Simmons v. Weisenthal
| Decision Date | 20 December 1962 |
| Docket Number | 6,659 |
| Citation | 29 Pa. D. & C.2d 54 |
| Parties | Simmons v. Weisenthal |
| Court | Pennsylvania Commonwealth Court |
June term, 1962.
Motion for judgment on the pleadings.
A Martin Herring, for plaintiffs.
David F. Kaliner, for defendant.
The question presented to us, raised by defendant's motion for judgment on the pleadings, is the inception date for the running of the two year statute of limitations in cases involving injuries to infants en ventre sa mere. In the case before us, a pregnant woman fell on defendant's premises on May 12, 1960. The infant was born September 28 1960. The above-captioned suit was started on June 12, 1962, within a two year period of the date of birth but beyond such period from the date of the fall. If the statute of limitations runs from the date of the fall, the motion of defendant for judgment on the pleadings should be granted.
Since the pioneer case of Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884), when Justice Holmes denied recovery for prenatal injuries, decisions in our country on such subject have been legion. Our State denied recovery in Berlin v. J. C. Penney Company, Inc., 339 Pa. 547 (1940). However, this decision was overruled in Sinkler, v. Kneale, 401 Pa. 267 (1960). Sinkler, as do cases in other States, allows recovery for injuries sustained at any time after conception, as distinguished from cases in other jurisdictions holding that at the time of the injury plaintiff must be an existing viable child. We do not believe, however, that the question of the running of the statute turns on this issue.
Counsel for both parties primarily have resolved their arguments around the proper application of the malpractice cases, the most recent of which is Ayes v. Morgan, 397 Pa. 282 (1959). There a physician operated on plaintiff on April 20, 1948. It was not until January 3, 1957, however, that plaintiff was discovered, upon surgery, to contain a sponge, left at the time of the initial operation. It was held that the statute ran from January 3, 1957. The malpractice cases clearly involve an element of concealment, unknown until discovered or discernible. In the prenatal cases, the date and time of the injury is known, although the nature and extent of injury, if any, is not discoverable until birth. While the cases are somewhat analogous, and, indeed, the malpractice cases, insofar as the statute of limitations is concerned, might by some courts be held to control the case, we believe there is a more fundamental reason to overrule defendant's motion for judgment on the pleadings.
It is apparent that liability for a prenatal injury attaches at the earliest possible time upon birth of the infant, whether recovery is allowed for a live or a still birth. If liability does not attach until birth, whether alive or still, there is what has been termed " an implied condition" that the child be born. We do not see, therefore, how the statute of limitations can possibly begin to run until fulfillment of the implied condition that the child be born, at which time liability will attach. Until there is liability there can be no right upon which an action could be brought, and until a right exists the statute cannot run.
This has been demonstrated and, we believe, is impliedly written into the case law. Justice Holmes, although denying liability for a prenatal injury in Dietrich, termed this liability as " conditional prospective liability in tort" (p. 16). On April 4, 1960, the Massachusetts Supreme Judicial Court, in Keyes v. Construction Service, Inc., 340 Mass. 633, spoke further on the subject, in sustaining recovery in a prenatal injury case, and, in referring to a now famous Illinois dissenting opinion stated: (p. 636).
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