Summary
In Tarrant County Hospital District v. Lobdell, 726 S.W.2d 23 (Tex. 1987), our highest court stated in no uncertain terms: "This cause raises the issue of whether a wrongful death action can be brought under the Texas Wrongful Death Act, [citation omitted] when a viable fetus is negligently killed ". [emphasis mine] In a per curiam opinion, the court cited Witty, reversed the Fort Worth Court of Appeals and upheld the trial court's granting of a motion for summary judgment on the grounds the wrongful death statute did not allow such a cause of action.
Summary of this case from Langford v. BlackmanOpinion
No. C-5662.
March 4, 1987. Rehearing Denied April 15, 1987.
Appeal from District Court No. 352nd, Tarrant County, John Street, J.
Tim Curry, Criminal Dist. Atty., Sullivan H. Bradley, Jr. and Dalton Gandy, Dist. Atty.'s Office, D. Michael Wallach and Tim G. Sralla, Shannon, Gracey, Ratliff Miller, Fort Worth, for petitioners.
R. Louis Bratton, Gibbins, Burrow Bratton, Austin, for respondents.
This cause raises the issue of whether a wrongful death action can be brought under the Texas Wrongful Death Act, TEX.REV.CIV.PRAC. REM.CODE ANN. § 71.002 (Vernon 1986), when a viable fetus is negligently killed. The trial court granted the defendant's motion for summary judgment on the ground that the wrongful death statute did not allow a cause of action for the intrauterine death of a fetus. The court of appeals construed the statute as allowing such a cause of action and therefore reversed and remanded the cause for trial. 710 S.W.2d 811. Subsequent to the court of appeals opinion, this Court held that "no cause of action may be maintained for the death of a fetus under the wrongful death statute until the right to bring such action is afforded by the legislature." Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503, 506 (1987).
Therefore, because the judgment of the court of appeals conflicts with a prior decision of this Court, we grant the petitioners' applications for writ of error. Pursuant to TEX.R.APP.P. 133(b), without hearing oral argument, the majority of the court reverses the judgment of court of appeals and affirms the judgment of the trial court.