Cavazos v. Franklin2/22/1994
rosser, Torts ยง 121 (3d ed. 1964)).
The Cavazoses' cause of action is brought under the general survival statute, RCW 4.20.046. This statute, passed
by the Legislature in 1961, was fashioned to remedy confusion that had arisen under predecessor statutes. See Walton v. Absher Constr. Co., 101 Wash. 2d 238, 243, 676 P.2d 1002 (1984); Harvey v. Cleman, 65 Wash. 2d 853, 856-57, 400 P.2d 87 (1965); Cooper v. Runnels, 48 Wash. 2d 108, 112-13, 291 P.2d 657, 57 A.L.R.2d 597 (1955). The statute was made to state, unequivocally, that all causes of action survive the death of either party. Walton, at 243; Warner, at 182; Harvey, at 857.
It is well-settled law that the estate of a person who dies after birth can maintain a survival cause of action under RCW 4.20.046. Criscuola v. Andrews, 82 Wash. 2d 68, 69, 507 P.2d 149 (1973); Balmer v. Dilley, 81 Wash. 2d 367, 370-71, 502 P.2d 456 (1972); Hinzman v. Palmanteer, 81 Wash. 2d 327, 329-32, 501 P.2d 1228 (1972).
RCW 4.20.046 does not create a separate claim for the decedent's survivors; it merely preserves the causes of action a person could have maintained had he or she not died. White v. Johns-Manville Corp., 103 Wash. 2d 344, 358, 693 P.2d 687, 49 A.L.R.4th 955 (1985). Thus, the only prerequisite to maintaining a survival action is that the decedent could have maintained the action had he or she lived. Moen v. Hanson, 85 Wash. 2d 597, 599, 537 P.2d 266 (1975).
Washington law has clearly held that one who is injured before birth by another's negligence may recover damages for the injury if he or she lives after birth. Seattle-First Nat'l Bank v. Rankin, 59 Wash. 2d 288, 291, 367 P.2d 835 (1962). Rankin, at 291, held:
The precise question presented, therefore, is whether one who is injured prior to birth by the negligence of another may recover, after birth, damages for the injury . . . . We have examined the cases in point, and conclude that the more just rule is that which permits a claim to recover for prenatal injuries.
Moen, at 599, relied on precisely the same reasoning: "if the Moen child had survived the collision, he would have been able to pursue a cause of action on his own behalf for any injuries sustained en ventre sa mere." (Italics ours.)
Therefore, the unborn baby Cavazos could have maintained a cause of action for the negligent injuries sustained in the womb had he lived to be born. Rankin, at 291; Moen, at 599. Thus, by operation of the general survival statute, his cause of action survives to his personal representatives. RCW 4.20.046; Walton, at 243; Criscuola, at 69; Warner, at 182. The viable Cavazos child suffered a prenatal injury , but died a few hours before labor was induced. To deny a cause of action in this case would revert back to the old twist of common law, which made it more profitable to kill than to injure, and would directly contravene the remedial purposes of Washington statutory law.
This conclusion is consistent with related Washington cases. Moen v. Hanson, supra, has held that a viable unborn child is a "minor child" for purposes of RCW 4.24.010; thus, the parents of such minor child
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