DiDonato v. Wortman

Justice Webb

dissenting.

I dissent. At the outset let me say that I would have no objection to allowing a wrongful death action for an unborn child if the Legislature had so prescribed. I do not believe the Legislature has done so and it is error for us to do it for them. The majority has then compounded the error by repealing a part of the statute they do not like.

The majority begins by denigrating legislative silence as a tool in statutory construction. It cannot add to the strength of this Court to use this canon of construction when we want to reach a certain result, State v. Gardner, 315 N.C. 444, 340 S.E. 2d 701 (1986), and ignore it when it suits our convenience. Whatever the majority thinks of this canon in general, I believe it is very helpful in this case. In Gay v. Thompson, 266 N.C. 394, 146 S.E. 2d 425 (1966), this Court held there could be no recovery for the wrongful death of an unborn child because there could be no proof of damage under the Act as then written. The General Assembly then amended the Act to change the measure of damages. I believe we have to assume the General Assembly was aware of Gay when the Act was amended. They could very easily have defined person to include an unborn person but they did not do so. Cardwell v. Welch, 25 N.C. App. 390, 213 S.E. 2d 382, cert. denied, 287 N.C. 464, 215 S.E. 2d 623 (1975) and Yow v. Nance, 29 N.C. App. 419, 224 S.E. 2d 292, cert. denied, 290 N.C. 312, 225 S.E. 2d 833 (1976) were then decided. Both these cases hold there is no wrongful death claim for an unborn child. The General Assembly has not seen fit to change this rule for the last twelve years.

The majority says, “We cannot assume that our legislators spend their time poring over appellate decisions so as not to miss one they might wish to correct.” I believe we have to assume the legislators were aware of Gay when they amended the Act and did not say persons includes unborn persons. If the canon of construction that legislative inaction means legislative approval has any validity, we have to assume that in such a high visibility field of law as this one the General Assembly has been aware of Card-well and Yow. If, as the majority says, “the face of the wrongful death statute does not conclusively answer the question before us” we should use the best tool we have and affirm the Court of Appeals.

I believe the majority has committed further error by holding that although there may be a wrongful death claim for an unborn person, we shall not allow some of the damages for which the statute provides. This repeals a part of the statute by judicial fiat. I believe it is error to do so. If there are to be wrongful death claims for unborn persons, the plaintiffs should have whatever damages they may prove under the Wrongful Death Act.