McAuley v. Wills

• Decision Date: 11 May 1983
• Docket Number: No. 39559,39559
• Citation: 303 S.E.2d 258,251 Ga. 3
• Parties: McAULEY et al. v. WILLS et al.
• Court: Georgia Supreme Court

Page 258

303 S.E.2d 258

251 Ga. 3

McAULEY et al. v. WILLS et al.

No. 39559.

Supreme Court of Georgia.

May 11, 1983.

Jule W. Felton, Jr., R. Matthew Martin, James L. Ford, Atlanta, for Samuel Shawn McAuley, Sr., et al.

Donald M. Fain, William P. Tinkler, Jr., Earl J. Van Gerpen, David L. Harrison, Atlanta, for Richard L. Wills, et al.

MARSHALL, Presiding Justice.

On March 31, 1979, Mrs. Gail B. Parker was a passenger in an automobile driven by Richard Lewis Wills. The automobile was involved in a one-car crash, causing Mrs. Parker to become a paraplegic. Mrs. Parker subsequently married Mr. Samuel Shawn McAuley, Sr., and she later became pregnant. On August 7, 1980, she gave birth to a child. However, the child died the following day from cardiac arrest caused by the infant's inability, due to the mother's paraplegia, to pass through the fetal course in an uneventful manner.

On April 17, 1981, this complaint for the wrongful death of the child was filed by Mr. and Mrs. McAuley against defendant Wills and others, alleging that the child's death was directly and proximately caused by the negligence of Wills in causing the car crash. The trial court granted the defendants' motion to dismiss, on the ground that the complaint failed to state a claim on which relief could be granted in that defendant Wills cannot be said to have owed a legal duty to the child who had not even been conceived at the time of the car crash.

On appeal, the Court of Appeals affirmed in an en-banc opinion. McAuley v. Wills, 164 Ga.App. 812, 298 S.E.2d 594 (1982). Five judges reasoned as follows: The only alleged acts of negligence by Wills causing Mrs. McAuley's paraplegia occurred in March of 1979; conception and birth of the child were unrelated to any acts of negligence attributable to Wills; therefore, this wrongful-death action, filed in April of 1981, is barred by the two-year statute of limitations applicable to personal-injury actions. Ward v. Griffith, 162 Ga.App. 194, 290 S.E.2d 290 (1982); Stoddard v. Woods, 138 Ga.App. 770, 227 S.E.2d 403 (1976). Two judges concurred specially, on the ground that the infliction of injury to the mother cannot be considered the proximate cause of the death of the child. One judge concurred in the judgment only. And, three judges dissented, on grounds that the statute of limitations does not bar this wrongful-death action and that whether the negligence of Wills was the proximate cause of the child's death is a jury question. Held: We affirm for the reasons given in the special concurrence.

1. It is true that a personal-injury action based upon negligence has a two-year statute of limitation, and there are holdings that the statute of limitation begins to run from the breach of duty and not when the extent of the resulting injury is ascertained. Lavender v. Spetalnick, 161 Ga.App. 75, 76, 289 S.E.2d 291 (1982) and cits. However, it has also been held that in a continuing tort a cause of action does not accrue so as to cause the statute of limitation to run until the plaintiff discovers, or with reasonable diligence should have discovered, both the injury and the cause thereof. King v. Seitzingers, Inc., 160 Ga.App. 318, 287 S.E.2d 252 (1981) and cits.

In any event, this is a wrongful-death action, and the rule is that a wrongful-death action must be brought within two years from the death. Taylor v. Murray, 231 Ga. 852, 854, 204 S.E.2d 747 (1974), but see DeLoach v. Emergency Medical Group, 155 Ga.App. 866(1), 274 S.E.2d 38 (1980). Therefore we conclude that the statute of limitations has not run on the claim being asserted here.

2. The right to recover for injuries sustained by a child in its prenatal state has undergone a long and interesting history which need not be repeated here. See Note, the Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 Notre Dame Lawyer, 349 (1971); Gordon, The Unborn Plaintiff, 63 Mich.L.Rev. 579 (1965); Comment, The Law of Prenatal Injuries, 37 U.Colo.L.Rev. (1965); Note, The Impact of Medical Knowledge on the Law Relating to Prenatal Injuries, 110 U.Pa.L.Rev. 554 (1962); White, The Right of Recovery for Prenatal Injuries, 12 La.L.Rev. 383 (1952); Prosser, The Law of Torts, § 55, p. 355 et seq. (4th Ed.1971); Anno., Liability for Prenatal Injuries, 40 A.L.R.3d 1222 (1971).

For our purposes it is sufficient to state that, as held by Mr. Justice Holmes in the landmark decision in Dietrich v. Inhabitants of North Hampton, 138 Mass. 14 (1884), the common law did not recognize an action for prenatal injuries to a child; the common law rule was based on the idea that a duty could not be owed to an unborn plaintiff. Although Judge Boggs wrote a quite famous dissent in Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638 (Ill.1900) criticizing this view, it was followed by the courts of this country until the decision of the United States District Court for the District of Columbia in Bonbrest v. Kotz, 65 F.Supp. 138 (D.C.1964). That decision "brought about the most spectacular abrupt reversal of a well-settled rule in the whole history of the law of torts ... So rapid has been the overturn that ... it is now apparently literally true that there is no authority left still supporting the older rule." Prosser, supra, at pp. 336, 337.

Once there was recognition of the right to recover for prenatal injuries to a child, the courts continued to grapple with questions concerning whether the child had to be "quick" ¹ in its mother's womb when the injuries were sustained, or whether the child had to be in a "viable" ² state when the injuries were sustained, or whether the child had to survive birth, in order for an action to be maintained.

3. In this State, it was held in 1951 that a child, if quick in its mother's womb, could maintain an action for prenatal injury resulting from the negligence of the defendant. Tucker v. Carmichael, 208 Ga. 201, 65 S.E.2d 909 (1951). In Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955), the rule of Tucker was applied in an action by the mother suing for the wrongful death of the child. However, in Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956), in a personal-injury action brought on behalf of a surviving child who sustained prenatal injuries approximately eight months before birth, it was held that "if a child born after an injury sustained at any period of its prenatal life can prove the effect on it of a tort, it would have a right to recover." 212 Ga., supra, at pp. 504, 505, 93 S.E.2d 727. (Emphasis supplied.)

4. As cited in the dissent to the Court of Appeals' opinion in this case, there are only three known cases in this country authorizing a suit to be maintained for preconception, rather than prenatal, injuries. Bergstresser v. Mitchell, 577 F.2d 22 (8th Cir.1978); Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir.1973); Renslow v. Mennonite Hospital, 67 Ill.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250 (Ill.1977).

(a) In Bergstresser v. Mitchell, supra, it was held that a medical malpractice action could be maintained on behalf of an infant, on the ground that the defendant physicians had negligently performed a caesarean section on the mother in 1972, causing rupture to her uterus after she became pregnant with the plaintiff in 1974, thereby requiring her to undergo emergency premature delivery during the course of which the plaintiff sustained brain damage.

(b) In Jorgensen v. Meade Johnson Laboratories, Inc., supra, it was held that an action was maintainable against a pharmaceutical company on behalf of deceased and living Mongoloid children, on the ground that their Mongoloid condition resulted from the mother's taking birth control pills manufactured by the defendant.

(c) In Renslow v. Mennonite Hospital, supra, it was held that an infant could maintain an action for prenatal injury sustained by her as a result of negligent transfusion of blood into the mother several years prior to the infant's birth.

(d) In Park v. Chessin, 88 Misc.2d 222, 387 N.Y.S.2d 204 (1976), a New York trial court held that the parents of a deceased three and one-half year-old child could maintain a medical malpractice action for pain and suffering to the child, on the ground that the defendants had advised the mother to conceive and bear a child when it was foreseeable that the child would suffer from congenital defects. However, this ruling was reversed by the New York appellate court in Park v. Chessin, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978).

5. To the extent that the trial court ruled that a person owes no duty of care toward an unconceived child, we must disagree. Cases cited in Division 4, supra, show that, at least in some situations, a person should be under a duty of care toward an unconceived child.

However, we do hold that the negligence of the defendant Wills and the injuries resulting in the death of McAuley's child are too remote for the law to sanction a recovery against Wills for the child's death. Our holding in this regard is based on one of two assumptions. First, assuming that the car crash in 1979 left Mrs. McAuley wholly unable to give birth to a child, this would be an element of damages recoverable by her in the personal-injury action on her own behalf, which is currently being litigated. Second, assuming that the car crash did not leave Mrs. McAuley wholly unable to give birth to a child, then the delivery of the child in a manner incompatible with the mother's paraplegia constituted an intervening act not reasonably foreseeable at the time of the car crash. E.g. Stevens v. Baggett, 154 Ga.App. 317(2), 268 S.E.2d 370 (1980).

To hold that an intervening act was not reasonably foreseeable at the time of the defendant's negligent conduct is to say that the defendant's negligence was not the proximate cause of the plaintiff's injury. Prosser, supra, at p. 250. Although what amounts to proximate cause is undeniably a ...