Truck Accident Lawsuit is the First Use of State’s Fetal Death Statute

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A lawsuit arising from a fatal automobile accident in Nebraska is believed to be the first time a civil lawsuit has cited that state’s unborn child wrongful death statute. The lawsuit, Baumann v. Slezak, et al, also alleges violations of federal truck driving regulations related to the length of time behind the wheel without rest, negligent maintenance of semi-trailers, and general negligence. Missouri may also allow in utero wrongful death claims, although establishing damages in such cases may be difficult.

Traffic was stopped for more than a mile along westbound Interstate 80 in western Nebraska during the early morning of September 9, 2012. A semi-trailer had become disabled and pulled to the right side of the highway. The driver, Vladimir Zhukov, reportedly left the trailer in a lane of traffic. At about 4:30 a.m., a semi-trailer driven by Keith Johnson crashed into the Zhukov’s trailer, killing Johnson and shutting down all westbound lanes. The situation put other stopped vehicles at risk of further collisions.

At the rear of the line of traffic, Christopher and Diana Schmidt were stopped in two vehicles. Diana Schmidt was in a Toyota Corolla with the couple’s two children, and Christopher Schmidt was directly behind her in a Ford Mustang. She was seven-and-a-half months pregnant, and the couple had named the unborn child Ethan. At approximately 5:19 a.m., a semi-trailer traveling west on I-80 at about seventy-five miles per hour collided with the back of the Mustang. The driver, Josef Slezak, allegedly did not attempt to slow or stop the vehicle before the collision. The Mustang collided with the Corolla, pushing the Corolla under another trailer. All four Schmidts and the unborn child died in the crash.

Diane Schmidt’s parents and Christopher Schmidt’s mother filed suit in federal district court on behalf of the couple, the children and the unborn child. They named as defendants Slezak and his employer, Zhukov and his employer, the owner of Zhukov’s rig, unnamed individuals with responsibility for maintenance of Zhukov’s rig, Johnson’s employer, and the owner of Johnson’s rig. The lawsuit pleads causes of action for negligence and negligence per se against the drivers, and vicarious liability against the employers. It also accuses Slezak and his employer of violating Federal Motor Carrier Safety Administration (FMCSA) regulations.

This is reportedly the first time a civil lawsuit has used the 2003 Nebraska statute extending the wrongful death cause of action to unborn children “at any stage of gestation.” The statute is part of a controversial series of laws giving various rights to unborn children in cases of injury or death. Missouri’s wrongful death statute does not explicitly mention unborn children. The Missouri Supreme Court recognized a parent’s cause of action for the wrongful death of an unborn child in Connor v. Monkem Co., Inc., 898 S.W.2d 89, 93 (Mo. 1995). It described the plaintiff’s victory in that case, however, as “pyrrhic,” as it expressed doubt that the plaintiff could establish damages upon remand. Id.

Also of note in the present lawsuit is the applicability of FMCSA hours-of-service (HOS) regulations. The complaint alleges that Slezak began driving shortly before 2:00 p.m. the day before the accident, meaning he had been driving nearly nineteen hours at the time of the accident. He had only had about three hours of rest before he started driving. HOS regulations require ten hours of rest for every fourteen hours “on duty,” and those fourteen hours may only include eleven hours of driving.

Auto accident attorney Doug Horn is an advocate for safe driving in the greater Kansas City area. He represents the rights of people who have suffered injuries or lost loved ones due to the negligent or illegal conduct of others. Contact us today online or at (816) 795-7500 to schedule a free and confidential consultation.

Web Resources:

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