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Crosby v. Glasscock Trucking Co.5/22/2000
Appeal From Greenville County Charles B. Simmons, Jr., Special Circuit Court Judge
Reheard July 23, 1997
AFFIRMED
Appellant commenced this action for wrongful death in his capacity as personal representative of the estate of his stillborn child. The trial judge granted respondents' motion for summary judgment on the ground a nonviable stillborn fetus cannot maintain such an action. We affirm.
FACTS
Respondent Kristie Crosby was twenty weeks pregnant when she was injured in a automobile accident. The car she was driving collided with a truck owned and operated by respondent Glasscock Trucking Co., Inc. It is undisputed the fetus Kristie was carrying was nonviable at the time of the accident. The fetus was delivered stillborn later the same day.
DISCUSSION
Appellant commenced this action pursuant to S.C. Code Ann. §15-51 10 (1976) which allows for a civil action to recover damages for the wrongful death of a "person." When enacted, our wrongful death statute created a new cause of action in derogation of the common law rule that a tort action dies with the death of the injured person. In re: Mayo's Estate, 60 S.C. 401, 38 S.E. 634, 638 (1901). A statute creating a cause of action in derogation of common law is a statute of creation. Simpson v. Sanders, 314 S.C. 413, 445 S.E.2d 93 (1994); Hyder v. Jones, 271 S.C. 85, 245 S.E.2d 123 (1978). Such a statute must be strictly construed and its application must not be extended beyond the clear intent of the legislature. Davenport v. Summer, 273 S.C. 771, 259 S.E.2d 815 (1979).
Construing this statute, in West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958), we held a nonviable stillborn fetus cannot maintain a wrongful death action. West is still valid and controls this case. To justify overruling West, the dissent posits hypothetically that a nonviable fetus could maintain a cause of action if born alive and therefore a stillborn nonviable fetus should have the same right. The fact that a fetus is born alive, however, is indisputable evidence that it is viable because it has in fact lived independently of its mother. See Hudak v. George, 535 Pa. 152, 634 A.2d 600 (1993) (infant born alive is a person and concept of viability is irrelevant when infant survives birth). Allowing an action by a nonviable but born alive fetus is therefore fundamentally different from a case such as this where the fetus is not born alive.
A mother who is negligently injured by the same act that results in the stillbirth of her fetus may, of course, seek recovery for her own personal injuries. The dissent would have us go further by allowing an independent civil action on the fetus's behalf. Such an action could in fact be brought against the mother where the mother herself is alleged to be negligent in the death of her nonviable stillborn fetus, as in this case, or where the mother has exercised her right to a legal abortion. See S.C. Code Ann. § 44-41-20 (1985). Further, such a civil suit could encompass liability for personal conduct of the mother that allegedly affects the fetus. While we understand the devastating loss of an unborn child, we are not convinced.of the soundness of such a policy.
Consistent with our decision in West, the majority of courts have held a nonviable stillborn fetus cannot maintain an independent wrongful death action. See, e.g., Gentry v. Gilmore, 613 So.2d 1241 (Ala. 1993); Humes v. Clinton, 246 Kan. 590, 792 P.2d 1032 (1990); Kandel v. White, 339 Md. 432, 663 A.2d 1264 (1995); Thibert v. Milka, 419 Mass. 696, 646 N.E.2d 1025 (1995); Wallace v. Wallace, 120 N.H. 675, 421 A.2d 134 (1980); Coveleski v. Bubnis, 535 Pa. 166, 634 A.2d 6
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