McAuley v. Wills

Birdsong, Judge.

Statute of Limitations — Wrongful Death. This is an appeal from an order dismissing the complaint of Mr. and Mrs. McAuley for the wrongful death of their infant child. Mr. and Mrs. McAuley filed their complaint on April 17, 1981, showing that Mrs. McAuley was a passenger in an automobile operated by defendant Wills which was involved in a one-car crash causing Mrs. McAuley to suffer paraplegia. The crash and consequential injuries occurred on March 31,1979. Mrs. McAuley subsequently married and on August 7,1980, gave birth to her first child, which died the following day from cardiac arrest caused by the infant’s inability due to the mother’s paraplegia to pass through the fetal course in an uneventful manner.

The McAuleys alleged the child’s death was directly and proximately caused by the negligence of the defendant Wills. All the defendants jointly moved to dismiss the complaint against them on the ground that it failed to state a claim on which relief could be granted or alternatively that the action was barred by the applicable statute of limitations. The trial court, after hearing argument of counsel and examining the record, granted the motion to dismiss the complaint on the ground it did not state a claim on which relief could be granted. Held:

1. Although the trial court did not consider the alternative motion to dismiss as to the statute of limitations, we deem it necessary to refer thereto, for if the court is right for any reason in its order of dismissal, we will affirm.

2. The only alleged acts of negligence by Wills causing the accident and Mrs. McAuley’s paraplegia occurred in March, 1979, a period in excess of two years prior to the filing of the suit in April, 1981. Mrs. McAuley’s marriage followed the accident and in no way was related to Wills’ negligence in driving. Conception of a child after marriage likewise was in no way related to any negligence by Wills in March, 1979. Lastly, there is no indication that the birth process of the child was induced by any act of negligence by Wills. Therefore, it is manifest that the marriage and conception were unrelated to any negligence by Wills but were after the fact decisions and acts of Mr. and Mrs. McAuley. The infant’s unfortunate death resulted only after the conception and birth of the child, both of which occurred after the accident and were not attributable to Wills (i. e., if there had been no birth, there could have been no death). By making the wrongful death of the child the basis of and the starting point of the cause of action, the McAuleys necessarily excluded as the direct proximate cause of death the earlier negligence of Wills whose actions at that time (1979) could not directly have affected a life not even yet conceived and thus not in being.

A case somewhat analogous is Cheney v. Syntex Laboratories, 277 FSupp. 386. In that case Cheney ingested medicine and was hospitalized for adverse side effects on or about April 20, 1965. On April 26, 1965 she suffered crippling injuries from a pulmonary embolism. Cheney brought suit on April 25,1967, claiming solely for the injuries caused by the embolism two years earlier. However, as the negligent act was the furnishing of the medication and not the embolism the statute of limitations was held to bar the action because the real precipitant of the embolism was the ingestion of the medication on or before April 20, 1965, an act occurring at a time earlier than the two years permitted.

If such were not the rule, we would create a fissure in the law pertaining to limitations of actions. For instance, had the mother in this case been a five-year-old child who suffered injuries resulting in paraplegia, who fifteen years later married and gave birth to an infant, which infant died because of the negligently caused paraplegia of fifteen years earlier, under the rule proposed, the action for wrongful death still would not be barred if brought within two years of the death. Such cannot be the law.

Though it is undisputed that the cause of death of the infant was cardiac failure resulting from negligently caused paraplegia to the mother, the statute began to run at the time the damage caused by the tortfeasor was inflicted (the injuries to Mrs. McAuley) and the tort was completed at a time when the afterborn infant was not yet conceived and thus was neither sui generis nor sui juris. Lavender v. Spetalnick, 161 Ga. App. 75 (289 SE2d 291). Inasmuch as the tort against Mrs. McAuley was inflicted and completed in March, 1979, the statute of limitations as to the injuries to the parents including the wrongful death of their child, barred the suit filed in April 1981 based upon wrongful death flowing from that initially inflicted tort. Ward v. Griffith, 162 Ga. App. 194 (290 SE2d 290); Stoddard v. Woods, 138 Ga. App. 770 (227 SE2d 403).

Decided December 3, 1982 Rehearing denied December 16, 1982. James L. Ford, Jule W. Felton, Jr., R. Matthew Martin, for appellants. William P. Tinkler, Jr., Earl J. Van Gerpen, Donald M. Fain, for appellees.

Judgment affirmed.

Deen, P. J., Shulman, P. J., Banke, and Sognier, JJ., concur. Pope, J., concurs in the judgment only. Deen, P. J., concurs specially in which Sognier, J., joins. Quillian, C. J., McMurray, P. J., and Parley, J., dissent.