Ben:

 

I agree with the result you propose but it does not apply at all to a child/fetus injured in utero (my example number two). That is what prompted my question vis-a-vis the normative difference.

 

 If the child/fetus is actually injured in utero, I just cannot see how there can be liability. They are not a legal person when injured and when they become a legal person they are not injured (they just are who they are). Hence Rob's idea of a right to a "healthy birth" as a work around or my idea of reconceptualizing the point at which the law ascribes legal personality subject to a privilege for the mother.

 

Hence the bridge example does not seem to be to the point at all since it is an example of the injury occurring at a time when the child has a right to bodily integrity. Apples and oranges.

Sincerely,

----- Original Message -----
From: Benjamin Zipursky <bzipursky@law.fordham.edu>
Date: Monday, January 19, 2009 4:15 pm
Subject: Re: ODG: Duties to the unborn
To: Jason Neyers <jneyers@uwo.ca>
Cc: Obligations list <obligations@uwo.ca>

> 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

 

 

--
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