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Bailey v. Khoury1/20/2005
erstanding that the Legislature intended for the legal fiction of natural personality to attach when such application inured to the benefit of the unborn child, I feel it is important to re-examine this Court's holding in Wartelle. In my view, the Wartelle court erred in finding an unborn child does not have a survival action under La. Civ. Code art. 26, because such an action inures to the benefit and preservation of the interests of the unborn child. This is especially true when the evidence establishes that the viable fetus, more probably than not, sustained conscious pain and suffering inflicted by the death-causing tort.
The Louisiana Legislature enacted La. Civ. Code art. 26 in 1987 to codify this court's decision in Danos v. St. Pierre, 402 So.2d 633 (La. 1981). Eleni M. Roumel, Wartelle v. Women's & Children's Hospital, Inc.: Denial of Survival and Bystander Actions for Death of a Stillborn Child, 73 Tul.L.Rev. 399, 401 (1998-1999). In Danos, this court established the right of parents to recover for the wrongful death of their stillborn child who died because of prenatal injuries caused by the negligence of another. Danos, 402 So.2d at 638; Roumel, supra, at 401. Reasoning that the 1981 Civil Code did not implicitly or expressly deny recovery to parents of a stillborn child for a wrongful death action, the Danos court found the parents should be able to recover damages and held that a stillborn child is a "person" for the purposes of bringing a wrongful death action. Danos, 402 So.2d at 639; Roumel, supra, at 402.
Additionally, the Danos court noted the illogic of a rule under which a tortfeasor, who inflicted a more serious injury resulting in death, would not have to pay damages for his tort, while a tortfeasor whose act caused the child to be born alive and disabled would have to pay damages. Danos, 402 So.2d at 638; Roumel, supra, at 403. In its ruling, the Danos court clearly indicated that a tortfeasor should not escape liability merely because his victim died in the womb. Danos, 402 So.2d at 638; Roumel, supra, at 403. Basically, although a stillborn child is considered to have never existed, the fact that the child died in utero "does not condone the fault of a person who caused the loss of the [child]." Roumel, supra, at 401; La. Civ. Code art. 26, cmt. d.
Under the doctrine announced by this court in Danos, "it would be arbitrary and illogical to reward the tortfeasor with immunity from liability because the tortfeasor injured a viable fetus seriously enough to cause its death just before birth, rather than immediately after the birth," when an unborn child would have been born alive, but for its wrongful death. See Wartelle, 97-0744, p. 1 (La. 12/2/97), 704 So.2d 778, 785 (Lemmon, J., dissenting). The Legislature apparently agreed. See infra, note 4.
As noted in the Minutes of Meeting of June 2, 1987 of the Senate Committee on Judiciary A, the enactment of La. Civ. Code art. 26 did not seek to change the law, but rather clarify that "if you cause the death of a child through negligence although it is not yet born or is not alive, there may be a cause of action" as recognized by the Danos court. Recognition of a survival action in favor of an unborn child, who is born dead solely because of a tortious injury , is the logical and only correct extension of the doctrine first announced in Danos and codified in La. Civ. Code art. 26.
Although the logical extension of the Danos ruling would allow parents to bring a survival action for the prenatal injuries suffered by the child itself, this court erroneously restricted the scope of Danos in Wartelle, holding it applicable solely to wrongful death actions. Instead of adhering to its reasonin
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