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Monday, August 02, 2010

Unborn baby dies in car wreck caused by mother's negligence&father sues for wrongful death

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.

Amplify’d from blogs.findlaw.com

Court OKs Fetus Wrongful Death Car Crash Suit

In what looks to become a slippery slope, a Wisconsin 4th District Court of Appeals gave the green light for a man to sue his unborn child's mother's insurance company for wrongful death, after the woman's negligent driving played a part in a car accident. Following the accident, the mother gave birth to a stillborn fetus.

Shannon Tesar, the father of the fetus, is seeking damages from the mother's insurance company based on the death of his unborn child, reports the Associated Press. Tesar's case was originally denied when the lower court ruled that the mother did not owe a legal duty to the fetus. The reversal has brought up some real concerns that the court is opening the door to other types of suits against mothers for nearly any action that can harm unborn children, such as poor dietary habits.

To put it simply, Tesar could argue that the fetus was like a passenger in the car, and was killed as a result of the accident. This argument rests on the fact that the fetus was a stillborn at the hospital, and therefore at a developmental stage capable of living on its own. One of the threshold questions in this case may be whether the fetus was viable for purposes of affording the unborn child the status of a person in the eyes of the law. Whether or not the fetus is viable will serve to determine if the mother breached her legal duty to the fetus. Should viability not be an issue, this case would likely play out as if the unborn child had already been born at the time of the accident, essentially sitting shotgun when the accident occurred.

Many states do not allow suits based on the wrongful death of a fetus for this very reason- damages are impossible to calculate to any degree of certainty. Courts often return a modest award for children and elderly, as it is much more difficult to quantify life at the beginning and ending states without becoming overly speculative in nature. A successful wrongful death action requires a showing of negligent or intentional conduct of another that brought about a death. In this case, Tesar needs to prove that negligent driving brought about the death of the fetus, and that he has suffered a financial loss.
Tesar is not alleging that the mother intended to kill the fetus, but that her negligent actions played a role in the death and he deserves to be compensated for his loss. Read more at blogs.findlaw.com
 

 
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