WI Court Upholds Father's Right to Sue for Death of Unborn Fetus

September 09, 2010

This past July, a Wisconsin appellate court ruled that the father of an unborn child has a right to bring a lawsuit against the mother for her negligence in causing the death of the fetus.

Trial Court Finds No Liability for Insurance Company

In February 2003, Alicia Vander Meulen was hit by a pickup truck after pulling out of Culvers in Wisconsin Rapids, WI. At the time, she was 27 weeks pregnant. As a result of the automobile accident, the fetus was stillborn at birth.

The father of the child, Shannon Tesar, argued that Meulen and the driver of the pick-up truck, Brett Anderson, were negligent in causing the death of his unborn child. Tesar brought a wrongful death action against Anderson and against American Family Insurance, which insured both Anderson and Meulen.

American Family argued that it was not responsible for the negligence of Vander Meulen that led to the fetus's death. The trial court agreed, holding that under Wisconsin law, pregnant women do not owe a duty of care to their unborn children and that even if Meulen had owed such a duty, liability could not be imposed against American Family based on public policy reasons. The trial court then dismissed the suit against American Family.

Appellate Court Finds Mother Breached Duty of Care

On appeal, the 4th District Court of Appeals reversed the lower court's ruling. The court pointed out that Wisconsin follows the dissenting opinion in Palsgraf v. Long Island Railroad Co. 162 NE 99 (NY 1928), which holds that individuals owe a duty of care to the world at large to refrain from acts that unreasonably harm or threaten the safety of others. Most states follow the majority rule in Palsgraf: that the duty of care is owed not to the world, but to the specific person complaining of the harm.

Following the dissent in Palsgraf, the appellate court reasoned that the correct question in this case was not whether Meulen owed a duty of care to the fetus, but whether she owed a duty of care to the world to operate her vehicle in a reasonably safe manner. The court said that she did owe such a duty and that by breaching it, Meulen harmed Tesar by causing the death of the fetus.

The appellate court also found that public policy does not prevent liability from being imposed against American Family. In Wisconsin, courts will release liability on public policy grounds only under "unusual and extreme conditions" in which it would shock the public conscience to impose liability. After looking at the six most common grounds for dismissing liability for public policy reasons, the court concluded that they did not apply in this case.

Appellate Court Rejects "Slippery Slope" Argument

American Family argued that if the court found there was an affirmative duty of care to an unborn fetus, it would open the door to an "unprecedented and invasive expansion of the law into the mother's womb." The insurance company said that such a precedent would allow fathers to bring lawsuits against mothers for other harms against the fetus, including smoking, poor diet, and failing to take prenatal vitamins.

The 4th District, however, disagreed with American Family. The court said that it was well-established law to hold insurance companies liable for the negligent acts of their policyholders, including suits brought by children and fathers against negligent mothers in car accident cases.

The court also rejected American Family's arguments that it should follow the precedent of other jurisdictions that have held pregnant women do not owe a duty to unborn fetuses. For example, in an Illinois case brought by a child against the mother for injuries caused to the child in-utero during an automobile accident, the Illinois Supreme Court held that the mother did not owe a legal duty to the fetus.

The Wisconsin appellate court, however, was not persuaded.

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