 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cavazos v. Franklin2/22/1994
Dianne Franklin seeks review of the denial of her motion for summary judgment, contending there is no cause of action under the survival statute, RCW 4.20.046, for a viable unborn child who was negligently killed in an automobile accident. We affirm.
Karla Cavazos was 8 months pregnant when Dianne Franklin's vehicle rear-ended her vehicle at a stoplight. The collision occurred at 12:40 p.m. on May 7, 1991. Later that day, doctors confirmed that Ms. Cavazos' unborn child, who until then had been healthy, had died. Ms. Cavazos conferred with her husband and decided to have labor induced; after 27 hours of hard labor, a stillborn baby boy was delivered on May 9, 1991. The pathologist report prepared by Dr. Michael R. Cummings indicated that the mechanism of death was "blunt organ trauma resulting from maternal seat belt injury associated with motor vehicle accident."
On October 17, 1991, Mr. and Mrs. Cavazos were appointed coadministrators of the estate of the unborn baby Cavazos. On November 27, they filed a complaint against Ms. Franklin for personal injuries and wrongful death proximately caused by her negligence. The requested damages included loss of income, permanent destruction of earning capacity, medical, funeral, and burial expenses, and general damages.
On May 7, 1992, Superior Court Judge Carolyn Brown denied Ms. Franklin's motion for summary judgment dismissal of the wrongful death claim for the estate of the unborn child. Ms. Franklin's motion for discretionary review in this court was granted.
In reviewing an order of summary judgment, the appellate court undertakes the same inquiry as the trial court and determines whether the moving party has shown "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Hartley v. State, 103 Wash. 2d 768, 774, 698 P.2d 77 (1985). The court must consider the materials submitted and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982).
The sole issue in this appeal is one of law: whether the personal representative of a viable unborn child who was killed by a third party's negligence may maintain a survival cause of action under RCW 4.20.046. While Washington has not yet ruled on this particular question, the issue rests on familiar principles of Washington law.
[2, 3] Washington statutes have created three causes of action which may apply to the tortious death of a child. RCW 4.20.010; RCW 4.20.046; RCW 4.24.010. These statutes, being remedial in nature, are to be liberally construed. Gray v. Goodson, 61 Wash. 2d 319, 324, 378 P.2d 413 (1963); Johnson v. Ottomeier, 45 Wash. 2d 419, 423, 275 P.2d 723 (1954). The Legislature enacted these statutes to remedy an anomalous twist in the common law which allowed victims of tortious injury to sue if they survived, but barred their claims if they died:
The result was that it was more profitable for the defendant to kill the plaintiff than to scratch him, and that the most grievous of all injuries left the bereaved family of the victim, who frequently were destitute, without a remedy.
Warner v. McCaughan, 77 Wash. 2d 178, 182, 460 P.2d 272 (1969) (quoting William L. P
Page 1 2 3 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|