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
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).
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 jurisdictions
"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:
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
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.
T.M. KAVANAGH, C.J., and BLACK, ADAMS, T.E. BRENNAN, T.G. KAVANAGH, and SWAINSON, JJ., concurred with WILLIAMS, J.
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).