Judge Bonnie Sudderth granted summary judgment in favor of parents who suffered the death of their unborn child as the result of a car accident, on the following facts: The mother of the child was struck by another vehicle while driving through an intersection. The other driver stipulated that he was negligent in causing the collision and the woman was not at fault.
Immediately after the collision, the woman, who was 9-months pregnant at the time, felt her baby kicking in the womb. Although her water did not break and she had no bleeding, an ambulance took her from the accident scene to a hospital as a precautionary measure. Her unborn child died in the womb en route to the hospital.
The next day, knowing that her child was no longer alive and with her husband by her side, she endured more than nine hours of labor to deliver her stillborn daughter. The undisputed medical evidence proved that the child was fully developed, viable and could have lived outside the womb immediately before the collision, she had the capacity to cry at the time of the collision, she was alive at the time of the collision but survived only for a short period of time thereafter, and, finally, that the collision was the cause of the child’s death.
The law at the time this case was filed in the 352nd District Cout was that while Texas parents could recover for the wrongful death of a child who died only moments after birth, parents could not sue for the wrongful death for a child who was not born alive. The law also provided that while the mother could recover for her own mental anguish due to the death of her daughter, the father could not recover for his mental anguish.
Judge Sudderth granted summary judgment, ruling that a viable unborn child was an “individual” within the scope of the Wrongful Death Act, and should not be excluded under the statute because she was not born alive. Judge Sudderth also ruled that the father was entitled to the same rights as a mother to recover mental anguish damages for the loss of his child.
Judge Sudderth’s decision was appealed to the Second Court of Appeals, who, sitting en banc, upheld Judge Sudderth’s ruling. Justice Dixon Holman authored the opinion, which can be found at: Parvin v. Dean, 7 S.W.3d 264 (Tex. App. – Ft Worth 1999). In a subsequent unrelated case, the Texas Supreme Court criticized the Parvin v. Dean decision, but shortly thereafter the Texas Legislature amended the statute to codify this result.