An accident on a Nebraska highway took the lives of a Maryland family. The resulting lawsuit, Baumann v. Slezak, et al, is reportedly the first to invoke that state’s law allowing causes of action for the wrongful death of unborn children. Nebraska’s law, enacted in 2003, differs from Maryland’s wrongful death statute, in that it allows causes of action for prenatal deaths “at any stage of gestation.” Maryland only allows causes of action for the death of viable fetuses.
In the early morning of September 9, 2012, the Schmidt family was stuck in a traffic jam on westbound Interstate 80. The family, which consisted of Christopher and Diana Schmidt and their two children, was driving through western Nebraska on their way from Maryland to California. Diana Schmidt was seven-and-a-half months pregnant with a child they had named Ethan. The couple was driving in separate cars: Diana Schmidt and the two children were in a Toyota Corolla, and Christopher Schmidt was directly behind them in a Ford Mustang. The traffic jam was the result of a deadly collision between two semi-trailers about a mile further up the highway. One semi had become disabled, and although the driver pulled the rig to the side of the road, he allegedly left the trailer blocking traffic. Another semi crashed into the trailer at about 4:30 a.m., killing its driver.
While the Schmidts were stopped at the rear of the long line of traffic, a semi trailer driven by Josef Slezak collided with the back of the Mustang. Slezak was allegedly driving seventy-five miles per hour, and did not make an effort to slow or stop his rig. The collision caused the Mustang to collide with the Corolla, pushing the Corolla under another trailer. All four members of the Schmidt family, as well as their unborn child, died in the collision.
Christopher Schmidt’s mother joined Diana Schmidt’s parents in filing a lawsuit in the U.S. District Court for the District of Nebraska. They sued Slezak and Slezak’s employer, along with the driver of the disabled semi, his employer, the owner of his rig, and the employer of the deceased truck driver. They asserted causes of action for negligence, vicarious liability on the part of the employers, and violations of Federal Motor Carrier Safety Administration (FMCSA) regulations.
The lawsuit cites Nebraska’s statute allowing wrongful death claims on behalf of an unborn child. The statute has reportedly never been cited in a civil lawsuit before. It is one of the most expansive fetal death statutes in the country. Many states, including Maryland, only allow wrongful death claims for unborn children who have reached “viability,” meaning that the unborn child could potentially survive outside the womb.
While the unborn child in the present case, at seven-and-a-half months, would likely meet the legal test for viability, Nebraska law would allow a claim at any point during the pregnancy. Maryland’s Court of Appeals established that state law would allow a claim for a viable fetus that died or a nonviable fetus that survived, but not for a nonviable fetus that died, in Kandel v. White, 339 Md. 432 (1995). That case involved a woman who was eight weeks pregnant. A car accident caused a termination of her pregnancy, and she died soon after. The court declined to extend a wrongful death cause of action to the unborn child in that case.
Lebowitz & Mzhen’s attorneys are skilled at pursuing justice for people in Maryland who have been injured or lost loved ones in automobile accidents. Contact us today online or at (800) 654-1949 for a free and confidential consultation.
Complaint and Jury Demand (PDF file), Case No. 8:12-cv-00383-FG3, Baumann, et al v. Slezak, et al, U.S. District Court, District of Nebraska, October 29, 2012
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Mother of Murdered UVA Lacrosse Player Files Wrongful Death Lawsuits, Maryland Accident Law Blog, May 4, 2012
Lawsuits Seek to Hold Maryland Company Liable for Death at West Virginia Festival, Maryland Accident Law Blog, November 17, 2011