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Bailey v. Khoury1/20/2005
ural personality from the date of conception established by La. Civ. Code art. 26 does not attach when its application does not inure to the benefit of the child or for the preservation of its interests, and particularly when applying that "legal fiction" would be to the child's detriment, as here. Certainly applying the "legal fiction" to hold that prescription commenced at some point prior to the child's birth when the mother became aware of the existence of its birth defects would not inure to either the benefit of the child or the preservation of its interests. The language of La. Civ. Code art. 26 that an unborn child is to be "considered as a natural person for whatever relates to its interests from the moment of conception" is an "exception . . . established by legislation" to the general rule set forth in La. Civ. Code art. 3468 that prescription runs against minors and incompetents. Further, none of the cases cited by defendants demands a different result. Thus, we hold that Ms. Bailey's claim filed on behalf of Jada accrued on March 20, 1997, the date Jada was born, and that prescription on that claim therefore commenced on that date.
In order to reach our conclusion in this case, we rely heavily on the fact that the "legal fiction" of natural personality conferred upon an unborn child by La. Civ. Code art. 26 applies only to "whatever relates to its interests." In that regard, this decision may be seen as a logical extension of a much earlier Louisiana case--i.e., Cooper v. Blanck, 39 So. 2d 352 (La. App. Orl. 1923). In that case, the court held, contrary to most reported decisions at the time, that an unborn child subsequently born alive has a cause of action for prenatal injuries. Id. In so holding, the Cooper court relied on La. Civ. Code art. 29, which then declared that "children in their mother's womb are, in whatever relates to themselves, considered as if they were already born." Id. at 360 (emphasis added). Focusing on the phrase "in whatever relates to themselves," the court rejected the argument that the article applied only to successions, and found that the phrase was of the "the most sweeping character." Id.
A California court reached a similar conclusion in Scott v. McPheeters, 33 Cal. App. 2d 629 (1939), which involved a suit for injuries sustained by a child prior to its birth as a result of the alleged malpractice of a physician in negligently using metal clamps and forceps in connection with the child's delivery. At that time, Cal. Civ. Code art. 29 stated as follows: "A child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth." Id. at 630. The language and effect of this article is very similar to La. Civ. Code art. 26. The Scott court rejected an argument that the word "interests" in the codal article should be limited in its application to the child's right of inheritance or to its property rights, and not applied to grant the child a right of action for a tort committed prior to its birth.
Id. at 631. The court found that the provision was "as clear and concise as the English language could make it," and that the word "interests" should therefore be interpreted to include "both personal and property rights." Id. See also Norman v. Murphy, 124 Cal. App. 2d 95, 268 P. 2d 178. Because the language in La. Civ. Code art. 26 is also "as clear and concise as the English language can make it," we find that it protects both the personal and property rights of the unborn child subsequently born alive.
The rule established by this case is also consistent with cases from other jurisdictions that, like Louisiana, have express statutory provisions conferring
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