Neb. crash lawsuit invokes fetal death law

A Nebraska law that extends legal protections to fetuses at any stage of development is being invoked for the first time in a wrongful-death lawsuit filed by the parents of a family killed in a fiery September car wreck, according to lawyers involved in the case.

The federal lawsuit on behalf of a Maryland couple, their two children and unborn son is the first civil claim to cite the 2003 Nebraska state law, and the latest in a series of court battles in Utah, Alabama and other states. Though still in district court, similar laws have led to appeals-court battles in other states and could bring the debate into Nebraska.

"I think it allows for the expansion of victims' rights in these cases," said James Chalat, a Denver attorney who is representing the family. "There's no case law about it in Nebraska that I've seen."

Numerous people involved with passing the Nebraska law - abortion opponents, religious groups, attorneys and the bill's original sponsor - said they were unaware of it being used in court before. A spokeswoman for the Nebraska Attorney General's office said agency lawyers did not know of any civil cases, although prosecutors have used a criminal version of the law to charge motorists who contributed to fatal accidents.

"I don't know if there's any precedent for it, but it seemed to me at the time I got the bill enacted that inevitably there would be such a case," said Nebraska State Auditor Mike Foley, a former Republican lawmaker who introduced the measure.

Last year, a divided Utah Supreme Court ruled that an unborn child qualifies as a minor child, thus allowing wrongful death lawsuits for those who die before birth. In February, the Alabama Supreme Court ruled in a medical malpractice suit that a case could proceed even if the fetus at issue couldn't have been viable outside the womb.

The Nebraska lawsuit was filed by the parents of Christopher and Diana Schmidt, a Gaithersburg, Md., couple who were killed in western Nebraska on Sept. 9 along their two young children and unborn son. The Schmidts were in separate cars shortly before 5 a.m., waiting in standstill traffic on Interstate 80 when truck driver Josef Slezak slammed into the back of Christopher Schmidt's car. The force of the crash pushed Schmidt's car into his wife's which was rammed under another semi. The couple's children were in the car with their pregnant mother. The family died instantly.

Traffic on the interstate was stopped because of an earlier crash involving two trucks, but investigators say Slezak struck the car at 75 mph without hitting his brakes. Slezak is charged with four counts of manslaughter, four counts of vehicular homicide and one count of vehicular homicide of an unborn child. He is awaiting trial in Cheyenne County District Court.

The Schmidts were moving back to their native California to be closer to family. Christopher, a U.S. Air Force veteran who worked for the Department of Energy in Washington, had landed a new job with the U.S. Social Security Administration in California. The lawsuit was filed by Diana's parents, Bradley and Nancy Bauman of Rocklin, Calif., and Christopher's mother, Donna Costley, of Antelope, Calif.

The lawsuit alleges that Slezak violated federal highway safety rules by staying on the road far longer than the maximum time allowed for truckers. Federal rules require truckers to be off-duty for at least 10 hours before they can drive, sets a 14-hour maximum of windshield time, and then mandates that they take another 10 hours off-duty. Slezak exceeded the maximum by at least three hours, according to the lawsuit.

The suit names Slezak, his employer and the two other truckers involved in the accident the initially caused the backup and their employers. It claims negligence, vicarious liability from the trucking companies and wrongful death. The lawsuit doesn't seek a specific dollar amount.

By Grant Schulte, The Associated Press

Source: The San Francisco Chronicle