ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Glenn A. Deig Patricia K. Woodring Evansville, Indiana Shawn M. Sullivan
Terrell, Baugh, Salmon & Born LLP
SUPREME COURT OF INDIANA
REBECCA BOLIN and CALVIN BOLIN, ) ) Appellants (Plaintiffs Below ), ) No. 87S01-0203-CV-177 ) in the Supreme Court v. ) ) No. 87A01-0006-CV-183 Brandon A. Wingert, ) in the Court of Appeals ) Appellee (Defendant Below ). )
March 11, 2002
In a case of first impression under Indianas Child Wrongful Death Statute, we address the question whether an eight- to ten-week-old fetus fits the definition of child. We conclude that it does not.
The Bolins appealed, and the Court of Appeals held that child was not
expressly defined by the legislature.
Bolin v. Wingert, 742 N.E.2d 36, 37
(Ind. Ct. App. 2001). Relying on a 1972 decision, the court held
that only an unborn viable child had a claim under the Wrongful Death
Statute. Id. at 38 (emphasis in original)(citing Britt v. Sears, 150 Ind.
App. 487, 498, 277 N.E.2d 20, 27 (1972)). Because the Bolins had
not produced any evidence that the unborn child was capable of independent life,
the Court of Appeals affirmed the trial courts grant of partial summary judgment.
We first note that appellants cited the wrong version of the Child Wrongful
Death Statute to the trial court and Court of Appeals. (See Appellants
Br. at 7.) At the time of the accident in 1996, Indianas
Child Wrongful Death Statute was found at Indiana Code § 34-1-1-8. This
version of the statute reflected major legislative revisions made in 1987 and 1989,
including the addition of a definition of child. See P.L. 306-1987; P.L.
See footnote The Court of Appeals relied on a version of the statute
that preceded the 1987 and 1989 amendments.See footnote
The applicable statute provides that [a]n action may be maintained under this section
against the person whose wrongful act or omission caused the injury or death
of a child. Ind. Code Ann. § 34-1-1-8(b) (West 1996). It
defines child as follows:
As used in this section, child means an unmarried individual without dependents who is:
(1) less than twenty (20) years of age; or
less than twenty-three (23) years of age and is enrolled in an institution of higher education or in a vocational school or program.
Id. at § 34-1-1-8(a). The statute allows parents to recover damages for the loss of the childs services, love, and companionship, as well as expenses such as hospital bills and funeral costs resulting from the childs death. See id. at § 34-1-1-8(e).
The Bolins argue that the definition of child encompasses all unborn children.
Wingert asserts that Indianas Child Wrongful Death Statute does not cover unborn fetuses
incapable of independent life. (See Appellants Br. at 5; Appellees Br. at
We begin by mentioning what this case is not. It does not
call for any moral, philosophical or theological determination[s] of what constitutes a person
or a life. Wade v. United States, 745 F. Supp. 1573, 1577
(D. Haw. 1990). While the larger, more politically charged issues in this
field are quite apparent, our sole task is to determine the scope of
the word child in the Wrongful Death Statute.
In the absence of clear legislative guidance, the challenge is where to draw
the line against otherwise open-ended liability. See W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts 287 (5th ed. 1984).
While this is not always an easy task, we bear in mind Justice
Holmes words: Neither are we troubled by the question where to draw
the line. That is the question in pretty much everything worth arguing
in the law. Irwin v. Gavit, 268 U.S. 161, 168 (1925) (citation
Our research reveals a wealth of court opinions and scholarship on the subject
of wrongful death and the unborn child. See, e.g., Sheldon R. Shapiro,
Right to Maintain Action or to Recover Damages for Death of Unborn Child,
84 A.L.R.3d 411 (1978 & Supp. 2001). Although each state has a
uniquely drafted wrongful death statute, courts have generally resolved this question in one
of four ways: (1) permit recovery only for the death of children
See footnote (2) permit recovery only for the death of viable unborn children,See footnote
(3) permit recovery for the death of unborn children that are quick,See footnote and
(4) permit recovery for the death of any unborn child.See footnote
Mamta K. Shah, Inconsistencies in the Legal Status of an Unborn Child:
Recognition of a Fetus as Potential Life, 29 Hofstra L. Rev. 931, 938-51
(2001); Daniel S. Meade, Wrongful Death and the Unborn Child: Should Viability
Be a Prerequisite for a Cause of Action?, 14 J. Contemp. Health L.
& Poly 421, 426-44 (1998).
Although this scholarship is helpful, we must focus on the language of Indianas
Child Wrongful Death Statute. While the legislature has clearly set upper limits
on the definition of child, it is not as plain that it has
placed a lower limit on the definition of child.
The 1987 revisions of the Child Wrongful Death Statute present us with a
very different situation today. Rather than relying exclusively upon policy and logic,
Britt court was forced to do, we are now able to
consider the evident intent of the legislature as expressed by the provisions it
added to the Indiana Code. These provisions do not support the conclusion
the Bolins seek.
We look first to the legislatures basic definition of child: an
unmarried individual without dependents who is less than twenty (20) years of age.
Ind. Code Ann. § 34-1-1-8(a) (West 1996). This definition contains four
concepts: an (1) unmarried, (2) individual, (3) without dependents, (4) who is
less than twenty years of age.
The first three concepts tend to indicate the legislature contemplated that only living
children would fall within the definition of child. Unmarried and without dependents
involve activities in which only living persons engage. While very young children
cannot marry or have dependents, the vocabulary suggests a desire to define persons
who have been born. It would strain this rather express language to
read unmarried individual without dependents to encompass an unborn child. A foremost
precept of statutory interpretation is avoiding illogical and absurd results. See Mayes,
744 N.E.2d at 393.
The words chosen by the legislature to define child have accepted public meanings
that point in a similar direction. Blacks Law Dictionary defines individual as
[e]xisting as an indivisible entity. Blacks Law Dictionary 777 (7th ed. 1999).
Websters Dictionary says among other things that an individual is a being
referred to by a proper name. Websters Third New International Dictionary 1152
(1993). This is language human beings use to describe other independently living
In contrast to the apparent meaning of the express language used in the
statute at issue in this case, in other contexts the legislature has enacted
protections for unborn children using explicit language. For example, Indiana Code §
35-42-1-6, enacted in 1979, imposes criminal liability for the knowing or intentional termination
of a human pregnancy.
See P.L. 153-1979, Sec. 3; Ind. Code Ann.
§ 35-42-1-6 (West 1998). In addition, the legislature has made it a
crime to traffic in fetal tissue.
See Ind. Code Ann. § 35-46-5-1
From these statutes, it is apparent that the legislature knows how to protect unborn children. The fact that the legislature did not expressly include unborn children within the definition of child in the Child Wrongful Death Statute lends further credence to our conclusion that an eight- to ten-week-old fetus does not meet the statutes definition of child.
As we observed above, the wrongful death action is entirely a creature of statute. Durham v. U-Haul Intl, 745 N.E.2d 755 (Ind. 2001). Because this statute is in derogation of the common law, we construe it strictly against the expansion of liability. Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994), opinion adopted by 678 N.E.2d 110 (Ind. 1997).
The express language of the statute and the fact that it is to
be narrowly construed lead us to conclude that the legislature intended that only
children born alive fall under Indianas Child Wrongful Death Statute. The legislature
can certainly expand the scope of protection under the Child Wrongful Death Statute
if it so chooses.
B. A Mothers Remedy. The exclusion of unborn children from Indianas Child Wrongful Death Statute does not mean that negligently injured expectant mothers have no recourse. As the Missouri Supreme Court has observed, [T]he mother has her own action for negligently inflicted injury, in which the circumstances of her pregnancy and miscarriage may be brought out and considered as part of the intangible damages. Rambo v. Lawson, 799 S.W.2d 62, 63 (Mo. 1990), superseded by statute as stated in Connor v. Monkem Co., 898 S.W.2d 89 (Mo. 1995).
It is well established in Indiana law that damages are awarded to compensate
an injured party fairly and adequately for her loss, and the proper measure
of damages must be flexible enough to fit the circumstances. Bader v.
Johnson, 732 N.E.2d 1212 (Ind. 2000). In tort actions generally, all damages
directly related to the wrong and arising without an intervening agency are recoverable.
Erie Ins. Co. v. Hickman, 622 N.E.2d 515 (Ind. 1993).
It is hornbook law that a tortfeasor takes the injured person as he
finds her, and the tortfeasor is not relieved from liability merely because an
injured partys pre-existing physical condition makes him or her more susceptible to injury.
When some injury was foreseeable and the defendant's negligence proximately caused the
aggravated injury, this rule allows recovery for an injury even if its ultimate
extent was unforeseeable. Morton v. Merrillville Toyota, Inc., 562 N.E.2d 781
(Ind. Ct. App. 1990).
Count I of the Bolins complaint seeks compensation for the pain and suffering Rebecca incurred as a result of the accident. (R. at 7.) See footnote It is foreseeable that pregnant mothers may be driving on the roadway and that negligent operation of a vehicle may injure these expectant mothers. Rebecca may claim damages to compensate her for her miscarriage.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.