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. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

ADVERTISEMENT