Ben's point is so self-evidently correct, for the life of me I just cannot see why people are getting so wound up about the conceptual problem of whether someone exists at the point of breach.  It's the damage that matters - a legal system that denied a remedy to a child disabled by pre-birth negligence because it couldn't cope with the conceptual problem that has been discussed over the last week or so on this forum would not be a shining example of 21st century (or even 20th century) jurisprudence.  

It may be reassuring to tie up all the conceptual loose ends, but sometimes the result is more important than the route by which one arrives at the destination.  I'm not trying to provoke another flurry of posts - its just that sometimes I think you can have too much theory and lose sight of the basics ...

Michael

--------------------------------------

Michael A. Jones

Professor of Common Law

Liverpool Law School

University of Liverpool

Liverpool

L69 3BX

Phone: (0)151 794 2821

Fax:     (0)151 794 2829

--------------------------------------

________________________________________

From: Benjamin Zipursky [bzipursky@law.fordham.edu]

Sent: 19 January 2009 21:14

To: Jason Neyers

Cc: Obligations list

Subject: Re: ODG: Duties to the unborn

Jason:

Consider the following hypothetical:

In 2009, Grandpa (age 65), Mom, and Baby (age 1) from Vancouver, Canada, travel across a bridge in Pittsburgh, USA, designed  by defendant engineer in Pittsburgh in 1980 and built without negligence  by third party in 1982.   Due to negligent design by defendant engineer in 1980, the bridge crumbles when Grandpa, Mom, and Baby are on it, leaving all three paraplegics for the remainder of their respective lives.   Do you really need to know when Mom was born in order to ascertain whether there is liability to her?

I think not.   All three are similarly situated; whether he or she was alive when defendant engineer committed his negligent acts is irrelevant.   Insofar as the breach of a duty by defendant invades a right of a person existing in 2009, it is because the negligent doing of the defendant is awkwardly stretched out by the concepts of negligence law from a relatively tangible piece of conduct in 1980 all the way to an injuring of the person in 2009.   As you know, I think a description of the scope of the duties of conduct in 1980 is relational, and contemplates categories of persons to whom duties of vigilance, in a Heaven v. Pender way, are owed.   But these need not be and frequently are not real live people, although they may turn out to be instantiated by real live people.   When the Pittsburgh engineer in 1980 dutifully contemplates (or wrongfully fails to contemplate) "people who will cross the bridge" he is no more thinking of (or ignoring) Vancouver Grandpa in 1980 than he is thinking of Vancouver Baby in 2009.    To the extent he is thinking of Vancouver Grandpa, he is thinking of someone who might be crossing the bridge in a future year, and it does not matter to the content of the duty of care, so understood, whether that person is alive at the moment of the negligent conduct.

>>> Jason Neyers <jneyers@uwo.ca> 1/19/2009 2:05 PM >>>

Ben:

Is there not a difference between (1) being injured after one attains legal personality (where right and duty are correlative but not temporally) by a risk created beforehand and (2) being injured before one attains legal personality such that there can be no correlation? If the child is born alive in the second situation there seemingly can be no duty (as there is no right) and there is no injury.

Your post seems to treat these problems as identical. Perhaps you think that they are normatively indistinguishable?

Sincerely,

----- Original Message -----

From: Benjamin Zipursky <bzipursky@law.fordham.edu>

Date: Monday, January 19, 2009 12:11 pm

Subject: Re: ODG: Duties to the unborn

To: haroldjen@netspace.net.au, Robert H Stevens <robert.stevens@ucl.ac.uk>

Cc: Obligations list <obligations@uwo.ca>

> I have tried to follow most of this very interesting

> conversational chain (but have probably missed some, perhaps

> ones that say what I am about to say), and I have hesitated to

> jump in.   I finally read the Ontario decision,

> however.  While  I do not tend to be one of those

> academics who jumps up and says how badly courts are doing their

> work, the decision is really very weak.

>

> I largely agree with the analysis of those who, like Rob

> Stevens, think it in principle not too difficult to understand

> how there could be a breach of a duty to a person who did not

> exist at the time the relevantly negligent conduct by the

> defendant occurred.   More generally, I do not see why

> Heaven v. Pender principles should not be broad enough in theory

> to accommodate a plaintiff's case against a physician where the

> plaintiff is a child who suffers from a disability that would

> not have existed had the plaintiff not acted

> negligently.   By the way, there may well be other

> cases in which a plaintiff would want to depict the tort claim

> by the neonate as akin to battery; here, the question of the

> status of the fetus might indeed become important.

> To me, the most interesting theoretical questions are whether it

> would or should ever make a difference if the prenatal contact

> with the fetus -- as spatio-temporally located living organism --

> can be characterized in some way other than negligence, and if

> so whether there are ever any grounds for doing so.

> To the extent that there are real issues there -- and I simply

> do not know, because I have neither thought nor read

> sufficiently about it -- I see the prima facie conceptual and

> administrative reasons for desiring to handle it by legislation,

> quite apart from the obvious political reasons for doing

> so.    To the extent that all we are worried

> about is plain old negligence, I am skeptical that there are

> really great conceptual challenges to be faced, though of course

> there may be ethical, moral and political ones.

>

> Onto the Ontario decision.   At four levels, the

> Paxton court's analysis is very disappointing.   First

> and foremost, it strikes me as having been handled adequately

> well (probably just right, in my view, but in any event,

> adequately well) at the trial court.   Why not just

> affirm on no breach, which seems to me amply justified, and

> probably correct?

>

> Second, although as an American legal academic (albeit from

> Ontario), I do not stay on top of Canadian tort law as much as I

> would like, I am skeptical of the claim that this case presents

> a "new" duty question requiring Anns analysis.   The

> fact is that it is neither wrongful life nor wrongful birth; the

> failure of the father's vasectomy is relevant only to the breach

> question, as the case is presented, not to the duty

> question.   I find it hard to believe the Court needed

> to get into the Anns analysis.   But perhaps I am wrong.

>

> Third, and most seriously, the Stage 1 Anns analysis reaches an

> untenable result bv creating a nuanced argument and applying it

> in a simpleminded way.    If it were correct, a

> physician prescribing a known teratogen to a woman known to be

> pregnant today would face no liability to the disabled

> child.  A physician repeatedly performing X-rays on the

> abdomen of a woman of child-bearing age would face no

> liability.    All of this would be the same if it

> were the case that the mother would have declined such treatment

> if fully informed.   The no-duty argument offered

> sweeps it all in.   The Paxton court's argument is, on

> one way, quite nuanced: it is based on the idea that a physician

> owes it to the mother to prioritize her needs and her decisions,

> and there is a potential for a conflict of interest if the child

> is also recognized as one to whom a duty is owed.   I

> myself have made similar arguments with regard to the need for

> careful thinking by courts before physicians or lawyers are

> saddled with extra duties to third parties; I think as a

> structural point, it is well taken.   But it certainly

> does not follow that "no duty" to any future child under any

> circumstances must be the rule.   It could follow, for

> example, that there is a duty at least to inform the mother of

> the risks to future children, and to offer professional advice

> about such risks, and that this duty runs to the future child as

> well as to the mother.   It would be a question of

> principle, policy, and politics whether a jurisdiction wanted to

> add a rule saying that there are certain decisions regarding

> risks to future children that a physician may decline to take,

> notwithstanding the mother's choice, or must decline to take,

> notwithstanding the mother's choice.    I do not

> want to go into whether a jurisdiction would ever by right to

> accept or reject some form of this rule.   The point

> is that the fact pattern and lower court decision before the

> court in  Paxton simply does not require the judge to think

> about any of these questions, except for thinking about them

> enough to know that it would be a mistake to sweep them away in

> one step.

>

> Finally, the stage 2 of Anns is gratuitous and

> sloppy.   It is a conceptual mistake to suppose that

> having liability to the child requires thinking of the fetus as

> a rights-bearer of a sort that would entail the impermissibility

> of abortion or even restrict the rights to abortion in any

> way.   Recognizing legal duties to make baby food

> carefully, even before the baby is born, does not entail

> anything whatsoever about abortion rights.   The duty

> rejected in Paxton is of the same sort.

>

> Ben Zipursky

> Professor & Quinn Chair

> Fordham Law School

> 140 West 62nd St.

> New York, NY 10583

> (212) 636-6106

--

Jason Neyers

Associate Professor of Law &

Cassels Brock LLP Faculty Fellow in Contract Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435