## Facts

- Kimberly Witty, an employee of American General Capital Distributors, Inc., was pregnant and alleged the employer’s conduct caused the death of her fetus, which was never born alive.
- Witty sued under the Texas Wrongful Death Act, the Texas Survival Statute (on behalf of the fetus’s estate), and an alternative theory characterizing the fetus as her personal property (chattel).
- The trial court granted summary judgment for American General, ruling that the absence of a live birth barred all asserted theories.

## Issues

1. Whether the Texas Wrongful Death Act allows recovery for the death of a fetus that was never born alive.
2. Whether the Texas Survival Statute permits an action for prenatal injuries to a fetus that was never born alive.
3. Whether a parent may recover common-law mental anguish or emotional distress damages for the loss of a fetus when wrongful-death recovery is unavailable.
4. Whether the fetus may be treated as chattel so that its loss supports a property-damage claim.

## Decision

- The Texas Supreme Court affirmed the denial of a survival action.
- The Court reversed the court of appeals’ recognition of a wrongful-death cause of action for the fetus’s death.
- The Court reversed the court of appeals’ approval of a common-law emotional-distress claim based on the fetus’s death.
- The Court rejected the property/chattel theory.
- The court of appeals’ judgment was affirmed in part and reversed in part, leaving Witty without recovery for the fetus’s death under the pleaded theories.

## Legal Principles

- Absent live birth, the Texas Wrongful Death Act does not create a cause of action for the death of a fetus; the statute’s reference to an “individual’s death” does not include a never-born fetus.
- The Texas Survival Statute is derivative of an underlying personal-injury claim; if no claim accrues to the fetus without live birth, no survival action exists.
- Plaintiffs may not bypass the limits of the Wrongful Death Act by repackaging a fetal-death claim as a common-law emotional-distress claim.
- A fetus is not chattel for tort property-damage purposes, and a mother cannot recover by treating fetal death as destruction of personal property.

## Conclusion

The Texas Supreme Court held that when a fetus is not born alive, Texas law provides no wrongful-death or survival remedy for the fetus’s death and does not permit substitute recovery through common-law emotional-distress damages or a property-damage theory.


Witty v. Am. Gen. Cap. Distribs., Inc., 727 S.W.2d 503 (Tex. 1987)