Kalafut v. Gruver, 890307

• Decision Date: 02 March 1990
• Docket Number: No. 890307,890307
• Citation: 239 Va. 278,389 S.E.2d 681
• Court: Virginia Supreme Court
• Parties: Michael Jerome KALAFUT, Administrator, etc. v. John Defrees GRUVER, Jr. Record

Page 681

389 S.E.2d 681

239 Va. 278

Michael Jerome KALAFUT, Administrator, etc. v. John Defrees GRUVER, Jr.

Record No. 890307.

Supreme Court of Virginia.

March 2, 1990.

Jeffrey H. Krasnow, Roanoke, for appellant.

Melissa J. Warner (Gentry, Locke, Rakes & Moore, Roanoke, on brief), for appellee.

Present: All the Justices.

COMPTON, Justice.

In this case of first impression in Virginia, involving prenatal harm, we decide whether an action for a child's wrongful death may be maintained against a tortfeasor whose negligence occurred when the decedent was in the mother's womb.

On August 26, 1985 in Roanoke County, a motor vehicle operated by Debra E. Kalafut was struck from the rear by another vehicle driven by appellee John Defrees Gruver, Jr. Kalafut was approximately twenty-one weeks pregnant and suffered personal injuries in the accident.

On September 10, 1985, Kalafut began to experience vaginal bleeding and cramping. She was hospitalized on September 11. On September 14, she went into premature labor and gave birth to a son, Hunter Brandon Kalafut, who was born alive at 7:49 p.m. The child died the same evening at 9:09 p.m. The premature delivery and death were proximately caused by the accident and Gruver's negligence.

In August 1987, appellant Michael Jerome Kalafut, administrator of the estate of Hunter Brandon Kalafut, deceased, filed the present negligence action under the Virginia Death By Wrongful Act statute against Gruver seeking recovery in damages for the infant's death. The defendant filed a responsive pleading admitting "legal liability" for the accident but denying that the accident caused the premature delivery and death of the plaintiff's decedent. Subsequently, defendant filed a motion for summary judgment, and the parties agreed to a stipulation of facts solely for the purposes of defendant's motion.

Upon consideration of the stipulation and argument of counsel, the trial court granted the motion, relying on Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969) (no action will lie under Virginia law for wrongful death of a stillborn child). Upon stare decisis principles, the trial court felt bound by Lawrence, "in absence of legislation by the Virginia General Assembly or a change of position by the Virginia Supreme Court." We awarded the plaintiff an appeal from the December 1988 final order dismissing the action.

Virginia's wrongful death statute provides, as pertinent:

"Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person ... 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 to recover damages in respect thereof, then ... the person who ... would have been liable, if death had not ensued, shall be liable to an action for damages ... notwithstanding the death of the person injured...." Code § 8.01-50(A).

On appeal, defendant contends the trial court did not err, principally relying on Lawrence and Modaber v. Kelley, 232 Va. 60, 348 S.E.2d 233 (1986). In Lawrence, a woman pregnant with a viable child (capable of an existence independent of its mother) was injured in a November motor vehicle accident. The unborn child received injuries that impaired development, and it was born dead the following January.

In holding that the action would not lie, the Court referred to the statutory requirements for maintenance of a wrongful death action: (1) the death of a "person," and (2) the act, neglect, or default be "such as would, if death had not ensued, have entitled the party injured to maintain an action" for personal injuries. The Court held that a viable fetus is not a "person" within the statute's meaning. Also, the Court refused to hold that a child en ventre sa mere can maintain a common law action for personal injuries. Thus, the Court said, the right to maintain the action could not be transmitted to the personal representative under the wrongful death statutory scheme. 210 Va. at 140-42, 169 S.E.2d at 441-42.

Defendant concedes that the infant here, born alive, was a "person" within the meaning of the statute. Defendant argues, however, that for this suit to be maintained the child was required to "have had a right of action that arose at the time of the automobile accident when he was in his mother's womb. Since Lawrence clearly held that there is no such cause of action, the plaintiff here similarly has no right to sue."

Defendant says there is "no legal significance" to the fact that the child in the present case survived birth while the child in Lawrence was stillborn. That decision mandates the same result here, defendant argues, because in Lawrence the unborn child was viable at the time of the automobile accident, and the Court nevertheless denied a cause of action for the wrongful death.

Defendant notes that recently we reaffirmed Lawrence in Modaber, another case of a stillbirth, in which the elements of damage were under review. Modaber involved a woman's action for personal injuries brought against her physician for medical malpractice in the course of treatment during pregnancy and at the time of birth. We stated that "an unborn child is a part of the mother until birth" and held that "injury to an unborn child constitutes injury to the mother and that she may recover for such physical injury and mental suffering associated with a stillbirth." 232 Va. at 66, 348 S.E.2d at 236-37. Defendant argues that the mother in the present case has "a legal remedy for the injury to her infant" because she has a separate action to recover damages for her own injury in the accident and can recover the items of damage delineated in Modaber.

Additionally, defendant contends that since "the infant here was not a 'person' until birth, no cause of action could have arisen against Mr. Gruver because any possible act of negligence on his part occurred before the child's birth." And, defendant urges, subsequent to the child's birth when he became a "person" in the eyes of the law, "there was no act of negligence committed by Mr. Gruver that caused the death of a 'person'."

Finally, defendant argues that to allow "an infant's estate to maintain a cause of action against a defendant whose negligence resulted in the in utero injuries ultimately causing death would impose liability on the defendant without a corresponding duty or breach."

We do not agree with defendant's contentions. Lawrence and Modaber are factually distinguishable. Furthermore, we are persuaded by the pertinent law elsewhere that maintenance of actions like this should be allowed in Virginia. And, given the requirement in the wrongful death statute that conditions recovery on the decedent's ability to maintain a personal injury action if he or she had survived, "the basic question of liability for prenatal injuries is precisely the same, whether it arises in a wrongful death action brought by the representative of the child whose death after birth was caused by prenatal injuries, or in a personal injury action brought by the child itself." Annot., 40 A.L.R.3d 1222, 1226 n. 8 (1971).

The law of prenatal injuries has changed considerably in recent years. Formerly, most courts denied recovery for such injuries resulting from a defendant's negligence and denied recovery for the death of such an infant, whether the death occurred before or after birth. The reasons usually assigned for such rulings were that defendant owed no duty to one not in existence at the time of the wrongful act and that fictitious claims would be prevalent due to the great difficulty of proving any causal connection between the negligence and damage. 3 F. Harper, F. James, & O. Gray, The Law of Torts § 18.3 at 671-75 (2nd ed. 1986); Prosser and Keeton on The Law of Torts § 55 at 367 (5th ed. 1984); Restatement (Second) of Torts § 869 comment a (1979); annot., 40 A.L.R.3d at 1226-27.

The first American decision on the subject apparently was Dietrich v. Northampton, 138 Mass. 14, 52 Am.Rep. 242 (1884). In a wrongful death action resulting from the premature birth of a nonviable fetus, the court, in an opinion by Justice Oliver Wendell Holmes, established the rule of nonliability for prenatal injuries. This decision was widely followed by the courts but was criticized by the commentators. See, e.g., Muse and Spinella, Right of Infant to Recover for Prenatal Injury, 36 Va.L.Rev. 611 (1950). This criticism, together with developments in medical science, especially in the field of embryology, prompted reconsideration of the precedent.

In 1946, a federal court decided that prenatal injuries to a viable unborn child are compensable in a tort action brought on behalf of the child after its live birth. Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946). This decision receives credit for generating a change in the rule. Our research has disclosed no court of last resort, nor have we been referred to any, which presently adheres to the rule of nonliability for prenatal injuries when the child is born alive. See, e.g., cases collected in Harper,...