Under the provisions of wrongful death statute, W. Va. Code 55-7-6 (1992), as amended, an action may be maintained by the personal representative of a viable unborn child for the wrongful death of such child caused by injuries sustained by it while in the womb of its mother resulting from the negligence of a defendant and, upon sufficient proof, such damages as may be recoverable under the statute may be awarded in such action.
An estate administrator sought damages against a trucking company in a wrongful death suit, contending a wrongful death suit could be maintained for a baby that was 18 to 22 weeks of gestation and of questionable viability. The trial court issued a summary judgment in favor of the trucking company. The case was appealed to the Supreme Court of Appeals of West Virginia.
Can a wrongful death suit be maintained for a baby that was 18 to 22 weeks of gestation and of questionable viability?
The court reversed the summary judgment, concluding such a cause of action could be maintained regardless of viability. The court explained viability was not the appropriate criterion to determine whether an unborn child was a "person" within the context of the wrongful death statute because such statutes were enacted to preserve and protect human life and an absurd result would obtain if liability was imposed for injury to an unborn child, while immunity was created for a tort-feasor who committed greater harm, destroying the unborn child. The court decided a tortious injury suffered by a nonviable child en ventre sa mere who subsequently was born alive was compensable and no less meritorious than injury inflicted on a viable child who was subsequently born alive. The court found in this respect, viability at the time of injury was a mere theoretical abstraction.