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Farley v. Sartin
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1995 Term ____________ No. 22797 ____________ KENNETH FARLEY, AS ADMINISTRATOR OF THE ESTATE OF BABY FARLEY, AN UNBORN CHILD, Plaintiff Below, Appellant V. BILLY R. SARTIN AND LEE SARTIN TRUCKING COMPANY, INC., Defendants Below, Appellees __________________________________________________ APPEAL FROM THE CIRCUIT COURT OF WAYNE COUNTY HONORABLE ROBERT G. CHAFIN, JUDGE CIVIL ACTION NO. 93-C-503 REVERSED AND REMANDED __________________________________________________ Submitted: September 19, 1995 Filed: December 13, 1995 Donald R. Jarrell Wayne, West Virginia Attorney for Appellant Roger Forman Forman & Crane 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 Policy Attorney for Appellees New York, New York 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.

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Syllabus by the Court 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. CLECKLEY, Justice: 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 court. I. 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 twentytwo 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 W.Va.Code, 55-7-5. II. STANDARD OF REVIEW We review a circuit court's entry of summary judgment de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Moreover, whether viability is the appropriate criterion to determine if an unborn child is a "person" within the context of the wrongful death statute is purely a question of law, and we give questions of law de novo and plenary review. See State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 776, 461 S.E.2d 516, 522 (1995) ("[a]s a result of this inquiry being strictly a matter of statutory construction, our power of

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interpretive scrutiny is plenary") (citation omitted); Burnside v. Burnside, 194 W.Va. 263, 265, 460 S.E.2d 264, 266 (1995) ("questions of law and statutory interpretations are subject to de novo review") (citation omitted). 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. III. THE HISTORY OF WRONGFUL DEATH ACTIONS A. Generally At common law, there was no cause of action for the wrongful death of a person. Voelker v. Frederick Business Props. Co., 195 W.Va. 246, 250, 465 S.E.2d 246, 250 (1995); Swope v. Keystone Coal and Coke Co., 78 W.Va. 517, 522, 89 S.E. 284, 286 (1916).See footnote 5 In Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808), Lord Ellenborough wrote that "[i]n a civil Court, the death of a human being could not be complained of as an injury[.]" In essence, the cause of action died with the victim, and there was no compensation for the victim's dependents or heirs. W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, David G. Owen, Prosser and Keeton on Torts s 127 at 945 (5th ed. 1984).See footnote 6 Under this harsh rule, tortfeasors, who otherwise would have been liable for their victims' injuries, escaped all liability when the injuries were severe enough to kill the victims. Consequently, bereaved families of deceased victims often were left destitute. Keeton, et al., supra

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