explaining that to prevail on a no-evidence summary-judgment motion, the movant must allege there is no evidence of an essential element of an adverse party’s cause of action
How later courts described this case
- explaining that to prevail on a no-evidence summary-judgment motion, the movant must allege there is no evidence of an essential element of an adverse party’s cause of action
- stating that both guarantees require similar analysis and treating both as requiring same outcome, given that party did not argue that Texas’s guarantee was broader or different
- explaining that to prevail on no-evidence summary judgment motion, movant must allege there is no evidence of essential element of adverse party’s cause of action
- “If the child has no cause of action, neither do the parents.”
Written by the judges who cited it.
The opinion
*101 Justice O’NEILL,
concurring.
I agree with the dissent that neither the 8th nor the 24th Legislature intended to exclude from the wrongful death and survival acts a viable human fetus who dies before birth, and for reasons that Justices Kilgarlin and Gonzalez, and now Justice Smith, have expressed, Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503 (Tex.1987), was wrongly decided. See Krishnan v. Sepulveda, 916 S.W.2d 478, 488-90 (Tex.1995); Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 85-92 (Tex.1997). I am also sympathetic to the dissent’s general frustration with the doctrine of legislative acceptance in certain circumstances. But in this area, the Legislature has failed to act for well over a decade and a half even though the Court has continued to follow Witty and repeatedly invited the Legislature to clarify the statutory meaning if it thought the Witty court did not interpret the wrongful-death and survival acts correctly. See Krishnan, 916 S.W.2d at 179-80 ; Pietila v. Crites, 851 S.W.2d 185, 187 (Tex.1993) (per curiam); Blackman v. Langford, 795 S.W.2d 712, 74 .3 (Tex.1990) (per curiam); Tarrant County Hosp. Dist. v. Lobdell, 726 S.W.2d 23 (Tex.1987). The Legislature has now acted and, without wholly disavowing Witty , amended the statutory definition of “individual” to include “an unborn child at every stage of gestation from fertilization until birth.” Tex. Civ. Prac. & Rem.Code § 71.001(4). Under these circumstances, I agree with the Court that we are bound by Witty and therefore join the Court’s opinion.