
ATTORNEY FOR APPELLANTS            ATTORNEYS FOR APPELLEE

Glenn A. Deig                      Patricia K. Woodring        Evansville,
Indiana                 Shawn M. Sullivan
                                   Terrell, Baugh, Salmon & Born LLP
                                   Evansville, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



REBECCA BOLIN and CALVIN BOLIN,    )
                                         )
      Appellants (Plaintiffs Below), ) No. 87S01-0203-CV-177
                                         )  in the Supreme Court
            v.                           )
                                         ) No. 87A01-0006-CV-183
Brandon A. Wingert,                      )  in the Court of Appeals
                                         )
      Appellee (Defendant Below).  )










                    APPEAL FROM THE WARRICK CIRCUIT COURT
                 The Honorable Donald G. Hendrickson, Judge
                         Cause No. 87C01-9802-CT-056



                               March 11, 2002

SHEPARD, Chief Justice.


      In a case of first impression under  Indiana’s  Child  Wrongful  Death
Statute, we address the question whether an  eight-  to  ten-week-old  fetus
fits the definition of “child.”  We conclude that it does not.



                        Facts and Procedural History


      While driving on April 13, 1996, Rebecca Bolin stopped her car in  the
roadway, waiting for the car in front  of  her  to  turn.   Brandon  Wingert
struck Bolin’s vehicle from behind, and  Bolin  suffered  several  injuries,
including a miscarriage.  Bolin was eight  to  ten  weeks  pregnant  at  the
time.

      On February 5, 1998, Bolin and her husband Calvin filed  suit.   Count
III of their complaint alleged that Wingert caused Bolin’s  miscarriage  and
requested compensation for the wrongful death of  their  unborn  child.   In
response, Wingert moved for partial  summary  judgment,  alleging  that  the
Child Wrongful Death Statute[1] did not provide for such a recovery.     The
trial court granted Wingert’s motion.

      The Bolins appealed, and the Court of Appeals held  that  “child”  was
not expressly defined by the legislature.  Bolin v. Wingert, 742 N.E.2d  36,
37 (Ind. Ct. App. 2001).  Relying on a 1972 decision, the  court  held  that
only “an unborn viable child” had a claim under the Wrongful Death  Statute.
 Id. at 38 (emphasis in original)(citing Britt v. Sears, 150 Ind. App.  487,
498, 277 N.E.2d 20, 27 (1972)).  Because the Bolins  had  not  produced  any
evidence that the unborn child was “capable of independent life,” the  Court
of Appeals affirmed the trial court’s grant  of  partial  summary  judgment.
Id.



                           I.  Standard of Review


        Summary judgment is appropriate only where the evidence  shows  that
there is no genuine issue of material fact and  that  the  moving  party  is
entitled to a judgment as a matter of law.   Ind. Trial  Rule  56(C);  Shell
Oil Co.  v.  Lovold  Co.,  705  N.E.2d  981  (Ind.  1998).   All  facts  and
reasonable inferences drawn from those facts are construed in favor  of  the
nonmoving  party.   Id.  at  984.   An  appellant  bears   the   burden   of
demonstrating it was error  to  grant  summary  judgment,  though  appellate
courts scrutinize such rulings carefully to assure  that  a  party  was  not
improperly denied his or her day in court.  Owens Corning  Fiberglass  Corp.
v. Cobb, 754 N.E.2d 905 (Ind. 2001)(citations omitted).



                    The Applicable Wrongful Death Statute



      At common law, a person killed  by  another’s  tortious  acts  had  no
right to recover damages.  The victim’s dependents or other heirs  therefore
had no recognized cause of action,  either.   This  inequity  gave  rise  to
wrongful death statutes, first in England in 1846, and  soon  thereafter  in
every United States jurisdiction.  See Stuart M. Speiser  et  al.,  Recovery
for Wrongful Death and Injury § 1.1, 1.8 (1992).  Indiana’s  wrongful  death
statutes are found at Indiana  Code  §  34-23-1-1  (general  wrongful  death
statute), § 34-23-1-2 (death of adult persons), and § 34-23-2-1  (injury  or
death of children).

      We first note that appellants cited the wrong  version  of  the  Child
Wrongful Death Statute to the  trial  court  and  Court  of  Appeals.   (See
Appellant’s Br. at 7.)  At the time  of  the  accident  in  1996,  Indiana’s
Child Wrongful Death Statute was found at Indiana  Code  §  34-1-1-8.   This
version of the statute reflected major legislative revisions  made  in  1987
and 1989, including the addition of a definition of “child.”  See P.L.  306-
1987; P.L. 33-1989.[2]  The Court of Appeals relied  on  a  version  of  the
statute that preceded the 1987 and 1989 amendments.[3]

      The applicable statute provides that “[a]n action  may  be  maintained
under this section against the person whose wrongful act or omission  caused
the injury or death of a child.”  Ind. Code Ann. § 34-1-1-8(b) (West  1996).
 It defines “child” as follows:
      As used in this section, “child” means an unmarried individual without
      dependents who is:
      (1)   less than twenty (20) years of age; or
        2) less than twenty-three (23) years of age and is enrolled  in  an
           institution of higher education or in  a  vocational  school  or
           program.

Id. at § 34-1-1-8(a).  The statute allows parents  to  recover  damages  for
the loss of the child’s  services,  love,  and  companionship,  as  well  as
expenses such as  hospital  bills  and  funeral  costs  resulting  from  the
child’s death.  See id. at § 34-1-1-8(e).


      The Bolins argue that the definition of “child” encompasses all unborn
children.  Wingert asserts that Indiana’s Child Wrongful Death Statute  does
not cover unborn fetuses incapable of independent  life.   (See  Appellants’
Br. at 5; Appellee’s Br. at 6.)




             III.  Interpreting the Child Wrongful Death Statute

      When interpreting a statute, appellate courts independently  review  a
statute's meaning and apply it to the facts of the case under review.  If  a
statute is unambiguous, that is, susceptible to but  one  meaning,  we  must
give the statute its clear and plain meaning.  See  Elmer  Buchta  Trucking,
Inc. v. Stanley,  744  N.E.2d  939,  942  (Ind.  2001).   If  a  statute  is
susceptible to multiple interpretations, however, we must try  to  ascertain
the legislature's intent and interpret the statute so as to effectuate  that
intent.  Id. (citing Whitacre v. State, 629 N.E.2d 1236  (Ind.  1994)).   We
presume the legislature intended logical application of  the  language  used
in the statute, so as to avoid unjust or absurd results.   Sales  v.  State,
723 N.E.2d 416, 420 (Ind. 2000).

      We begin by mentioning what this case is not.  It does  not  call  for
“any  moral,  philosophical  or   theological   determination[s]   of   what
constitutes a person or a life.”  Wade v. United States, 745 F. Supp.  1573,
1577 (D. Haw. 1990).  While the larger, more politically charged  issues  in
this field are quite apparent, our sole task is to determine  the  scope  of
the word “child” in the Wrongful Death Statute.

      In the absence of clear legislative guidance, the challenge  is  where
to draw the line  against  otherwise  open-ended  liability.   See  W.  Page
Keeton et al., Prosser and Keeton on the Law of Torts 287  (5th  ed.  1984).
While this is not always an easy task,  we  bear  in  mind  Justice  Holmes’
words:  “Neither are we troubled by the question where  to  draw  the  line.
That is the question in pretty much everything worth arguing  in  the  law.”
Irwin v. Gavit, 268 U.S. 161, 168 (1925) (citation omitted).

      Our research reveals a wealth of court  opinions  and  scholarship  on
the subject of wrongful death and the unborn child.  See, e.g.,  Sheldon  R.
Shapiro, Right to Maintain Action or to Recover Damages for Death of  Unborn
Child, 84 A.L.R.3d 411 (1978 & Supp.  2001).   Although  each  state  has  a
uniquely drafted wrongful death  statute,  courts  have  generally  resolved
this question in one of four ways:  (1) permit recovery only for  the  death
of children “born alive,”[4] (2) permit  recovery  only  for  the  death  of
“viable” unborn children,[5] (3) permit recovery for  the  death  of  unborn
children that are “quick,”[6] and (4) permit recovery for the death  of  any
unborn child.[7]  See, e.g., Mamta K. Shah,  Inconsistencies  in  the  Legal
Status of an Unborn Child:  Recognition of a Fetus  as  Potential  Life,  29
Hofstra L. Rev. 931, 938-51 (2001); Daniel S. Meade, Wrongful Death and  the
Unborn Child:  Should Viability Be a Prerequisite for a  Cause  of  Action?,
14 J. Contemp. Health L. & Pol’y 421, 426-44 (1998).

      Although this scholarship is helpful, we must focus on the language of
Indiana’s Child Wrongful Death Statute.  While the legislature  has  clearly
set upper limits on the definition of “child,” it is not as  plain  that  it
has placed a “lower” limit on the definition of “child.”

      A.  The Wrongful  Death  Statute’s  Express  Language.   In  Britt  v.
Sears, 150 Ind. App. 487,  277  N.E.2d  20  (1971),  the  Court  of  Appeals
addressed a prior version of Indiana’s Child  Wrongful  Death  Statute  that
lacked a definition of  “child.”[8]   The  Court  of  Appeals  provided  the
following thoughtful analysis:
      [W]e find no objective reason for saying  that  the  1881  Legislature
      which gave the father the right to “maintain an action for the  injury
      or death of a child” did not intend “child”  to  include  a  stillborn
      child.  Whatever was in their minds is not recorded and is, at best, a
      matter of mere supposition.  But if we may, arguendo, indulge  in  our
      own supposition it would be this:  That since  actions  for  pre-natal
      injuries and deaths were then unknown  in  Indiana  jurisprudence  our
      lawmakers very probably gave no thought to whether they were  creating
      an action for pre-natal injury or pre-natal death,  or  whether  their
      word “child” was the same word “child” so often used in referring to a
      pregnant woman as being “with child.”


150 Ind. App. at 494, 277 N.E.2d  at  24-25.[9]   Without  a  definition  of
“child” for guidance, the court concluded that a  “full  term  healthy  male
capable of independent  life”  was  a  “child  within  the  meaning  of  the
statute.”  150 Ind. App. at 498, 277 N.E.2d at 27.

      The 1987 revisions of the Child  Wrongful  Death  Statute  present  us
with a very different situation  today.   Rather  than  relying  exclusively
upon policy and logic, as the Britt court was forced to do, we are now  able
to consider the evident intent  of  the  legislature  as  expressed  by  the
provisions it added to the Indiana Code.  These provisions  do  not  support
the conclusion the Bolins seek.

      We look first to the legislature’s basic definition of “child”:    “an
unmarried individual without dependents who is less than twenty  (20)  years
of age.”  Ind.  Code  Ann.  §  34-1-1-8(a)  (West  1996).   This  definition
contains four concepts:  an  (1)  unmarried,  (2)  individual,  (3)  without
dependents, (4) who is less than twenty years of age.

       The  first  three  concepts  tend   to   indicate   the   legislature
contemplated that only living children would fall within the  definition  of
“child.”  “Unmarried” and “without dependents” involve activities  in  which
only living persons engage.  While very young children cannot marry or  have
dependents, the vocabulary suggests a desire  to  define  persons  who  have
been born.  It would strain this rather express language to read  “unmarried
individual without dependents” to encompass an  unborn  child.   A  foremost
precept  of  statutory  interpretation  is  avoiding  illogical  and  absurd
results.  See Mayes, 744 N.E.2d at 393.

      The words chosen by the legislature to define  “child”  have  accepted
public meanings that point in a similar direction.  Black’s  Law  Dictionary
defines “individual” as “[e]xisting as an indivisible entity.”  Black’s  Law
Dictionary 777 (7th  ed.  1999).   Webster’s  Dictionary  says  among  other
things that an “individual” is a being  “referred  to  by  a  proper  name.”
Webster’s Third New International Dictionary 1152 (1993).  This is  language
human beings use to describe other independently living human beings.

      In contrast to the apparent meaning of the express  language  used  in
the statute at issue in this case, in other  contexts  the  legislature  has
enacted protections  for  unborn  children  using  explicit  language.   For
example, Indiana  Code  §  35-42-1-6,  enacted  in  1979,  imposes  criminal
liability  for  the  knowing  or  intentional   termination   of   a   human
pregnancy.[10]  See P.L. 153-1979, Sec. 3; Ind. Code Ann. § 35-42-1-6  (West
1998).  In addition, the legislature has made  it  a  crime  to  traffic  in
fetal tissue.[11]  See Ind. Code Ann. § 35-46-5-1 (West 1998).

      From these statutes, it is apparent that the legislature knows how  to
protect unborn children.  The fact that the  legislature did  not  expressly
include unborn children within  the  definition  of  “child”  in  the  Child
Wrongful Death Statute lends further credence  to  our  conclusion  that  an
eight- to ten-week-old fetus does  not  meet  the  statute’s  definition  of
“child.”

      As we  observed  above,  the  wrongful  death  action  is  entirely  a
creature of statute.  Durham v. U-Haul Int’l, 745 N.E.2d  755  (Ind.  2001).
Because this statute is in derogation of the  common  law,  we  construe  it
strictly against the expansion of liability.   Ed Wiersma  Trucking  Co.  v.
Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App.  1994),  opinion  adopted  by  678
N.E.2d 110 (Ind. 1997).

      The express language of the statute and the fact  that  it  is  to  be
narrowly construed lead us to conclude that the  legislature  intended  that
only children born alive fall under Indiana’s Child Wrongful Death  Statute.
 The legislature can certainly expand the  scope  of  protection  under  the
Child Wrongful Death Statute if it so chooses.

      B.   A  Mother’s  Remedy.   The  exclusion  of  unborn  children  from
Indiana’s Child Wrongful  Death  Statute  does  not  mean  that  negligently
injured expectant mothers have no recourse.  As the Missouri  Supreme  Court
has observed, “[T]he mother has her own  action  for  negligently  inflicted
injury, in which the circumstances of her pregnancy and miscarriage  may  be
brought out and considered as part of the  intangible  damages.”   Rambo  v.
Lawson, 799 S.W.2d 62, 63 (Mo. 1990), superseded by  statute  as  stated  in
Connor v. Monkem Co., 898 S.W.2d 89 (Mo. 1995).

      It is well established in Indiana law  that  damages  are  awarded  to
compensate an injured party fairly and adequately  for  her  loss,  and  the
proper measure of damages must be flexible enough to fit the  circumstances.
 Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000).  In tort actions  generally,
all  damages  directly  related  to  the  wrong  and  arising   without   an
intervening agency are recoverable.  Erie Ins. Co. v.  Hickman,  622  N.E.2d
515 (Ind. 1993).

      It is hornbook law that a tortfeasor takes the injured  person  as  he
finds her, and the tortfeasor is not relieved from liability merely  because
an injured party’s pre-existing physical condition makes  him  or  her  more
susceptible  to  injury.   When  some  injury  was   foreseeable   and   the
defendant's negligence proximately caused the aggravated injury,  this  rule
allows  recovery  for  an  injury  even   if   its   ultimate   extent   was
unforeseeable.   Morton v. Merrillville Toyota, Inc., 562 N.E.2d  781  (Ind.
Ct. App. 1990).

      Count I of the Bolins’ complaint seeks compensation for the  pain  and
suffering Rebecca incurred as a result of the accident.  (R. at 7.)[12]   It
is foreseeable that pregnant mothers may be driving on the roadway and  that
negligent operation  of  a  vehicle  may  injure  these  expectant  mothers.
Rebecca may claim damages to compensate her for her miscarriage.


                                 Conclusion

      We affirm the decision of the trial court.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Ind. Code Ann. § 34-23-2-1 (West 1998).
[2] Since 1989, the statute has remained unchanged, though it was
recodified as Indiana Code § 34-23-2-1 in 1998.  See P.L. 1-1998, Sec. 18.
[3] The Court of Appeals quoted the statute as follows:

      The father and mother jointly, or either of them by naming  the  other
      parent as a co-defendant to answer as to his or her  interest,  or  in
      case of divorce or dissolution of marriage the person to whom  custody
      of the child was awarded, may maintain an action  for  the  injury  or
      death of a child; and a guardian may  maintain  such  action  for  the
      injury or death of his ward; in case of death of the  person  to  whom
      custody of the child was awarded, a guardian  shall  be  appointed  to
      maintain an action for the injury or death of his ward.  But when  the
      action is brought by the guardian for  an  injury  to  his  ward,  the
      damages shall inure to the benefit of his ward.


Bolin, 742 N.E.2d at 37.
[4] See, e.g., Justus v. Atchison, 565 P.2d 122 (Cal. 1977), disapproved  of
by Ochoa v. Superior Court, 703 P.2d 1 (Cal. 1985);  Hernandez  v.  Garwood,
390 So. 2d 357 (Fla. 1980); Stern v. Miller, 348 So.  2d  303  (Fla.  1977);
Endresz v. Friedberg, 248 N.E.2d  901  (N.Y.  1969);  Sosebee  v.  Hillcrest
Baptist Med. Ctr., 8 S.W.3d 427 (Tex. App. 1999).   The  “born  alive”  rule
generally requires that the injured child be born alive before  recovery  is
permitted.  Our research reveals that about ten states adhere to  the  “born
alive” standard.
[5] See, e.g., Eich v. Town of Gulf Shores, 300  So.  2d  354  (Ala.  1974);
Mone v. Greyhound Lines, Inc., 331 N.E.2d 916  (Mass.  1975);  Verkennes  v.
Corniea, 38 N.W.2d 838  (Minn.  1949).   The  “viability”  standard  is  the
predominant rule, followed by over thirty states.   See  Sarah  J.  Loquist,
The Wrongful Death of a Fetus:  Erasing the Barrier  Between  Viability  and
Nonviability, 36 Washburn L.J. 259, 259-60 (1997).  A fetus is  viable  when
it is “so far formed and developed that if then born it would be capable  of
living.”   Thibert  v.  Milka,  646  N.E.2d  1025,  1025  n.3  (Mass.  1995)
(citations omitted).
[6] See Shirley v. Bacon, 267 S.E.2d 809 (Ga. Ct. App. 1980).   A  child  is
considered “quick” when the fetus “is able to move in  its  mother’s  womb.”
Id. at 811 (citation omitted).  Georgia is the  only  state  we  found  that
follows the “quick” standard.
[7] See, e.g., Connor v. Monkem Co., 898 S.W.2d 89 (Mo.  1995);  Wiersma  v.
Maple Leaf Farms, 543 N.W.2d 787 (S.D. 1996); Farley v. Sartin,  466  S.E.2d
522 (W. Va. 1995).  States permitting wrongful death actions for  non-viable
fetuses are in the minority.  See Louquist, supra note 4, at 278-80.   Based
on our research, West Virginia  is  in  fact  the  only  state  that  allows
recovery  for  non-viable  fetuses  without  express   language   from   the
legislature that “unborn children” are included  within  the  scope  of  the
state’s wrongful death statute.
[8] As opposed to the eight- to ten-week-old fetus in our case,  the  unborn
child in Britt was in gestation for nine months  and  one  week.   150  Ind.
App. at 488, 277 N.E.2d at 21.
[9] In Britt, the wrongful death statute in question was  enacted  in  1881.
We note a substantial research tool not cited by any of  the  parties.   The
“Brevier Legislative Reports,” published biennially between 1858  and  1887,
are verbatim reports of legislative history of the Indiana General  Assembly
during those years.  See Justin E. Walsh,  The  Centennial  History  of  the
Indiana General Assembly, 1816-1978 at 238-39 (1987).
[10] Indiana Code § 35-42-1-6 states  that  “[a]  person  who  knowingly  or
intentionally terminates a human pregnancy with an intention other  than  to
produce a live birth or to remove a dead fetus commits feticide, a  Class  C
felony.  This section does not apply to an abortion performed in  compliance
with . . . IC 16-34.”
[11] Indiana Code § 35-46-5-1(d) states that “[a] person  who  intentionally
acquires, receives, sells, or transfers in exchange for an item of  value  .
. . fetal tissue commits unlawful  transfer  of  human  tissue,  a  Class  C
felony.”  “Fetal tissue” is defined as “tissue from an  infant  or  a  fetus
who is stillborn or aborted.”  Id. at § 35-46-5-1(a).
[12] Count II of the complaint seeks compensation for Calvin Bolin’s loss
of consortium with his wife.

