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In what looks to become a slippery slope, a Wisconsin 4th District Court of Appeals gave the green light for a man to sue his unborn child's mother's insurance company for wrongful death, after the woman's negligent driving played a part in a car accident. Following the accident, the mother gave birth to a stillborn fetus.
Shannon Tesar, the father of the fetus, is seeking damages from the mother's insurance company based on the death of his unborn child, reports the Associated Press. Tesar's case was originally denied when the lower court ruled that the mother did not owe a legal duty to the fetus. The reversal has brought up some real concerns that the court is opening the door to other types of suits against mothers for nearly any action that can harm unborn children, such as poor dietary habits.
To put it simply, Tesar could argue that the fetus was like a passenger in the car, and was killed as a result of the accident. This argument rests on the fact that the fetus was a stillborn at the hospital, and therefore at a developmental stage capable of living on its own. One of the threshold questions in this case may be whether the fetus was viable for purposes of affording the unborn child the status of a person in the eyes of the law. Whether or not the fetus is viable will serve to determine if the mother breached her legal duty to the fetus. Should viability not be an issue, this case would likely play out as if the unborn child had already been born at the time of the accident, essentially sitting shotgun when the accident occurred.
A stretch? Perhaps. But viability is not the only legal hurdle Tesar will have to jump. Another difficult question this case poses is whether Tesar will be able to calculate a reasonable determination of damages. Many states do not allow suits based on the wrongful death of a fetus for this very reason- damages are impossible to calculate to any degree of certainty. Courts often return a modest award for children and elderly, as it is much more difficult to quantify life at the beginning and ending states without becoming overly speculative in nature. A successful wrongful death action requires a showing of negligent or intentional conduct of another that brought about a death. In this case, Tesar needs to prove that negligent driving brought about the death of the fetus, and that he has suffered a financial loss.
What distinguishes this case from those involving fetal murder hinges on the nature of the activity that brought about the death. In this case, Tesar is not alleging that the mother intended to kill the fetus, but that her negligent actions played a role in the death and he deserves to be compensated for his loss.