In Meyer v. Burger King Corporation1, Sonrise Management, Inc. (Sonrise) was the management company for a Burger King Corporation restaurant located in Lacey, Washington. Verona Meyer (Verona) was employed by Sonrise at this Burger King. On April 26, 1995, Verona was working her shift at the restaurant. She was approximately 35 weeks pregnant at the time. While in the course and scope of her employment on that day, she lost her footing and struck her lower abdomen on the corner of a table known as the “Whopper board.” Later that evening, Verona went to the hospital and delivered her baby, Patricia. Verona and Gary Meyer, her husband, claimed that blunt trauma to Verona’s abdomen from the Whopper board had caused an abruption of the placenta, in which the placenta partially detached from Verona’s uterine wall. The Meyers further claimed that, because of the placental abruption, there was a loss of oxygen to Patricia while she was in utero, and this loss of oxygen in turn resulted in Patricia being born several hours later with severe injuries.

In April 1998, the Meyers, on behalf of themselves and their daughter, Patricia, filed suit against Sonrise for negligence. The complaint alleged that both Verona and Patricia were injured in the course of Verona’s employment because of unsafe working conditions. The Meyers claimed damages for Patricia’s injuries, which allegedly included permanent mental and physical disabilities, and for their own subsequent losses due to destruction of the parent/child relationship.

The Washington State Supreme Court wrote, “We must determine whether the exclusionary provision of the [Workers’ Compensation] Act bars Patricia’s claims and those of her parents. This is a question of law which we review de novo.”

The court then reviewed how numerous “sister” courts around the nation have dealt with this difficult issue:

• “The most analogous representative case is Cushing ex rel. Brewer v. Time Saver Stores, Inc.,2 where the Louisiana Court of Appeals held the exclusivity provision of Louisiana’s workers’ compensation statute did not bar a child’s claim for damages for prenatal injuries suffered as a result of the mother’s fall at work.3 In that case, the mother was performing recordkeeping duties in the store’s back room. The room was without furniture, so the woman was compelled to sit on boxes and use crates and plywood as a surface for an adding machine. The boxes shifted, the mother fell, and the adding machine fell on her abdomen, causing an abruption of the placenta. Her baby was born prematurely 12 days later with severe birth defects, including permanent brain damage. The Louisiana court reasoned the exclusivity provision of the statute barred actions that depend on the injuries of the employee, such as loss of support or loss of consortium (i.e., because the mother/father or husband/wife suffered an injury, the family suffered a loss based upon that injury). The Cushing court found the child’s injuries in no way derived from the mother’s injuries because ‘[w]hether mom is there to continue bringing home a pay check or to participate in the child’s life has no relevance to this child’s alleged brain damage4. The court held the workers’ compensation statute was not intended to nor does it purport to affect the rights of an employee’s child who is injured on the employer’s job site.”
• “The Colorado Supreme Court reached the same conclusion in Pizza Hut of Am., Inc. v. Keefe,5 In that case, the court reasoned the fact the mother and child were injured in the same event does not render the damage to the child derivative of the mother’s injury because the child’s right of action arises out of the child’s own personal injuries and not merely the personal injuries suffered by the mother.6 When the employee’s child is born, it stands in the same position as any other nonemployee member of the public. Workers’ compensation laws would not bar a claim by a child who was injured while visiting his or her parent in the workplace. Therefore, the exclusivity provisions of workers’ compensation statutes do not bar claims by a nonemployee child who sustains prenatal injuries in the workplace, as it does not bar claims asserted by third party victims.7 A nonemployee’s injury is neither collateral nor derivative of an employee’s injury merely because both resulted from the same negligent conduct by the employer. Thus, a child still in the womb can sustain independent injuries arising from the same event allegedly caused by the negligence of the employer.”
• “Most recently, the Hawaii Supreme Court reached a similar conclusion. In Omori v. Jowa Hawai’i Co.8 a pregnant employee who worked at a convenience store had her water break prematurely. Her doctor ordered her to stop working. However, the convenience store manager refused to allow her time off. Her job included lifting boxes, stacking shelves, and various cleaning duties. Allegedly, as a consequence of being forced to continue working, the mother suffered a premature rupture of the membrane and the child was born prematurely with severe physical injuries. The mother brought suit on behalf of the child for his injuries and also for loss of consortium with the child. The court found the child’s injuries were independent of any injury to the worker and held Hawaii’s workers’ compensation statute did not bar a child from bringing an action against the mother’s employer for prenatal injuries, nor a claim by the parents for loss of consortium.”9

The Washington Supreme Court, following the lead of these other courts, declined to limit the child’s remedy to the provisions of the Workers’ Compensation Act. In a concurring opinion, one justice attempted to square the decision with the U.S. Supreme Court’s 1974 [Roe] precedent, which ruled that an unborn fetus lacks legal rights. “The common thread throughout all these cases is a limited recognition of a person’s retroactive right to recover for prenatal injuries. The United States Supreme Court has likewise upheld recovery for prenatal injuries for children later born alive, while clarifying that ‘the unborn have never been recognized in the law as persons in the whole sense10.’ While upholding Patricia’s right to a remedy because she is a person exercising her retroactive right to recover for prenatal injuries, we do not recognize a fetus as a ‘person[ ] in the whole sense’ and thus do not affect the jurisprudence established under Roe.” The justices, besides reconciling Roe, expressly rejected the employer’s arguments that:

 

 

This is class discussion ,I need explanation .