Can You Sue For A Wrongful Death That Occurred Before You Were Born?

Here’s a strange scenario: a man impregnates a woman with whom he had been in an on-and-off relationship for quite some time. A short time after finding out about the pregnancy, the man is exiting a house. Coincidentally, a group of police officers are moving in on the house in preparation for a drug bust. One of the police officers trips on a tree root, bumping another officer, who accidentally discharges his gun. The bullet strikes the man leaving the house, and he is killed.

After the child is born, he sues (with his mother acting on his behalf) the police department for wrongful death, even though the death happened when the child’s mother was only six weeks pregnant.

This is exactly what happened in New York. A court has just ruled that the child’s wrongful death suit against the county can go forward.

As far as I can tell, there is very little precedent for a lawsuit like this. First of all, the mother and the father were not married, so it’s not clear that she would even be able to sue for wrongful death. There’s no question, however, that a child can sue for the wrongful death of a parent, regardless of the parents’ relationship with one another.

However, the question of whether a person has some legal rights before they are born is incredibly loaded, and far more divisive than just about any other question in tort law. If you explore differing opinions on this legal issue, you’ll likely find that, in most cases, these differences are rooted in disputes of fundamental philosophy, on which there is rarely much middle ground.

However, there is generally some agreement that the legal right for a child to sue for injuries that occurred before his birth does not accrue until after his birth. This has been established in cases dealing with issues of “wrongful birth” or “wrongful life.”

So, if the wrongful act which occurred before the child was born clearly affects the child after he’s born, the child can sue. In this case, we have to look at what harm the child has suffered, and what harm the law actually recognizes as compensable in wrongful death claims.

As mentioned earlier, the child’s mother, not being married to the father, can’t sue for wrongful death, so she’s suing on behalf of her son. New York law apparently allows the child of a deceased parent to recover damages for lost financial support and lost parental guidance, companionship, and love.

While calculating the value of a lifetime of financial and material support can’t be done with perfect accuracy, we can usually get a likely ballpark figure of what the decedent’s lifetime income would be by looking at the decedent’s job and income at the time of death, its growth potential, and the decedent’s skills and education. Obviously, this isn’t a clear, objective look into an alternate universe where the decedent is alive, but it renders results that are sufficiently certain for a jury to award a dollar figure in damages.

Calculating the value of lost parental love, companionship, and guidance, on the other hand, is almost completely subjective.

However, it’s fairly common to award monetary damages for things like emotional distress, and pain and suffering. The exact dollar amount that constitutes appropriate compensation for those types of harm is impossible to determine objectively, as well.

So, what does this mean for the current case? It’s clear that this child is going to grow up without ever knowing his biological father. The law generally assumes that it’s in the best interest of every child to have two parents, until it’s proven that one of the parents is unfit. So, even though this child will have no basis for comparison as he grows up, as far as the law is concerned, he has still lost something, and is likely entitled to an award.

Hypothetically, what if, when the child was still very young, the mother married or entered a long-term relationship with another man, who turned out to be an excellent father figure? Could the child then be said to have suffered the loss (not having a father) that the money is meant to redress?

This raises a somewhat troubling question: suppose this lawsuit is successful, and the child recovers a large monetary award. In cases like this, an award of damages to a child is typically placed in a trust that the child will be able to access when he reaches a certain age, typically 18. If this happens, will the money be anything other than a windfall for the child? Or will he actually feel some vindication for the fact that he grew up without a father?

Still, tragedy, in itself, is not enough to warrant a civil judgment – there must be wrongdoing, and some compensable loss. There was clearly wrongdoing in this case: a man doesn’t get shot and killed for no reason unless somebody screwed up very badly. However, as discussed above, you could make at least a non-frivolous (though, admittedly, unlikely to succeed) argument that, from the child’s perspective, he hasn’t really “lost” anything.

Personally, I hope such an argument would fail. First of all, it discounts the simple fact that a man is dead for no reason. Secondly, we don’t know if the best case scenario (the child growing up with a strong father figure, even if it’s not his biological father) will actually occur. Just as we can’t award damages that are completely speculative, we can’t refuse to compensate someone for a loss because of speculative future mitigating factors.

Finally, the police seriously screwed up here, and civil lawsuits for misconduct are essential in keeping the police honest, and hitting police departments with large judgments should they engage in misconduct should deter such misconduct in the future.