Unborn baby dies in car wreck caused by mother's negligence&father sues for wrongful death
Posted Aug 02 2010 2:26am
According to findlaw.com, a "wrongful death" occurs when a person is killed due to the negligence or misconduct of another individual, company or entity.
In this case the lower court ruled that the father could not sue for wrongful death because the mother didn't owe a legal duty to the fetus. Critics say allowing the suit to continue could open the door to future lawsuits where a father or family member could sue if a fetus is stillborn and blame it on the mother's diet or lifestyle. However, the higher District Court in Wisconsin ruled against the lower court.
I agree with the 4th District Court of Wisconsin and believe if the father can prove the mother was at fault in the accident, for example was driving drunk or under the influence of drugs than perhaps he could be successful in the suit. However, many states do not allow wrongful death suits of a fetus because they feel damages are impossible to calculate and in a wrongful death case he must prove financial loss.
While no amount of money can replace the loss of a human life regardless of age,the courts base pecuniary or financial damages on income earned, potential for income, life expectancy, health and intelligence, as well as the circumstances of the distributees. In addition to damages for wrongful death, the distributees may be able to recover damages for personal injury to the decedent. These are called "survival actions," since the personal injury action survives the person who suffered the injury.
Survival action allows for a decedent's conscious pain and suffering, the jury may make several inquiries to determine the amount of damages, including: 1) the degree of consciousness; 2) severity of pain; and, 3) apprehension of impending death, along with the duration of such suffering.
Due to the loss of life or potential for life I feel the court should find in favor of the father because he does have survival action. Even though some states do not recognize wrongful death of an unborn child or require the child be born alive and then die as a result of the negligence, I feel the father deserves some sort of compensation for his loss. Many states require that a child be born alive for its death to constitute the first element of a wrongful death action. States that do not recognize the death of a fetus often find the suit is not actionable, nor is the parents' emotional injury from losing the fetus. However, if you feel you can prove negligence and can show suffering under survival action, then you should consult an attorney.
What do you think? Should a father be able to sue in such a case or will this lead to suits against a mother for her lifestyle habits which could endanger a fetus? I say even if it does,let it, perhaps mothers will be more conscience of what they eat and how they live their lives and begin by taking responsibility for their child in the womb.