KENNETH FARLEY, AS ADMINISTRATOR OF THE
ESTATE OF BABY FARLEY, AN UNBORN CHILD,
Plaintiff Below, Appellant
BILLY R. SARTIN AND LEE SARTIN TRUCKING
Filed: December 13, 1995
Donald R. Jarrell Roger Forman
Wayne, West Virginia Forman & Crane
Attorney for Appellant Charleston, West Virginia
Susan J. Weiler
Steven K. Nord Kathryn Kolbert
P. Blake Benton Lynn M. Paltrow
Offutt, Eifert, Fisher, Duffield & Nord The Center for Reproductive Huntington, West Virginia Law & Policy
Attorney for Appellees
Attorneys for Amicus Curiae
West Virginia Free
JUSTICE CLECKLEY delivered the Opinion of the Court.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE ALBRIGHT did not participate.
1. A tortious injury suffered by a nonviable child en ventre sa mere who subsequently is born alive is compensable and no less meritorious than an injury inflicted upon a viable child who subsequently is born alive.
2. In light our previous interpretation of W.Va.Code, 55-7-
5, and the goals and purposes of wrongful death statutes
generally, the term "person," as used in W.Va.Code, 55-7-5 (1931)
and the equivalent language in its counterpart, W.Va.Code, 55-7-6
(1992), encompasses a nonviable unborn child and, thus, permits a
cause of action for the tortious death of such child.
The plaintiff below and appellant herein, Kenneth Farley, as
the Administrator of the Estate of Baby Farley, his unborn child,
appeals from the September 8, 1994, order of the Circuit Court of
Wayne County. This order granted a motion for summary judgment by
the defendants below and appellees herein, Billy R. Sartin and Lee
Sartin Trucking Company, Inc., and dismissed the plaintiff's case
with prejudice. The issue presented to this Court on appeal is
whether the plaintiff can maintain a cause of action under West
Virginia's wrongful death statute, W.Va.Code, 55-7-5 (1931),See footnote 1 for
the death of Baby Farley, who was eighteen to twenty-two weeks of
gestation and, at best, of questionable viability in light of the
evidence presented to the circuit court. Upon review, we conclude the plaintiff may maintain his cause of action regardless of
viability and, therefore, we reverse the order of the circuit
FACTS AND PROCEDURAL HISTORY
On November 6, 1991, the plaintiff's pregnant wife, Cynthia Farley, was killed in an automobile accident she had with the defendant, Billy R. Sartin, who was driving a tractor trailer owned by the defendant, Lee Sartin Trucking Company, Inc. The deposition of Mrs. Farley's treating obstetrician, Dr. Gary Gilbert, which was the only medical testimony in the record, adduced the following. Mrs. Farley was probably eighteen weeks and a few days pregnant when calculated from the date of the first day of her last menses, although she could have been as far along as twenty-two weeks pregnant.See footnote 2 Baby Farley was neither large enough nor developed enough to survive outside the womb.See footnote 3 "The earliest surviving infant that [the doctor knew] of was right at 500 grams, which would have been about 22 weeks." Dr. Gilbert concluded that if Mrs. Farley had not been killed in the accident, he had "no reason to believe that she would not have a normal pregnancy."
The plaintiff filed a wrongful death action as the
Administrator of the Estate of Baby Farley. In response, the
defendants filed a motion for summary judgment pursuant to Rule 56
of the West Virginia Rules of Civil Procedure on the basis that
Baby Farley was not viable at the time of death; therefore, the
defendants argued Baby Farley was not a "person" under the wrongful
death statute, W.Va.Code, 55-7-5. After reviewing the parties'
respective motions and supporting memoranda, the circuit court
granted summary judgment in favor of the defendants.
The issue presented to this Court is narrow and one of first
impression. Although the plaintiff first argues that this case
presents a genuine issue of fact as to whether Baby Farley was a
viable child at the time of the accident, we find the more critical
issue is whether viability is the appropriate criterion to
determine whether an unborn child is a "person" within the context
of W.Va.Code, 55-7-5.See footnote 4 Our discussion and holding are limited to
this issue only, and what we say in this opinion should not be
considered as indicative of our views on other unrelated issues,
especially those on abortion. For reasons that will follow, we
find that viability is not the appropriate criterion to determine whether an unborn child is a "person" within the context of
STANDARD OF REVIEW
As a result of this case being decided on a motion for
summary judgment, we appropriately make certain factual assumptions
in order to frame the legal issues. Babbitt v. Sweet Home Chapter
of Communities for a Great Oregon, --- U.S. ----, ----, 115 S.Ct.
2407, 2412, 132 L.Ed.2d 597, 609-10 (1995). "We shall assume, as
summary judgment procedure requires us to assume, that the sole
reason for" the death of the nonviable unborn child was the accident and that Mrs. Farley would have had a normal pregnancy
absent the accident. McKennon v. Nashville Banner Pub. Co., ---
U.S. ----, ----, 115 S.Ct. 879, 883, 130 L.Ed.2d 852, 860 (1995).
As part of our review, we find it necessary to begin our analysis
of the legal issue presented by discussing the inception and
evolution of wrongful death statutes.
THE HISTORY OF
WRONGFUL DEATH ACTIONS
Consequently, bereaved families of deceased victims often were
left destitute. Keeton, et al., supra § 127 at 945.See footnote 7
Recognizing the problem with this result, the English
Parliament passed the Fatal Accidents Act of 1846, commonly
referred to as Lord Campbell's Act. 9 & 10 Vict. c. 93 (1846).
This Act permitted recovery of damages by the close relatives of a
victim who was tortiously killed. In his article Wrongful Death
and the Lost Society of the Unborn, 13 J.Legal Med. 99, 100 n. 9
(1992), Gary A. Meadows wrote the Act, in essence, provided:
"[W]henever the death of a person is caused by the
wrongful act, neglect, or default of another, in such
a manner as would have entitled the party injured to
have sued had death not ensued, an action may be
maintained if brought within twelve months after [the]
death in the name of [the] executor or administrator
for the benefit of the wife, husband, parent, and child
of the person whose death shall have been so caused."
Thus, by creating a cause of action for wrongful death, the
English Parliament rectified the disparity between a tortfeasor's
liability for injuries and for the more egregious harm, death.
Despite the passage of Lord Campbell's Act, courts in the
United States subsequently advanced various rationalizations in
support of denying a cause of action for wrongful death. 1 Stuart
M. Speiser, Charles F. Krause, Juanita M. Madole, Recovery for
Wrongful Death and Injury § 1:4 at 13 (3rd ed. 1992). T.A.
Smedley stated that American judges formulated the rationalizations
because they were "[u]nwilling to repudiate an established rule of
law" and were "unsatisfied with the historical bases for the
rule[.]" Wrongful Death--Bases of the Common Law Rules, 13
Vand.L.Rev. 605, 617 (1960). The rationalizations announced by
the various courts included the idea that it was inconsistent with
legal policy to judicially calculate the value of human life; that
permitting wrongful death actions would lead to endless cases with
large verdicts; that, in accord with Christianity, human life is
sacred and it would be revolting to compensate its loss with money;
and that it is impossible to calculate the pecuniary value of human
life. 1 Speiser, et al., supra § 1:4 at 13 (citations omitted);
Smedley, supra at 617-19.
It did not take long, however, until state legislatures began
passing laws similar to Lord Campbell's Act. The first wrongful
death statute was passed by New York in 1847.See footnote 8 22A Am.Jur.2d Death
§ 7 (1988). Currently, every state has created a cause of action
for wrongful death. 1 Speiser, et al., supra § 1:9 at 32-33. (Citation omitted). A majority of these statutes are patterned
after Lord Campbell's Act by establishing "a right of action for
losses suffered by statutorily designated beneficiaries by reason
of the death. Others, of somewhat varying types and specific
provisions, may be broadly classified as statutes under which death
damages are measured by the loss occasioned to decedent's estate by
the death." 1 Speiser, et al., supra § 1:9 at 33. The first
statute in West Virginia was passed in 1863, and "was the same in
general purpose and effect as [Lord Campbell's Act]." Swope, 78
W.Va. at 522, 89 S.E. at 286. See also Voelker, 195 W.Va. at 250,
465 S.E.2d at 250.
In Dietrich, a woman who was in her fourth or fifth month of
pregnancy slipped and fell as a result of a defective highway.
The woman miscarried the infant which was said to have lived for a
few minutes. Justice Oliver Wendell Holmes, Jr., writing for the
Supreme Judicial Court of Massachusetts, stated he was unaware of
any case "that, if the infant survived, it could maintain an action
for injuries received by it while in its mother's womb." 138 Mass.
at 15, 52 Am.Rep. at 243. Justice Holmes expressed the opinion
that the unborn infant was "a part of the mother at the time of the
injury" and any damage to the infant "which was not too remote" to
deny recovery altogether was recoverable by the mother. 138 Mass.
at 17, 52 Am.Rep. at 245. This approach, that an unborn infant
was not "an independent biological entity" from its mother, is
referred to as the " 'single entity' view[.]" Lingle, supra at
The lack of remedy for a tortiously injured unborn child
neither went unnoticed nor avoided criticism. Justice Boggs'
dissent in Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E.
638 (1900),See footnote 9 is credited with starting the movement to abolish the
theory that a tortfeasor owes no duty to an unborn child because
the child "was not in existence at the time of [the] action[.]"
Keeton, et al., supra s 55 at 367, 368 n. 13. Justice Boggs
stated that he knew of no cases at common law where a plaintiff was able to recover damages for injuries the plaintiff suffered while
in the womb. However, he quoted Lord Mansfield as stating: "
'The law of England would be an absurd science were it founded upon
precedents only. Precedents,' he observed, 'were to illustrate
principles, and to give them a fixed certainty.' 1 Kent, Comm.
477." 184 Ill. at 368, 56 N.E. at 640. Justice Boggs continued
by explaining that " 'a principle newly applied is not supposed to
be a new principle. On the contrary, it is assumed that from time
immemorial it has constituted a part of the common law of the land,
and that it has only not been applied before because no occasion
has arisen for its application.' " 184 Ill. at 369, 56 N.E. at
641. (Citation omitted).
The argument at common law was that "an unborn child was but
a part of the mother, and had no existence or being which could be
the subject-matter of injury distinct from the mother, and that an
injury to it was but an injury to the mother[.]" 184 Ill. at 370,
56 N.E. at 641. Nevertheless, Justice Boggs recognized the fact
that "[m]edical science and skill and experience" known at that
time dictated a different result. In this respect, Justice Boggs
"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; but if,
while in the womb, it reaches that pre-natal age of
viability when the destruction of the life of the
mother does not necessarily end its existence also, and
when, if separated prematurely and by artificial means from the mother, it would be so far a matured human
being as that it would live and grow, mentally and
physically, as other children generally, it is but to
deny a palpable fact to argue there is but one life,
and that the life of the mother. Medical science and
skill and experience 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
dead body of the mother." 184 Ill. at 370, 56 N.E. at
See also Meadows, supra at 106-07. Justice Boggs concluded this
passage by asking the question: "If at that period a child so
advanced is injured in its limbs or 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?" 184 Ill. at
370, 56 N.E. at 641.
It was not until 1946 that an American court departed from
the Dietrich approach. In Bonbrest v. Kotz, 65 F.Supp. 138
(D.D.C.1946), the United States District Court for the District of
Columbia addressed the question of whether a child could maintain
a right of action upon the allegation that she was injured because
of professional malpractice when she was taken from her mother's
womb. 65 F.Supp. at 139. Although the district court
distinguished its case from Dietrich on the basis that the child in
Bonbrest suffered "a direct injury" by the tortfeasor, the district
court went on to state:
"As to a viable child being 'part' of its mother--
this argument seems to me to be a contradiction in
terms. True, it is in the womb, but it is capable now
of extrauterine life--and while dependent for its
continued development on sustenance derived from its
peculiar relationship to its mother, it is not a 'part'
of the mother in the sense of a constituent element--as
that term is generally understood. Modern medicine is
replete with cases of living children being taken from
dead mothers. Indeed, apart from viability, a non-
viable foetus is not a part of its mother." 65 F.Supp.
at 140. (Footnote omitted).See footnote 10
The district court determined that logic and justice require "
'that a child, if born alive and viable[,] ... should be allowed to
maintain an action in the courts for injuries wrongfully committed
upon its person while in the womb of its mother.' " 65 F.Supp. at
142, quoting Montreal Tramways v. Leveille, 4 Dom.L.R. 337 (1933).
(Emphasis added in Bonbrest ). To permit otherwise would allow a
wrong to be inflicted for which no remedy exists. 65 F.Supp. at
141. In making this holding, the district court rejected
arguments that permitting a cause of action would result in other
cases being filed in bad faith and may result in "insuperable
difficulties of proof." 65 F.Supp. at 142-43. It is clear from
the language and analysis that both the "single entity view" and
the no-duty rule were disavowed in Bonbrest.
Following Bonbrest, "a rapid series of cases, many of them
expressly overruling prior holdings, brought about a rather
spectacular reversal of the no-duty rule." Keeton, et al., supra
§ 55 at 368. (Footnotes omitted). Indeed, today, every
jurisdiction permits recovery for prenatal injuries if a child is
born alive.See footnote 11 Restatement (Second) of Torts § 869 App., note,
subsection 1 at 79 (1982); Keeton, et al., supra § 55 at 368. In
addition, it generally does not matter whether the injury occurred
prior to or after the point of viability. Restatement (Second) of
Torts § 869 and cmt. subsection 1(d) at 276-77 (1977); 62A
Am.Jur.2d Prenatal Injuries: Wrongful Life, Birth, or Conception
§ 18 (1990).
Courts have offered various rationales for refusing to require
proof that the unborn child was viable at the time of injury.
Some have relied on "the fact that an unborn child is biologically
separate from its mother from the time of conception." 62A
Am.Jur.2d, supra § 19 at 413. This approach, referred to as the
"biological theory," presumes that an unborn child is not a "legal
person" until birth, but it imposes "conditional liability" for an
injury "which becomes unconditional or complete upon the birth of
the injured separate entity as a legal person." 62A Am.Jur.2d,
supra § 19 at 413. If an unborn child dies prior to birth, no liability attaches because no damage was inflicted on a "legal
person." 62A Am.Jur.2d, supra § 19 at 413, citing Puhl v.
Milwaukee Auto. Ins. Co., 8 Wis.2d 343, 99 N.W.2d 163 (1959),
overruled on other grounds In Re Estate of Stromsted, 99 Wis.2d
136, 299 N.W.2d 226 (1980).
Other courts confronted with an injury suffered by an unborn
child who subsequently is born alive refuse to hinge liability on
fetal viability because they have concluded that an injury
sustained "prior to viability is no less meritorious than a claim
for one sustained afterward." 62A Am.Jur.2d, supra § 19 at 413,
citing Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222 (1966). The
child suffers the same harm regardless of when the injury occurred
and, therefore, should be able to obtain the same relief. 62A
Am.Jur.2d, supra § 19 at 413, citing Smith v. Brennan, 31 N.J. 353,
157 A.2d 497 (1960).
Despite the fact that recovery generally is allowed for
prenatal injuries for a child "born alive," courts disagree upon
whether they will permit recovery for injuries causing the death of
a child en ventre sa mere. Although some jurisdictions do not
permit a wrongful death action to be maintained for the death of an
unborn child,See footnote 12 the majority of jurisdictions now do permit a wrongful death action if the unborn child had reached the point of
viability. See footnote 13 See Restatement (Second) of Torts § 369 App., supra subsection 2 at 80-81; Symonds, supra at 108; 1 Speiser, supra §
4:35 at 187.See footnote 14
General Reasons Cited for Denying Recovery
for the Tortious Death of a Viable Unborn Child
Jurisdictions that originally denied a wrongful death action for a child en ventre sa mere did so for a number of reasons that now are rejected by the majority of courts. One reason for not permitting a cause of action was the lack of precedent. See White v. Yup, 85 Nev. 527, 536, 458 P.2d 617, 623 (1969); Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis.2d 14, 21, 148 N.W.2d 107, 111 (1967). There now, however, is plenty of precedent; the clear weight of authority currently allows a cause of action for the tortious death of a viable child en ventre sa mere. See note 13, supra. Obviously, courts heeded the teachings of Lord Mansfield and Justice Boggs that stare decisis does not require static doctrines but instead permits law to evolve and to adjust to changing conditions and notions of justice as well as to varied sets of facts. Allaire, supra.
A second popular reason given to deny recovery is the "single
entity" theory as expressed in Dietrich, supra. However, through
medical science and technology, we know that this reason lacks
support, and it too has been rejected by the majority of
jurisdictions. See, e.g., White, 85 Nev. at 536-37, 458 P.2d at 623; Kwaterski, 34 Wis.2d at 21, 148 N.W.2d at 111; see also 62A
Am.Jur.2d, supra § 19 at 413.
A third reason articulated for denying recovery for the
wrongful death of a child en ventre sa mere is that it would lead
to fraudulent claims and difficulties in proof of causation and
damages. However, courts generally have concluded that such risks
do not justify a bar to legitimate claims. In Danos v. St.
Pierre, 402 So.2d 633, 638 (La.1981) (on rehearing), the Supreme
Court of Louisiana explained: "The denial of valid claims in order
to discourage fraudulent ones and to avoid difficult problems in
determining causation and fixing damages not only is totally
illogical, but also disregards the very essence of the judicial
process." See also Espadero v. Feld, 649 F.Supp. 1480, 1485
(D.Colo.1986); Hatala v. Markiewicz, 26 Conn.Sup. 358, 360-61, 224
A.2d 406, 408 (1966); Mone v. Greyhound Lines, Inc., 368 Mass.
354, 360, 331 N.E.2d 916, 919 (1975).See footnote 15
A fourth reason traditionally given for denying recovery for
the wrongful death of a child en ventre sa mere is based upon the
argument that the Legislature should determine this issue and the
courts should not expand the scope of liability beyond what was
contemplated when the wrongful death statute was enacted. In response, courts have concluded that it is incumbent upon them to
give meaning to the term "person" as used in wrongful death
statutes and, in the absence of specific legislative language, that
responsibility requires courts to supplement the law (i.e., fill in
the statutory interstices) regardless of what conclusion is
reached. In Summerfield v. Superior Court, 144 Ariz. 467, 475,
698 P.2d 712, 720 (1985), the Supreme Court of Arizona stated it is
unlikely that its legislature ever referred to the "fetus/person
issue" when it promulgated the first wrongful death statute in
1887. Therefore, the Arizona court concluded:
"The solution to this problem cannot be found in a
methodology which requires us to assume or divine a
legislative intent on an issue which most probably was
never considered. Rather, the solution must be found
in a study of the statute, the best method to further
the general goal of the legislature in adopting such a
statute, and common law principles governing its
application." 144 Ariz. at 475, 698 P.2d at 720.
See also Espadero, 649 F.Supp. at 1483; Britt v. Sears, 150
Ind.App. 487, 494-95, 277 N.E.2d 20, 24-25 (1971); Danos, 402
So.2d at 638; DiDonato v. Wortman, 320 N.C. 423, 434, 358 S.E.2d
489, 495 (1987); 84 A.L.R.3d 411, 418 (1978) ("it appears
reasonable to assume that when the wrongful death statutes have
been enacted, legislators have generally given no thought to
whether deaths of unborn children were intended to be included or
excluded, and it is thus inappropriate to regard the issue as
simply one of legislative intent").
General Reasons Cited for Permitting a
Cause of Action for the Tortious Death of a
Viable Unborn Child
Upon the belief that it was necessary to look beyond the often nonexistent legislative intent, courts have focused much of their attention on the language of the wrongful death statutes, the goals and purposes behind their enactments, and other protections afforded unborn children at common law and by statute. A wrongful death statute, such as W. Va.Code, 55-7-5, see note 1, supra, imposes three prerequisites for recovery. First, there must be a death of a "person." Second, the death must "be caused by [the] wrongful act, neglect, or default" of another. W.Va.Code, 55-7-5, in part. Third, the deceased "person" must have been entitled to a cause of action for damages if death had not occurred. In the context of an unborn child, the general question to be asked is whether the unborn child would be able to maintain a cause of action if the unborn child had lived. See DiDonato, 320 N.C. at 426, 358 S.E.2d at 491 ("[i]n plain English, an action for wrongful death exists if the decedent could have maintained an action for negligence or some other misconduct if he had survived"). See also Summerfield, 144 Ariz. at 475, 698 P.2d at 720; Werling v. Sandy, 17 Ohio St.3d 45, 47, 476 N.E.2d 1053, 1054 (1985).
As previously stated, every jurisdiction now permits a cause
of action for prenatal injuries to a viable unborn child who is
born alive. Keeton, et al., supra § 55 at 368. Thus, many
courts have determined that if a viable unborn child can maintain
a cause of action for injuries sustained if born alive, it only is
logical that the phrase "person" within the context of a wrongful
death statute should include a viable unborn child who would have
been born alive but for the tortious injury inflicted causing death
prior to birth. See Summerfield, 144 Ariz. at 475, 698 P.2d at
720; O'Grady v. Brown, 654 S.W.2d 904, 910 (Mo.1983); DiDonato,
320 N.C. at 427, 358 S.E.2d at 491; Werling, 17 Ohio St.3d at 48,
476 N.E.2d at 1055; Evans v. Olson, 550 P.2d 924, 928 (Okla.1976).
In addition, wrongful death statutes were enacted to preserve
and protect human life by deterring tortious conduct and to provide
damages when such conduct results in death. Espadero, 649 F.Supp.
at 1483; Volk v. Baldazo, 103 Idaho 570, 574, 651 P.2d 11, 15
(1982). The disparity that results from not permitting a wrongful
death action for the death of a viable unborn child while allowing
a recovery for injuries if the unborn child is born alive creates
the same injustice as existed prior to the enactment of wrongful
death statutes. In essence, with no wrongful death cause of
action for a viable unborn child, a tortfeasor is given immunity
from liability for a greater harm. Wade v. U.S., 745 F.Supp. 1573,
1579 (D.Hawaii 1990); Mone, 368 Mass. at 361, 331 N.E.2d at 920.
Some courts also have recognized that their legislatures have
taken measures to protect the interests of unborn children in other
areas of the law. See, e.g., Volk, 103 Idaho at 573, 651 P.2d at
14 ("[p]osthumous children are treated as if living at the death of
their parent for the purpose of inheriting future interests.... A
guardian ad litem may be appointed for unborn persons." (Citations
omitted)); Britt, 150 Ind.App. at 496, 277 N.E.2d at 26 ("with
respect to health regulations concerning deaths a stillbirth is
treated exactly the same as any death of any human being");
Werling, 17 Ohio St.3d at 47, 476 N.E.2d at 1054 ("[t]he rights of
an unborn child are no strangers to our law.... The intestate
rights of a posthumous child are recognized"). Compare W.Va.Code,
42-1-8 (1923) ("[p]osthumous children to take"); W.Va.Code, 41-4-1
(1972) ("[w]here no child living when will made"); W.Va.Code, 16-
5-20 (1969) ("[f]etal death registration"). Extending that
recognition to inclusion of the unborn as "persons" in wrongful
death statutes is consistent with these legislative determinations.
Tortious Death of A Viable Unborn Child
in West Virginia
In West Virginia, we recognized the right of the survivors of a viable unborn child to recover for wrongful death in Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971). In the Syllabus of Baldwin, we stated:
"Under the provisions of Sections 5 and 6, Article
7, Chapter 55, Code, 1931, as amended, the wrongful
death statute of this State, an action may be
maintained by the personal representative of a viable
unborn child for the wrongful death of such child
caused by injuries sustained by it while in the womb of
its mother resulting from the negligence of the
defendant and, upon sufficient proof, such damages as
may be recoverable under the statute may be awarded in
In making this determination, we relied, in part, upon our prior
decisions that firmly established that W.Va.Code, 55-7-5, is a
remedial statute and should be liberally construed. City of
Wheeling ex rel. Carter v. American Cas. Co., 131 W.Va. 584, 590,
48 S.E.2d 404, 408 (1948) (" '[t]he statute, being remedial, should
be liberally construed' "); Wilder v. Charleston Transit Co., 120
W.Va. 319, 322, 197 S.E. 814, 816 (1938) (" '[t]he policy of the
statute is remedial and not punitive' "). Baldwin, 155 W.Va. at
437, 184 S.E.2d at 431. In addition, we cited Steggall v. Morris,
363 Mo. 1224, 258 S.W.2d 577 (1953), for the proposition "that a
remedial statute should not be strictly construed even though it
changes a common-law rule." 155 W.Va. at 437, 184 S.E.2d at 431.
We further quoted State, Use of Odham v. Sherman, 234 Md. 179,
184, 198 A.2d 71, 73 (1964), in which the Maryland court stated
with regard to its wrongful death statute: " 'What is true of Lord
Campbell's Act is also true of the statute allowing the child's
cause of action to survive and be litigated by an administrator.
Both statutes are remedial and designed to close a gap in the
preexisting law.' " 155 W.Va. at 437, 184 S.E.2d at 431.
We next turned to the language of our wrongful death statute
and framed the issue in terms of "whether a viable unborn child
whose death is caused by the negligence of a defendant is a person
within the meaning of the statute." 155 W.Va. at 437-38, 184
S.E.2d at 432. After reviewing cases from a number of
jurisdictions on both sides of the controversy,See footnote 16 we found no merit
to the general arguments denying recovery, that is, that (1) there
was a lack of precedent, (2) an unborn viable child had no
jurisdictional existence apart from the mother, (3) it would lead
to fraud and difficulties in proof, and (4) it is in derogation of
legislative intent and should be left to the legislature to decide.
155 W.Va. at 442-43, 184 S.E.2d at 434.
On the other hand, we agreed with the arguments that permit
a cause of action. For instance, we explained that "there should
be no difference in liability when the death occurs just before or
just after the child is born." 155 W.Va. at 443, 184 S.E.2d at
435. To illustrate this point, we used an example of twins and
stated: "The injustice and the patently illogical result of
permitting an action for wrongful death in favor of the twin who is
born alive but dies within a few hours and denying such action in
behalf of the stillborn twin are self-evident and require no supporting argument." 155 W.Va. at 443-44, 184 S.E.2d at 435.
Moreover, we found that it would be absurd to impose liability for
injury to an unborn child while creating immunity for a tortfeasor
who committed a greater harm, i.e., destroying a viable unborn
child. 155 W.Va. at 444, 184 S.E.2d at 435. Without a cause of
action for the wrongful death of a viable unborn child, a wrong
could be inflicted for which no remedy would lie, a circumstance
that "is contrary to the traditional policy of the common law."
155 W.Va. at 444, 184 S.E.2d at 435.See footnote 17 Finally, we observed that
the law confers significance on the unborn's existence in other
contexts: "An unborn child possesses certain rights at common
law," including having a legacy, guardian, and estate. 155 W.Va.
at 446, 184 S.E.2d at 435, citing Blackstone's Commentaries, Book
1, at 129-30 (1860).
DEATH OF A NONVIABLE UNBORN CHILD
First, we agree with those jurisdictions that hold a tortious injury suffered by a nonviable child en ventre sa mere who subsequently is born alive is compensable and no less meritorious than an injury inflicted upon a viable child who subsequently is born alive.See footnote 18 To declare otherwise not only would lead to unjust and inequitable results but also would be contrary to the underlying philosophies of our tort law. In this respect, viability at the time of the injury is "a mere theoretical abstraction"See footnote 19 if a child born alive suffers from a pre-viability tort as opposed to a post-viability tort.
Turning to a cause of action for wrongful death, we confront
the issue of whether "viability" is the proper line upon which we
should permit a cause of action. With the exception of Georgia,
which allows recovery after an unborn child is quick in the womb,See footnote 20
and Missouri, which found legislative direction to hold a nonviable
child is a "person" under its wrongful death statute,See footnote 21 we are not
aware of any other cases that permit recovery for injury prior to
viability unless there is a live birth.See footnote 22 As previously stated, however, a lack of precedent--standing alone--is an insufficient
reason to deny a cause of action.See footnote 23 Rather, we must examine the
reasons for the dearth of precedent and determine whether those
reasons give due cause for refusing to extend the law. After
reviewing a number of nonviable unborn child decisions in
jurisdictions that permit a cause of action for a viable unborn
child, we can find no legitimate or persuasive reason to infuse the
distinction into West Virginia's statute.See footnote 24 We do not believe that
proper application of stare decisis prevents us from rejecting an
unjustified and unpersuasive majority position. Nor does
abandoning the majority position in any way cause harm to any West Virginia interest. "Primary behavior is not affected: no rule of
conduct is retroactively changed[.]" Allied-Bruce Terminix Cos.,
Inc. v. Dobson, --- U.S. ----, ----, 115 S.Ct. 834, 845, 130
L.Ed.2d 753, 771 (1995). (Scalia, J., dissenting). The law
merely is made applicable and beneficial to a broader class of
In jurisdictions where the viability standard is controlling,
the tortfeasor remains unaccountable for the full extent of the
injuries inflicted by his or her wrongful conduct. In our
judgment, justice is denied when a tortfeasor is permitted to walk
away with impunity because of the happenstance that the unborn
child had not yet reached viability at the time of death. The
societal and parental loss is egregious regardless of the state of
fetal development. Our concern reflects the fundamental value
determination of our society that life--old, young, and
prospective--should not be wrongfully taken away. In the absence
of legislative direction, the overriding importance of the interest
that we have identified merits judicial recognition and protection
by imposing the most liberal means of recovery that our law
As explained by Justice Maddox in his dissent in Gentry v.
Gilmore, 613 So.2d 1241, 1246 (Ala.1993), in construing Alabama's
wrongful death statute, the phrase "minor child" should be interpreted to include a nonviable unborn child. To give it such
a construction, Justice Maddox said, would
"(1) promote the purpose of the wrongful death statute,
which is to prevent the wrongful termination of life,
even potential life; (2) facilitate the legislature's
intent to protect nonviable fetal life, as expressed in
other statutes concerning abortion and fetal deaths;
and (3) be logically consistent with prior decisions of
this Court that have, in my opinion, rejected what I
believe are artificial distinctions based on viability
and live birth as conditions for recovery." 613 So.2d
In addition, Justice Maddox stated that "in distinguishing
between viability and nonviability of the fetus as a condition for
the application of Alabama's Wrongful Death Act, [one] necessarily
resurrect[s] the same distinctions that led to the adoption of
wrongful death statutes in the first place." 613 So.2d at 1246.
Justice Maddox further reasoned:
"To deny a cause of action rewards tortfeasors who
inflict fatal injuries upon nonviable fetuses, by
allowing them to escape liability based upon what I
think is an artificial distinction that focuses more on
the status of the life that has been wrongfully
terminated than upon the wrongful conduct that caused
the death. Such a holding produces an anomalous
result." 613 So.2d at 1246.
These common-sense principles as set forth by Justice Maddox apply
equally as well to the death of a nonviable unborn child as they do
to a nonviable unborn child who suffers a tortious injury and
survives birth and a viable unborn child who suffers a tortious
injury and dies en ventre sa mere. Wrongful death statutes, after all, are designed to provide economic compensation to the surviving
family. When a family loses a potential member because of
tortious conduct, it suffers an injury of the same orderSee footnote 25 as that
which occurs when it loses an existing member. The statute allows
recovery for the loss of a life that would have provided love and
sustenance but for the intervening tort.
As this Court previously has held, W.Va.Code, 55-7-5, is
remedial in nature and should be liberally construed. Baldwin, 155
W.Va. at 437, 184 S.E.2d at 431. In light of our previous
interpretation of W.Va.Code, 55-7-5, and the goals and purposes of
wrongful death statutes generally, we, therefore, hold that the
term "person," as used in this statute and the equivalent language
in its counterpart, W.Va.Code, 55-7-6 (1992),See footnote 26 encompasses a
nonviable unborn child and, thus, permits a cause of action for the
tortious death of such child.
We recognize that the closer one gets to the moment of
conception, the more substantial becomes the potential for
fraudulent claims and for increased difficulties in resolving some
issues of causation and damages. However, those risks are no more of a justification to erect a bar to legitimate claims in this
context than they were when we dismissed them as a reason for
rejecting claims relating to viable unborn children in Baldwin.
Moreover, our holding in this case eliminates the need for trial
courts to decide what often could be an extremely difficult factual
question, i.e., whether the fetus was "viable." For reasons
stated above and in Baldwin, we also reject the argument that the
legal question presented here should be left to the Legislature.
Although we invite legislative direction on this matter, it is
clear from the statute that the Legislature has not confronted the
issue we must decide here, and, therefore, it is the duty of this
Court to reach that decision which is most consistent with the
purposes of the wrongful death law and which best comports with our
sense of justice. We believe our holding meets that duty.
Several observations about today's decision are in order.
Our definition of "person" within the confines of the wrongful
death statute neither affects nor interferes with the
constitutional protection afforded a woman who chooses to have an
abortion, as was set forth originally in Roe v. Wade, 410 U.S. 113,
93 S.Ct. 705, 35 L.Ed.2d 147 (1973).See footnote 27 The abortion question simply
is not relevant to wrongful death. As Symonds, supra at 113 n.
68, stated, the United States Supreme Court in Roe v. Wade "limited its statement that an unborn child is not a person to the specific
terms of the fourteenth amendment." (Citation omitted). Symonds
"[T]he decision to allow abortion does not depend on
the same policies and justifications as does the
decision to allow a cause of action for the wrongful
death of a fetus. While the fetus may not be a
'person' for the purposes of the fourteenth amendment,
it may be a 'person' for the purposes of a state's
wrongful death statute. Furthermore, while a woman's
right to privacy is the policy involved in the abortion
decision, the policy that a tortfeasor should not
escape liability is involved in the wrongful death
decision. One decision does not solve the controversy
of the other."
See also Lingle, supra at 490 ("recognizing a fetus as a 'person'
for purposes of the Arkansas wrongful death statute does not run
afoul of the decision in Roe v. Wade, nor should it be in conflict
with the intent of the statute"); Meadows, supra at 112 n. 123
(given the different policies governing abortion and wrongful death
decisions " 'it may be necessary to accept some inconsistency and
conclude that prenatal life will be protected against intentional
or negligent interference, absent some compelling countervailing
interest' "), quoting David Kader, The Law of Tortious Prenatal
Death Since Roe v. Wade, 45 Mo.L.Rev. 639, 660 (1980). (Emphasis
in original)). See generally Summerfield, 144 Ariz. at 477-78,
698 P.2d at 722-23 (the Supreme Court of Arizona stated that the
definition of "person" for purposes of the Fourteenth Amendment to
the United States Constitution does not control the way the term
may be interpreted in another context, i.e., a wrongful death statute).See footnote 28 To be clear, a wrongful death action will not lie
against a woman who chooses to exercise her constitutional right to
have an abortion.See footnote 29 By definition, if a woman has a constitutional
right to decide whether to carry an unborn child to term or abort
it, then the act of aborting is not tortious. In such cases, the
reasons for invoking the wrongful death statute do not apply;
there is no tortious conduct to deter.
Although we have answered the question presented to this
Court given the current language in our wrongful death statute, we
strongly encourage the Legislature to define the word "person" to
deal with future problems that may arise--especially with regard to
medical technology that now enables conception outside the mother's
womb and pre-conception torts.See footnote 30 As stated in note 3, supra, this opinion is limited to an unborn child who is en ventre sa mere.
Reversed and Remanded.
Footnote: 1 In relevant part, W.Va.Code, 55-7-5, states:
"Whenever the death of a person shall be caused by
wrongful act, neglect, or default, and the act, neglect or
default is such as would (if death had not ensued) have entitled
the party injured to maintain an action to recover damages in
respect thereof, then, and in every such case, the person who,
or the corporation which, would have been liable if death had
not ensued, shall be liable to an action for damages,
notwithstanding the death of the person injured, and although
the death shall have been caused under such circumstances as
amount in law to murder in the first or second degree, or
The person who may bring an action for wrongful death, the
amount and the distribution of damages, and the statute of
limitations for bringing such an action are set forth in
W.Va.Code, 55-7-6 (1992).
Footnote: 2 Dr. Gilbert indicated that the gestational age of Baby Farley was an estimate because more accurate testing is not performed on a normal pregnant woman until her twentieth week of pregnancy and Mrs. Farley had not reached that point when calculated from her last menses.
Footnote: 3 At this gestational age of development, an unborn child often is referred to as a fetus. Biologically, a fetus is defined as "the unborn offspring in the post embryonic period after major structures have been outlined (in man from seven or eight weeks after fertilization until birth)." Black's Law Dictionary 621 (6th ed. 1990). Between the second and eighth week of development after fertilization is referred to as the "embryo" stage. The first week after fertilization is called
the "ovum" stage. See Taber's Cyclopedic Medical Dictionary E- 19 (13th ed. 1977). Although we recognize the biological distinction among the ovum, embryo, and fetus stages, this distinction largely is irrelevant to this opinion because we are concerned with the concept of viability and the time frame from conception to viability and viability to birth.
Throughout the cases and literature reviewed and cited by
this Court, the terms "fetus" and "unborn child" frequently are
used interchangeably. (The common definition of "child" includes
"an unborn ... person[.]" Webster's New Collegiate Dictionary,
first definition, in part, 191 (1979)). By our use of the
phrase "unborn child" in the context of this opinion, we are
sensitive to those who may have philosophical, religious, or
other reasons why they prefer the term "fetus" over the phrase
"unborn child" or vice versa. In this respect, our reference is
not designed to pass judgment upon these reasons nor do we intend
to invoke an emotional response on the part of the reader. For
purposes of this opinion, we frame the issue in the context of
the phrase "unborn child" to encompass all stages of development
after conception where the medical definition of "fetus" limits
the developmental time frame.
We also explicitly limit this holding to unborn children who
are en ventre sa mere and decline to address the issues that may
arise with advances in medical technology now enabling conception
outside the womb. In addition, we decline to address *535. the
area of preconception torts that may result in the death of an
In Black's Law Dictionary at 534, the phrase "en ventre sa
mere" is defined as: "In its mother's womb. A term descriptive
of an unborn child. For some purposes the law regards an infant
en ventre as in being. It may take a legacy; have a guardian;
an estate may be limited to its use, etc." (Citations omitted).
Footnote: 4 We do not mean to suggest that the plaintiff's contention regarding the existence of a genuine issue of material fact is frivolous. Rather, we choose to take the more definitive route and decide the conclusive and dispositive legal question. We express no opinion whether the record could support a remand to the circuit court on this issue alone.
Footnote: 5 Cf. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 381-86, 90 S.Ct. 1772, 1777-80, 26 L.Ed.2d 339, 346-49 (1970). In Justus v. Atchison, 19 Cal.3d 564, 573, 139 Cal.Rptr. 97, 103, 565 P.2d 122, 128 (1977), overruled on other grounds Ochoa v. Superior Court, 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1 (1985), the Supreme Court of California stated that Moragne "cast doubt on the historical basis of the first of these beliefs, i.e., that no cause of action for wrongful death existed at common law" when the Supreme Court "recognized a cause of action for wrongful death under general maritime law."
Footnote: 6 The English common law had the following three restrictive rules with regard to the death of an individual in a personal injury case:
"1. If the tortfeasor died before the victim recovered
for the tort, the victim's right of action died with him.
"2. If the victim of a tort himself died (from whatever
cause) before he recovered in tort, the victim's right of
action also died.
"3. If the tortfeasor caused a victim's death,
relatives and dependents of the victim who were deprived of
financial support or who suffered emotional loss, had no
cause of action of their own."
Keeton, et al., supra s 125A at 940. (Footnotes omitted).
The first two rules have been replaced by " 'survival
statutes,' which permit the cause of action the victim
himself owned at the time of tort to survive so that it may
be carried on if either the plaintiff or defendant dies.
The third rule has been changed by acts generally known as
'wrongful death' statutes." Keeton, et al., supra s 125A
Footnote: 7 This rule was subject to sharp criticism. William L. Prosser stated Lord Ellenborough's "forte was never common sense[.]" Torts § 127 at 901 (4th ed. 1971).
Footnote: 8 Laws of 1847, Ch. 450.
Footnote: 9 Allaire was overruled in Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412 (1953).
Footnote: 10 The district court also said that "[f]rom 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." 65 F.Supp. at 140. (Footnote omitted). For the definition of "en ventre sa mere," see note 3, supra.
Footnote: 11 See, e.g., Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973); Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960); Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951).
Footnote: 12 See Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995); Justus v. Atchison, 19 Cal.3d 564, 565 P.2d 122, 139 Cal.Rptr. 97 (1977); Hernandez v. Garwood, 390 So.2d 357 (Fla.1980); Smith v. Columbus Com. Hosp. Inc., 222 Neb. 776, 387
N.W.2d 490 (1986); Egbert v. Wenzl, 199 Neb. 573, 260 N.W.2d 480 (1977); Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139 (1988); Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901 (1969); Blackman v. Langford, 795 S.W.2d 742 (Tex.1990); Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969).
Footnote: 13 See Espadero v. Feld, 649 F.Supp. 1480 (D.Colo.1986); Simmons v. Howard Univ., 323 F.Supp. 529 (D.D.C.1971); Wade v. U.S., 745 F.Supp. 1573 (D.Hawaii 1990); Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974); Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985); Hatala v. Markiewicz, 26 Conn.Sup. 358, 224 A.2d 406 (Super.Ct.1966); Worgan v. Greggo & Ferrara, Inc., 50 Del. 258, 128 A.2d 557 (Super.Ct.1956); Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982); Seef v. Sutkus, 145 Ill.2d 336, 164 Ill.Dec. 594, 583 N.E.2d 510 (1991); Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20 (1971); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962); Rice v. Rizk, 453 S.W.2d 732 (Ky.Ct.App.1970); Danos v. St. Pierre, 402 So.2d 633, 637 (La.1981) (rehearing opinion); State, Use of Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331 N.E.2d 916 (1975); O'Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971); Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949), limited on other grounds State v. Soto, 378 N.W.2d 625 (Minn.1985); Terrell v. Rankin, 511 So.2d 126 (Miss.1987); Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954); Connor v. Monkem Co., Inc., 898 S.W.2d 89 (Mo.1995) (En Banc) (permits wrongful death action for unborn child even prior to viability); Strzelczyk v. Jett, 264 Mont. 153, 870 P.2d 730 (1994); White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969); Wallace v. Wallace, 120 N.H. 675, 421 A.2d 134 (1980); Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957); Salazar v. St. Vincent Hosp., 95 N.M. 150, 619 P.2d 826 (Ct.App.), writ quashed 94 N.M. 806, 617 P.2d 1321 (1980); DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987); Hopkins v. McBane, 359 N.W.2d 862 (N.D.1984); Werling v. Sandy, 17 Ohio St.3d 45, 476 N.E.2d 1053 (1985); Evans v. Olson, 550 P.2d 924 (Okla.1976); Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636 (1974); Coveleski v. Bubnis, 535 Pa. 166, 634 A.2d 608 (1993); Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Farley v. Mount Marty Hosp. Assoc., Inc., 387 N.W.2d 42 (S.D.1986); Vaillancourt v. Medical Ctr. Hosp. of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980); Cavazos v. Franklin, 73 Wash.App. 116, 867 P.2d 674 (1994); Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975); Baldwin v. Butcher, 155 W.Va. 431, 184
S.E.2d 428 (1971); Kwaterski v. State Farm Mut. Auto. 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 womb").
Footnote: 14 It was only three years after the landmark decision of Bonbrest that the Supreme Court of Minnesota was faced with the wrongful death issue. In another landmark decision, Verkennes v. Corniea, the court determined that a cause of action does arise for the death of an unborn child as the result of another's wrongful act or omission. 229 Minn. at 370, 38 N.W.2d at 841. The court stated in Syllabus Point 2:
"Under wrongful-death statute, personal representative of
unborn child alleged to be viable and capable of separate
and independent existence, whose death is alleged to have
been caused by the wrongful acts or omissions of the
physician in charge of the mother and of the hospital in
which she was confined, may maintain an action therefor on
behalf of the next of kin of such deceased child."
The court further stated that "[i]t seems too plain for
argument that where independent existence is possible and
life is destroyed through a wrongful act a cause of action
arises under the [wrongful death] statutes[.]" 229 Minn. at
370-71, 38 N.W.2d at 841. In Verkennes, both the mother
and the child died during childbirth, and the viability of
the unborn child was not questioned. 229 Minn. at 366, 371,
38 N.W.2d at 839, 841.
Footnote: 15 Similarly, the view that to allow recovery for a child en ventre sa mere would promote double recoveries is insufficient to deny recovery. See Mone, 368 Mass. at 359, 331 N.E.2d at 919; Kwaterski, 34 Wis.2d at 21, 148 N.W.2d at 111.
Footnote: 16 One case cited in Baldwin was Panagopoulous v. Martin, 295 F.Supp. 220 (S.D.W.Va.1969). Although not binding upon this Court, the federal district court determined that a viable unborn child is a "person" in the context of W.Va.Code, 55-7-5.
Footnote: 17 In this respect, in Baldwin we found: "It is well established that the mother can not recover damages for the loss of her stillborn child and unless an action in behalf of the child can be maintained no recovery can be had for a tort which is separate and independent of that which caused the injuries of the mother for which she can recover." 155 W.Va. at 444, 184 S.E.2d at 435.
Footnote: 18 See Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960); Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222 (1966); Restatement (Second) Torts, supra s 869 and comt. (d) at 276-77; 62A Am.Jur.2d, supra ss 18 and 19 at 412-13.
Footnote: 19 Allaire, 184 Ill. at 370, 56 N.E. at 641. (Boggs, J., dissenting).
Footnote: 20 See note 13, supra.
Footnote: 21 See Connor, supra.
Footnote: 22 In Kalafut v. Gruver, 239 Va. 278, 284, 389 S.E.2d 681, 684 (1990), the Supreme Court of Virginia indicated a child must be born alive to be able to recover regardless of whether the child is viable or not. "Thus, an action may be maintained for recovery of damages for any injury occurring after conception, provided the tortious conduct and the proximate cause of the harm
can be established." 239 Va. at 284, 389 S.E.2d at 684.
In dictum in Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976), the Supreme Court of Rhode Island indicated it would permit a cause of action for the wrongful death regardless of viability. However when directly confronted with the issue in Miccolis v. AMICA Mut. Ins. Co., 587 A.2d 67 (R.I.1991), the court refused to allow the action.
Footnote: 23 Cases denying a cause of action on the basis of viability have been subject to overwhelming criticism. See Lingle, supra; Michael P. McCready, Recovery for the Wrongful Death of a Fetus, 25 U.Rich.L.Rev. 391 (1991); Symonds, supra; Meadows, supra. For a list of other authorities, see also Gentry v. Gilmore, 613 So.2d 1241, 1248-49 (Ala.1993). (Maddox, J., dissenting). Indeed, landmark decisions become landmark because they establish new, groundbreaking precedent. See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
Footnote: 24 See Mace v. Jung, 210 F.Supp. 706 (D.Alaska 1962); Kandel v. White, 339 Md. 432, 663 A.2d 1264 (1995); Fryover v. Forbes, 433 Mich. 878, 446 N.W.2d 292 (1989); Wallace, supra; Miller v. Kirk, 120- N.M. 654, 905 P.2d 194 (1995); Guyer v. Hugo Pub. Co., 830 P.2d 1393 (Okla.App.1991); Coveleski, supra; Miccolis, supra.
Footnote: 25 Concededly, the degree of bonding and love toward an unborn child may not be as great as that which would extend toward the deceased in the more typical wrongful death case. That fact, however, goes to the question of damages and not to actionability.
Footnote: 26 See note 1, supra.
Footnote: 27 See also Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); Webster v. Reproductive Health Serv., 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989).
Footnote: 28 For the foregoing reasons, we disagree with those jurisdictions that appear to limit the use of the term "person" in wrongful death statutes to the United States Supreme Court's interpretation of "person" in the Fourteenth Amendment context. See Justus, 19 Cal.3d at 577-78, 139 Cal.Rptr. at 106, 565 P.2d at 131.
Footnote: 29 Similarly, we do not find that our determinations in a criminal context control our conclusions in a wrongful death context. See State ex. rel. Atkinson v. Wilson, 175 W.Va. 352, 355, 332 S.E.2d 807, 810 (1984) (recognizing "a distinction between a court's power to evolve common law principles in areas in which it has traditionally functioned, i.e., the tort law, and in those areas in which the legislature has primary or plenary power, i.e., the creation and definition of crimes and penalties." In Syllabus Point 2, we stated: "Neither our murder statute, W.Va.Code, 61-2-1, nor its attendant common law principles authorize prosecution of an individual for the killing of a viable unborn child").
Footnote: 30 The Legislature should take such action after careful and reflective consideration of the complexities of the issue before it. Any legislation adopted must provide in clear and plain language the intent of the Legislature. For current examples of state legislation, see Ill.Ann.Stat. ch. 740, Civ.Liab. Act 180, para. 2.2 (Smith-Hurd 1995); S.D. Codified Laws Ann. § 21-5-1 (1984); Tenn.Code Ann. § 20-5-106(c) (1991).