Carpenter Ex Rel. Carpenter v. Bishop ( 1986 )

Robert H. Dudley, Justice.

The primary issue in this case is whether a viable fetus born dead has a cause of action against a mother who negligently caused the death of the fetus. The trial judge granted a judgment on the pleadings. ARCP Rule 12(c). We affirm.

Because of the procedure below, we take the factual allegations of the complaint as true. Those facts are that the mother, Sheryl Carpenter, was eight and one-half months pregnant when she negligently drove an automobile into a bridge abutment, killing herself and the viable fetus. Carey Carpenter, as father and next friend, filed suit for the dead fetus against the mother. He also filed a derivative suit in his own capacity and on behalf of siblings. Because this action is barred by the parental immunity doctrine, we need not decide whether a viable fetus born dead is a “person” who has a cause of action under the wrongful death statute, Ark. Stat. Ann. §§ 27-906 to 27-910 (Repl. 1979).

Our first case involving the doctrine of parental immunity was Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938), in which a six year old boy, through his mother and next friend, filed a suit against his father for an unintentional injury. We held that an unemancipated minor did not have a cause of action against a parent for an unintentional tort.

We next considered the doctrine concerning an unintentional tort in the case of Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980), a suit by a two and one-half year old boy against his maternal grandparents. We reaffirmed the doctrine with respect to unintentional torts and extended it to people acting in the place of parents.

In Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245 (1939), we held that the doctrine would not protect an adoptive father who intentionally poisoned his adoptive son. In Attwood v. Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982), a father intentionally got drunk and willfully drove his car at such a rate of speed that he lost control and wrecked the car, causing injury to his child. We held that such intentional and willful conduct fit into an exception to the parental immunity doctrine for the reason that a parent who intentionally and willfully injures his child has abdicated his parental responsibilities and is not entitled to an immunity which has as its purpose the encouragement of those responsibilities.

In summation, a parent or a person acting in the place of a parent is immune from suit for an unintentional injury to his child, but the parental immunity doctrine does not protect a parent from liability for an intentional or willful injury to his child. In the case at bar the suit by the dead fetus was for an unintentional injury, or simple negligence, and the mother’s estate is immune from the suit by the fetus regardless of whether the fetus is a “person” as defined by the wrongful death statute.

Appellant alternatively argues that even if the claim of the fetus against the mother is barred by the parental immunity doctrine, the claims of the father and siblings are not barred. That argument is also without merit.

The actions by the fetus and children under the wrongful death statute, Ark. Stat. Ann. § 27-906 (Repl. 1979), are derivative claims or claims derived from the death of the fetus. Because the claim of the fetus against the mother is barred, so are the derivative claims.

Affirmed.

George Rose Smith, J., concurs.