A wrongful death lawsuit arising from a Nebraska automobile accident invokes that state’s fetal death statute, reportedly for the first time since the Nebraska Legislature enacted it in 2003. The plaintiffs in Baumann v. Slezak, et al are asserting multiple causes of action in relation to the deaths of a Maryland couple, their two children, and their unborn child. The unborn child was a viable fetus at the time, which is an important distinction in some jurisdictions. The right to recover damages for the wrongful death of a person requires that the law recognize the decedent as a “person.” Nebraska’s statute explicitly applies to unborn children “at any stage of gestation,” while the District of Columbia’s statute does not mention unborn children or fetuses. Case law from DC, however has established that the law may apply to a “viable” fetus.
The accident in Nebraska occurred during the early morning of September 9, 2012. A family of four, consisting of a father, a pregnant mother, and two children, were driving through western Nebraska on their way to California. Each parent was driving a separate vehicle, and the children were riding with the mother. Traffic on westbound Interstate 80 was at a standstill because of an accident between two semi-trailers about one mile further up the road. While the family’s two cars were stopped, one behind the other, at the rear of the line of traffic, another semi-trailer approached from behind at about seventy-five miles per hour. The driver allegedly did not slow before colliding with the father’s car. This caused his car to collide with the mother’s car, propelling it under the trailer in front of her, and killing the four family members and the unborn child.
The legal representatives of the two parents filed suit on behalf of the parents, the children, and the unborn child, asserting causes of action for negligence and violations of federal trucking safety regulations. They sued the truck driver, his employer, and the driver and truck companies allegedly responsible for the accident that caused the traffic jam, asserting causes of action for negligence and violations of federal safety regulations.
The Nebraska statute that gives the court jurisdiction to hear a claim brought on behalf of the unborn child is one of the most expansive such laws in the nation. Many state wrongful death statutes do not confer such rights on unborn fetuses, while others limit it to fetuses deemed to be “viable.” “Viable,” in this context, generally means capable of surviving outside the womb, or likely to be born without significant complications.
Washington DC’s statute does not specifically mention unborn children or fetuses, but case law has recognized certain situations in which the statute would apply. In Greater Southeast Com. Hospital v. Williams, 482 A.2d 394 (D.C. App. 1984), the District of Columbia Court of Appeals held that “a viable fetus has a right to be free of tortious injury,” and that the District’s wrongful death and survival statutes apply to “a viable fetus negligently injured en ventre sa mere.” Id. at 395.
The personal injury attorneys at Lebowitz & Mzhen represent the rights of people in the Washington, DC area who have suffered injuries due to the negligent or unlawful conduct of others. Contact us today online or at (800) 654-1949 to schedule a free and confidential consultation.
Complaint and Jury Demand (PDF file), Case No. 8:12-cv-00383-FG3, Baumann, et al v. Slezak, et al, U.S. District Court, District of Nebraska, October 29, 2012
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