construing wrongful death of a "person" to include that of a fetus where the state constitution provided that "laws ... shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons"
How later courts described this case
- construing wrongful death of a "person" to include that of a fetus where the state constitution provided that "laws ... shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons"
- defining "child" as "1. A person under the age of majority.... 5. A baby or fetus"
- holding that, pursuant to § 1.205, a wrongful death claim under § 537.080 may be stated for a nonviable unborn child
- interpreting Missouri wrongful death statute to authorize a parental cause of action against a third party for the death of a non-viable fetus in utero based upon stated legislative interest in protecting unborn life from conception through live birth
Written by the judges who cited it.
The opinion
ROBERTSON, Judge,
concurring and concurring in result.
I concur in all but Part V of the majority opinion. I do not join Part V because, in my opinion, it is obiter dictum that does not reflect the Court’s experience.
The principal opinion asserts that the difficulties that attend proof of damages in wrongful death actions for viable unborn children “are all the more glaring in a case involving a child that has not even reached the point of viability in the womb.” (Majority op. at 93.) I disagree. I can see no greater difficulty in proving damages for an *94 unborn, nonviable child than for an unborn, viable child. To the extent those “difficulties” exist, they are the product of this Court’s decision in O’Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), not of the Court’s decision today. In the dozen years since O’Grady , the trial bench and trial bar have apparently managed to establish a process for working through those difficulties. If they have not established such a process, they have maintained a remarkable silence in the face of their frustration.