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Bailey v. Khoury1/20/2005
g in Danos as codified in La. Civ. Code art. 26, the Wartelle court wrongfully departed from the framework it had articulated in Danos and focused more upon a strict, textual interpretation of La. Civ. Code art. 26 and, thus, erred by refusing to establish the child's right to a survival action for the child's wrongful death. Accordingly, I find the majority errs in relying upon Wartelle, which in my view was wrongly decided.
WEIMER, J., concurring.
I concur. The decision in this case is in accord with the principle that prescription provisions are construed in favor of maintaining a cause of action. Elevating Boats, Inc. v. St. Bernard Parish, 2000-3518, p. 17 (La. 9/5/01), 795 So.2d 1153, 1165, overruled on other grounds by Anthony Crane Rental, L.P. v. Fruge, 03-0115 (La. 10/21/03), 859 So.2d 631.
We must follow the law. Parenthetically, I note the decision has a practical effect as well. From the standpoint of ease of administration, commencing prescription on the date of birth represents a discrete, specific, and clear triggering event. Such a result has the virtues of practicality and predictability for an alleged tort, occurring in utero, which often does not involve a discrete, specific date upon which the alleged negligent act and damages occurred. Such a result does not burden a parent or parents with the difficult decision regarding bringing suit during a time when attention should be focused on the pregnancy. Such a result serves to discourage premature suits which would be difficult to pursue until birth or would necessitate dismissal if there was no live birth. Such a result does not unduly burden the defendants with a stale claim given the duration of a pregnancy.
Finally, the parents of a child alleged to be harmed prior to birth are afforded the opportunity to fully assess any damages after birth before deciding whether a suit should be filed.
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