Alabama Supreme Court Says Wrongful Death Act Applies To Pre-Viable Fetus

January 10, 2012

Mack v. Carmack, 2011 Ala. LEXIS 141 (Ala. 2011).

In a rare victory for Alabama plaintiffs, the Alabama Supreme Court unanimously held that the Wrongful Death Act, Ala. Code § 6-5-391, permits an action for the death of a pre-viable fetus. With their decision in Mack v. Carmack, the Supreme Court overruled two 1993 cases, which held that no cause of action for wrongful death exists if the fetus is not viable at the time of death. See Gentry v. Gilmore, 613 So. 2d 1241 (Ala. 1993) and Lollar v. Tankersley, 613 So. 2d 1249 (Ala. 1993). In their conclusion, the Court stated that it is illogical and arbitrary to create a bright line that allows recovery for a fetus that was injured before viability and dies after reaching viability but that prevents recovery for a fetus injured, and as a result of those injuries, does not reach viability.

On September 13, 2007, Mack paid Thomas Carmack to drive her and her fiancé to the grocery store. On the way to the grocery store, Carmack knowingly made an illegal left hand turn at a red light. When Carmack turned, an oncoming vehicle hit the passenger side of Carmack's car causing injuries to Mack. At the time of the accident, Mack was twelve weeks pregnant and her injuries resulted in the miscarriage of her baby.

On November 15, 2007, Mack filed a wrongful death claim on behalf of her baby. On September 30, 2009, the trial court granted summary judgment in favor of Carmack on the wrongful death claim. The trial court, relying on the Lollar and Gentry cases, held that "the Alabama Wrongful Death Act does not allow for a cause of action for a nonviable fetus."

On appeal, the plaintiff's argued that the Lollar court failed to recognize a cause of action under the Wrongful Death Act for a pre-viable fetus "without a clearer expression of legislative intent." However, the plaintiff states that 2006 legislation, the Brody Act, changed the definition of the term "person" for the purpose of criminal homicide to "a human being, including an unborn child in utero at any stage of development, regardless of viability." Ala. Code § 13A-6-1(a)(3). The defendant conceded that the legislature changed the definition of "person" for purposes of homicides, but did not change the definition for purposes of the Wrongful Death Act. The defense further stated that since the legislature did not amend the Wrongful Death Act at the same time they amended the criminal code, the change gives no basis for overruling Lollar and Gentry.

In analyzing the issue of whether or not the Wrongful Death Act applies to the death of a fetus before viability, the Supreme Court reviewed the history in Alabama of wrongful death claims arising out of prenatal injuries. In reviewing prior case law, the court found that the purpose of a wrongful death statute is to prevent homicide through punishment of the culpable party and the determination of damages. The court stated that it would be inconsistent if a defendant could be responsible criminally for the homicide of a fetus, but he would not be responsible civilly. Furthermore, the court held that the viability rule is an arbitrary rule that actually benefits the tortfeasor who inflicts a more severe injury.