ILNews

Opinion invites high court to reconsider decision

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals invited the Indiana Supreme Court to revisit its ruling that held only children born alive fall under Indiana's Child Wrongful Death Statute. In a decision today, the majority of the appellate court panel felt bound by the high court's previous ruling.

At issue in Savannah Linley Ann Nelson Ramirez, An Individual Under the Child Wrongful Death Act, By Her Father, Stephan Ramirez v. James A. Wilson and Suzy-Q Trucking, LLC, No. 56A04-0806-CV-356, is whether a 9-month-old fetus should be considered a child under the statute. The mother of Savannah died in a car accident as a result of a car accident with James Wilson. The baby died in utero.

Ramirez filed a complaint under the statute alleging Wilson's negligence caused his daughter's death. The trial court granted Wilson's motion for partial summary judgment because the statute isn't applicable because Savannah wasn't born alive. The trial court ruled it was bound to grant the partial summary judgment by the Supreme Court's decision in Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002).

Ramirez argues on appeal that a full-term and viable fetus should be considered a child under the Child Wrongful Death Statute. But in Bolin, the high court ruled a 10-week-old fetus didn't constitute a child under the statute and that the legislature only intended for babies born alive to be covered.

Even though the circumstances between Bolin and the instance case are different, Judges L. Mark Bailey and Cale Bradford affirmed the grant of partial summary judgment, citing the precedent set by the Supreme Court in Bolin. However, the majority urged the high court to reconsider the scope of their earlier ruling based on the circumstances of this case that perhaps Savannah could have lived had there been a prompt Cesarean section performed, wrote Judge Bailey.

But Judge Patricia Riley dissented, writing that exceptions can be made to stare decisis, such as when the reasoning of a precedent is patently flawed.

"In my opinion, Bolin represents a fallacy and no longer has any contemporary relevance. Judicial honesty dictates corrective action," she wrote.

Citing two cases decided by the Supreme Court on the issue of unborn children's rights, Judge Riley wrote Indiana courts were focused on protecting the rights of the unborn until the Bolin decision came in 2002. The judge also cited Horn v. Hendrickson, 824 N.E.2d 290 (Ind. Ct. App. 2005), in which the appellate court affirmed a mother couldn't file suit under the statute following the death of her six-month-old fetus after a car accident. That ruling also invited the high court to reconsider the Bolin opinion.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  2. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

ADVERTISEMENT