Fryover v. Forbes

439 N.W.2d 284, 176 Mich. App. 36

Opinions

Gillis, J.

Penny Fryover was sixteen weeks pregnant with Karl James Fryover when both were killed because she swerved her vehicle in an attempt to avoid hitting a dog owned by defendants. Plaintiff brought wrongful death suits on behalf of both Penny and Karl. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10) as to plaintiffs wrongful death suit regarding Karl, claiming that a nonviable fetus is not a person under the wrongful death act. The trial court granted defendants’ motion relying on this Court’s decision in Toth v Goree, 65 Mich App 296; 237 NW2d 297 (1975), lv den 396 Mich 836 (1976). We agree with Judge Maher’s dissent in Toth and, therefore, reverse the trial court’s decision. See also Presley v Newport Hospital, 117 RI 177; 365 A2d 748 (1976).

Reversed and remanded for further proceedings.

M.J. Talbot, J., concurred.