Sylvia v. Gobeille, s. 9
| Decision Date | 17 June 1966 |
| Docket Number | Nos. 9,10,s. 9 |
| Parties | David SYLVIA v. Alfred B. GOBEILLE. Kristy SYLVIA, p.p.a. v. Alfred B. GOBEILLE. Appeal |
| Court | Rhode Island Supreme Court |
These companion actions of trespass on the case for negligence, one by a minor suing through her father and next friend and the other by the father for consequential damages, were commenced in the superior court prior to the January 10, 1966 effective date of its revised Rules of Civil Procedure. The trial justice who heard the cases after those rules took effect acting pursuant thereto treated the defendant's demurrers to the declarations as if they were motions to dismiss. She granted the motions, dismissed the actions and thereafter in each case a judgment on her decision was entered for the defendant. It is from those judgments that these appeals are here.
The issue is whether causes of action accrue to this minor child and her father, she having allegedly been born with certain physical defects by reason of defendant's having negligently failed to prescribe gamma globulin for the mother during her pregnancy notwithstanding his knowledge of her exposure to German measles.
In Gorman v. Budlong, 23 R.I. 169, 49 A. 704, 55 L.R.A. 118, we followed Dietrich v. Inhabitants of Northampton, 138 Mass. 14, decided in 1884. In that case the Massachusetts court, speaking through Justice Holmes, denied recovery to an administrator suing on behalf of a prematurely-born child for injuries sustained while a nonviable infant in his mother's womb. The court theorized that a child during pregnancy was an integral part of its mother rather than a separate entity, and that not being a person in esse it had no rights and that no cause of action could accrue in its favor.
Dietrich was the landmark case to which courts turned when prenatal-injury cases arose and, at least until recently, it was generally followed and the view prevailed in this country that a child could not maintain an action for injuries sustained prior to birth. While the Dietrich rationale that no legal duty is owed to a person not in existence was the principal reason advanced by the courts for denying the child a remedy for the wrong, they also said that to recognize a cause of action for prenatal injuries where obviously the difficulty of establishing a causal relationship between the conduct and injury was great would give rise to fictitious claims.
The departure from the Dietrich rule came in 1946 in Bonbrest v. Kotz, D.C., 65 F.Supp. 138, where it was held that a child could maintain an action for prenatal injuries sustained through alleged malpractice as it was taken from the mother's womb. Since Bonbrest, in an almost unbroken line of decisions the courts have rejected the arguments once relied upon and have said that a cause of action accrues for prenatal injuries. Where once they recognized a child's legal existence while en ventre sa mere in the criminal law and with respect to his property rights and his right to inherit but denied it for purposes of allowing suit for prenatal injuries, they now extend that recognition to the field of torts. They answer the suggestion that such an extension may encourage false claims by saying that the issue of a causal connection between the injury to the unborn child and the negligence of another is one of proof which differs, if at all, only in degree from other medical questions which daily arise in negligence cases.
We do no more than summarize the more cogent reasons given by the judges and text writers both for the earlier and the modern rule. More is unnecessary because the arguments pro and con are set out at length in the authorities which are collected in 10 A.L.R.2d 1059, 27 A.L.R.2d 1256, as well as in Prosser, Torts (3d ed.) § 56 § 354, and 2 Harper & James, Torts § 18.3 at 1029 (1956).
We overrule Gorman v. Budlong, supra, to the extent that it stands for the...
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