Shirley v. Bacon
| Decision Date | 28 May 1980 |
| Docket Number | No. 59170,59170 |
| Parties | SHIRLEY v. BACON et al. |
| Court | Georgia Court of Appeals |
Jule W. Felton, Jr., John G. Parker, Stanley E. Kreimer, Jr., Atlanta, for appellant.
I. J. Parkerson, William S. Shelfer, Jr., Decatur, for appellees.
Appellant-plaintiff commenced this wrongful death action seeking to recover damages for the death of her unborn child which allegedly resulted from injuries sustained in a collision while she was a passenger in an automobile owned by appellee-defendant Betty A. Bacon and being operated by appellee-defendant Starla A. Bacon. Both appellees moved for summary judgment contending, as a matter of law, appellant was precluded from maintaining this action. This appeal follows the grant of summary judgment in favor of appellees on the following ground: "Since it is uncontroverted that the unborn child of the plaintiff (appellant) was never 'quick,' the plaintiff (appellant) cannot recover for the alleged negligent homicide of this unborn child."
The pertinent facts in this case construed most liberally in favor of the plaintiff, as required on a motion for summary judgment by defendant, show that appellant was between two and three months pregnant at the time of the collision. Hatcher v. City of Albany, 144 Ga.App. 503, 241 S.E.2d 619 (1978). Approximately one month after the collision, appellant underwent a therapeutic abortion allegedly necessitated because of the injuries sustained and because of the numerous pelvic X-rays taken of those injuries. During the course of appellant's deposition, she testified that at no time prior to the abortion did she feel the fetus move within her.
In order to prevail upon a motion for summary judgment, the defendant, as movant, must produce evidence conclusively negating at least one essential element entitling the plaintiff to recover under every theory fairly drawn from the pleadings and the evidence. Sheppard v. Post, 142 Ga.App. 646, 236 S.E.2d 680 (1977); Lockhart v. Beaird, 128 Ga.App. 7, 195 S.E.2d 292 (1973). Appellees contend that they have, by the uncontradicted testimony of appellant, established that the fetus was never quick, thereby refuting an essential element of appellant's case. In essence, appellees rely upon appellant's testimony admitting that prior to the abortion she never felt the fetus move within her.
In Georgia an action for the wrongful death of an unborn child may be maintained if the child was "quick" at its death (not at the time of injury). Porter v Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955). The concept of "quickening" is defined as that point in time when the fetus "is able to move in its mother's womb." Porter v. Lassiter, supra at 716, 87 S.E.2d at 103; Tucker v. Carmichael, 208 Ga. 201, 65 S.E.2d 909 (1951). Contrary to the contention of appellees, there is no rule in this state that "quickening" occurs, as a matter of law, only during the fourth month of pregnancy and the criminal decisions which appellees cite in support of the aforesaid contention are not dispositive of the issues presented in the case at bar. Ordinarily, if there is a dispute as to the quickness of the fetus on the date of the alleged wrongful death, a question of fact is presented for resolution by a jury. Porter v. Lassiter, supra.
We do not believe that the aforestated testimony of appellant conclusively resolves in favor of appellees the issue of whether, at...
To continue reading
Request your trial
-
Farley v. Sartin
...Ins. Co., 34 Wis.2d 14, 148 N.W.2d 107 (1967).Georgia permits recovery if an unborn child is "quick" in the womb. Shirley v. Bacon, 154 Ga.App. 203, 267 S.E.2d 809 (1980); Porter v. Lassiter, 91 Ga.App. 712, 715, 87 S.E.2d 100, 102 (1955) ("quick" means "capable of moving in its mother's wo......
-
Ankrom v. State (Ex parte Ankrom)
...48 Conn.Supp. 440, 452–60, 849 A.2d 7, 15–19 (2004) ; Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955) ; Shirley v. Bacon, 154 Ga.App. 203, 267 S.E.2d 809 (1980) ; Wade v. United States, 745 F.Supp. 1573 (D.Haw.1990) ; Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (19......
-
Hamilton v. Scott
...includes a fetus who is ‘quick’ in the womb as a ‘person’ within the language of that statute.”). See also Shirley v. Bacon, 154 Ga.App. 203, 204, 267 S.E.2d 809, 811 (1980) (explaining that “[t]he mere fact that [the mother] had not felt the movement of the fetus does not necessarily mean ......
-
66 Federal Credit Union v. Tucker
...so that it moves within the mother's womb." Id. at 668 (citing Black's Law Dictionary 1415 (4th ed.)). Accord, Shirley v. Bacon, 154 Ga.App. 203, 267 S.E.2d 809, 811 (1980). ¶ 23. The Georgia Supreme Court has adopted similar reasoning using language from the Georgia criminal code along wit......
-
Torts - Cynthia Trimboli Adams and Charles R. Adams Iii
...Id. 126. Id. at 488, 458 S.E.2d at 629. 127. Id. (citing Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1995) and Shirley v. Bacon, 154 Ga. App. 203, 267 S.E.2d 809 (1980)). 128. O.C.G.A. Sec. 51-1-9 (1982). 129. Peters, 265 Ga. at 488, 458 S.E.2d at 629. 130. Id., 458 S.E.2d at 629-30......
-
Wrongful Death of the Fetus: Viability Is Not a Viable Distinction
...is a child when the fetus is "quick," or perceived to move in the mother's womb. Id. at 716, 87 S.E.2d at 103. C/. Shirley v. Bacon, 154 Ga. App. 203, 267 S.E.2d 809 (1980) (wrongful death action not allowed for the death of a fetus that was two months old at the time of injury, because tha......
-
Trial Practice and Procedure - C. Frederick Overby and Teresa T. Abell
...Id. 126. Id. at 488, 458 S.E.2d at 629. 127. Id. (citing Porter v. Lassiter, 91 Ga. App. 712, 87 S.E.2d 100 (1995) and Shirley v. Bacon, 154 Ga. App. 203, 267 S.E.2d 809 (1980)). 128. O.C.G.A. Sec. 51-1-9 (1982). 129. Peters, 265 Ga. at 488, 458 S.E.2d at 629. 130. Id., 458 S.E.2d at 629-30......