Mack v. Carmack

• Decision Date: 09 September 2011
• Docket Number: 1091040.
• Citation: 79 So.3d 597
• Parties: April MACK, as the mother of Baby Mack v. Thomas CARMACK.
• Court: Alabama Supreme Court

79 So.3d 597

April MACK, as the mother of Baby Mack

v.Thomas CARMACK.

1091040.

Supreme Court of Alabama.

Sept. 9, 2011.

John Thomas Stamps III of The Stamps Law Group, L.L.C., Bessemer, for appellant.

Michael S. Burroughs, Tuscaloosa, for appellee.

Another brief was filed by Edward C. Hixon of Slaton & O'Connor, P.C., Montgomery, on behalf of appellee Matthew Taul.PER CURIAM.

April Mack (“Mack”), the mother of Baby Mack,¹ appeals from a summary judgment entered by the Jefferson Circuit Court in her action against Thomas Carmack and Matthew Taul for the wrongful death of her unborn child, known in this litigation as “Baby Mack.” We reverse and remand.

I. Facts and Procedural History

On September 13, 2007, Mack was 12 weeks pregnant. On that date, Mack and her fiancé Reginald Thomas, the father of Baby Mack, needed to go to the grocery store, but they were without transportation. Mack contacted Thomas Carmack and asked him to take her and Thomas to the grocery store. Carmack agreed to do so after Mack offered to pay for the trip.

Carmack picked up Mack and Thomas and proceeded to drive to a local grocery store. Carmack's vehicle was traveling west on First Avenue North in Birmingham when he stopped at a red light at the intersection of that road and 65th Street North. Matthew Taul's vehicle was traveling east on First Avenue North. In his deposition in this case, Carmack testified that he knowingly proceeded to turn left even though the traffic light was red. He stated that he knew it was a violation of the law to do so and that he in fact saw vehicles opposite him at the intersection, i.e., that were traveling in the opposite direction. He further stated, however, that he assumed he could make the left turn because these vehicles appeared to be stopped. When Carmack turned, however, Taul's vehicle proceeded through the intersection and hit the passenger side of Carmack's vehicle. The force of the collision caused severe damage to Carmack's vehicle and injuries to Mack and Thomas.

Mack and Thomas were transported by ambulance to the University of Alabama at Birmingham Hospital for emergency treatment. Both suffered severe injuries requiring medical treatment. On September 18, 2007, while hospitalized as a result of the collision, Mack suffered a miscarriage that resulted in Baby Mack's death.

On November 15, 2007, Mack and Thomas filed an action against Carmack and Taul alleging negligence and wantonness and seeking recovery for their injuries. In addition, Mack filed a wrongful-death claim on behalf of Baby Mack. Discovery was conducted that included depositions of the involved parties.

On August 10, 2009, Mack, on behalf of Baby Mack, filed a motion for a summary judgment as to the wrongful-death claim against Carmack. In a hearing on the motion, the trial court denied Mack's motion for a summary judgment and entertained an oral motion for a summary judgment from Carmack. On September 30, 2009, the trial court entered an order granting Carmack's motion for a summary judgment on the wrongful-death claim. The order provided, in pertinent part:

“The issue before the Court is whether a nonviable fetus has a cause of action for wrongful death. Plaintiffs contend that the Alabama Fetal Homicide Act, Alabama Code [§ ] 13A–6–3, et seq., defines a person as a ‘human being, including an unborn child in utero at any stage of development, regardless of viability.’ “Defendant contends that the wrongful death statute, Section 6–5–410, Alabama Code 1975, only allows for wrongful death of a viable fetus. See, Lollar v. Tankersley, 613 So.2d 1249 (Ala.1993).

“The Court finds that the Alabama Wrongful Death Act does not allow for a cause of action for a nonviable fetus. Therefore, plaintiffs' Motion for Summary Judgment for the death of Baby Mack is denied. The Motion for Summary Judgment by defendant Thomas Carmack is granted on the claim for death of Baby Mack.” ²

On February 26, 2010, the parties notified the trial court that they had settled the remaining claims alleged in the complaint, and they requested that those claims be dismissed with prejudice. On March 15, 2010, the trial court entered an order dismissing the remaining claims with prejudice.

On April 12, 2010, Mack filed a notice of appeal from the summary judgment entered by the trial court in favor of Carmack concerning the wrongful-death claim.

II. Standard of Review

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion....’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact—“evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12–21–12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’

“ Capital Alliance Ins. Co. v. Thorough–Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

III. Analysis

Section 6–5–391, Ala.Code 1975, entitled “Wrongful death of minor” (“the Wrongful Death Act”), provides, in pertinent part, that “[w]hen the death of a minor child is caused by the wrongful act, omission, or negligence of any person ..., the father, or the mother ... of the minor may commence an action.” ³ § 6–5–391(a), Ala.Code 1975. The issue before us in this appeal is the proper application of § 6–5–391(a).

Mack concedes that, in two decisions issued by this Court in 1993 concerning wrongful-death claims arising out of the death of a fetus, this Court held that no cause of action for wrongful death exists if the fetus was not viable at the time of death. See Gentry v. Gilmore, 613 So.2d 1241, 1242 (Ala.1993) (concluding that “the Wrongful Death Act does not provide a cause of action for the death of a nonviable fetus”); and Lollar v. Tankersley, 613 So.2d 1249, 1252 (Ala.1993) (concluding that “a cause of action for death resulting from a pre-natal injury requires that the fetus attain viability either before the injury or before death results from the injury”). Largely on the basis of a recent legislative enactment, Mack now asks this Court to overrule Gentry and Lollar.

In pertinent part, the so-called “Brody Act,” Act No. 2006–419, Ala. Acts 2006, codified as Ala.Code 1975, § 13A–6–1, changed the definition of the term “person” in the article of the Alabama Code defining homicide offenses. Before its amendment in 2006, this article defined the term “person” as “a human being who had been born and was alive at the time of the homicidal act.” § 13A–6–1(2), Ala.Code 1975. As amended by the Brody Act, § 13A–6–1(a)(3), Ala.Code 1975, now defines the term “person” as “a human being, including an unborn child in utero at any stage of development, regardless of viability.” ⁴ (Emphasis added.)

Mack notes that in Lollar the Court expressly declined to find a cause of action under the Wrongful Death Act for a fetus that has never attained viability “[w]ithout a clearer expression of legislative intent.” Lollar, 613 So.2d at 1252–53. She argues that the legislature's amendment to the homicide article to redefine a “person” as including “an unborn child in utero at any stage of development, regardless of viability” now provides the “clear [ ] expression of legislative intent” missing when Lollar was decided.

Carmack counters that, although the legislature changed the definition of “person” for purposes of homicide, it did not amend the Wrongful Death Act. He cites Ex parte Haynes Downard Andra & Jones, LLP, 924 So.2d 687, 699 (Ala.2005), for the proposition that “ ‘[i]t is an ingrained principle of statutory construction that “[t]he Legislature is presumed to be aware of existing law and judicial interpretation when it adopts a statute” ’ ” (quoting Ex parte Fontaine Trailer Co., 854 So.2d 71, 83 (Ala.2003), quoting in turn Carson v. City of Prichard, 709 So.2d 1199, 1206 (Ala.1998)). Carmack argues that because the legislature did not amend the Wrongful Death Act when it amended the homicide article in the criminal code, the legislature's change in the homicide article provides no basis for overruling Lollar and Gentry.

An appropriate analysis of these contending positions necessitates that we review the history in Alabama of wrongful-death claims arising out of prenatal injuries. The issue of causes of action for prenatal injuries first arose in Stanford v. St. Louis–San Francisco Ry., 214 Ala. 611, 108 So. 566 (1926). In Stanford, the Court observed that “a legal personality is imputed to an unborn child as a rule of property for all purposes beneficial to the infant after birth” and that in criminal law, because of the state's interest in “protect[ing] life before birth, it is a great crime to kill the child after it is able to stir in the mother's womb, by an injury inflicted upon the person of the mother, and it may be murder if the child is born alive and dies of prenatal injuries.” 214 Ala. at 612, 108 So. at 566. Nonetheless, the Stanford Court concluded that “[t]he authorities ... are unanimous in holding that a prenatal injury affords no...