303 N.Y. 349, Woods v. Lancet

Citation303 N.Y. 349
Party NameWoods v. Lancet
Case DateDecember 06, 1951
CourtNew York Court of Appeals

Page 349

303 N.Y. 349

ROBERT C. WOODS, an Infant, by ESTELLE WOODS, His Guardian ad Litem, Appellant,

v.

JOSEPH LANCET, Respondent.

New York Court of Appeal

December 6, 1951

Argued October 4, 1951.

Page 350

COUNSEL

Ruth Gottdiener for appellant. I. A viable child, injured while en ventre sa mere, who survives such injury, may recover for injuries suffered by reason of the negligence of another. (Bonbrest v. Kotz, 65 F.Supp. 138; Williams v. Marion R. T., Inc., 152 Ohio St. 114; Verkennes v. Corniea, 229 Minn. 365; Damasiewicz v. Gorsuch, 79 A.2d 550 [Md.]; Cooper v. Blanck, 39 So.2d 352 [La.]; Scott v. McPheeters, 33 Cal.App.2d 629.) II. The New York courts have always recognized the paramount interests of the infant. (Piper v. Hoard, 107 N.Y. 73; Quinlan v. Welch, 141 N.Y. 158; Drobner v. Peters, 194 A.D. 696; Nugent v. Brooklyn Heights R. R. Co., 154 A.D. 667; Kujek v. Goldman, 150 N.Y. 176.)

Louis Helfenstein and Norman Lustig for respondent. An unborn child cannot successfully maintain a cause of action for personal injuries while en ventre sa mere. (Drobner v. Peters, 232 N.Y. 220; Matter of Roberts, 158 Misc. 698; Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611; Scott v. McPheeters, 33 Cal.App.2d 629; Smith v. Luckhardt, 299 Ill.App. 100; Newman v. City of Detroit, 281 Mich. 60; Buel v. United Rys. Co., 248 Mo. 126;

Page 351

Stemmer v. Kline, 128 N. J. L. 455; Krantz v. Cleveland A. C. Bus Co., 32 Ohio N. P.[N. S.] 445; Berlin v. Penney Co., 339 Pa. 547; Gorman v. Budlong, 23 R. I. 169; Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347.)

DESMOND, J.

The complaint served on behalf of this infant plaintiff alleges that, while the infant was in his mother's womb during the ninth month of her pregnancy, he sustained, through the negligence of defendant, such serious injuries that he came into this world permanently maimed and disabled. Defendant moved to dismiss the complaint as not stating a cause of action, thus taking the position that its allegations, though true, gave the infant no right to recover damages in the courts of New York. The Special Term granted the motion and dismissed the suit, citing Drobner v. Peters (232 N.Y. 220). In the Appellate Division one Justice voted for reversal with an opinion in which he described the obvious injustice of the rule, noted a decisional trend (in other States and Canada) toward giving relief in such cases, and suggested that since Drobner v. Peters (supra) was decided thirty years ago by a divided vote, our court might well re-examine it.

The four Appellate Division Justices who voted to affirm the dismissal below, wrote no opinion except that one of them stated that, were the question an open one and were he not bound by Drobner v. Peters (supra), he would hold that 'when a pregnant woman is injured through negligence and the child subsequently born suffers deformity or other injury as a result, recovery therefor may be allowed to the child, provided the causal relation between the negligence and the damage to the child be established by competent medical evidence.'(278 A.D. 913.) It will hardly be disputed that justice (not emotionalism or sentimentality) dictates the enforcement of such a cause of action. The trend in decisions of other courts, and the writings of learned commentators, in the period since Drobner v. Peters was handed down in 1921, is strongly toward making such a recovery possible. The precise question for us on this appeal is: shall we follow Drobner v. Peters, or shall we bring the common law of this State, on this question, into accord with justice? I think, as New York State's court of last resort, we should make the law conform to right.

Page 352

Drobner v. Peters (supra), like the present case, dealt with the sufficiency of a complaint alleging prenatal injuries, tortiously inflicted on a nine-month foetus, viable at the time and actually born later. There is, therefore, no material distinction between that case and the one we are passing on now. However, Drobner v. Peters must be examined against a background of history and of the legal thought of its time and of the thirty years that have passed since it was handed down. Early British and American common law gives no definite answer to our question, so it is not profitable to go back farther than Dietrich v. Northampton (138 Mass. 14), decided in 1884, with an opinion by Justice HOLMES, and, apparently, the first American case. Actually that was a death case, since the five-month infant, prematurely born, survived for a few minutes after birth. The principal ground asserted by the Massachusetts Supreme Court (138 Mass., at p. 17) for a denial of recovery was that 'the unborn child was a part of the mother at the time of the injury' and that 'any damage to it which was not too remote to be recovered for at all was recoverable by her' (the mother). A few years later (1890), in Ireland, the Queen's Bench Division, in a very famous holding, refused to allow a suit to be brought on behalf of a child born deformed as the result of an accident in defendant's railway coach, two of the Justices taking the ground that the infant plaintiff was not in esse at the time of the wrong, and the other two regarding the suit as one on the contract of carriage with no duty of care owing by the carrier to the unborn infant whose presence was unknown to defendant (Walker v. Great Northern Ry. of Ireland, 28 L. R. Ir. 69). A similar complaint was dismissed for similar reasons, and the dismissal affirmed by the Appellate Division, Second Department, in Nugent v. Brooklyn Heights R. R. Co. (154 A.D. 667, appeal dismissed 209 N.Y. 515). It is significant that the Appellate Division's opinion in the Nugent case (supra) indicates that, had it not been for the contract-of-carriage theory and its supposed consequences, the writer of the opinion would have favored recovery. Other strong support for just treatment of prenatal wrongs (of another kind) is found also in the 1893 opinion of Justice HAIGHT (later of this court) in Quinlen v. Welch (69 Hun 584); however, on appeal, this court found it unnecessary to pass on the point (141 N.Y. 158). There were, in the early

Page 353

years of this century, rejections of such suits by other courts, with various fact situations involving before-birth traumas (see Allaire v. St. Luke's Hosp., 184 Ill. 359; Gorman v. Budlong, 23 R. I. 169; Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611; Newman v. City of Detroit, 281 Mich. 60; Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347; Buel v. United Rys. Co., 248 Mo. 126; Lipps v. Milwaukee Elec. Ry. & Light Co., 164 Wis. 272) and, quite recently, Massachusetts has reaffirmed the Dietrich rule (Bliss v. Passanesi, 326 Mass. 461).The movement toward a more just treatment of such claims seems to have commenced with the able dissent in the Allaire case (supra), which urged that a child viable butin utero, if injured by tort, should, when born, be allowed to sue; and the movement took impetus from the Wisconsin court's statement in the Lipps opinion (supra), that it was restricting its holding (of nonrecovery) to a nonviable child. Thus, when Drobner v. Peters came to this court in...

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190 practice notes
  • 111 A.2d 14 (Conn.Super. 1955), 100132, Tursi v. New England Windsor Co.
    • United States
    • Connecticut Superior Court of Connecticut
    • January 11, 1955
    ...of precedent is no ground for denying a recovery where a wrong has been committed. Bonbrest v. Kotz, supra. In Woods v. Lancet, 1951, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250, an infant who had suffered prenatal injuries during the ninth month of his mother's pregnancy was held t......
  • 281 N.W.2d 616 (Iowa 1979), 62696, Shook v. Crabb
    • United States
    • Iowa Supreme Court of Iowa
    • July 25, 1979
    ...in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule", Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E.2d 691, 694 (1951). A clear majority of jurisdictions which have considered this argument have found the subject matter ripe for dete......
  • 114 N.E.2d 412 (Ill. 1953), 32665, Amann v. Faidy
    • United States
    • Illinois Supreme Court of Illinois
    • May 20, 1953
    ...Md.1951, 79 A.2d 550; Tucker v. Howard L. Carmichael & Sons, Inc., 1951, 208 Ga. 201, 65 S.E.2d 909; Page 415 Woods v. Lancet, 1951, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250; Jasinsky v. Potts, 1951, 153 Ohio St. 529, 92 N.E.2d 809. California has reached the same result, influenc......
  • 462 A.2d 506 (Md. 1983), 126, Boblitz v. Boblitz
    • United States
    • Maryland Court of Appeals of Maryland
    • June 30, 1983
    ...function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule', Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E.2d 691, 694 (1951). A clear majority of jurisdictions which have considered this argument have found subject matter ripe for det......
  • Request a trial to view additional results
189 cases
  • 111 A.2d 14 (Conn.Super. 1955), 100132, Tursi v. New England Windsor Co.
    • United States
    • Connecticut Superior Court of Connecticut
    • January 11, 1955
    ...of precedent is no ground for denying a recovery where a wrong has been committed. Bonbrest v. Kotz, supra. In Woods v. Lancet, 1951, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250, an infant who had suffered prenatal injuries during the ninth month of his mother's pregnancy was held t......
  • 281 N.W.2d 616 (Iowa 1979), 62696, Shook v. Crabb
    • United States
    • Iowa Supreme Court of Iowa
    • July 25, 1979
    ...in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule", Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E.2d 691, 694 (1951). A clear majority of jurisdictions which have considered this argument have found the subject matter ripe for dete......
  • 114 N.E.2d 412 (Ill. 1953), 32665, Amann v. Faidy
    • United States
    • Illinois Supreme Court of Illinois
    • May 20, 1953
    ...Md.1951, 79 A.2d 550; Tucker v. Howard L. Carmichael & Sons, Inc., 1951, 208 Ga. 201, 65 S.E.2d 909; Page 415 Woods v. Lancet, 1951, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250; Jasinsky v. Potts, 1951, 153 Ohio St. 529, 92 N.E.2d 809. California has reached the same result, influenc......
  • 462 A.2d 506 (Md. 1983), 126, Boblitz v. Boblitz
    • United States
    • Maryland Court of Appeals of Maryland
    • June 30, 1983
    ...function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule', Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E.2d 691, 694 (1951). A clear majority of jurisdictions which have considered this argument have found subject matter ripe for det......
  • Request a trial to view additional results
1 firm's commentaries
  • Urging A Change In The Law: When To Set Aside Precedent?
    • United States
    • Mondaq United States
    • May 7, 2015
    ...Ibid. 6 Buckley v. City of New York, 56 N.Y.2d 300, 305 (1982). 7 People v. Hobson, 39 N.Y.2d 479, 487 (1976). 8 Ibid. 9 Woods v. Lancet, 303 N.Y. 349, 355 (1951). 10 The Nature of The Judicial Process, 152 (Yale Univ. Press 1921)(four lectures at Yale Law School by Benjamin N. Cardozo, the......