> 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
>
>