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Horn v. Hendrickson3/29/2005
lude that it does not." Bolin, 764 N.E.2d 203. In the remainder of the opinion the court explained its rationale and ultimately concluded that "only children born alive" fall under the statute. Id. at 207.
Despite Horn's arguments to the contrary, our supreme court's opinion in Bolin means that her viable fetus was not a "child" as defined under the statute. It is true that, in appellate opinions, statements not necessary for the determination of the issues presented are non-binding obiter dictum. See Koske v. Townsend Eng'g Co., 551 N.E.2d 437, 443 (Ind. 1990) (citing Szilaggi v. State ex. rel. La Porte Cmty. Sch. Corp., 249 Ind. 407, 410, 233 N.E.2d 181, 183 (1967)). In Bolin the court not only concluded that an eight- to ten-week-old fetus does not fit the definition of "child," 764 N.E. 2dn 203, but declared that when the legislature enacted the statute, it "intended that only children born alive fall under ." Id. at 207. Thus, Horn has made a credible argument that Bolin addressed a larger question than the facts required.
Our supreme court's holding in Bolin is nevertheless clear: only a child "born alive" fits the definition of "child" under the child wrongful death statute ("the statute"). Id. In reaching that conclusion, the court declared a "bright line" test. Despite the salient factual difference here, namely, that Horn's fetus was viable, the Bolin opinion categorically precludes all parents from bringing a wrongful death claim for the death of a viable or non-viable fetus.
It is not this court's role to reconsider or declare invalid decisions of our supreme court. As we explained in Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002), trans. granted, then grant of trans. vacated:
We are bound by the decisions of our supreme court. Supreme court precedent is binding upon us until it is changed either by that court or by legislative enactment. While Indiana Appellate Rule 65(A) authorizes this court to criticize existing law, it is not this court's role to "reconsider" supreme court decisions.
(Citations omitted); see also Stytle v. Angola Die Casting Co., 806 N.E.2d 339, 345 (Ind. Ct. App. 2004) (citing Computer Co., Inc. v. Davidson Indus., Inc., 623 N.E.2d 1075, 1079 (Ind. Ct. App. 1993), overruled on other grounds). And as Justice Sullivan noted in Floyd v. State, 650 N.E.2d 28, 35 (Ind. 1994), the Court of Appeals is well aware of the controlling precedents of our supreme court and has no desire to proceed in conflict with them. We are an intermediate appellate court. Thus, Horn's request that we reconsider the holding in Bolin is inappropriate.
Still, our supreme court has sometimes revisited previously decided issues. In Mullin v. City of South Bend, 639 N.E.2d 278, 283-84 (Ind. 1994), the court reaffirmed that a governmental entity owes no duty to the public at large and adopted the test set forth in City of Rome v. Jordan, 426 S.E.2d 861, 863 (Ga. 1993), to decide whether such an entity owes a private duty to a particular individual. Then, five years later, in Benton v. City of Oakland City, 721 N.E.2d 224, 228 (Ind. 1999), the court revisited the issue, returned to the general principle that a governmental entity, with limited exceptions, owes a "duty to use ordinary and reasonable care under the circumstances[,]" and concluded that the test adopted in Mullin should only be applied when a governmental unit is alleged to have breached a duty to provide emergency services. Both opinions were unanimous and authored by Justice Sullivan.
Likewise, in Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999), in a unanimous opinion, our supreme court declared that Article I, Section 11 of the Indiana Constituti
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