Justus

I concur in the result reached by the majority opinion and in the reasoning of part II of that opinion. But although I agree with the majority that we should not recognize a new cause of action for the wrongful death of a fetus, a wholly intangible injury to plaintiffs for which any monetary recovery can provide no real compensation (see Borer v. American Airlines (1977) ante, at pp. 446-448 [ 138 Cal.Rptr. 302 , 563 P.2d 858 ]), I cannot join the reasoning by which the majority reaches that conclusion.

Even if the common law as of 1862 did not recognize a general cause of action for wrongful death, our decision must rest on the common law of 1977. In Moragne v. States Marine Lines (1970) 398 U.S. 375 [ 26 L.Ed.2d 339 , 90 S.Ct. 1772 ], the United States Supreme Court pointed out that recovery for wrongful death is now authorized by statute in every Anglo-American jurisdiction, and that such a broad legislative policy may serve as a source of common law. (398 U.S. at pp. 389-392 [26 L.Ed.2d at pp. 350-352].)

In enacting the wrongful death statute, our Legislature probably initially conceived that it was creating a right of recovery unknown to the common law. But from this…

The principal issue in this case is whether a stillborn fetus is a “person” within the meaning of the wrongful death statute. (Code Civ. Proc., § 377.) An additional question presented is whether the pleadings are sufficient to state a cause of action for emotional shock under the rule of Dillon v. Legg (1968) 68 Cal.2d 728 [ 69 Cal.Rptr. 72 , 441 P.2d 912 , 29 A.L.R.3d 1316 ]. We conclude that both issues should be decided in the negative, and hence that the judgments should be affirmed.

The appeal arises from two factually similar actions for medical malpractice and wrongful death filed in the Santa Barbara Superior Court, each predicated on the stillbirth of a fetus occurring in the course of delivery. In case No. 101312 plaintiffs Linda Sue Justus and her husband Jeffrey A. Justus name as defendants their attending physician Joseph Atchison, M.D., an assisting physician, and the Goleta Valley Community Hospital. In case No. 101198 the plaintiffs are Karen K. Powell and her husband Robert F. Powell, and the defendants are the same Dr. Atchison, a different assisting physician, and the same hospital.

We are concerned here with the second and third causes of action of…

The principal issue in this case is whether a stillborn fetus is a "person" within the meaning of the wrongful death statute. (Code Civ. Proc., § 377.) An additional question presented is whether the pleadings are sufficient to state a cause of action for emotional shock under the rule of Dillon v. Legg (1968) 68 Cal.2d 728 [ 69 Cal. Rptr. 72 , 441 P.2d 912 , 29 A.L.R.3d 1316 ]. We conclude that both issues should be decided in the negative, and hence that the judgments should be affirmed.

The appeal arises from two factually similar actions for medical malpractice and wrongful death filed in the Santa Barbara Superior Court, each predicated on the stillbirth of a fetus occurring in the course of delivery. In case No. 101312 plaintiffs Linda Sue Justus and her husband Jeffrey A. Justus name as defendants their attending physician Joseph Atchison, M.D., an assisting physician, and the Goleta Valley Community Hospital. In case No. 101198 the plaintiffs are Karen K. Powell and her husband Robert F. Powell, and the defendants are the same Dr. Atchison, a different assisting physician, and the same hospital.

We are concerned here with the second and third causes of…