Scott v. Kopp

431 A.2d 959, 494 Pa. 487, 1981 Pa. LEXIS 879

• Court: Supreme Court of Pennsylvania
• Decided: July 8, 1981
• Docket: 158
• Status: Published

Opinions

FLAHERTY, Justice.

The question at issue in this case is whether there is a right of recovery under the Pennsylvania Survival Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa. C.S.A. § 3371 or the Wrongful Death Act of April 15, 1851, P.L. 669, § 19, 12 P.S. § 1601 on behalf of a stillborn child who died as a result of injuries received en ventre sa mere.

The pertinent facts of the case as alleged in the complaint are as follows. On May 27, 1976, Donna R. Scott, appellant, was operating an automobile in Montgomery County when she was injured in a head-on collision which occurred when appellee’s automobile crossed the center of the highway and struck Mrs. Scott’s automobile. At the time of the accident, Mrs. Scott was eight months pregnant. As a result of the collision, Mrs. Scott’s child died in útero on or about May 27, 1976 and was stillborn on May 29, 1976 after an induced labor. Count one of the appellants’ complaint seeks recovery under the Wrongful Death Act, supra, for the anguish of the parents occasioned by the loss of their child, for pecuniary loss, for medical and funeral expenses. Count two demands recovery under the Survival Act, supra, for loss of earnings and for pain and suffering of the deceased. The third count of the complaint seeks recovery for physical and mental injuries to Donna R. Scott. In the fourth count of the complaint Perry M. Scott seeks damages for anguish and personal loss, for hospital and funeral expenses, including possible future medical expenses for his wife, Donna R. Scott, and for the loss of assistance and society of his wife. The trial court dismissed the wrongful death and survival actions and the Superior Court affirmed. This appeal followed the Final Order of the Superior Court.

The Survival and Wrongful Death Acts, supra, effective at the time of the accident in this case,¹ provide as follows:

§ 3371. Actions which survive

All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.

§ 1601. Action may be brought after death of party injured

Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or if there be no widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned.

Appellants concede that this case is governed by Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964) and Marko v. Philadelphia Transportation Company, 420 Pa. 124, 216 A.2d 502 (1966), which do not permit survival or death actions in the case of a stillborn infant, but request that this Court overrule these cases and permit recovery under the Wrongful Death and Survival Acts for death of a child who is stillborn as the result of injuries suffered in an automobile accident. We decline, however, to overrule Carroll and Marko and affirm the judgment below.

It would be difficult if not impossible to improve upon the clarity and brevity of the Carroll and Marko cases, and we write here only to emphasize a few of the significant points made in those opinions. In Marko, as in the present case, the real objective of the lawsuit was to compensate the parents of the deceased for emotional distress. As we stated in Marko:

Neither the wrongful death act nor the survival statute contemplates, or ever intended to include, such a claim [i. e. death and survival actions filed on behalf of a stillborn infant]. Also, the mother may seek redress and the compensation due for mental anguish suffered, in her own independent action.

420 Pa. at 126, 216 A.2d at 503.

Chief Justice Bell, concurring in Marko, pointed out that a mother may recover for mental anguish only if she sues in her individual capacity and only if the mental anguish was accompanied by or resulted from physical injury.² In other words, in Marko, the plaintiff was not without remedy. Since Marko was decided in 1966, the No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, § 301, 40 P.S. 1009.301 has restricted, but not foreclosed tort liability arising from motor vehicle accidents. Nevertheless, subject to the requirements of the Act, the anguish which an expectant mother must necessarily feel when her child is stillborn as the result of a physical injury inflicted on the mother’s person by the defendant is compensable in an action brought by and on behalf of the mother.

In Carroll we pointed out that whereas an action will lie on behalf of an infant born alive for damages resulting from injury tortiously inflicted during the infant’s fetal existence, neither a survival action nor a death action will lie in the case of a stillborn infant. 415 Pa. 48, 202 A.2d at 10. There may be no survival action in the case of a stillborn infant because a survival action is strictly derivative. In order for a survival action to lie, there must have been an independent life in being, surviving birth, which could have brought the action prior to death.

Additionally, we observed in Carroll that the wrongful death action also is basically derivative and was never intended to provide for recovery by the estate of an unborn fetus. Id. Among the reasons given for the denial of a death action on behalf of the estate of a stillborn fetus is the following:

If the infant is bom deformed or handicapped as a result of such injuries, justice requires that compensation be given. The responsibility of the parents is immeasurably extended and broadened, or the child may necessarily become a charge upon the community.

415 Pa. 49, 202 A.2d at 11. Harper and James make a similar point in their treatise on torts, where they state that the claim of a stillborn fetus “is far more tenuous and doubtful than that of the child who lives to bear the seal of defendant’s negligence with all the conscious suffering and economic loss it may entail.” 2 Harper and James, Torts § 18.3 (1956).

This view has been criticized because of unfairness that is said to result because representatives of an infant who is injured while in existence as a fetus may recover if it survives birth, eo instanti, whereas the representatives could not recover if the infant were stillborn. Admittedly, the requirement of live birth is in some sense an arbitrary requirement, but the line must be drawn somewhere, and wherever it is drawn, it will be the subject of argument and criticism. Perhaps everyone will agree that survival and wrongful death actions require at least that the plaintiff have been alive. But there agreement ends, for some will argue that life begins at conception; others that survival and death actions should be able to be brought when the fetus is viable, i. e., capable of independent existence. We believe, however, that drawing the line at conception or viability or at any point other than birth will not remove the element of arbitrariness, but will merely relocate the difficulty while increasing the problems of causation and damages. See Endresz v. Friedberg, 24 N.Y.2d 478, 301 N.Y.S.2d 65, 248 N.E.2d 901 (1969). Further, requiring a live birth has the advantage of establishing to a legal certainty that there was a living person in existence, thereby bringing any survival or wrongful death action into conformity with other similar actions brought by persons or the representatives of persons who died as a result of wrongful or negligent injuries inflicted by another.

The wrong, if any, in a case such as the present one, is to the parents of the stillborn child, and subject to the restrictions of the No-Fault Motor Vehicle Insurance Act, supra, recovery for that injury is adequately protected by lawsuits which may be brought on behalf of the mother for physical and mental suffering, and on behalf of the parents for medical and funeral expenses,³ as well as on behalf of the husband for loss of his wife’s society and assistance.

Order affirmed.

O’BRIEN, C. J., did not participate in the consideration or decision of this case. LARSEN, J., filed a dissenting opinion in which KAUFFMAN, J., joins.

1 . The Wrongful Death and Survival Acts have been recodified at 42 Pa. C.S. §§ 8301 and 8302.

2 . In Niederman v. Brodsky, 436 Pa. 401, 413, 261 A.2d 84, 85 (1970) we modified the “impact rule” as stated by Chief Justice Bell and held that where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff feared the physical impact, recovery for shock or mental pain may be permitted. This “zone of danger” requirement was itself modified in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), where we permitted recovery for foreseeable mental injury to a mother who witnessed fatal injury to her daughter when the daughter was struck and killed by an automobile, even though the mother herself was not within the zone of danger. In the present case, however, the pleadings state that Mrs. Scott suffered physical injury from the collision; therefore, she may bring an action to recover for personal injuries even under the strict requirements of Marko.

3 . Although the Act of May 13, 1927, P.L. 992, No. 480, § 1, 12 P.S. 1604, The Wrongful Death Act, provides for the recovery of funeral expenses, these expenses may also be recovered under the No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, Art. Ill, § 301, 40 P.S. 1009.301, which provides for the recovery of “loss which is not compensated because of any limitation in accordance with section 202 (a), (b), (c) or (d) of this act.” Section 202(a) provides that “allowable expense” as defined in section 103 or a contract for services required shall be provided in an insurance contract. Section 103 defines “allowable expense” to include:

... expenses directly related to the funeral ... of a deceased victim, not to exceed one thousand five hundred dollars ($1,500)