## Facts

- Cynthia Farley, who was pregnant, died in a collision with a tractor–trailer driven by Billy R. Sartin and owned by Lee Sartin Trucking Co., Inc.
- The fetus (“Baby Farley”) was between 18 and 22 weeks’ gestation and medically nonviable (not developed enough to survive outside the womb).
- Kenneth Farley, as administrator of the fetus’s estate, filed a wrongful death claim under W. Va. Code § 55-7-5 for the death of the unborn child.
- The defendants argued that a nonviable fetus is not a “person” within the meaning of the wrongful death statute.

## Issues

1. Whether West Virginia’s wrongful death statute permits an action for the death of an unborn child who was nonviable at the time of injury.
2. Whether fetal viability is the controlling criterion for determining “person” status under W. Va. Code § 55-7-5 (and related provisions).

## Decision

- The Supreme Court of Appeals of West Virginia reversed the circuit court’s summary judgment for the defendants and remanded.
- The court held that tortious injury to a nonviable child in utero who is later born alive is compensable.
- The court further held that, for wrongful death purposes, “person” in W. Va. Code § 55-7-5 (and equivalent language in W. Va. Code § 55-7-6) includes a nonviable unborn child, permitting an action for the child’s tortious death.
- The court rejected viability as a prerequisite for bringing the wrongful death claim.

## Legal Principles

- West Virginia’s wrongful death statute is remedial and is construed liberally to effect its compensatory and cost-shifting purposes.
- “Person” under W. Va. Code § 55-7-5 (and equivalent language in § 55-7-6) includes a nonviable unborn child; a wrongful death action may be maintained for the tortious death of such a child.
- Viability is not a required threshold for wrongful death recovery for an unborn child.
- Prenatal tort principles recognize compensable injury to a nonviable fetus injured in utero who is later born alive, supporting rejection of viability as a categorical bar.

## Conclusion

The court held that West Virginia law permits wrongful death claims for the tortious death of a nonviable unborn child and that viability is not the legal cutoff for “person” status under the wrongful death statute, requiring reversal of summary judgment and remand for further proceedings.


Farley v. Sartin, 466 S.E.2d 522 (W. Va. 1995)