Mother can be liable for death of fetus

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The father of a fetus born stillborn after an auto accident can sue based on the mother’s negligence.

The Wisconsin Court of Appeals held on July 29 that public policy considerations do not bar the suit, but cautioned that its opinion should not be read to invite judicial scrutiny into the day-to-day lives of pregnant women.

“No future Wisconsin court is required or encouraged to venture into cases which shock the conscience of society by anything we have written here,” Judge Charles P. Dykman wrote for the court. “Public policy is decided on a case-by-case basis and we only decide the issue before us. … Because this case alleges injury caused by the negligent driving of a vehicle, that is all this case is about.”

The fetus of Alicia Vander Meulen was stillborn after an auto accident with Brett Anderson. The father, Shannon E. Tesar, then filed suit against Anderson and American Family Insurance Company, which insured both Vander Meulen and Anderson.

Tesar alleged that both Anderson and Vander Meulen were negligent, although he did not sue Vander Meulen directly.

American Family moved for partial summary judgment, arguing that it cannot be liable for Vander Muelen’s negligence in the death of her fetus.

The circuit court agreed, holding that Vander Meulen did not owe a duty to the fetus, and that, even if she did, public policy precluded liability.

Tesar appealed, and the Court of Appeals reversed both holdings.

Addressing duty, the court noted that Wisconsin follows the view of the dissent in Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 102 (N.Y.1928) (Andrews, J., dissenting) — that everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others.

Judge Dykman wrote for the court, “The correct question is whether Vander Meulen had a duty to the world at large to use ordinary care in operating her motor vehicle. With the correct question posed, the answer is easy: She did.”

Turning to public policy considerations, the court concluded that none of the six applicable factors bar the claim.

First, the court found that the injury is not too remote from the negligence, explaining, “The death of a person involved in an automobile accident, or the death of that person’s fetus, is not a remote consequence from an automobile accident caused by negligent conduct.”

Second, the court found that recovery is not too out of proportion to the culpability, because “this is a mine-run lawsuit, much like many other automobile accident lawsuits, albeit with tragic results.”

Third, the court found the harm caused is not highly extraordinary, given the negligent act, reasoning, “Deaths, including fetal deaths, are unfortunately far too common to fit into the ‘highly extraordinary’ category.”

Fourth, the court found recovery would not place too unreasonable a burden on the negligent tortfeasor. “If this burden were unreasonable, the same would be true in every automobile accident case in which the negligence of a mother harms a spouse or child. That cannot be true.”

Fifth, the court found that recovery would not be too likely to open the way to fraudulent claims, noting, “There is no reason to suppose that people will fake fetal deaths resulting from automobile accidents.”

Finally, the court found that recovery would not enter a field that has no sensible or just stopping point.

American Family argued that if the court permitted liability, it would go down a slippery slope that opens the door to husbands suing wives for not exercising properly or not taking the proper vitamins during pregnancy.

But the court disagreed, stating, “The field we are in is a well-known field in the law, the field of holding insurance companies liable for the negligent acts of insured drivers, even when a driver’s negligence injures or kills a family member.”

The court acknowledged that numerous other jurisdictions have held that a pregnant woman does not owe a duty to her unborn child. But the court found the cases inapplicable, because each of those jurisdictions follows the majority view in Palsgraf, rather than the dissent.

Judge Paul Lundsten wrote a separate concurring opinion, declining to join the lead opinion’s discussion of duty, and asserting, “it is not helpful to think about negligence cases in terms of whether they are ‘mine-run’ or instead ‘unusual’ or ‘hard.’”

David Ziemer can be reached at [email protected].