Wallace v. Wallace, 79-457

• Decision Date: 02 October 1980
• Docket Number: No. 79-457,79-457
• Citation: 120 N.H. 675,421 A.2d 134
• Parties: Maureen WALLACE, Individually and as Administratrix for the Estate of Baby Boy Wallace et al. v. Robert M. WALLACE.
• Court: New Hampshire Supreme Court

Page 134

421 A.2d 134

120 N.H. 675

Maureen WALLACE, Individually and as Administratrix for the Estate of Baby Boy Wallace et al. v. Robert M. WALLACE.

No. 79-457.

Supreme Court of New Hampshire.

Oct. 2, 1980.

Burns, Bryant, Hinchey, Cox & Shea, Dover (Paul R. Cox, Dover, orally), for plaintiffs.

Fisher, Parsons & Moran, Dover (Edward T. Clancy, Dover, orally), for defendant.

GRIMES, Chief Justice.

The issue in this interlocutory transfer without ruling by Mullavey, J., is whether a death action may be maintained under RSA 556:11 on behalf of an aborted nonviable fetus.

On January 27, 1978, the plaintiff was a passenger in a motor vehicle being driven by the defendant. Through the defendant's alleged negligence, the vehicle left the road, colliding with a telephone pole. The plaintiff claims to have received personal injuries; she further asserts that the accident caused injury to, and the death of, the male fetus that she was carrying, then 10 to 12 weeks old. The plaintiff, having been appointed administratrix of the estate of the fetus, seeks to maintain this action under RSA 556:11.

Relying on dictum in Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957), the defendant claims that the plaintiff must prove that the fetus was viable at the time of the accident in order to maintain the action. In Poliquin it was decided that if the fetus was viable at the time of the accident and was thereafter stillborn, a death action would lie under RSA 556:11. The court stated, however, that "if a fetus is non-viable at the time of injury and dies in the womb, its representative can maintain no action." 101 N.H. at 107, 135 A.2d at 251.

In Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (1958), we held that a child born alive could maintain an action for injuries received before birth without regard to viability at the time of the injury. The plaintiff infers from this that because both nonviable and viable fetuses have causes of action following live birth for injuries prior thereto, there should be no distinction based on viability governing the applicability of RSA 556:11. She concludes that an action for death should be maintainable regardless of the fetus' viability.

The plaintiff's argument is fatally flawed. In Bennett, the court considered not the cause of action of an unborn fetus, but rather that of a live person, maintaining an action in his own behalf, for injuries from which he then suffered. In that context, viability at the time of injury was irrelevant because the live person was presently suffering from the injuries. Bennett allowed a cause of action for injuries inflicted before birth which resulted in suffering to the living being after birth; it recognized no such action on behalf of a nonviable fetus never born alive.

Plaintiff's argument that it is a "gross inequity" to hold a tortfeasor liable for injuring a nonviable fetus but not for killing one fails for the same reason. Bennett allowed a cause of action because of the injury to the living being after birth and not on behalf of a nonviable fetus never born alive.

Although it is true that at common law, the existence of a child en ventre sa mere was recognized for some purposes, all such rights conferred were contingent upon live birth. The fetus took nothing and had no rights as a fetus. It was only the prospective child if born alive which could enforce and enjoy the rights. All such rights terminated if the fetus aborted or was stillborn. Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221 (1958); Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901 (1969); 4 Tiffany, Real Property (3rd ed.) § 1127, p. 675. Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (1958) is consistent with the common law in this respect because it deals with those who are born alive and live in the real world even though the injury occurred before birth. Nowhere, however, did the common law give a fetus a cause of action or any other right.

The plaintiff argues that making recovery for the negligent killing of a human fetus contingent on viability constitutes an artificial and unworkable distinction, no longer justifiable in the light of modern medical knowledge and enlightened thought. She argues that the distinction originated as a means of extending protection to the fetus to avoid the consequences of the common-law view that the unborn child was part of the mother, and thus incapable of a separate cause of action, whether born alive or not. See, e. g., Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884). The viability theory arose out of the logic that since a viable fetus could, with proper care from others, survive and live apart from the mother, it was not part of the mother and could therefore maintain a separate action on its own behalf for prenatal injuries. Toth v. Goree, 65 Mich.App. 296, 237 N.W.2d 297 (1975); Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960). Neither of these cases relied upon by the plaintiff, however, holds that a death action may be maintained on behalf of a non-viable fetus.

The viable-nonviable distinction was made as part of the never-ending effort to widen more and more the circle of liability which surrounds us. As with all such efforts, the pressure never ends. When a new line is drawn, the pressure shifts to form a new and wider circle. Years ago, few if any would have foreseen that the circle would include a viable fetus. Who can foresee what the next step would be if the circle were to include the nonviable fetus. If life is not to become intolerable, there must be some boundaries to the zone of liability. Neither logic nor science is the determining factor. It is the policy of the law which must establish a reasonable limitation on liability. In our opinion, it is not reasonable to extend liability to a nonviable fetus.

We acknowledge that the purpose of the viable-nonviable distinction was to circumvent the common-law rule barring recovery for all prenatal injuries whether or not the child was born alive. See, e. g., Smith v. Brennan, supra at 367-68, 157 A.2d 504-05. It does not follow, however, that a death action should be allowed for a nonviable fetus which aborts. Conceding that there may be no logical distinction based on the viability of the fetus insofar as the existence of a separate life is concerned, the distinction is still valid insofar as it relates to the ability to keep the fetus alive separate and apart from the mother. See Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 63-64, 96 S.Ct. 2831, 2838-2839, 49 L.Ed.2d 788 (1976).

The plaintiff places much reliance upon the argument that doing away with the viability distinction will simplify the judicial task. Were simplicity our major concern, however, it would be facilitated by disallowing death actions on behalf of any stillborn fetus, an approach not without merit. We have recently reiterated that actions for wrongful death are creatures of statute, unknown to common law. Hebert v. Hebert, 120 N.H. ---, 415 A.2d 679 (May 12, 1980). In referring to death, the legislature intended the ordinary meaning of death. The ordinary meaning of death presupposes live birth. Regardless of the philosophical, theological or medical theories of when life begins, we are dealing here with legal causes of action created by legislative act and it can be persuasively argued that death, as used in that act, means the death of a person who has been born alive. See Presley v. Newport Hospital, 117 R.I. 177, 193, 365 A.2d 748, 756 (1976) (Kelleher, J., dissenting.)

Death actions on behalf of the aborted benefit only the parents and benefit the fetus not at all. Nor can it be determined, except by sheer speculation that there is any economic loss to its estate or to the parents, who alone would benefit from such a cause of action. RSA 556:14, RSA 561:1 II(b). This would be in addition to the cause of action the prospective mother has for her injuries, including the miscarriage. It is misleading, therefore, to refer to the rights of the fetus as the plaintiff does. See Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122 (1977). Whether a fetus is a person from the moment of conception and whether life begins with conception in the medical, philosophical, or theological sense is irrelevant to the issue before us. The real question is not when life begins but rather, whether our death statute should be construed to allow a cause of action on behalf of a fetus that has not drawn a breath of air, seen the light of day, or possessed the capacity to survive in the world outside its mother, despite all the medical and other care that could be mustered for it. To deny a nonviable fetus a cause of action is not to deny that life begins with conception. It is simply a policy determination that the law will not extend civil liability by giving a nonviable fetus a cause of action for negligence before it becomes a person, in the real and usual sense of the word, by being born alive. In other words, life may begin with conception but causes of action do not. We hold that no independent cause of action for wrongful death lies on behalf of a nonviable fetus that never achieves live birth.

The fact that the legislature has done nothing since the Poliquin decision is of no relevance to the issue in this case and would also be of little aid in any consideration whether Poliquin should be overruled, because the legislature speaks by action and not by inaction. Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378 (1974). Moreover, the legislative inaction, even if considered, reflects on the disallowance of an action on behalf of the nonviable fetus aspect of the Poliquin opinion as much as it does on the other part. Thus, if we considered the inaction as approval of the holding in Poliquin, which we do not, we would also consider it an approval of the strong and definite statement that no action can be maintained on behalf of a...