$50,750 Judgment for Death of a Premature Son Born Alive After a Car Crash in Colorado
After trial: The jury awarded $101,500 but found the defendant driver 50 percent at fault, so the judgment against her was her share, $50,750, or $64,948.61 with costs and interest. The Colorado Court of Appeals affirmed on June 12, 2008.
Won by Anderson Hemmat.
A pregnant passenger was hurt in a June 2005 car crash and delivered her son by emergency cesarean section at 20 to 22 weeks. He lived one hour and six minutes. A Denver jury awarded $101,500 for his death and put half the fault on the driver she was riding with, and judgment against that driver came to $64,948.61 with costs and interest. The Colorado Court of Appeals affirmed in 2008, holding that a wrongful death claim exists for a child born alive before viability.
What happened
In June 2005, Shantel Gonzales was a passenger in a car driven by Veronica Mascarenas, about 20 to 22 weeks into her pregnancy. A speeding pickup truck hit the car, and its driver left the scene and was never identified. Gonzales said Mascarenas had turned in front of the pickup.
Gonzales was taken to a hospital for observation and stayed two days. The day after she went home, she began to bleed heavily and returned. Doctors diagnosed a placental abruption, in which the placenta separates from the uterine wall. Because the bleeding threatened her life, they delivered the baby by emergency cesarean section. Her son was born alive and lived one hour and six minutes without medical intervention before his lungs, too underdeveloped to work, failed. A birth certificate and a death certificate were both issued. Her obstetrician testified that, apart from the abruption, nothing indicated the pregnancy would not have gone to term.
Mascarenas and her insurer, Shelter Insurance, argued that a child born that early was a nonviable fetus, not a person, so no wrongful death claim could exist. Gonzales was represented by Chad Hemmat of Anderson, Hemmat & Levine. Before trial he told The Denver Post that no Colorado court had ruled on the question, and that courts in several other states had held that a child born alive is a person whatever his viability.
A Denver jury heard the case in 2006 and rejected the insurer's argument. It awarded $1,500 in economic damages and $100,000 in noneconomic damages for the child's death, $101,500 in all. The parties had stipulated to the value of Gonzales's own medical expenses, and the jury made no further award for her injuries. It put half of the fault on Mascarenas. Under Colorado law a defendant pays only her own share of the fault, so the trial court entered judgment against Mascarenas for $64,948.61, including costs and interest.
Mascarenas appealed, and Gonzales cross-appealed the denial of several of her motions to exclude evidence. In an opinion dated June 12, 2008 (No. 06CA1903), a division of the Colorado Court of Appeals affirmed on both. The court held that Colorado's wrongful death statute covers the death of a child born alive, even one who could not have survived outside the womb, noting that most courts to consider the question had allowed such a claim. Hemmat and Ethan McQuinn of Anderson, Hemmat & Levine are listed as counsel for Gonzales. One judge wrote separately to say the statute's word 'person' resolved the question without more.
Sources
This account is drawn from contemporaneous public reporting and the court record.
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