Crosby v. Glasscock Trucking Co. - 340 S.C. 626, 532 S.E.2d 856 (2000)

Rule:

The wrongful death statute creates a new cause of action in derogation of the common law rule that a tort action dies with the death of the injured person. A statute creating a cause of action in derogation of common law is a statute of creation. Such a statute must be strictly construed and its application must not be extended beyond the clear intent of the legislature. 

Facts:

Respondent Kristie Crosby was twenty weeks pregnant when she was injured in a automobile accident. The car she was driving collided with a truck owned and operated by respondent Glasscock Trucking Co., Inc. It is undisputed the fetus Kristie was carrying was nonviable at the time of the accident. The fetus was delivered stillborn later the same day. Appellant personal estate representative commenced this action for wrongful death in his capacity as personal representative of the estate of his stillborn child. The trial judge granted respondents' motion for summary judgment on the ground a nonviable stillborn fetus cannot maintain such an action. 

Issue:

Could a nonviable stillborn fetus maintain a wrongful death action?

Answer:

No

Conclusion:

The court affirmed. It held that a nonviable stillborn fetus could not maintain a wrongful death action. The court held that the wrongful death action statute, S.C. Code Ann. § 15-51-10 (1976), was in derogation of the common law principle that a tort action died with the death of the injured person, and had to be strictly construed. The court held the statute clearly did not apply to a nonviable, stillborn fetus.