Ben:

What would you do with a situation where a house is sold by X to Y with

some inherent defect (such as a faulty foundation which is caused by the

negligence of Z). If your analysis is correct and transposes from people

to things (which it may not), then one would have to say that Y has a

claim against Z when the faulty foundation manifests itself in

structural damage to the house (cracked basement, cracking walls,

windows and doors that won't open, etc) since the house was damaged

/after /the transfer. This is not the UK position as I understand it,

the judges in /Murphy /accepting that there is no claim since all you

ever owned was a house subject to this inherent defect.  The situation

of a child doesn't seem materially different to me.

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

Benjamin Zipursky wrote:

> This current e-mail by Jason (see below) indicates that there are at least two sorts of problems here.   Many of us have been attending to larger problems of whether a person can be liable in negligence to someone injured by conduct the person engaged in prior to the birth of the plaintiff.   There is, happily, widespread agreement that in the common law of torts, he answer is clearly "yes."   There is less agreement on what the might entail for the supposedly relational quality of duty in negligence, the correlativity of right and duty, etcetera.   And there is less agreement still on whether these theoretical questions, Hohfeldian or not, matter to anything.   Obviously, I think there is a theoretical story to be told here that is not too elaborate and that works, and that it is worth articulating.   But alas, that is not really the problem that is bothering Jason, and perhaps it is not what was bothering the Paxton court, either!    

>

> The problem is, according to Jason, that while the plaintiff on whose behalf the law suit is filed has been born, the injured party was unborn.   The injury occurred to a fetus, not a born child; it is just that the born child is now dealing with the consequences.  

>

> The short answer to this is that, while it is awkward in some ways to say that the injury of the plaintiff does not occur until the plaintiff is born, the awkwardness does not undercut the capacity to say just this, coherently, as a matter of law and otherwise, too.    The awkwardness is due to the fact that we tend to think of physical injuries as involving impacts, and we tend to think of the human  being before birth as continuous with the human being after birth (which it is, of course, in many important respects).      For this reason, one intuitive answer to the question, asked as to an infant "When was she injured" is sometimes : "She was injured in utero."    But an equally natural way to answer the question is to finesse it: "She was born with this disability, due to exposure in utero."

>

> And so I think the answer is simply not refrain from characterizing the situation as one in which the injury occurred to the fetus; the changes upon the body of the person who is now claiming injury occurred prior to birth, but the injury did not occur until after birth.   I believe this is the way many jurisdictions treat negligence cases alleging wrongful exposure to toxins that lead to cancer; the injury does not occur until the cancer develops, even though the changes to the body of the plaintiff flowing out of defendant's wrongful conduct occurred eariler.  

>

> Sorry for the longwindedness,

> Ben

>

>

>    

>

>  

>>>> Jason Neyers <jneyers@uwo.ca> 01/20/09 7:27 AM >>>

>>>>        

> 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

>>    

>  

>  

>