## Facts

- A construction company allegedly left an unguarded opening in a South Carolina highway.
- An automobile carrying a pregnant passenger (approximately eight months gestation) plunged into the opening, violently shaking and injuring her.
- At the time of the collision, the fetus was alleged to be viable and healthy.
- The fetus died in utero the next day as an immediate result of the mother’s injuries and was later delivered stillborn by Caesarean section.
- The father, as administrator of the fetus’s estate, brought a wrongful death action under the South Carolina Wrongful Death Act, alleging the defendant’s negligence caused the death.
- The defendant moved to dismiss for failure to state a claim, arguing South Carolina law did not recognize wrongful death for an unborn child not born alive.
- The district court dismissed the complaint; the administrator appealed.

## Issues

1. Whether the South Carolina Wrongful Death Act permits a wrongful death claim for a viable fetus fatally injured in utero and never born alive.
2. Whether a viable fetus qualifies as a “person” within the meaning of the statute.
3. Whether the statute’s requirement that the decedent could have sued “if death had not ensued” bars suit when death prevents live birth.

## Decision

- The Fourth Circuit reversed the dismissal and remanded.
- It held that South Carolina law, as indicated by state precedent, would recognize a wrongful death action for the death of a viable fetus caused by prenatal injury, even if the child is not born alive.
- It treated viability at the time of injury as the controlling line, distinguishing earlier state authority involving a nonviable fetus.

## Legal Principles

- Under South Carolina wrongful death law, an administrator’s right to sue depends on whether the decedent would have been entitled to sue for the injury had the decedent survived.
- A viable fetus is treated as a “person” for purposes of tort claims based on prenatal injury, and that status can support wrongful death when the injury causes death before birth.
- The “if death had not ensued” condition is satisfied when the underlying prenatal injury would have been actionable if the viable child had survived; death that prevents live birth does not defeat the claim.

## Conclusion

The court held that South Carolina wrongful death law allows an action for the death of a viable fetus fatally injured in utero, and it refused to make liability depend on the fortuity of a live birth when the alleged tort is the reason the child was stillborn.


Todd v. Sandidge Constr. Co., 341 F.2d 75 (4th Cir. 1964)