Johnson v. Ruark Obstetrics and Gynecology Associates, P.A.

• Decision Date: 15 March 1988
• Docket Number: No. 8610SC942,8610SC942
• Citation: 89 N.C.App. 154,365 S.E.2d 909
• Parties: Glenn W. JOHNSON, Administrator of the Estate of James Wayland Johnson and Barbara K. Johnson and Glenn W. Johnson v. RUARK OBSTETRICS AND GYNECOLOGY ASSOCIATES, P.A. (Formerly The Ruark Clinic, P.A.), L. Joseph Swaim, Thomas B. Greer, Warner L. Hall, and Courtney D. Egerton.
• Court: North Carolina Court of Appeals

Page 909

365 S.E.2d 909

89 N.C.App. 154

Glenn W. JOHNSON, Administrator of the Estate of James Wayland Johnson and Barbara K. Johnson and Glenn W. Johnson v. RUARK OBSTETRICS AND GYNECOLOGY ASSOCIATES, P.A. (Formerly The Ruark Clinic, P.A.), L. Joseph Swaim, Thomas B. Greer, Warner L. Hall, and Courtney D. Egerton.

No. 8610SC942.

Court of Appeals of North Carolina.

March 15, 1988.

Lawrence, Evans & Mazer by Steven L. Evans, Raleigh, for plaintiffs-appellants.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Samuel G. Thompson and William H. Moss, Raleigh, for defendants-appellees.

GREENE, Judge.

Plaintiffs alleged the individual physician-defendants, formerly practicing as the Ruark Clinic, P.A., negligently caused the stillborn birth of their forty-week-old fetus. Plaintiffs sought recovery for the wrongful death of their child, for their individual emotional distress, and for certain compensatory and punitive damages. Plaintiffs specifically alleged defendants' failure to treat Mrs. Johnson's diabetic condition caused their infant to diein utero of malnutrition. The court granted defendants' motion to dismiss those claims. Although defendants' motion and the court's order are both styled under summary judgment, the record on appeal contains only plaintiffs' and defendants' unverified pleadings. However, the trial court cited its review of the pleadings, briefs and "discovery materials" in dismissing all of plaintiffs' claims. Plaintiffs appeal.

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The trial court's dismissal of these claims presents the following issues: I) whether the adequacy of plaintiffs' allegations should be judged by the standards appropriate to summary judgment or instead by those standards appropriate to a judgment on the pleadings; II) where plaintiff administrator alleged defendants' negligence caused the wrongful death in utero of his forty-week-old fetus, whether (A) plaintiff stated a claim under N.C.G.S. Sec. 28A-18-2 (1984 and Supp.1985) for (B) the wrongful death of a "viable" fetus; III) whether the trial court properly dismissed the individual claims of (A) the mother and (B) the father for negligently inflicted emotional distress arising from the fetus's death; and IV) whether plaintiffs may recover increased medical expenses, funeral expenses and all costs associated with medical care and lost wages arising throughout the mother's pregnancy.

I

Plaintiffs argue in their brief that the trial court's dismissal should be treated as a dismissal under N.C.G.S. Sec. 1A-1, Rule 12(b)(6) (1983) since "the total information available to the court at the time of the hearing was the unsworn complaint and unsworn answer." We note defendant-appellees' brief nowhere responds to plaintiffs' charge that only the pleadings were before the court. However, the record twice evidences the apparent existence of unspecified "discovery" materials: 1) the "Motion of Defendants for Summary Judgment" requested judgment based on "the pleadings, discovery and the record" and 2) the court's order granting summary judgment states the court had reviewed "the pleadings, discovery materials and defendants' briefs ..." (emphasis added). Since the only specific materials in the record on appeal indicate the trial court considered matters outside the pleadings, we cannot assume that the trial court limited its review to the pleadings in dismissing plaintiffs' complaint.

However, as defendants have not included any such "discovery materials" in the record, we cannot "carefully scrutinize" them to determine whether they support defendants' burden of "clearly establishing the lack of any triable issue of fact by the record properly before the court." Page v. Sloan, 281 N.C. 697, 704, 190 S.E.2d 189, 195 (1972). Absent these discovery materials in the record, we are unable to determine whether "reasonable men could reach different conclusions on the evidentiary materials offered by defendants to support their motion for summary judgment." Id. at 708, 190 S.E.2d at 195. As there is nothing in the record actually supporting defendants' motion other than their unverified pleadings, we thus cannot conclude that plaintiffs were required under Rule 56(e) to respond with any "specific facts" showing a genuine issue for trial. N.C.G.S. Sec. 1A-1, Rule 56(e) (1983) (non-movant risks dismissal if rests on allegations where motion "supported" as provided under rule); see Coleman v. Shirlen, 53 N.C.App. 573, 577, 281 S.E.2d 431, 434 (1981) (where record did not reflect adequate support on material issues for defendant-movant, appellate court not required to determine whether plaintiff produced specific facts in response); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (under identical federal Rule 56(e), supporting affidavits must be in record to be considered by appellate court); J. Moore and J. Wicker, Moore's Federal Practice Sec. 56.15 (2d ed. 1987) (record must show no genuine issue of material fact).

Therefore, since defendants have not shown plaintiffs were required under Rule 56(e) to respond with specific facts and as the record otherwise reveals only the parties' unverified pleadings, the adequacy of plaintiffs' pleadings shall be judged by those standards appropriate to a judgment on the pleadings. See Burton v. Kenyon, 46 N.C.App. 309, 310, 264 S.E.2d 808, 809 (1980) (where record on appeal contained only pleadings on which to base decision, court treated summary judgment motion as motion on pleadings); Reichler v. Tillman, 21 N.C.App. 38, 40, 203 S.E.2d 68, 70 (1974). Accordingly, we are

required to view the facts and permissible inferences in the light most favorable to the non-moving party. All well-pleaded factual allegations in the non-moving party's pleadings are taken as true and all contravening assertions in the movant's pleadings are taken as false. All allegations in the non-movant's pleadings, except conclusions of law, legally impossible facts, and matters not admissible in evidence at the trial, are deemed admitted by the movant for purposes of the motion.

Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974) (citations omitted).

II

A

A claim for wrongful death under Section 28A-18-2 is ordinarily allowed "[w]hen the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled him to an action for damages therefor...." N.C.G.S. Sec. 28A-18-2(a) (1984). At the time the trial court dismissed this wrongful death claim, the courts of this state held a stillborn fetus was not a "person" whose personal representative could sue for the fetus's wrongful death under Section 28A-18-2(a). E.g., Cardwell v. Welch, 25 N.C.App. 390, 393, 213 S.E.2d 382, 384, cert. denied, 287 N.C. 464, 215 S.E.2d 623 (1975) (based on court's construction of legislative intent); accord Yow v. Nance, 29 N.C.App. 419, 420, 224 S.E.2d 292, 293, disc. rev. denied, 290 N.C. 312, 225 S.E.2d 833 (1976); see also Gay v. Thompson, 266 N.C. 394, 402, 146 S.E.2d 425, 431 (1966) (action denied since applicable version of statute only allowed "pecuniary" damages which court held too "speculative" when incurred prenatally).

However, in DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987), our Supreme Court noted Section 28A-18-2 had been amended to allow non-pecuniary damages. Thus distinguishing its decision in Gay, the court overruled Cardwell and Yow and instead held:

The language of our wrongful death statute, its legislative history, and recognition of the statute's broadly remedial objectives compel us to conclude that the uncertainty in the meaning of the word 'person' [in Section 28A-18-2(a) ] should be resolved in favor of permitting an action to recover for the destruction of a viable fetus en ventre sa mere.

Id. at 430, 358 S.E.2d at 493 (emphasis added); accord Ledford v. Martin, 87 N.C.App. 88, 89, 359 S.E.2d 505, 506 (1987). Although the instant action commenced before DiDonato was decided, we see no compelling reason why the Court's holding should not be applied retroactively to this case. See generally Cox v. Haworth, 304 N.C. 571, 573-76, 284 S.E.2d 322, 324-26 (1981) (decisions are presumed retroactive unless contrary compelling reason).

As is customary, the trial court gave no specific basis for dismissing the instant wrongful death claim. However, insofar as the trial court's dismissal was based on those decisions denying representatives of a stillborn fetus the remedy of Section 28A-18-2, that basis is meritless after DiDonato.

B

The DiDonato Court extended the purview of the wrongful death remedy only to "the death of a viable fetus." DiDonato, 320 N.C. at 434, 358 S.E.2d at 495 (emphasis added). If the pleadings in this case disclose as a matter of law that plaintiffs' intestate was not "viable" under DiDonato, then the trial court's dismissal of the wrongful death claim must be affirmed.

In its discussion of "viability," the DiDonato Court noted a preamble to an amendment of the statute "indicates that for purposes of the wrongful death statute, a 'person' is someone who possesses 'human life.' " Id. at 427, 358 S.E.2d at 491. The Court then stated:

A viable fetus, whatever its legal status might be, is undeniably alive and undeniably human. It is, by definition, capable of life independent of its mother. A viable fetus is genetically complete and can be taxonomically distinguished from non-human life forms. Again, this is some evidence that a viable fetus is a person under the wrongful death statute.

Id. at 427-28, 358 S.E.2d at 491-92 (emphasis added). Of course, a fetus's capability to live independently of the mother is the long-established common law definition of viability. See, e.g., Black's Law Dictionary 1737 (4th ed. 1968) (defining viability as denoting power of continuing independent existence); see also Comment, Wrong Without a Remedy--North Carolina and the Wrongful Death of...