Mone v. Greyhound Lines, Inc. , 368 Mass. 354 ( 1975 )

Tauro, C.J.

The plaintiff brought this action as administrator² of the estate of Dennis Brelsford, Jr., seeking to recover for the wrongful death of the child pursuant to G. L. c. 229, § 2.³ The defendants filed a motion for summary judgment, Mass. R. Civ. P. 56, 365 Mass. 824 (1974), on the ground that the “plaintiff’s intestate is a stillborn infant who was never born alive.” The judge allowed the motion under the authority of Leccese v. McDonough, 361 Mass. 64 (1972), and dismissed the action. The plaintiff appealed. We reverse. We hold that a fetus is a person for purposes of our wrongful death statute where, as here, the parties agree that it is viable, or, in the absence of such an agreement, the fact-finding tribunal finds that it is viable.

The records and affidavit filed in support of and in opposition to the motion reveal the following facts: The decedent, a viable eight and one-half month fetus en ventre sa mere, was injured in a collision between a car in which his mother was riding and a Greyhound bus on October 14, 1972. After the accident, the mother and unborn child were taken to St. Margaret’s Hospital where emergency surgery was performed on the mother. In the course of surgery, the child was found dead, floating free in the abdominal cavity of its mother. The uterus and placenta had been lacerated and this, along with other injuries, caused the death of the mother approximately six hours after the accident. The death certificate of the deceased child, Dennis Brelsford, Jr., specified the cause of his death as “ [sjtill born following multiple maternal traumatic injuries including rupture of uterus.”

1. The question whether a right of action exists for prenatal injury or death has been before this court on several occasions. See, e.g., Dietrich v. Northampton, 138 Mass. 14 (1884); Bliss v. Passanesi, 326 Mass. 461 (1950); Torigian v. Watertown News Co. Inc. 352 Mass. 446 (1967). In these cases, we progressed from a rule denying a right of action in all circumstances to one allowing recovery where the injuries were followed by live birth. Most recently, in Leccese v. McDonough, supra, we refused to broaden the scope of our rule to allow a right of action for wrongful death where a fetus, although stillborn, was viable at the time of injury.

In Leccese, a fetus died in the womb and was thereafter delivered stillborn. The next of kin brought a wrongful death action against two doctors alleging negligence in providing prenatal care. We sustained the defendants’ demurrers there on the ground that the fetus was not born alive. In doing so, we advanced three reasons for denying the right of action and rejecting the “viability” rule: (a) there was no sound body of precedent to support such a rule, (b) it would be more appropriate for the Legislature to make such a change, and (c) such a rule would subject the court to speculation and would not be easily administered under our statute. Id. at 66, 67-68. Recent developments, however, have cast serious doubt on the continued vitality of Leccese, and a close scrutiny of the reasons advanced therein reveals that none is sufficient, at this time, to preclude allowing a right of action on the facts before us.⁴

A. It can no longer be said with any degree of accuracy that the majority view allows a right of action only where injury is followed by live birth. In fact, a clear majority of jurisdictions having considered the question have chosen viability over live birth as the determinative factor for deciding whether a right of action for wrongful death will be allowed.⁵ A careful examination of the cases from other jurisdictions reveals that substantial precedent exists to support the viability rule.

B. In Leccese we were influenced by the argument that it would be more appropriate for the Legislature, rather than for the court, to change the rule denying a right of action for the death of a viable, stillborn fetus. However, recent cases decided by this court have cast serious doubt on the continuing validity of that proposition. In Gaudette v. Webb, 362 Mass. 60 (1972), we examined the origin and development of actions for wrongful death to determine whether the general tolling provisions of G. L. c. 260, §§ 4, 7 and 10, would apply to such actions. We concluded that the law in this Commonwealth had “evolved to the point where it may now be held that the right to recovery for wrongful death is of common law origin.” Id. at 71. In Diaz v. Eli Lilly & Co. 364 Mass. 153 (1973), we held it appropriate for the judiciary to make changes in the common law, rather than to wait for the Legislature, where such changes were “not a drastic or radical incursion upon existing law” and would not seriously impair an existing interest, disappoint an expectation, or defeat a reliance.⁶ Id. at 167, overruling Lombardo v. D. F. Frangioso & Co. Inc. 359 Mass. 529, 532 (1971) (Tauro, C.J., dissenting). Taken together, the Gaudette and Diaz cases indicate that judicial action altering the interpretation of statutory language, in an area now considered a part of the common law, is appropriate, and we do not follow the language in Leccese which may be to the contrary.

C. In choosing to retain the “live birth” rule in Leccese, we noted that such a rule was “sensible and easily administered . . . under our statute.” 361 Mass. at 67. We held that the dangers of speculation and double recovery precluded allowance of a right of action where the fetus was not born alive. These same reasons for denying recovery were considered and rejected in our recent case of Diaz v. Eli Lilly & Co. 364 Mass. 153 (1973), where we reversed the long-standing rule denying a right of action for loss of consortium to either spouse.

In the Diaz case, we held that neither the nature of the damages claimed nor the possibility of double recovery was sufficient to preclude allowance of a right of action. We explained that, through joinder or consolidation of actions, or with clear and precise instructions to the jury, the danger of “redundant recovery” could be reduced or avoided. We believe the same analysis applies in the instant case.

The damages recoverable, either under the punitive death statute applicable to the facts of this case or under the recently amended compensatory statute, G. L. c. 229, § 2, as appearing in St. 1973, c. 699, § l,⁷ are no more subject to speculation than those in the Diaz case. “The element of speculation is not present to any greater extent than in the usual tort claim.” Torigian v. Watertown News Co. Inc. 352 Mass. 446, 448-449 (1967). Additionally, we are not persuaded that stillbirth renders the measure of damages recoverable any less capable of precise calculation than in cases of live birth. Accordingly, the nature of damages recoverable cannot justify denying a right of action in the circumstances before us.

Likewise, the danger of double recovery is not sufficient to support the denial of a right of action here. We believe the safeguards set out in the Diaz case can be effectively utilized to minimize any risk that the plaintiff will recover twice for the same damages.

2. In view of our present analysis of Leccese, we can find neither reason nor logic in choosing live birth over viability for the purposes of interpreting our wrongful death statute.⁸ We agree with the majority of jurisdictions that conditioning a right of action on whether a fatally injured child is born dead or alive is not only an artificial and unreasonable demarcation, but is unjust as well. The court in Todd v. Sandidge Constr. Co. 341 F. 2d 75 (4th Cir. 1964), illustrated the incongruity of such a rule. “[I]f the trauma is severe enough to kill the child, then there could be no recovery; but if less serious, allowing the child to survive, there might be recovery. Again, if the fatality was immediate, the suit could not prevail, but if the death was protracted by a few hours, even minutes, beyond birth, the claim could succeed. Practically, it would mean that the graver the harm the better the chance of immunity.” Id. at 77. There are other examples of the illogical results possible under the “live birth” rule. See, e.g., Chrisafogeorgis v. Brandenberg, 55 Ill. 2d at 374-375; Stidam v. Ashmore, 109 Ohio App. at 434; Kwaterski v. State Farm Mut. Auto. Ins. Co. 34 Wis. 2d at 20.

While we recognize that “a rule fixing survival as the determinant, rather than viability . . ., has the appeal of simplicity,” we agree with the court in Todd that such a rule “might aid the judiciary but hardly justice.” 341 F. 2d at 77 (4th Cir.). Accordingly, we hold that, where, as here, an eight and one-half month unborn viable fetus is killed, the fetus is a person for purposes of our wrongful death statute, and the administrator of the estate has a right of action, on behalf of the next of kin, as set forth in G. L. c. 229, § 1, as amended, for the wrongful death.

Order allowing motion for summary judgment reversed.

Judgment reversed.

2 The action was initially commenced by Dennis Brelsford, as administrator of the estate of Dennis Brelsford, Jr. Pursuant to a motion to amend, Michael E. Mone was substituted as administrator.

3 General Laws c. 229, § 2, as amended through St. 1971, c. 801, § 1, read in pertinent part: “A person who (1) by his negligence causes the death of a person in the exercise of due care . . . shall be liable in damages in the sum of not less than five thousand nor more than one hundred thousand dollars, to be assessed with reference to the degree of his culpability and distributed as provided in section one.” Section 1 provides that, where there is no spouse surviving, damages are “to the use of the next of kin.”

4 The dissenting opinion asserts that the wrongful death statute applicable in this case is a penal statute, and thus that an expanded interpretation of the word “person” therein should not, or perhaps cannot, be given retroactive effect. Cf. Bouie v. Columbia, 378 U.S. 347, 353-355 (1964). However, while there are aspects of the statute that are penal, it “has compensatory features and a remedial function” as well. Macchiaroli v. Howell, 294 Mass. 144, 147 (1936). The statute appears in a section of the General Laws dealing with civil matters. The burden of proof is that utilized in civil cases, and one who does not pay a “fine” adjudicated pursuant to c. 229 is not subject to criminal sanctions, but can be pursued only by means of a subsequent action on the judgment. “Proceedings to collect damages for death by an action of tort are civil actions.” Macchiaroli v. Howell, supra, at 146. See Oliveria v. Oliveria, 305 Mass. 297, 301-302 (1940). Accordingly, we perceive no difficulty in reversing our holding in Leccese where we believe that case no longer has vitality and in applying the new interpretation to the instant case.

5 Eich v. Gulf Shores, 293 Ala. 95 (1974). Mace v. Jung, 210 F. Supp. 706 (D. Alaska 1962). Gorke v. Le Clerc, 23 Conn. Supp. 256 (1962). Worgan v. Greggo & Ferrara, Inc. 50 Del. 258 (1956). Simmons v. Howard Univ. 323 F. Supp. 529 (D. D. C. 1971). Porter v. Lassiter, 91 Ga. App. 712 (1955). Chrisafogeorgis v. Brandenberg, 55 Ill. 2d 368 (1973). Britt v. Sears, 150 Ind. App. 487 (1971). Hale v. Manion, 189 Kans. 143 (1962). Mitchell v. Couch, 285 S. W. 2d 901 (Ky. 1955). Valence v. Louisiana Power & Light Co. 50 So. 2d 847 (La. App. 1951). State v. Sherman, 234 Md. 179 (1963). O’Neill v. Morse, 385 Mich. 130 (1971). Verkennes v. Corniea, 229 Minn. 365 (1949). Rainey v. Horn, 221 Miss. 269 (1954). White v. Yup, 85 Nev. 527 (1969). Poliquin v. MacDonald, 101 N. H. 104 (1957). Stidam v. Ashmore, 109 Ohio App. 431 (1959). Libbee v. Permanente Clinic, 268 Ore. 258 (1974). Todd v. Sandidge Constr. Co. 341 F. 2d 75 (4th Cir. 1964). Fowler v. Woodward, 224 S. C. 608 (1964). Panagopoulous v. Martin, 295 F. Supp. 220 (S. D. W. Va. 1969). Baldwin v. Butcher, 155 W. Va. 431 (1971). Kwaterski v. State Farm Mut. Auto. Ins. Co. 34 Wis. 2d 14 (1967). See anno. 15 A. L. R. 3d 992 (1967). Three of these cases have been decided since Leccese: Eich v. Gulf Shores; Chrisafogeorgis v. Bradenberg; Libbee v. Permanente Clinic. To the contrary are: Bayer v. Suttle, 23 Cal. App. 3d 361 (1972); Stokes v. Liberty Mut. Ins. Co. 213 So. 2d 695 (Fla. 1968); McKillip v. Zimmerman, 191 N. W. 2d 706 (Iowa 1971); Acton v. Shields, 386 S. W. 2d 363 (Mo. 1965); Drabbels v. Skelly Oil Co. 155 Neb. 17 (1951); Graf v. Taggert, 43 N. J. 303 (1964); Endresz v. Friedberg, 24 N. Y. 2d 478 (1969); Gay v. Thompson, 266 N. C. 394 (1966); Padillow v. Elrod, 424 P. 2d 16 (Okla. 1967); Marko v. Philadelphia Transp. Co. 420 Pa. 124 (1966); Durrett v. Owens, 212 Tenn. 614 (1963); Lawrence v. Craven Tire Co. 210 Va. 138 (1969). However, of these jurisdictions, at least four deny a right of action in these circumstances because their statutes allow recovery only for pecuniary loss, and such loss is deemed too speculative where the child is not born alive. Acton v. Shields. Graf v. Taggert. Endresz v. Friedberg. Gay v. Thompson.

6 Unfortunate accidents such as in this case occur infrequently and changing the law regarding recovery in such circumstances will not substantially affect existing rights and obligations. The rule discarded here “may not reasonably be supposed to have determined the conduct of the litigants.” Cardozo, The Nature of the Judicial Process, 151 (1921).

7 As most recently amended, the statute provides for “damages in the amount of: (1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered . . . including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent . . .; (2) the reasonable funeral and burial expenses of the decedent; (3) punitive damages in an amount of not less than five thousand dollars in such case as the decedent’s death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant.”

8 We have found nothing in the legislative history of the statute which would assist us in determining the meaning of the word “person” in this context.