Summerfield v. Superior Court In and For Maricopa County

Decision Date24 April 1985
Docket NumberNo. 17607-SA,17607-SA
Citation698 P.2d 712,144 Ariz. 467
PartiesJack SUMMERFIELD and Charlene Summerfield, husband and wife, individually, and as surviving parents of Baby Girl Summerfield, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, Hon. Marilyn A. Riddel, a judge thereof, and James Colleen, M.D., and Jane Doe Colleen, husband and wife, and Richard Lott, M.D. and Jane Doe Lott, husband and wife, real parties in interest, Respondents.
CourtArizona Supreme Court
Friedl & Richter by Joseph C. Richter, Phoenix, for petitioners

Teilborg, Sanders & Parks by Frank A. Parks, Phoenix, for respondents.

Arizona Trial Lawyers Assoc., Langerman, Begam, Lewis & Marks by Amy G. Langerman and William B. Revis, Chairman, amicus curiae Committee, Phoenix, for amicus curiae.

Haralson, Kinerk & Morey by Carter Morey, Denneen L. Peterson, Tucson, for amicus curiae: Erickson.

FELDMAN, Justice.

This case presents the question of whether a wrongful death action can be maintained by the Summerfields (plaintiffs), the parents of a viable fetus that was stillborn as a result of alleged medical malpractice by the respondent real parties in interest (defendants). The trial court granted the defendants' motion to dismiss the wrongful death count on the authority of Kilmer v. Hicks, 22 Ariz.App. 552, 529 P.2d 706 (1974), a case which held: 1) that no common law right existed for recovery, and 2) that a viable fetus was not a "person" as that word is used in A.R.S. § 12-611, the statute which authorizes the institution of a damage action against one whose "wrongful act, neglect or default" causes the "death of a person." Plaintiffs then filed this special action, asking us either to distinguish Kilmer on its facts or to overrule it.


In Arizona relief by "Special Action" replaces that which was previously obtained by use of prerogative writs such as certiorari, mandamus, and prohibition. Rule 1, Ariz.R.P.Sp.Act., 17A A.R.S. We generally accept jurisdiction of petitions for special action only where the issues raised are such that "justice cannot be satisfactorily obtained by other means." King v. Superior Court, 138 Ariz. 147, 149, 673 P.2d 787, 789 (1983). In the situation at bench, there are several pending cases in the superior courts which present the same issue. Normal appellate procedures will result in unnecessary cost and delay to all litigants. See State v. Superior Court, 123 Ariz. 324, 329-30, 599 P.2d 777, 782-83 (1979). The question presented is a clear issue of law with obvious statewide significance. The congruence of these factors militates in favor of our accepting jurisdiction. See State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 591, 667 P.2d 1304, 1306

[144 Ariz. 470] (1983). We therefore take jurisdiction pursuant to Ariz. Const. art. 6, § 5(4), and Rule 1, Ariz.R.P.Sp.Act., 17A A.R.S.


On review of a dismissal for failure to state a claim, the truth of the allegations must be assumed. Donnelly Constr. Co. v. Oberg/Hunt/Gilleland, 139 Ariz. 184, 186, 677 P.2d 1292, 1294 (1984). Taken in this light, the facts follow: Mrs. Summerfield became pregnant in October, 1980. In November, she consulted defendants for prenatal care. At that time she disclosed a history of diabetes; the doctors told her that there was nothing to worry about, and performed no special tests. On June 10, 1981, Mrs. Summerfield informed the doctors that she no longer felt fetal movement. She was examined, reassured that all was well, and sent home. She continued to note the absence of fetal movement, and went back to one of the doctors on June 18. This time the doctor could not detect any fetal heartbeat, and admitted Mrs. Summerfield to the hospital, where she was delivered of a 37-week old, stillborn fetus. The causes of fetal death, according to hospital records, were diabetes and toxemia of pregnancy.

On June 16, 1983, the Summerfields filed a malpractice action against the attending doctors. Count Three of the complaint was a claim for wrongful death. Defendants filed a motion to dismiss the count, arguing that Kilmer v. Hicks, supra, had held that the right to recover for wrongful death was purely statutory, and that a fetus was not a "person" as that term was used in A.R.S. § 12-611. The trial judge granted the motion to dismiss upon the express authority of Kilmer.

Plaintiffs first contend that the rule of Kilmer v. Hicks, supra, is inapplicable to this case because the facts are distinguishable. Kilmer was an automobile accident case in which the mother was killed and the full term fetus died of fetal anoxia resulting from pre-partum maternal death. By contrast, in the case at bench, the defendants had undertaken a direct duty of care to the fetus as well as to the mother and, plaintiffs contend, should be held liable to each for breach of the duty. We agree that the foreseeable risk of harm imposed such a dual duty upon the defendants. See Ontiveros v. Borak, 136 Ariz. 500, 508, 667 P.2d 200, 208 (1983). We do not believe, however, that this answers the question. The rule of non-liability espoused by Kilmer and the cases which it cites (22 Ariz.App. at 553-54, 529 P.2d at 707-08) is not based upon society's perception that the doctors have no duty to care for the fetus, but upon alleged common law and statutory limitations on the legal remedy for breach of that duty. The question before us is whether such limitations do exist and, if they do, whether they must or should be left intact by this court.

Much of the argument presented by the parties is directed to the interpretation they claim should be given the wrongful death statute. The reason for this focus is that both sides begin from the premise that the exact words of the statute must govern because the common law did not recognize a cause of action for wrongful death. Since the statute contains no explicit directions, the argument that we must rely on its precise wording does more to obscure than to illuminate the problem. More importantly, we are by no means certain that the common law made no provision for such a cause of action. We commence our analysis, therefore, with a brief reference to the evolution of the common law rule with respect to the right of a survivor to maintain an action for the death of the victim. In so doing, we seek to determine whether we are truly bound by legislative intent or are free to apply a modicum of common law policy.


This court has followed many others in stating that recovery for wrongful death is purely a creature of statute, there being no recovery at common law. See, e.g., Huebner v. Deuchle, 109 Ariz. 549, 514 P.2d 470 (1973); Estate of Lister, 22 Ariz. 185, 195 In America, the Baker rule was ignored until 1848; during this forty-year period, there was "no instance of a denial of a civil action for wrongful death." Malone, supra, at 1066-67. It was not until the decision in Carey v. Berkshire R.R., 55 Mass. 475, 48 Am.Dec. 616 (1848), that an American court held that no cause of action for wrongful death existed at common law. Other courts followed, citing Baker and Carey to support their holdings, even though the felony-merger doctrine, on which Baker depended, was rejected by all courts as having no application in America. Moragne, supra, 90 S.Ct. at 1779. In Arizona, the merger doctrine was expressly abrogated. See A.R.S. § 12-611 (permitting the tort action even though the act causing the death was homicide).

                P. 1113 (1921).  The first recorded judicial pronouncement on the question appeared as dicta in Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (Nisi Prius 1808), where Lord Ellenborough stated that "[i]n a civil court, the death of a human being could not be complained of as an injury."   It is possible that this was merely a restatement of the principle that the action for injuries did not survive the death of the injured person.  See Holdsworth, The Origin of the Rule in Baker v. Bolton, 32 L.Q.Rev. 431, 434-35 (1916).  More probably, the Baker pronouncement was a product of the felony-merger rule--a doctrine that disallowed civil recovery for an act that constituted both a tort and a felony.  Moragne v. States Marine Lines, Inc., 398 U.S. 375, 383, 90 S.Ct. 1772, 1778-79, 26 L.Ed.2d 339 (1970). 1

It appears, therefore, that reliance on Baker as the basis for lack of recovery at common law may be misplaced, especially in light of this court's statement that the common law

means the unwritten or common law of England, together with the acts of parliament of a general nature, and not local to Great Britain, which had been passed and were enforced at the time of ... separation [of the colonies] from the mother country so far ... as they are suitable to ... wants, conditions, and circumstances [in Arizona.]

John W. Masury & Son v. Bisbee Lumber Co., 49 Ariz. 443, 463, 68 P.2d 679, 688 (1937) (emphasis added). Since it is not at all clear that the common law prevalent in England in 1776 was as later stated in Baker, and since, in any case, the doctrinal underpinning of Baker was unavailable in this country, we cannot be totally certain that the "common law" adverted to in A.R.S. § 1-201 as "the law of decision in the courts of this state" precludes recovery for wrongful death.

In England the Baker rule was reversed by the passage of the Fatal Accidents Act of 1846 (Lord Campbell's Act), which allowed certain near relatives of the decedent a cause of action against the tortfeasor. The state legislatures in the United States followed suit and enacted statutes patterned after Lord Campbell's Act. The United States Supreme Court stated in Moragne, supra, that these statutes reflect a legislative policy which "has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law." 398 U.S. at 390-91, 90...

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