No. 10 April Term 1971, Docket No. 52,534.

384 Mich. 718 (1971)

187 N.W.2d 218


Supreme Court of Michigan.

Decided June 1, 1971.

Attorney(s) appearing for the Case

Calvin Klyman, for plaintiff.

Plunkett, Cooney, Rutt & Peacock (by John D. Hayes and Stanley A. Prokop), for defendant.


This case involves a common-law negligence action brought on behalf of an eight-year-old surviving child for prenatal brain injuries suffered during the fourth month of pregnancy in an automobile accident. The matter comes to this Court on grant of summary judgment for defendant by the Circuit Court solely on the basis of Newman v. Detroit (1937), 281 Mich. 60, and leave to appeal to this Court prior to decision by the Court of Appeals.

The only issue in this case is whether a common-law negligence action can be brought on behalf of a surviving child negligently injured during the fourth month of pregnancy.

The Newman case was an action under the survival act (3 Comp Laws 1929, §§ 14040-14060) involving a child that survived three months after birth from prenatal injuries suffered 22 days prior to birth when his mother was a passenger on a Detroit streetcar. The trial judge denied a motion to dismiss and the case came before this Court by an appeal in the nature of certiorari. The decision in Newman was based principally on the fact that "the overwhelming weight of authority is * * * contrary" to allowing recovery for prenatal injuries (p 63).1 The case concluded "Plaintiff has no cause of action under the common law or any statute" (p 64).

Since Newman has been decided, medical science has probably advanced more in one generation than in the previous 100 years or more. Legal philosophy and precedent have moved in response to scientific and popular knowledge.

When this Court decided Newman in 1937, there were ten jurisdictions2 other than Michigan denying recovery for prenatal injuries and three3 allowing it. Today 27 American jurisdictions4 allow recovery. Federal district courts have upheld recovery in two other jurisdictions5 and there is favorable dictum by the state supreme court in still another jurisdiction.6 Only one7 denies recovery.8

Significantly, seven of the nine jurisdictions relied on by our Court in Newman in 1937 have changed their position.9 This leaves only Alabama and Ireland of those originally cited by this Court still denying recovery. As for Alabama of the six cases from other jurisdictions10 relied on by the Alabama Court in Stanford (fn. 5), all of which were also relied upon by this Court in Newman, all have now been overruled.

This Court must therefore face forthrightly whether the law of Newman should continue to stand on the basis of stare decisis or whether Michigan should recognize what present day science, philosophy and the great weight of the law in this country consider the better and the sound rule. Some 20 years ago the New York Court of Appeals was also faced with the same problem in overruling precedent against allowing recovery for negligent infliction of prenatal injuries. Woods v. Lancet (1951), 303 N.Y. 349 (102 N.E.2d 691) overruling Drobner v. Peters (1921), 232 N.Y. 220 (133 NE 567, 20 ALR 1503) (one of the cases relied on by this Court in Newman in 1937). There Judge Desmond speaking for the court said:

"What, then, stands in the way of a reversal here? Surely, as an original proposition, we would, today, be hard put to it to find a sound reason for the old rule. Following Drobner v. Peters (supra) would call for an affirmance but the chief basis for that holding (lack of precedent) no longer exists. And it is not a very strong reason, anyhow, in a case like this. Of course, rules of law on which men rely in their business dealings should not be changed in the middle of the game, but what has that to do with bringing to justice a tort-feasor who surely has no moral or other right to rely on a decision of the New York Court of Appeals? Negligence law is common law, and the common law has been molded and changed and brought up-to-date in many another case. Our Court said, long ago, that it had not only the right, but the duty to reexamine a question where justice demands it, * * *." (p 354.)

This Court has followed the same legal philosophy. For example, in Bricker v. Green (1946), 313 Mich. 218, 232, Justice BUSHNELL speaking for the Court quoted and adopted the following language of the Wisconsin Supreme Court:

"`Were it a rule of property, we should certainly apply to it the rule of stare decisis. But it is not a rule of property. It is a pure judicial decree relating to liability for negligence, and the court would not for a moment give countenance to an argument that a wrongdoer relied upon it. We are, therefore, at liberty to change the rule in the needs of justice, and to conform to the overwhelming majority rule.' Reiter v. Grober [1921], 173 Wis. 493 (181 N.W. 739, 18 A.L.R. 362)."

See also the consideration of the matter by Chief Justice THOMAS M. KAVANAGH in Parker v. Port Huron Hospital (1961), 361 Mich. 1, 10, 11.

In the light of the present state of science and the overwhelming weight of judicial authority, this Court now overrules Newman. We hold that an action does lie at common law for negligently inflicted prenatal injury. We adopt the reasoning and result of the New Jersey Supreme Court (which also involved a common-law action):

"And regardless of analogies to other areas of the law, justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body. If the wrongful conduct of another interferes with that right, and it can be established by competent proof that there is a causal connection between the wrongful interference and the harm suffered by the child when born, damages for such harm should be recoverable by the child." Smith v. Brennan (1960), 31 N.J. 353, 364, 365, (157 A.2d 497, 503).

"Candor compels acknowledgment that the decision rendered today is a new ruling." Griffin v. Illinois (1956), 351 U.S. 12, 25 (76 S.Ct. 585, 100 L Ed 891, 55 ALR2d 1055) (concurring opinion of Justice Frankfurter). In the interests of justice and fairness therefore "we are persuaded to hold that the new rule applies to all pending and future cases, as in Bricker v. Green (1946), 313 Mich. 218." Daley v. LaCroix (1970), 384 Mich. 4, 14.

The judgment entered in the circuit court is vacated and the cause remanded for future proceedings in conformity with this opinion. The costs of this appeal will abide the final decision of this case.



1. Newman cites the following authority: "In some inferior courts where decisions were reversed in the appellate courts and in Kine v. Zuckerman [1924], 4 Pa. Dist. & County Rep. 227, recovery was allowed for prenatal injuries. However, the overwhelming weight of authority is to the contrary. Dietrich v. Northampton [1884], 138 Mass. 14 (52 Am. Rep. 242); Walker v. Railway Co. [1891], 28 L.R. 69 (Ireland); Allaire v. St. Luke's Hospital [1898], 76 Ill.App. 441, affirmed in 184 Ill. 359 (56 N.E. 638, 48 L.R.A. 225, 75 Am. St. Rep. 176); Gorman v. Budlong [1901], 23 R.I. 169 (49 Atl. 704, 55 L.R.A. 118, 91 Am. St. Rep. 629); Buel v. United Railways Co. [1913], 248 Mo. 126 (154 S.W. 71, 45 L.R.A. [N.S.] 625, Ann. Cas. 1914C, 613); Lipps v. Milwaukee Electric Ry. & Light Co. [1916], 164 Wis. 272 (159 N.W. 916, L.R.A. 1917B, 334); Stanford v. Railway Co. [1926], 214 Ala. 611 (108 South. 566); Nugent v. Railway Co. [1913], 154 App. Div. 667 (139 N.Y. Supp 367), appeal dismissed in 209 N.Y. 515 (102 N.E. 1107); Drobner v. Peters [1921], 232 N.Y. 220 (133 N.E. 567, 20 A.L.R. 1503); Magnolia Coca Cola Bottling Co. v. Jordan [1935], 124 Tex. 347 (78 S.W.2d 944, 97 A.L.R. 1513)" pp 63, 64.
2. ALABAMA: Stanford v. St. Louis-San Francisco R. Co. (1926), 214 Ala 611 (108 So 566); ILLINOIS: Allaire v. St. Luke's Hospital (1900), 184 Ill. 359 (56 NE 638); MASSACHUSETTS: Dietrich v. Northampton (1884), 138 Mass. 14 (52 Am Rep 242); MISSOURI: Buel v. United R. Co. (1913), 248 Mo 126 (154 SW 71); NEW YORK: Drobner v. Peters (1921), 232 N.Y. 220 (133 NE 567, 20 ALR 1503); OHIO: Krantz v. Cleveland, Akron, Canton Bus Co. (1933), 32 Ohio NP NS 445; RHODE ISLAND: Gorman v. Budlong (1901), 23 R.I. 169 (49 A 704); TEXAS: Magnolia Coca Cola Bottling Company v. Jordan (1935), 124 Tex 347 (78 S.W.2d 944, 97 ALR 1513); WISCONSIN: Lipps v. Milwaukee Electric Railway & Light Company (1916), 164 Wis. 272 (159 NW 916); IRELAND: Walker v. Great Northern R. Co. (1891), Ir LR 28 CL 69.
3. See cases cited in the annotation at 10 ALR2d 1054, 1064: LOUISIANA: Cooper v. Blanck (La App, 1923), 39 So.2d 352; PENNSYLVANIA: Kine v. Zuckerman (1924), 4 Pa. D. & C. 227; CANADA: Montreal Tramways Company v. Leveille (1933), Can Sup Ct 456 (4 DLR 337).
4. The 27 jurisdictions allowing recovery for prenatal injuries are divided into four categories: a) those which have allowed common-law negligence actions to surviving children (13); b) those which have allowed wrongful death actions on the rationale that a viable fetus could recover under the applicable wrongful death act (10); c) Massachusetts, which has held that a non-viable fetus was a person within the meaning of the Massachusetts wrongful death act; d) those which in actions under survival type wrongful death statutes have held that the injured unborn child could have brought a common-law negligence action had he survived (3).

In the following jurisdictions a surviving child has been held to have a common-law right of action for negligently inflicted prenatal injuries:

CALIFORNIA: Scott v. McPheeters (1939), 33 Cal.App.2d 629 (92 P.2d 678) (conceived unborn child deemed a person by statute where necessary to protect its interest subsequent to birth); DISTRICT OF COLUMBIA: Bonbrest v. Kotz (1946), 65 F.Supp. 138; GEORGIA: Tucker v. Howard L. Carmichael & Sons, Inc. (1951), 208 Ga. 201 (65 S.E.2d 909); Hornbuckle v. Plantation Pipe Line Company (1956), 212 Ga. 504 (93 S.E.2d 727); ILLINOIS: Amann v. Faidy (1953), 415 Ill. 422 (144 N.E.2d 412) (wrongful death action) extended to allow common-law recovery by surviving child injured while he was a one month old fetus in Daley v. Meier (1961), 33 Ill.App.2d 218 (178 N.E.2d 691); MARYLAND: Damasiewicz v. Gorsuch (1951), 197 Md. 417 (79 A.2d 550); NEW HAMPSHIRE: Bennett v. Hymers (1958), 101 N.H. 483 (147 A.2d 108); NEW JERSEY: Smith v. Brennan (1960), 31 N.J. 353 (157 A.2d 497); NEW YORK: Woods v. Lancet (1951), 303 N.Y. 349 (102 N.E.2d 691); OHIO: Williams v. Marion Rapid Transit, Inc. (1949), 152 Ohio St. 114 (87 N.E.2d 334); OREGON: Mallison v. Pomeroy (1955), 205 Or. 690 (291 P.2d 225); PENNSYLVANIA: Sinkler v. Kneale (1960), 401 Pa. 267 (164 A.2d 93); RHODE ISLAND: Sylvia v. Gobeille (1966), 101 R.I. 76 (220 A.2d 222); WASHINGTON: Seattle-First National Bank v. Rankin (1962), 59 Wn.2d 288 (367 P.2d 835).

In the following jurisdictions a wrongful death action has been allowed on the rationale that a fetus which was viable at the time the injury occurred could recover under the applicable wrongful death act:

DELAWARE: Worgan v. Greggo & Ferrara Inc. (1956), 50 Del 258 (128 A.2d 557); KANSAS: Hale v. Manion (1962), 189 Kan. 143 (368 P.2d 1); KENTUCKY: Mitchell v. Couch (Ky App, 1955), 285 S.W.2d 901; LOUISIANA: Cooper v. Blanck (La App, 1923), 39 So.2d 352 (statute conferred right of action on parents for death of a child); MISSISSIPPI: Rainey v. Horn (1954), 221 Miss. 269 (72 So.2d 434); MISSOURI: Steggall v. Morris (1953), 363 Mo 1224 (258 S.W.2d 577); SOUTH CAROLINA: Hall v. Murphy (1960), 236 S.C. 257 (113 S.E.2d 790); TENNESSEE: Shousha v. Matthews Drivurself Service, Inc. (1962), 210 Tenn 384 (358 S.W.2d 471); TEXAS: Leal v. C.C. Pitts Sand and Gravel, Inc. (Tex, 1967), 419 S.W.2d 820; WISCONSIN: Kwaterski v. State Farm Mutual Automobile Insurance Company (1967), 34 Wis.2d 14 (148 N.W.2d 107).

MASSACHUSETTS allows an action for wrongful death of a non-viable fetus (3-1/2 months), holding that a non-viable fetus is a "person" within the meaning of the Massachusetts wrongful death act. Torigian v. Watertown News Co., Inc. (1967), 352 Mass. 446 (225 N.E.2d 926).

In the following jurisdictions in actions brought under survival type wrongful death statutes, it was held that the injured unborn child would have been able to bring a common-law negligence action had he survived:

CONNECTICUT: Prates v. Sears, Roebuck and Company (1955), 19 Conn.Sup. 487 (118 A.2d 633); MINNESOTA: Verkennes v. Corniea (1949), 229 Minn. 365 (38 N.W.2d 838, 10 ALR2d 634); NEVADA: White v. Yup (1969), 85 Nev. 527 (458 P.2d 617).

5. IOWA: Wendt v. Lillo (ND Iowa, 1960), 182 F.Supp. 56; WEST VIRGINIA: Panagopoulous v. Martin (SD W Va, 1969), 295 F.Supp. 220.
6. NORTH CAROLINA: Stetson v. Easterling (1968), 274 N.C. 152 (161 S.E.2d 531); the North Carolina Supreme Court opined that the prenatally injured child "if he had lived, could have maintained an action to recover damages on account of injuries negligently inflicted upon him when en ventra sa mere," but held no cause of action since the North Carolina death act required proof of "pecuniary injury" and there was no sufficient allegation thereof.
7. ALABAMA: Stanford v. St. Louis-San Francisco R. Co. (1926) 214 Ala 611 (108 So 566).
8. Numerous text writers have also condemned the old rule denying recovery for prenatal injuries, e.g., Prosser, Torts (3d ed), § 56, p 355, 2 Harper and James, Torts, § 18.3, pp 1028-1031. See also the articles cited in Prosser, Torts (3d ed), § 56, p 355, footnote 35.
9. Jurisdiction Cases Cited by Newman Reversed by Illinois Allaire v. St. Luke's Amann v. Faidy Hospital (1900), 184 (1953), 415 Ill 422 Ill 359 (56 NE 638) (114 NE2d 412) Massachusetts Dietrich v. Northampton Keyes v. Construction (1884), 138 Mass Service, Inc. (1960), 14 (52 Am Rep 242) 340 Mass 633 (165 NE 2d 912); Torigian v. Watertown News Co., Inc. (1967), 352 Mass 446 (225 NE2d 926) Missouri Buel v. United R. Co. Steggall v. Morris (1913), 248 Mo 126 (1953), 363 Mo 1224 (154 SW 71) (258 SW2d 577) New York Drobner v. Peters Woods v. Lancet (1921), 232 NY 220 (1951), 303 NY 349 (133 NE 567, 20 ALR (102 NE2d 691) 1503) Rhode Island Gorman v. Budlong Sylvia v. Gobeille (1901), 23 RI 169 (49 (1966), 101 RI 76 A 704) (220 A2d 222) Texas Magnolia Coca Cola Leal v. C.C. Pitts Sand Bottling Company v. and Gravel, Inc. (Tex, Jordan (1935), 124 1967), 419 SW2d 820 Tex 347 (78 SW2d 944, 97 ALR 1513) Wisconsin Lipps v. Milwaukee Kwaterski v. State Electric Railway & Farm Mutual Automobile Light Company (1916), Insurance Company 164 Wis 272 (159 NW (1967), 34 Wis 916) 2d 14 (148 NW2d 107)
10. Illinois, Massachusetts, Missouri, New York, Rhode Island and Wisconsin (see fn 9).


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