For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
The complaint alleges that on July 25, 1956 the infant plaintiff Sean Smith, while in the womb of his mother, was injured in an automobile collision caused by the defendants' negligence and that he was born on October 8, 1956 with resulting deformities of his legs and feet. The defendants all moved to dismiss the complaint of the infant plaintiff and his father suing per quod on the ground that the law of this State does not recognize a cause of action for a negligently inflicted prenatal injury. The Law Division granted the defendants' motions and dismissed the action, holding that it was bound by Stemmer v. Kline, 128 N.J.L. 455 (E. & A. 1942). We certified the plaintiffs' appeal before the Appellate Division considered it.
In Stemmer v. Kline, Judge Oliphant (later of this court), sitting at the Middlesex Circuit, refused to strike a complaint which alleged that the infant plaintiff, then five years old, was injured before its birth as a result of a physician's malpractice. 19 N.J. Misc. 15 (1940). At the subsequent
trial, the plaintiff obtained a judgment upon a jury verdict. However, the Court of Errors and Appeals, considering the question for the first time and relying on the decisions in other jurisdictions, reversed on the ground that at common law there was no right of action for prenatal injury, and "there being no statute establishing such right in this State, it is non-existent." 128 N.J.L., at page 456. The vote was nine to six on this question and Chief Justice Brogan wrote a vigorous dissenting opinion for the minority. When Stemmer v. Kline was decided, its holding accorded with every decision on the point by an American court of last resort. Since then, however, a number of states have permitted recovery for negligently inflicted prenatal injuries. On the basis of the arguments that have persuaded the courts of those states we are now urged to reexamine the rule of Stemmer v. Kline.
All of the cases relied on by the majority in Stemmer v. Kline took their lead from Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am. Rep. 242 (Sup. Jud. Ct. 1884), which appears to be the first reported American or English case passing on the question. There the court, through Justice Holmes, denied liability to the personal representative of a child who died at birth from prenatal injuries. The decision rested on the complete lack of precedent and the concept that before birth a child is merely part of his mother without separate existence or personality. The Dietrich case arose under a wrongful death statute, and it is doubtful that the child was born alive. See White, The Right of Recovery for Prenatal Injuries, 12 La. L. Rev. 383 (1952). Thus, although Dietrich has been universally cited for the proposition that there is no cause of action for prenatal injury, the actual holding of the case does not provide direct authority for denying recovery to a child who suffers prenatal injuries but survives. Commentators on the subject have noted that in prenatal death cases there are special factors, e.g., the remote and speculative character of the damages, whose cumulative effect might justify a denial of
relief. 2 Harper and James, Torts, § 18.3, p. 1031 (1956); Note, 63 Harv. L. Rev. 173 (1949); Note, 3 Vand. L. Rev. 282 (1950); see also Drabbels v. Skelly Oil Co., 155 Neb. 17, 50 N.W. 2 d 229 (Sup. Ct. 1951); In re Logan's Estate, 4 Misc. 2 d 283, 156 N.Y.S. 2 d 49 (Surr. 1956), affirmed on opinion below, 2 A.D. 2 d 842, 156 N.Y.S. 2 d 152 (App. Div. 1956), leave to appeal denied, 2 A.D. 2 d 886, 157 N.Y.S. 2 d 900 (App. Div. 1956), affirmed 3 N.Y. 2 d 800, 166 N.Y.S. 2 d 3, 144 N.E. 2 d 644 (Ct. App. 1957).
The first case brought for a child who survived prenatal injuries was Allaire v. St. Luke's Hospital, 184 Ill. 359, 56 N.E. 638, 48 A.L.R. 225 (Sup. Ct. 1900). Relying on the Dietrich case, the court denied the power of the common law to grant recovery for an injury sustained by a child four days before its normal-term birth. The rationale of the court's holding was "[t]hat a child before birth is, in fact, a part of the mother, and is only severed from her at birth, * * *," and that, therefore, the defendant owed no independent duty to it. Justice Boggs wrote a dissenting opinion in which he pointed out that at the time of the injury the child was viable, i.e., capable of sustaining life independent of its mother, and was therefore a person entitled to the law's protection.
Between 1900, when Allaire v. St. Luke's Hospital was decided, and 1942, the year of the decision of Stemmer v. Kline, a number of other states also denied recovery in prenatal injury and death cases. Gorman v. Budlong, 23 R.I. 169, 49 A. 704, 55 L.R.A. 118 (Sup. Ct. 1901); Nugent v. Brooklyn Heights Railway Co., 154 App. Div. 667, 139 N.Y.S. 367 (App. Div. 1913), appeal dismissed, 209 N.Y. 515, 102 N.E. 1107 (Ct. App. 1913); Buel v. United Rys. Co. of St. Louis, 248 Mo. 126, 154 S.W. 71, 45 L.R.A., N.S., 625 (Sup. Ct. 1913); Lipps v. Milwaukee Electric Ry. & Light Co., 164 Wis. 272, 159 N.W. 916, L.R.A. 1917 B 334 (Sup. Ct. 1916); Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503 (Ct. App. 1921);
Stanford v. St. Louis-San Francisco R. Co., 214 Ala. 611, 108 So. 566 (Sup. Ct. 1926); Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W. 2 d 944, 97 A.L.R. 1513 (Sup. Ct. 1935); Newman v. City of Detroit, 281 Mich. 60, 274 N.W. 710 (Sup. Ct. 1937); Berlin v. J.C. Penney Co., Inc., 339 Pa. 547, 16 A. 2 d 28 (Sup. Ct. 1940). In the main these decisions adopted the reasoning of the Dietrich and Allaire cases, although occasionally they advanced additional reasons. See also Walker v. Great Northern Ry. Co., 28 L.R. Ir. 69 (Q.B. 1891); but see Kine v. Zuckerman, 4 Pa. Dist. & Co. R. 227 (C.P. 1924). In 1940 a New Jersey trial court followed the prevailing rule and denied recovery. Ryan v. Public Service Co-Ordinated Transport, 18 N.J. Misc. 429 (Sup. Ct. 1940). California authorized recovery with the aid of a statute, Scott v. McPheeters, 33 Cal. App. 2 d 629, 92 P. 2 d 678 (Dist. Ct. App. 1939), rehearing denied 33 Cal. App. 629, 93 P. 2 d 562 (Sup. Ct. 1939), and Louisiana reached the same result under its civil law code. Cooper v. Blanck, 39 So. 2 d 352 (La. App. 1923). See also Montreal Tramways v. Leveille, 4 Dom. L.R. 337 (Can. Sup. Ct. 1933).
Such was the state of judicial thought at the time Stemmer v. Kline was decided. The Restatement of the American Law Institute followed the common law cases decided before its adoption in 1939, and stated: "A person who negligently causes harm to an unborn child is not liable to such child for the harm." 4 Restatement, Torts, § 869 (1939). However, many writers had long urged a rule of recovery for negligently inflicted prenatal injuries. See Morris, "Injuries to Infants en Ventre sa Mere," 58 Cent. L.J. 143 (1904); Kerr, "Action by Unborn Infant," 61 Cent. L.J. 364 (1905); Frey, "Injuries to Infants en Ventre sa Mere," 12 St. Louis L. Rev. 85 (1927); Prosser, Torts, 190 (1941); Note, 36 N.J.L.J. 295 (1913). The writers of the Restatement expressly declined, without explanation, to take a position on the question of liability for intentional or reckless prenatal harm. 4 Restatement, Torts, § 869, caveat (1939).
The principal reasons advanced in support of the rule denying recovery have been (1) the lack of precedent, in that no case had permitted recovery, see e.g., Dietrich v. Inhabitants of Northampton, supra, (2) the principle of stare decisis and the thought that the problem is one for the Legislature, see e.g., Drobner v. Peters, supra, (3) the conclusion that an unborn child is part of its mother and hence no independent duty is owed to it, see e.g., Allaire v. St. Luke's Hospital, supra, and (4) the difficulty of proof of causation and fear of fraudulent claims, see e.g., Magnolia Coca Cola Bottling Co. v. Jordan, supra.
As to the first ground, there is no longer a lack of precedent. In 1946, the District Court for the District of Columbia sustained an action by a child for a prenatal injury, basing its decision solely on the common law. Bonbrest v. Kotz, D.C., 65 F. Supp. 138 (1946). However, until 1949, no American court of final jurisdiction had held that a child had a common law action for injuries incurred before birth. In that year the Supreme Court of Ohio in Williams v. Marion Rapid Transit, Inc., 152 Ohio St. 114, 87 N.E. 2 d 334, 10 A.L.R. 2 d 1051, held that a viable fetus was a "person" within the meaning of the Ohio Constitution, and thus after birth could maintain an action for tortious prenatal injuries. Though the case was one of first impression in that court, the decision overruled Mays v. Weingarten, Ohio App., 82 N.E. 2 d 421 (1943), in which the Ohio Court of Appeals had held to the contrary. Shortly thereafter the Supreme Court of Minnesota in Verkennes v. Corniea, 229 Minn. 365, 38 N.W. 2 d 838, 10 ...