Nancy BEARDSLEY, et al., Fannie Jo Counts, et al., Appellants (Plaintiffs), v. John WIERDSMA, M.D.; Memorial Hospital of Sweetwater County, Rock Springs, Wyoming; and Davol, Inc., a Delaware Corporation, Appellees (Defendants). Supreme Court of Wyoming - September 3, 1982 By Gustavo Gutiérrez

PUBLIC NUISANCE Public nuisance unreasonably interferes with public’s enjoyment of legal rights common to public Public at large = general public. Includes general population living in area affected by public nuisance, such as neighborhood, end of town, entire city, etc. Unreasonable and substantial interference. Same definition as used in private nuisance.

NUISANCE PER SE Latin per se = by itself Activities are nuisances per se if they violate public nuisance statutes or ordinances Violation of statute is prima facie evidence that public nuisance exists, and defendant is liable as a matter of law

WRONGFUL DEATH Statutes giving cause of action to surviving family members of deceased tort victim against tortfeasor whose negligence or intentional torts resulted in victim’s death. Typical fact pattern: Tortfeasor commits tort against victim. Victim dies as a result of tortfeasor’s actions. Victim’s spouse and/or children sue tortfeasor for wrongfully causing victim’s death.

WRONGFUL LIFE (PREGNANCY) ACTIONS Lawsuits for wrongful birth of a child. Typical fact patterns: Couple visits physician for vasectomy or tubal ligation to prevent future conceptions. Medical procedures fail and couple inadvertently conceive a child. Parents sue physician in wrongful life. Relatively new tort in United States law, having arisen within past 25 years. Plaintiff’s damages: Medical expenses incurred during pregnancy and delivery Sometimes, defendant is ordered to pay plaintiff for cost of raising plaintiff’s child until age of majority.

PARTICIPANTS PLAINTIFF’S/APPELLANTS  Nancy Beardsley, et al., Fannie Jo Counts, et al.  The husbands of the female appellants were also plaintiffs and are appellants here DEFENDANT’S/APPELLEES  Dr. Weirdsma, who performed the tubal ligations  Memorial Hospital of Sweetwater County, where the operations were performed  Davol, Inc., which manufactured the cauterization instrument used in the surgery

FACTS Appellants filed suit against the appellees seeking damages resulting from unsuccessful tubal ligations. Eighteen appellants had tubal ligations so that they would become sterile, but instead became pregnant. At the time of the suits eleven of these appellants had given birth to healthy, normal children; three of the appellants were pregnant; and four of the appellants had terminated their pregnancies. The women who did not terminate their pregnancies, together with their husbands, brought a cause of action which is styled as a "wrongful birth" action, although it is sometimes denominated a "wrongful pregnancy" action. It is essentially a medical malpractice action.

FACTS The husbands and wives who became parents or were to become parents were also plaintiffs on behalf of the children in another action which is denominated a "wrongful life" action. In their complaints, appellants alleged various acts of negligence against the three appellees. They also alleged breach of warranty against Davol, Inc. Intermingled in the appellants' tort claims are allegations that apparently were designed to state a cause of action for breach of contract. The trial judge granted judgment on the pleadings in favor of all appellees.

ISSUE “The principal issue in this case is whether the parents have a cause of action in their own right for ‘wrongful birth’ against appellees, assuming that fault on appellees' part led to the birth of an unplanned, yet normal and healthy child.”

RULE OF LAW “…parents have a right to recover all expenses and damages incurred or to be incurred resulting from the birth of an unplanned child, subject to an offset for the benefits that will be enjoyed by the parents. This concept is sometimes called the ‘benefit-rule.’ In adopting the ‘benefit-rule,’ some courts have applied Restatement, Second, Torts, § 920, p. 509 (1979). When the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred a special benefit to the interest of the plaintiff that was harmed, the value of the benefit conferred is considered in mitigation of damages, to the extent that this is equitable. In applying the ‘benefit-rule,’ if fault is found, the trier of fact determines all expenses and damages incurred and to be incurred by the parents, including costs of rearing the child, and then makes a deduction for benefits the child brings to the parents. Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982).”

APPLICATION “We reject any claim for damages or expenses after the birth of the child. We believe that these latter expenses and damages are too speculative; that the injury is too remote from the negligence; that the injury is out of proportion to the culpability of the tortfeasors; and that the allowance of recovery would place too unreasonable a burden on appellees, since it would likely open the way for fraudulent claims, and since it would enter a field that has no sensible or just stopping point. We specifically reject the ‘benefit-rule’ or offset concept.”

APPLICATION “…The preciousness of human life should not be held to vary with the circumstances surrounding birth. To make such a determination would, indeed, raise the unfortunate prospect of ruling, as a matter of law, that under certain circumstances a child would not be worth the trouble and expense necessary to bring him into the world. Coleman v. Garrison, supra, at 761. We believe that the benefits of the birth of a healthy, normal child outweigh the expense of rearing a child. The bond of affection between child and parent, the pride in a child's achievement, and the comfort, counsel and society of a child are incalculable benefits, which should not be measured by some misplaced attempt to put a specific dollar value on a child's life.”

CONCLUSION The Supreme Court of Wyoming affirmed the trial court's dismissal of the "wrongful life" action. “The ‘wrongful life’ action asserted by the parents on behalf of their children is an action for damages based on appellees' negligence which caused a particular child to be born. We hold that a cause of action for ‘wrongful life’ under the circumstances here does not exist. The California Supreme Court stated: In sum, we conclude that while a child in a ‘wrongful life’ action may not recover general damages for being born impaired as opposed to not being born at all, the child, like his or her parents, may recover special damages for the extraordinary expenses necessary to treat the hereditary ailment. We know of no cases recognizing a ‘wrongful life’ cause of action under the circumstances of this case. The district judge was correct in dismissing the ‘wrongful life’ claims.”

CONCLUSION The Supreme Court of Wyoming reversed the trial court's dismissal of the "wrongful birth" or "wrongful pregnancy" action. “We think that a child should not be viewed as a piece of property, with fact finders first assessing the expense and damage incurred because of a child's life, then deducting the value of that child's life. For that reason, we think Restatement, Second, Torts § 920, supra, has no application to ‘wrongful birth’ actions.”

CONCLUSION The Supreme Court of Wyoming remanded the cases to the trial court for further proceedings consistent with this opinion. “We have said some things that were not necessary to this opinion. However, the apparent unnecessary matters are intertwined with necessary matters. It is proper for the Supreme Court to decide incidental questions which are bound to arise again in the case.” Rocky Mountain Oil and Gas Association v. State, 645 P.2d 1163 (Wyo., 1982).