ARS 12-611 Interpretation
Arizona's wrongful death statute provides, in pertinent part:
When death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured . . . .A.R.S. 12-611.
The Arizona Legislature has not defined the meaning of "person" under the statute.
In Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985), the Arizona Supreme Court interpreted that word's meaning.
Disapproving a prior decision that required a live birth for a fetus to be considered a person under the wrongful death statutes, the court adopted a more expansive view of the term "person" under the wrongful death statutes, holding it to include a viable fetus, meaning the ability of a fetus to live outside the womb. 144 Ariz. at 477-79, 698 P.2d at 722-24 (disapproving Kilmer v. Hicks, 22 Ariz. App. 552, 529 P.2d 706 (1974)).
In Summerfield, the plaintiffs brought a wrongful death action, alleging that their thirty-seven-week-old fetus was stillborn as a result of the defendant physician's medical malpractice. Id. at 470, 698 P.2d at 715.
The trial court dismissed the action on the basis that a fetus was not a "person" under A.R.S. 12-611. Id. the supreme court reversed, holding that the term "person" as used in the wrongful death statutes "encompasses a stillborn, viable fetus" for which a wrongful death claim could be brought. Id. at 479, 698 P.2d at 724.