SUBJECT: Maryland Wrongful Death Case

TO: Professor Schatz

FROM: Mallory Pappas
DATE: Tuesday, April 3rd, 2018
STATEMENT OF FACTS
David Smith ran through a red light impacting seven and one-half month pregnant Jane
Doe’s vehicle. Although Jane Doe sustained minor scratches and bruises, when she went into
labor four days later, her infant was stillborn. The doctor’s deemed the car accident as direct
causation for the infant’s death; the doctors stated in Jane Doe’s recent check-up two weeks
earlier that the infant could live outside of the womb at that time successfully.
QUESTION PRESENTED
Can Jane Doe recover from David Smith for the wrongful death of her infant when David
Smith ran a red light striking Jane Doe’s vehicle directly causing her stillborn infant days later?
CONCLUSION
Yes, David Smith is responsible for the wrongful death of Jane Doe’s infant, and Jane
Doe can recover from David Smith. Not only did David Smith break the law by negligently
running a red light, he struck Jane Doe’s vehicle. Furthermore, Jane Doe having been seven and
one-half months pregnant, went into labor four days later giving birth to a stillborn infant. The
doctor’s concluded that the death of the infant was caused by the accident, seeing as the infant
was in healthy condition just two weeks prior and could live outside of the womb. The doctor’s
proving the infant as viable prior to the accident is direct evidence that David Smith’s negligent
act of running the red light constitutes wrongful death of the infant.
APPLICABLE STATUTES

Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 3-904. In an action under this
subtitle, damages may be awarded to the beneficiaries proportioned to the injury resulting from
the wrongful death.

SYMPOSIUM: FARLEY V. SARTIN AND FETAL PERSONHOOD: STUDENT WORK: To

Recover or not to Recover: A State by State Survey of Fetal Wrongful Death Law, 99 W. Va. L.
Rev. 390 O. This section on Maryland’s precedents of fetal wrongful deaths concludes that a
beneficiary may recover from wrongful death of a viable fetus that may be born alive or
stillborn. However, if the fetus is nonviable, one cannot recover from wrongful death.

63 FR 27794. A viable fetus is a fetus that can survive independently outside of the womb with
maintaining a heartbeat and respiration. A nonviable fetus is one that cannot live independently
outside of the womb with neither a heartbeat or spontaneous respiratory activity.
 APPLICABLE CASES
Smith v. Borello, 370 Md. 227, 804 A.2d 1151, 2002 Md. LEXIS 558 (Md. August 22, 2002).
Smith, who was pregnant, was in a car accident caused by Borello where Smith suffered from
personal injuries, anguish, and grief which included the miscarriage of her nonviable infant. The
court affirmed that Smith may collect damagers under personal injuries caused by Borello’s
negligent vehicle operation but may not collect damages under the wrongful death statute
because the infant was nonviable.
Odham v. Sherman, 234 Md. 179, 198 A.2d 71, 1964 Md. LEXIS 603 (Md. January 1, 1964). A
mother was carrying a full term viable fetus when she was involved in an accident. The infant
was delivered stillborn. The court determined that the cause of the accident was reason for the
stillborn infant allowing the mother to recover damages from the death of her child, as the fetus
was viable at the time of the accident.
Kandel v. White, 339 Md. 432, 663 A.2d 1264, 1995 Md. LEXIS 114 (Md. August 24, 1995).
An appellant representing a deceased eight-week pregnant woman from a car accident sued the
driver, the appellee, to collect damages for the wrongful death of the infant. However, wrongful
death of the infant could not be maintained because there was not proof of a viable fetus at the
time of the accident. The court affirmed the stillborn fetus was nonviable, not allowing for the
appellant to collect damages for wrongful death.
DISCUSSION
David Smith committed wrongful death of Jane Doe’s infant from his negligent driving.
Because the doctor’s said in Jane Doe’s check-up two weeks prior that the baby was in healthy
condition to live independently outside of the womb at seven months, the car accident
complicated the birth causing the infant to be stillborn. As Jane Doe sustained minor scratches
and bruises, David Smith’s damage was destructive and fatal causing Jane Doe’s stillborn infant.
The fetus was viable concluded by the doctor’s meaning the fetus could independently live
outside of the womb with a heartbeat and respiratory activity, 63 FR 27794. Because the viable
fetus was stillborn directly caused by the accident, Jane Doe may recover damages from David
Smith, Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 3-904.
According to Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 3-904, if a
defendant is found guilty in committing wrongful death, the plaintiff is eligible to recover.
Wrongful death resulting from a wrongful act and negligence constitutes a trial for a defendant to
recover damages. Because David Smith was found guilty in committing wrongful death of Jane
Doe’s stillborn infant whom was viable prior to the car accident, Jane Doe could successfully
recover damages from David Smith.
If Jane Doe’s infant was a nonviable fetus prior to the accident or could not be proven as
viable, Jane Doe could not recover damages. As this case was tired in the State of Maryland, the
history of Maryland precedents determined by SYMPOSIUM: FARLEY V. SARTIN AND
FETAL PERSONHOOD: STUDENT WORK: To Recover or not to Recover: A State by State
Survey of Fetal Wrongful Death Law, 99 W. Va. L. Rev. 390 O constituted that the viability of
the infant served as justification for recovery of damages. When cases included a nonviable fetus
born alive or stillborn, the defendant cannot recover damages. If an infant is born alive but not
viable, the infant cannot independently live on their own. In other words, the heart cannot beat
successfully nor is there success respiratory activity 63 FR 27794.
In the case of Smith v. Borello, 370 Md. 227, 804 A.2d 1151, 2002 Md. LEXIS 558 (Md.
August 22, 2002), the plaintiff was severally injured from a car accident and her infant was
stillborn. Because the fetus was nonviable, the defendant could not recover damages for
wrongful death. However, the defendant was permitted to recovery damages over personal injury
which included the grief and mental anguish of her stillborn infant. Had the infant been viable
like Jane Doe’s, the plaintiff could have recovered damages from wrongful death of her infant.
The Odham v. Sherman, 234 Md. 179, 198 A.2d 71, 1964 Md. LEXIS 603 (Md. January
1, 1964) directly mirrors the Jane Doe case. The plaintiff was pregnant with a viable fetus which
was stillborn after a car accident. The viable fetus constituted recovery of damages for the
wrongful death of the stillborn infant. Had the fetus been nonviable, the plaintiff would not have
been permitted to recover damages of wrongful death. This case further set Maryland precedent
on wrongful death and the recovery of damages of such.
Kandel v. White, 339 Md. 432, 663 A.2d 1264, 1995 Md. LEXIS 114 (Md. August 24,
1995) further supports the viable and nonviable status that determines recovery from wrongful
death. The plaintiff appealed the court proceeding that she could not recover damages from the
wrongful death of her infant after a car accident. The court had affirmed its judgement that
because the fetus was nonviable and could not be proven viable, the court could not grant
recovery of damages from wrongful death against the plaintiff’s infant. The fetus must be viable
to recover damages from wrongful death.