Bliss v. Passanesi

• Citation: 95 N.E.2d 206,326 Mass. 461
• Parties: BLISS v. PASSANESI.
• Decision Date: 14 November 1950
• Court: United States State Supreme Judicial Court of Massachusetts

326 Mass. 461

95 N.E.2d 206

BLISS v. PASSANESI.

Supreme Judicial Court of Massachusetts, Suffolk.

November 14, 1950

Argued Oct. 5 1950.

A. E. Kahn, Boston C. B. Garabedian, Everett, for plaintiff.

W. I. Badger, Jr. Boston, for defendant.

Before QUA, C. J and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

This is an action of tort which sought in the first count to recover for the death and in the second count to recover for the conscious suffering of the plaintiff's intestate caused by injuries sustained by the intestate due to the negligence of the defendant when the intestate 'was an existing viable child in her mother's womb.' A demurrer to these counts was sustained and the plaintiff appealed to this court.

The question of law presented by this demurrer has been decided adversely to the maintenance of such an action in Dietrich v. Inhabitants of Northampton, 138 Mass. 14, which seems to have been the earliest decision of this question by any American court. Speaking for the court, Holmes, J., based the decision on the grounds that there was no precedent for the recovery in favor of the child for prenatal injuries, and that the damages sustained by it were recoverable by the mother in so far as they were not too remote. Subsequent decisions of courts of last resort of all American jurisdictions have followed this decision until there was a departure in 1949 from this general rule. These subsequent decisions have in the main consisted of little more than a collection of the prior decisions supporting the conclusion reached, although occasionally a reason in addition to those mentioned in the Dietrich case has been furnished. See, for example, Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638; Newman v. City of Detroit, 281 Mich. 60, 274 N.W. 710; Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567; Berlin v. J. C. Penney Co., Inc., 339 Pa. 547, 16 A.2d 28. A review of all these subsequent decisions denying relief for prenatal injuries demonstrates that they were based upon the grounds that there was lack of precedent, that there was due regard for the principle of stare decisis, that the unborn child was a part of the mother, that any causal relation between the prenatal injury and the death or condition of the child would rest on speculation and conjecture, and that recognition of any cause of action in favor of the child or its estate would give rise to fictitious claims. Some of the decisions already cited following the Dietrich case were not unanimous, and toward the turn of the century a trend developed, which has since increased, against what was regarded as the harshness of this general rule. See dissenting opinions in Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638; Stemmer v. Kline, 128 N.J.L. 455, 26 A.2d 489, 684. Prosser, Torts, 188. 63 Harv.L.Rev. 173. Sometimes a cause of action was created by statute. Scott v. McPheeters, 33 Cal.App.2d 629, 92 P.2d 678, 93 P.2d 562. Cooper v. Blanck, La.App., 39 So.2d 352.

It was not however, until Williams v. Marion Rapid Transit, Inc., 152 Ohio St. 114, 87 N.E.2d 334, decided in 1949, that any of our State courts of last resort recognized that there was a cause of action, in the absence of a statute, for a...