Rambo v. Lawson

HOLSTEIN, Judge,

dissenting.

I respectfully dissent.

The viability standard, relied on by two members of the majority as the time when a fatal injury to a fetus gives rise to a wrongful death action, is arbitrary, unworkable and the outgrowth of a fundamental misunderstanding of generally accepted scientific facts. Viability should be rejected as a standard for determining whether a fetus is a “person” in the context of our wrongful death statute.

At the outset it is important to note that this case is not controlled by the cases involving a pregnant woman’s “right of privacy.” In this case, the rights of the expectant mother and the rights of the fetus are parallel and not in conflict. An examination of the history of the law relating to tort causes of action for negligent infliction of prenatal injury begins well be*67fore Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

The great Judge (later Justice) Holmes, writing for the Massachusetts Supreme Judicial Court, was the first American to author an opinion on the subject of prenatal injury. Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884). A woman four months pregnant had fallen on a defective highway, causing the premature birth of an infant. The child was delivered alive but, due to its prematurity, died within minutes. The child’s estate sued for damages. Holmes rejected arguments based upon Lord Coke’s statement of the English common law that, “If a woman is quick with child ... or if a man beats her, and the child is born alive and dies ... of the battery, this is murder.” Id. at 16-17. Holmes noted that “quick” means some degree of “quasi-independent life” under Massachusetts caselaw. He questioned whether any duty was owed to “one not yet in being,” and concluded that “as the unborn child was part of the mother at the time of the injury, any damage to it which was not too remote to be recovered for at all was recoverable by her.” Id. Recovery by the estate of the premature child was denied.

Holmes was too impressive a figure in judicial circles to be ignored, even though his notion that “a child is part of the mother” was inconsistent with both the common law, which he rejected, and rather clear scientific evidence that the mother and fetus are separate organisms. Nevertheless, Holmes’ misapprehensions have continued to confuse and confound American courts as to what constitutes a “person” for purposes of tort recovery.

The concept of viability was invented by Justice Boggs of the Illinois Supreme Court in an effort to avoid the harshness of Holmes’ rule in Dietrich. The Illinois Supreme Court, relying on Dietrich, refused to allow an action for prenatal injuries. Allaire v. St. Luke’s Hosp., 184 Ill. 359, 56 N.E. 638 (1900). The majority relied on Holmes’ notion that a child is part of the mother’s body. Boggs attacked that tenuous rationale:

A foetus in the womb of the mother may well be regarded as but a part of the bowels of the mother during a portion of the period of gestation. Medical science and skill have demonstrated that at a period of gestation in advance of the period of parturition, the foetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body, for her body may die in all of its parts and the child remain alive and capable of maintaining life, when separated from the mother. If at that period a child so advanced is injured in its limbs and members and is born into the living world suffering from the effects of the injury, is it not sacrificing truth to a mere theoretical abstraction to say the injury was not to the child, but wholly to the mother?

Id. 56 N.E. at 641.

With the notable exception of Cooper v. Blanck, 39 So.2d 352 (La.App.1923), published in 1949, Boggs’ dissent was to lie dormant for over forty years. By the 1940’s, some common law cases began to seek ways to avoid Holmes’ harsh result. Boggs’ concept of viability was rediscovered. Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946); Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949); Williams v. Marion Rapid Transit Co., 152 Ohio St. 114, 87 N.E.2d 334 (1949); Mallison v. Pomeroy, 205 Or. 690, 291 P.2d 225 (1955); Tursi v. New England Windsor Co., 19 Conn.Supp. 242, 111 A.2d 14 (1955). The deadliest blow to Holmes’ rule in Dietrich came in Keyes v. Construction Service, Inc., 340 Mass. 633, 165 N.E.2d 912 (1960), which overruled Dietrich.

The viability standard for determining when a wrongful death action arises for prenatal injury was first addressed by Missouri courts in Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577 (1953). There, the mother was pregnant with a viable infant and was involved in a vehicle accident. Three days later, the child was born alive but, due to injuries sustained in the collision, lived only eighteen days after being born. This Court, after citing the growing *68body of caselaw which rejected the Dietrich rule, stated:

[I]t is not in accordance with the truth to say the law indulges a fiction when it attributes a legal personality to an unborn child ... A number of courts and text writers have reached the same conclusion. We call particular attention to the opinion by Justice McGuire in the case of Bonbrest v. Kotz, supra, 65 F.Supp. loc. cit. 140(3). The justice there cited many medical authorities to support the statement, “From the viewpoint of the civil law and the law of property, a child en ventre sa mere is not only regarded as a human being, but as such from the moment of conception — which it is in fact.”

Id. 258 S.W.2d at 579. This Court overruled precedent and, relying on the maxim that where there is a wrong there is a remedy, allowed a wrongful death action for “a viable child, injured while en ventre sa mere, born alive.” The question was not presented in that case as to whether a wrongful death action would lie if the child was stillborn.

The next significant Missouri case was State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo. banc 1976). The Court expressed the mistaken view that a common law rule existed “that an unborn fetus is not a person.” Id. at 339. As will be discussed below, that was not the common law rule. From that erroneous view of the common law, the Court reasoned, “It is our view that a fetus is not a ‘person’ within the meaning of the wrongful death statute.” Id. at 338. The Court denied a wrongful death action for fatal injuries to a viable, stillborn fetus. Strangely, Hardin did not overrule the holding in Steggall that for purposes of the wrongful death act, injury to a fetus was injury to a person. The question was thus left unsettled as to what constitutes a person under the statute.1

Hardin was perhaps the dying gasp of the Dietrich rule. O’Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), examining the rationale for Hardin, found it out of tune with Steggall, as well as the law in most other jurisdictions, and contrary to sound logic. For those reasons, this Court overruled Hardin in the O’Grady case.

From O’Grady and Steggall it is clear that this Court has decided that a fetus is a person for purposes of tort recovery under our wrongful death statute. The question is what role, if any, should viability play in determining when the cause of action for wrongful death arises.

Professor Prosser has summarized the problems with utilizing viability:

[Mjedical authority has long since recognized that an unborn child is in existence from the moment of conception, and for many purposes its existence is recognized by the law. It has been accorded legal status for various purposes in equity, criminal law, property law, and tort law ... All writers who have discussed the problem have joined in condemning the total no-duty rule and agree that the unborn child in the path of the automobile is as much a person in the street as the mother, and should be equally protected under the law.
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The child, if he is born alive, is now permitted in every jurisdiction to maintain an action for the consequences of prenatal injuries, and if he dies of such injuries after birth an action will lie for his wrongful death.
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[Ljogic is in favor of ignoring the stage at which injury occurs. With recent advances in embryology and medical technology, medical proof of causation in these cases has become increasingly reliable, which argues for eliminating the viability or other arbitrary development requirements altogether.

Prosser and Keeton on The Law of Torts, § 55, 367-68 (W. Keeton, D. Dobbs, R. Keeton, and D. Owen 5th ed. 1984).

As noted by Prosser, medical science has progressed in quantum leaps in the last *69fifty years. The mother and a living unborn child may be separated at a very early stage of development. Today human embryos may be removed from the uterus of the mother and transferred to a recipient surrogate who is then able to deliver the child at full term. See Danforth’s Obstetrics and Gynecology at 833-841 (J. Scott, P. DiSaia, C. Hammond, W. Spellacy 6th ed. 1990). From conception onward, the mother and the expected child are separate, living, human organisms having unique genetic qualities. The mother and the child do not share the samé cardiovascular, respiratory, digestive, neurological, musculo-skeletal, endocrine or urogenital systems. Medical science recognizes a fetus as a separate and distinct human biological entity. See Williams Obstetrics at 87-124 (F. Cunningham, P. MacDonald, and N. Gant 18th ed. 1989). With all of these generally recognized principles of science at hand, it is absurd to extend the legal fiction introduced by Holmes and perpetuated by Boggs that an unborn child is “a part of the mother’s bowels” until the fetus is viable.

A second and equally strong reason for rejecting viability as the standard for determining the boundaries of a cause of action for wrongful death was discussed by the Missouri Court of Appeals, Western District’s, majority opinion in this case authored by Chief Judge Nugent:

Basing the right to recovery upon the viability of the fetus places the legal basis for recovery for wrongful death upon shifting ground. Medical technology today guarantees the viability of fetuses considered nonviable only a few years ago, and a few years from now, medical technology certainly will keep alive outside the womb fetuses we now regard as nonviable.
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Except for the superficial differences, what distinguishes a human fetus with functioning but incipient organs from another, a few days or weeks older, with functioning but slightly more mature organs? We can find no difference that compels us to consider the child in a later stage entitled to greater consideration than an infant in a slightly earlier stage.

A similar discussion occurred in State ex rel. Hardin v. Sanders. There the Court quoted Wenger, 69 Dickinson L.Rev. 258, 268:

The sole difference between viability and nonviability is merely a matter of time.... Moreover, the viability test is uniformly criticized by writers as being unworkable, for the time at which a pre-viable foetus becomes viable is indefinite and therefore, incapable of precise determination. Thus, since any limitation will be arbitrary in nature, a tangible and concrete event would be the most acceptable and workable boundary. Birth, being a definite, observable and significant event, meets this requirement.

Hardin, 538 S.W.2d at 339. I would add that conception is definite, observable in the scientific sense, and significant. But there are other definite, discernible and significant events consistent with the common law concept of a “quick” child that might also serve as a basis for establishing the boundary.2

As recognized by Holmes in Dietrich, the common law made it a crime to take the life of an unborn “quick” child. But that was not the only protection provided pre-born children at common law:

The common-law has accorded unborn children property rights for nearly 300 years. For purposes of inheritance, such children are considered persons “in being.” Courts have consistently held that the unborn are entitled to the appointment of guardians in order to protect the child’s interest in the property that represents proceeds or the corpus of a trust.
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The unborn child has been afforded rights sufficient for legal protection in other areas of the law. A fetus has been *70held to be a person under the Civil Rights Act of 1871. Unborn children, though previable, have been found to be persons within the meaning of insurance policies.

Bopp, Jr., Bostrom, and McKinney, The “Rights” and “Wrongs” of Wrongful Birth and Wrongful Life: A Jurisprudential Analysis of Birth Related Torts, 27 Duq.L.Rev. 461, 481, 482 (1989). There is substantial authority in the common law to support the idea that after conception an expected child has certain protectable interests. To the extent it is not in conflict with the state constitution and other statutes, the common law is the law of Missouri. § 1.010 RSMo 1986.

The majority opinions have not analyzed the concept of viability, nor have they examined the plain language of our wrongful death statute to determine whether viability should play a role in the parents’ right to recover for the negligently caused death of an expected child. Chief Justice Black-mar’s opinion has simply stated four policy reasons for denying recovery. The same policy arguments for denying recovery for the death of a nonviable fetus could be made for denying recovery for a viable fetus or even a newborn infant. If a viable fetus or a newborn infant is killed because of some negligent act by a third party, it may conveniently be argued that 1) there is uncertainty that the fetus would survive birth or that a newborn infant would survive to any age at which the parents might benefit from the child, 2) the mother, if injured in the same accident, could recover her damages, 3) the father has a derivative action for the loss of the mother’s consortium, and 4) fertile parents may conceive other children.

As to the first argument, all future damages are subject to some uncertainty, but that has never been a basis for denying their recovery. The arguments that the mother has her own cause of action and the father a derivative action were considered and sternly rejected in Steggall v. Morris, where the Court noted that a mother could not recover for the negligent prenatal injury to a child which resulted in the birth of a deformed or sickly child because any injury to the mother is separate from the injury to a child. Steggall, 258 S.W.2d at 581.

The fourth argument is by far the most offensive. It assumes that children before birth, or at least before viability, are a fungible product which can be replaced like a bucket of coal or a bushel of wheat. In point of fact, the parents of an expected child have been denied the unique “services, consortium, companionship, comfort ... and support” of that particular child because of the wrongful act of a stranger. See § 537.090 RSMo 1986. I find the policy rationales used in Chief Justice Black-mar’s opinion to be unacceptable and out of harmony with the plain language and clear intent of our wrongful death statute.

Judge Robertson’s opinion does not examine the plain language of the statute. His opinion hinges on one rule of statutory construction which, as previously noted, is inapposite. Any discussion of the meaning of a statute necessarily begins with the language of the statute. Our present wrongful death statute was enacted in 1979, but the relevant language became the law of this state on December 8, 1855. In pertinent part it stated:

Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default, is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover damages in respect thereof, then, ... the person who... would have been liable if death had not ensued, shall be liable to an action for damages....

Laws of 1855, Ch. 51, § 3. That statute is nearly identical to the language of § 537.080 RSMo 1986. Neither the original statute nor the present statute defines “person.” The legislative silence means no more than that the legislature left the definition of the term up to the courts.

The current state of the law is that regardless of the stage of development at which a fetus is injured, if it survives the negligently inflicted injury, an action for damages will lie against the party causing the injury for any resulting disability or *71deformity. See Annotation, Prenatal Injuries-Liability, 40 A.L.R.3d 1222, 1230, § 3[a] and cases cited therein. Under the plain language of our statute, if a fetus is killed because of a wrongful act for which damages could be recovered had death not ensued, then a wrongful death action lies against the wrongdoer. The only way to conclude that the word “person” is ambiguous is to reject clear scientific evidence and reject the overwhelming weight of the common law, not to mention overruling two well-reasoned precedents of this Court. There is no ambiguity in the statute. Thus, there is no need to resort to artificial canons of statutory construction.

If one must resort to the rules of statutory construction, the first rule of statutory construction is to give effect to the intent of the legislature. State ex rel. Board of Registration for Healing Arts v. Southworth, 704 S.W.2d 219, 224 (Mo. banc 1986). In determining that intent, the Court construes the statute in light of the purposes for which the statute was enacted and the evils it was intended to cure. In the Interest of A.M.B., 738 S.W.2d 128, 130 (Mo.App.1987). Both majority opinions adopt a reading of the statute which make it economically preferable for a tort-feasor to kill the fetus rather than merely injure the fetus. That is precisely the injustice which the wrongful death statute was designed to remedy.

Rules of statutory construction should never be applied so as to defeat the purpose of the statute. The viability standard is not in the plain language of the statute; it is not consistent with the common law; it is incongruous with reason. Accordingly, I would reverse the trial court’s order of dismissal.

RENDLEN, J., concurs.

. The rule of statutory construction relied on in Judge Robertson's opinion predicates its application upon a "settled judicial construction.” That rule is inapplicable here.

. The common law notion of quickening is related to discernible movement. Movement may be involuntary, such as a heartbeat or reflex response to a stimulus, or the spontaneous movement of the fetus. Certainly, when involuntary, reflexive and spontaneous movement occur, the common law standard of a "quick” child has been satisfied.