66 Federal Credit Union v. Tucker *.

• Author: Bostrom, Barry A.
• Position: Nota Bene

HELD: Mississippi's wrongful death statute includes the death of a non-viable pre-born child that is "quick" in the womb.

Tracy Tucker bought an automobile from a dealership in Cleveland, Mississippi. She financed the purchase through the 66 Federal Credit Union, her employer's credit union. When her account became delinquent, the credit union referred the matter to Mississippi Auto Recovery, Inc. to repossess Tucker's car.

Tucker alleged that during the course of the attempted repossession, a "breach of the peace" occurred. The credit union and other defendants deny the allegation. Tucker was five months pregnant at the time of the repossession attempt, after which, she experienced stomach pains and was admitted to Bolivar County Hospital. She was released the next day, then readmitted. Three days after the attempted repossession Tucker miscarried.

Tucker filed this lawsuit alleging negligent repossession, negligent misrepresentation, breach of the peace, assault and battery, negligence, intentional infliction of emotional distress, conversion and wrongful death of the fetus. All of the defendants filed motions for partial summary judgment claiming that the death of a nonviable fetus does not give rise to a wrongful death action. The trial court denied the motions for partial summary judgment and certified an interlocutory appeal to the Mississippi Supreme Court.

The issue before the court was whether Mississippi's wrongful death statute creates a cause of action for the death of a non-viable fetus en ventre sa mere.

The common law did not recognize an action for prenatal injuries to a child. That rule was based on the idea that a duty could not be owed to an unborn plaintiff since it was still part of the mother. Because of the harsh results of the common law rule, state legislatures enacted wrongful death statutes to correct what was considered to be an intolerable result. Thus, wrongful death statutes were adopted throughout the United States.

Recovery for prenatal injuries when a child is born alive is now permitted in every jurisdiction in the country. Along with the right to recover for prenatal injuries came the further inquiry about the required stage of development of the child when injured. That inquiry led to the following questions: (1) whether the child had to be "quick" in its mother's womb, (2) whether the child must be viable, and (3) whether the child had to survive birth. A "quick child" was defined as a child "that has...