GILLIS, J.
Penny Fryover was sixteen weeks pregnant with Karl James Fryover when both were killed because she swerved her vehicle in an attempt to avoid hitting a dog owned by defendants. Plaintiff brought wrongful death suits on behalf of both Penny and Karl. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10) as to plaintiff's wrongful death suit regarding Karl, claiming that a nonviable fetus is not a person under the wrongful death act. The trial court granted defendants' motion relying on this Court's decision in Toth v Goree, 65 Mich. App. 296; 237 N.W.2d 297 (1975), lv den 396 Mich. 836 (1976). We agree with Judge MAHER'S dissent in Toth and, therefore, reverse the trial court's decision. See also Presley v Newport Hospital, 117 R.I. 177; 365 A.2d 748 (1976).
Reversed and remanded for further proceedings.
M.J. TALBOT, J., concurred.
WEAVER, P.J. (dissenting).
I dissent. I believe that the majority decision, which for the first time allows a wrongful death action for a nonviable fetus not born alive, constitutes judicial legislation. Under the facts here presented, the need is for judicial restraint.
When enacting the wrongful death act, MCL 600.2922; MSA 27A.2922, the Legislature did not choose to define the word "person" to include a nonviable fetus which is not born alive. Neither has the Legislature chosen to do so by amendment, although the act has been amended as recently as 1985.
MCL 600.2922(1); MSA 27A.2922(1) provides:
Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, the person who or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under circumstances that constitute a felony. [Emphasis added.]
In extending a cause of action to a nonviable fetus not born alive, the majority relies upon the dissent in Toth v Goree, 65 Mich. App. 296; 237 N.W.2d 297 (1975), lv den 396 Mich. 836 (1976). The Toth dissent extended the rationale of O'Neill v Morse, 385 Mich. 130; 188 N.W.2d 785 (1971), which had judicially created a wrongful death action for a viable fetus not born alive. I do not believe that it is the role of this Court to further extend the meaning of the word "person" as used in the wrongful death act.
The common law of Michigan does not recognize a wrongful death action for a nonviable fetus not born alive. Toth, supra at 298-299; O'Neill, supra at 135-136; Womack v Buchhorn, 384 Mich. 718, 725; 187 N.W.2d 218 (1971). Nor does the common law of Michigan recognize a parent's action for loss of a child's society and companionship. In reversing the extension of a negligent tortfeasor's liability for consortium damages, the Michigan Supreme Court stated:
We hold that the common law of this state does not recognize a parent's action for loss of a child's society and companionship and that any decision to further extend a negligent tortfeasor's liability for consortium damages should be determined by the Legislature. [ Sizemore v Smock, 430 Mich. 283, 285; 422 N.W.2d 666 (1988).]
If Michigan is to allow a wrongful death action for a nonviable fetus not born alive, in my view such a determination should be made by the Legislature in light of the social and economic policy considerations involved.
I would affirm.
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