A Nebraska law allowing wrongful death claims for unborn children is getting its first test in a federal lawsuit. The suit, Baumann v. Slezak, et al, arises from a multi-vehicle accident that killed a family of four and their unborn child. It asserts causes of action for negligence and violations of federal trucking regulations. Several states, including Indiana, have passed statutes allowing wrongful death claims for unborn children at various stages of gestation, and courts in other states have recognized causes of action related to fetal death.
The accident giving rise to the lawsuit occurred on westbound Interstate 80 during the early morning of September 9, 2012. Traffic had become backed up for about a mile after two semi-trailers collided at about 4:30 a.m. One semi-trailer had become disabled and pulled onto the right shoulder. The driver, Vladimir Zhukov, however, allegedly left the trailer in a lane of traffic. Another semi-trailer driven by Keith Johnson reportedly collided with Zhukov’s trailer. The impact killed Johnson and caused his tractor to catch fire. The accident blocked all westbound lanes of the highway, creating a significant risk of further accidents for vehicles forced to stop on the highway.
Christopher and Diana Schmidt were traveling to California from Maryland with their two children, and Diana Schmidt was seven-and-a-half months pregnant with a child they had named Ethan. Diana Schmidt was driving a 2007 Toyota Corolla with the two children, and Christopher Schmidt was following her in a 2010 Ford Mustang. They were at the rear of the line of cars stopped because of the semi-trailer accident, with the Corolla stopped behind another semi-trailer, and the Mustang behind the Corolla. A semi-trailer driven by Josef Slezak approached the stopped traffic reportedly travelling at about seventy-five miles per hour. Allegedly without slowing or stopping, Slezak’s vehicle collided with the back of the Mustang at about 5:19 a.m., propelling it into the Corolla. This pushed the Corolla under the trailer in front of it. All four members of the Schmidt family and their unborn child died in the impact.
The parents of Diana Schmidt and the mother of Christopher Schmidt filed suit against multiple defendants, including Zhukov, Slezak, both drivers’ employers, and the owners of the semi-trailers. They also sued Johnson’s employer, the owner of the semi-trailer he was driving, and unknown individuals who had the responsibility to maintain Zhukov’s vehicle. They asserted causes of action for negligence, negligence per se, and violations of federal motor carrier regulations. Slezak, according to the plaintiffs’ complaint, had been driving for over eighteen hours after only three hours of rest. This violated regulations restricting the length of time truck drivers may be on the road without rest.
The Nebraska wrongful death statute allows claims for the death of an unborn child “at any stage of gestation,” and does not necessarily require that the fetus be viable. The statute makes exceptions for the unborn child’s mother and any medical professional who, with the required consent, performs a procedure to terminate the pregnancy. Indiana’s wrongful death statute only makes reference to viable fetuses.
At Parr Richey Frandsen Patterson Kruse, we help the victims of automobile accidents and their families obtain compensation for their damages. To schedule a free and confidential consultation with one of our lawyers, contact us today online or at (888) 532-7766.
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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Indiana Father Plans to Sue Department of Child Services for Wrongful Death, Indiana Injury Lawyer Blog, September 6, 2012
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