Remy v. MacDonald

Decision Date12 January 2004
Citation440 Mass. 675,801 NE 2d 260
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Michael F. Mahoney for the plaintiff.

George E. Clancy (James P. McKenna with him) for the defendant.


This case presents the issue whether a child, born alive, can maintain a cause of action in tort against her mother for personal injuries incurred before birth because of the mother's negligence. The plaintiff seeks to recover damages based on the alleged negligence of her mother, the defendant Christine MacDonald, in connection with a two-car automobile accident that occurred when the plaintiff was in utero.2 A judge in the Superior Court concluded, as a matter of law, that there could be no liability on the part of the defendant and allowed her motion for summary judgment.3 The plaintiff appealed, and we transferred the case to this court on our own motion. We now affirm the judgment.

The summary judgment record, viewed in the light most favorable to the plaintiff, see Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 17 (1983), establishes the following facts. At approximately 12:45 P.M. on January 7, 1999, Christine MacDonald was operating a motor vehicle at the intersection of Institute Road and Wachusett Street in Worcester when her vehicle was struck by a motor vehicle owned by Dennis Ellis and operated by Anna Ellis. MacDonald was thirty-two weeks pregnant with the plaintiff at that time, and the plaintiff was born, by emergency caesarian section, four days later. The plaintiff was hospitalized for twenty-three days and experienced multiple breathing difficulties associated with her premature birth. In the first few years of her life, she has had, and continues to suffer from, respiratory distress and asthma. The plaintiff alleges (and we accept as fact, for purposes of this decision) that her mother's negligent driving caused the accident that led to the plaintiff's premature birth and subsequent related injuries. The plaintiff contends that a jury could find her mother liable in negligence for the injuries she has incurred, and, therefore, the judge improperly allowed summary judgment.

1. In order to succeed on a claim of negligence, a plaintiff first must establish that the defendant owed a legal duty of care. See Cottam v. CVS Pharmacy, 436 Mass. 316, 320 (2002); Davis v. Westwood Group, 420 Mass. 739, 742-743 (1995); McNulty v. McDowell, 415 Mass. 369, 371 (1993). We must decide whether a pregnant woman owes a legal duty of care to her unborn child to refrain from negligent conduct that may result in physical harm to that child. If no such duty exists, a claim of negligence cannot be brought.

Whether a duty exists is a question of common law, to be determined by "reference to existing social values and customs and appropriate social policy." Cremins v. Clancy, 415 Mass. 289, 292 (1993), and cases cited. As a general principle of tort law, every actor has a duty to exercise reasonable care to avoid physical harm to others. See Restatement (Second) of Torts § 302 comment a (1965) ("In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act"). There are a limited number of situations, however, in which the other legal requirements of negligence may be satisfied, but the imposition of a precautionary duty is deemed to be either inadvisable or unworkable. See, e.g., Luoni v. Berube, 431 Mass. 729, 731 (2000) (social host owes no duty of reasonable care to protect guests from fireworks set by third party); Cremins v. Clancy, supra at 292, 294 (social host who has not provided liquor owes no duty of reasonable care to protect travelers on highway from intoxicated guest); Wallace v. Wilson, 411 Mass. 8, 12 (1991) (parent not responsible for injuries incurred by guest at "young person's" party, even though parent was aware of drinking); Schofield v. Merrill, 386 Mass. 244, 245 (1982) (affirming traditional rule that landowner owes adult trespasser no duty of reasonable care). This is such a case.

The judge ruled that the defendant did not owe a duty of care to the unborn plaintiff. In his memorandum of decision, the judge noted that no Massachusetts appellate court has recognized the existence of such a duty. Guiding himself by cases in other jurisdictions, the judge reasoned that, due to a "unique symbiotic relationship" between a mother and her unborn child, the judicial creation of such a duty, in this case, could raise a multitude of problematic issues, as well as potentially invade the personal choice of pregnant women. We, essentially, agree.

We begin by taking judicial notice of the fact that, during the period of gestation, almost all aspects of a woman's life may have an impact, for better or for worse, on her developing fetus. A fetus can be injured not only by physical force, but by the mother's exposure, unwitting or intentional, to chemicals and other substances, both dangerous and nondangerous, at home or in the workplace, or by the mother's voluntary ingestion of drugs, alcohol, or tobacco. A pregnant woman may place her fetus in danger by engaging in activities involving a risk of physical harm or by engaging in activities, such as most sports, that are generally not considered to be perilous. A pregnant woman may jeopardize the health of her fetus by taking medication (prescription or over-the-counter) or, in other cases, by not taking medication. She also may endanger the well-being of her fetus by not following her physician's advice with respect to prenatal care or by exercising her constitutional right not to receive medical treatment. See Norwood Hosp. v. Munoz, 409 Mass. 116, 122 (1991).

Recognizing a pregnant woman's legal duty of care in negligence to her unborn child would present an almost unlimited number of circumstances that would likely give rise to litigation. Courts would be challenged to refine the scope of such a duty, including the degree of knowledge expected of a mother in order to pinpoint when such a duty would arise (e.g., at the point of pregnancy; at the point of awareness of pregnancy; or at the point of awareness that pregnancy is a possibility) or the particular standard of conduct to which a reasonably careful pregnant woman, in a single case, should be held. There is no consensus on if and when a duty such as the one sought by the plaintiff should be imposed, and there is considerable debate with respect to a mother's civil liability for injuries to her unborn fetus, including disagreement over whether the rights of the child should supersede the legal rights of the mother. See generally Johnsen, Shared Interests: Promoting Healthy Births Without Sacrificing Women's Liberty, 43 Hastings L.J. 569 (1992); Beal, "Can I Sue Mommy?" An Analysis of a Woman's Tort Liability for Prenatal Injuries to her Child Born Alive, 21 San Diego L. Rev. 325 (1984). No set of clear existing social values and customs exist, and no settled social policy can be identified, to justify the maintenance of the present lawsuit.

Two appellate courts in other jurisdictions, considering the broad question before us, have declined to recognize a mother's duty of care toward her unborn child. See Stallman v. Youngquist, 125 Ill.2d 267, 270 (1988); Chenault v. Huie, 989 S.W.2d 474, 476 (Tex. Ct. App. 1999). In the Stallman decision, the Supreme Court of Illinois reviewed the modern trend of case law allowing a child to bring an action for prenatal injuries inflicted by third persons and acknowledged in the cases some articulation of a principle that a child has a "legal right to begin life with a sound mind and body." Id. at 275, quoting Evans v. Olson, 550 P.2d 924, 927 (Okla. 1976); Womack v. Buchhorn, 384 Mich. 718, 725 (1971); Smith v. Brennan, 31 N.J. 353, 364-365 (1960). The court concluded, however, that "logic does not demand that a pregnant woman be treated in a court of law as a stranger to her developing fetus. It would be a legal fiction to treat the fetus as a separate legal person with rights hostile to and assertable against its mother." Stallman v. Youngquist, supra at 278. That fiction, we add, could have profound social implications and far reaching unforeseen legal consequences.

The Texas Court of Appeals, in Chenault v. Huie, supra, agreed with the result in the Stallman case. The court suggested that the asserted duty could have a detrimental impact on women's activities before pregnancy. See id. at 477. The court also noted that creation of such a duty would confront a jury "with questions calling for answers that are inherently value laden and, therefore, not subject to objective or convincing resolution." Id. at 478.

There are three appellate decisions in jurisdictions that have allowed a claim brought against one's mother for negligently inflicted prenatal injuries. See National Cas. Co. v. Northern Trust Bank, 807 So. 2d 86, 87 (Fla. Dist. Ct. App. 2002) (permitting claims only in context of motor vehicle accidents, up to limit of insurance); Grodin v. Grodin, 102 Mich. App. 396, 400-401 (1980) (permitting claim based on mother's ingestion of drug that caused child, when born, to develop discolored teeth); Bonte v. Bonte, 136 N.H. 286, 289 (1992) (permitting claim based on mother's failure to use reasonable care in crossing street).4 These decisions uniformly were premised on the assumption that, because an unborn child, after birth, may recover for prenatal injuries negligently inflicted by another, and because parental immunity had been abolished in those jurisdictions, logic demands that a child's mother should bear the same liability for injurious, negligent conduct to a fetus as would any third party. See National Cas. Co. v. Northern...

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