Werling v. Sandy

Supreme Court of Ohio · Torts

TortsWrongful DeathPrenatal Injurieswrongful deathviable fetusstillbirthprenatal injuryR.C. 2125.01

Facts

The case presented the question whether the statutory beneficiaries of an unborn fetus may recover for wrongful death when both the alleged negligently inflicted injury and the fetus's death occurred before birth. The fetus was stillborn. The opinion frames the decisive factual condition as whether the fetus was viable at the time of injury. The parents sought damages as statutory beneficiaries for the loss of their child.

Issue

Whether R.C. 2125.01 permits a wrongful death action for a stillborn fetus when the alleged negligent injury and death both occurred before birth. More specifically, whether a viable unborn fetus that dies in utero may be treated as a "person" under the wrongful death statute.

Rule

Under R.C. 2125.01, a wrongful death action may be maintained when a viable fetus is negligently injured en ventre sa mere and is subsequently stillborn. For purposes of the statute, a viable fetus is a "person," but the court declined in this case to extend that status to a fetus incapable of independently surviving a premature birth.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Columbus, Dana Ortiz was 31 weeks pregnant when a delivery driver for Buckeye Parcel Co. negligently ran a red light and struck her car. Physicians concluded the fetus had been capable of independent survival at that stage, but the child died in utero and was delivered stillborn two days later.

Under the governing Ohio rule, may the child's statutory beneficiaries maintain a wrongful death action?

Explanation. The majority held that under R.C. 2125.01 a wrongful death action may be maintained when a viable fetus is negligently injured en ventre sa mere and is subsequently stillborn. The court rejected live birth as the controlling line and treated a viable fetus as a person under the statute.