bleeding, returned to the hospital, and was diagnosed with placental abruption (placental separation from the wall of the uterus). Because of the threat to plaintiff's life and health, the physicians performed an emergency cesarean section. A male child was born alive and lived for one hour and six minutes without medical intervention before expiring.

Plaintiff brought a personal injury action for her own injuries and a wrongful death claim for the death of her child. The driver of the second vehicle involved in the accident left the scene and was never identified.

The parties stipulated to an amount for the reasonable value of plaintiff's medical expenses, and the jury did not award plaintiff any additional damages for her own injuries. However, it awarded $1,500 in economic damages and $100,000 in noneconomic damages for the wrongful death of her child, and apportioned fifty percent of the negligence to defendant. The trial court then entered judgment against defendant in the amount of $64,948.61, inclusive of costs and interest.

I. The Wrongful Death Statute

The questions presented on appeal are (1) whether a wrongful death action may be maintained for the death of a nonviable fetus born alive; and, if so, (2) whether it can be maintained where the child, though born alive, is not viable at birth. We answer both questions in the affirmative.

The Colorado wrongful death statute, section 13-21-202, C.R.S.2007, provides as follows:

When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.

(Emphasis added.)

Colorado's statute is a wrongful death statute. Fish v. Liley, 120 Colo. 156, 160, 208 P.2d 930, 932 (1949); see also Rowell v. Clifford, 976 P.2d 363, 364 (Colo.App.1998) (wrongful death statute). Our wrongful death statute does not define the word "person." However, that term is defined in section 2-4-401(8), C.R.S.2007, as, for our purposes, "any individual."

Plaintiff called her treating obstetrician-gynecologist as an expert witness. The physician testified that the child was born alive and lived without medical intervention for one hour and six minutes. Oxygen deprivation caused by the inadequate development of the lungs caused the child's heart to stop beating. Both a birth certificate and a death certificate were issued. Prior to the birth, plaintiff was advised by her physician that the child would not survive.

The physician further testified that pediatricians determine whether to treat such a child, but heroic measures are not generally undertaken for children who are born prior to twenty-four weeks of gestation. She expressed her opinion formed immediately following birth that the gestation period was twenty-two weeks and that the child could not survive outside the womb even with aggressive medical intervention. In addition, the physician testified that ultrasound measurements taken prior to birth indicated a gestation period of twenty and two-sevenths weeks. Applying an APGAR (activity, pulse, grimace, appearance, and respiration) rating, for which a normal score is between seven and ten, she testified that the child had a rating of two at one minute following birth and one at five minutes, which are signs of distress. Finally, she stated that, absent the abruption, there were no indications that the child would not have survived to term. The physician was not expressly asked, and did not expressly opine, as to whether the child was viable.

There are three types of statutes permitting an action for the death of a person: (1) a wrongful death statute; (2) a survivorship statute; and (3) a hybrid statute. A wrongful death statute, such as ours, gives the claim to designated survivors, and the damages are those suffered by the survivors. A survivorship statute gives the claim to the decedent's estate, and the damages are the pecuniary losses suffered by the decedent, normally including pain and suffering. See Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659, 661 (1942). A hybrid statute, as the name implies, has features of both. For example, in Pennsylvania, an action commenced by the decedent prior to death for his or her injuries continues in the probate estate, and, if no action is brought by the decedent prior to death, the action belongs to survivors with the damages measured by their loss. Id.

The viability of a child at the time of injury is a requirement for recovery under a wrongful death or survivorship statute in several states. See Brown v. Green, 781 F.Supp. 36, 38 (D.D.C.1991) (no wrongful death action for premature birth and subsequent death of a child that was not viable at the time of the injury under a hybrid statute); Lollar v. Tankersley, 613 So.2d 1249, 1252-53 (Ala. 1993) (no claim for death of a child that was not viable at the time of injury or death under a hybrid statute); Ferguson v. District of Columbia, 629 A.2d 15, 17 (D.C.1993) (no action when nonviable child dies shortly after birth under a hybrid statute); Miller v. Kirk, 120 N.M. 654, 905 P.2d 194, 197 (1995) (nonviable child is not a person under wrongful death statute even if it shows signs of life outside the womb and dies within minutes); Griffiths v. Doctors Hosp., 150 Ohio App.3d 234, 780 N.E.2d 603, 606-07 (2002) (injury to child that was not viable is not actionable, but summary judgment is not appropriate when twenty-one-week fetuses survived for one and one-half hours after delivery); Miccolis v. AMICA Mut. Ins. Co., 587 A.2d 67 (R.I.1991) (nonviable child is not a person within the meaning of wrongful death statute); see also Roland F. Chase, Annotation, Liability for Prenatal Injuries, 40 A.L.R.3d 1222, §§ II(B)(6)(b) (statute) & II(A)(3)(b) (common law) (2007) (collecting cases).

However, if the child is not viable at the time of injury but is born alive, the majority of the courts that have considered the issue permit a wrongful death action. See Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758, 761-64 (1973) (death of nonviable child who was born and lived for fifty minutes is actionable under wrongful death statute); Simon v. Mullin, 34 Conn.Supp. 139, 380 A.2d 1353, 1357 (1977) (death of nonviable child born at four months and died the day after birth is actionable); Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727, 728 (1956) (nonviable child who was injured but lived can maintain action for injuries); Daley v. Meier, 33 Ill. App.2d 218, 178 N.E.2d 691 (1961) (same); Group Health Ass'n v. Blumenthal, 295 Md. 104, 453 A.2d 1198, 1206-07 (1983) (death of nonviable child born at four and one-half months who lived for two and one-half hours was later actionable); Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d 926, 927 (1967) (death of nonviable fetus born at three and one-half months who lived for two and one-half hours was later actionable); Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108, 110 (1958) (nonviable child who was injured but lived can maintain action for injuries); Kelly v. Gregory, 282 A.D. 542, 125 N.Y.S.2d 696, 697-98 (1953) (same); Pino v. United States, 183 P.3d 1001, 1004 (Okla.2008) (wrongful death action may be maintained for the death of a stillborn nonviable fetus under survivor statute); Nealis v. Baird, 996 P.2d 438, 454-55 (Okla.1999) (wrongful death action may be maintained under survivor statute for the death of a nonviable fetus born gasping at twenty to twenty-one weeks regardless of its ability to sustain life for any particular period of time); Hudak v. Georgy, 535 Pa. 152, 634 A.2d 600, 602-03 (1993) (death of nonviable triplets born at twenty-four weeks, two dying in the delivery room after twenty minutes and the third ten hours later, is actionable under hybrid statute); Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222, 223-24 (1966) (nonviable child who was injured but lived can maintain action for injuries); Kalafut v. Gruver, 239 Va. 278, 389 S.E.2d 681, 683-84 (1990) (death of nonviable child born at twenty-one weeks who lived for eighty minutes is actionable); Farley v. Sartin, 195 W.Va. 671, 466 S.E.2d 522 (1995) (same); see also Chase, §§ II(B)(6)(a), II(B)(7). But see Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala 611, 108 So. 566 (1926), overruled by Huskey v. Smith, 289 Ala. 52, 265 So.2d 596 (1972).

Section 869 of the Restatement (Second) of Torts is consistent with the majority rule and states that "[o]ne who tortiously causes harm to an unborn child is subject to liability to the child for...