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Taylor by Taylor v. Cutler

December 8, 1997


On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication December 8, 1997.

Before Judges Dreier, Keefe and Wecker. The opinion of the court was delivered by Keefe, J.A.D.

The opinion of the court was delivered by: Keefe

The opinion of the court was delivered by


In this appeal we must decide whether a negligent motorist, who injures a woman in an automobile accident, owes a duty to that woman's child who was not yet conceived at the time of the accident but suffers from injuries that are attributable to the mother's injuries stemming from that accident. Although the issue, referred to as "preconception negligence," has been decided in other jurisdictions, it has not yet been addressed by an appellate court in this State. The Law Division held that preconception negligence is not a recognized tort in New Jersey and dismissed plaintiffs' complaint. Under the facts of this case, we agree and affirm.


On July 29, 1982, Plaintiff Christine Taylor ("Christine") and defendant Frances Cutler ("Cutler" or "defendant") were involved in a car accident in which Christine was seriously injured. Christine sustained numerous, serious injuries in the accident. As a result of the car accident, Christine has been hospitalized over twenty-five times and has undergone more than fifteen surgical procedures for orthopedic and/or neurological treatment.

Christine and her husband Sherman (collectively "the plaintiffs") subsequently filed a complaint against Cutler and her husband Norman (collectively "the defendants"), asserting that Cutler negligently operated her vehicle while intoxicated and, as a result, Christine was severely injured. After bringing the complaint, the parties reached an agreement as a result of which defendants paid $250,000 to plaintiffs in exchange for the release of any and all claims arising out of the accident. The release dated January 1, 1985, was signed, and a Stipulation of Dismissal with prejudice was filed on January 16, 1985.

On November 29, 1989, over seven years after the 1982 auto accident, Christine gave birth to a son, James Taylor ("James"). According to the plaintiffs, due to Christine's four pelvic fractures and resulting pelvic deformity, it was necessary for her to have a Cesarean section delivery.

In August 1992, doctors discovered that James had permanent head and facial damage affecting the function of his eyes and ears known as craniosynostosis. Doctors believe that the multiple pelvic fractures Christine suffered deforming her womb caused James's cranial sutures to close improperly because his head rested in those broken, deformed pelvic bones. James has had eye surgery and his parents have incurred over $12,356 in out of pocket medical expenses. Moreover, they claim that because he is only eight years old, his overall treatment remains incomplete as he is too young to have any plastic surgery for his facial deformity.

On August 3, 1994, Christine and Sherman filed a complaint on behalf of James and a per quod claim on behalf of themselves against defendants. The complaint alleges that James suffered injuries as a result of Christine's deformed pelvis, in turn caused by the 1982 car accident. Defendants answered the complaint and subsequently filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted.

The motion Judge determined that because the parents signed a release, "the release bars any individual claims of the parents." Further, "as to the infant's claim, the concept of preconception negligence is not recognized in New Jersey," and, thus, "the defendant owes no duty to [a] subsequently conceived child." In coming to that Conclusion, the motion Judge relied on a California case, Hegyes v. Unjian Enter., 234 Cal. App. 3d 1103, 286 Cal. Rptr. 85 (Cal. Ct. App. 1991). The motion Judge further decided that the facts of the present case were distinguishable from cases in other jurisdictions that recognize preconception negligence. Judgment was accordingly entered in favor of defendants.

The plaintiffs appeal from that judgment.


The focus of this appeal is on the viability of the claim on behalf of James. We must decide whether New Jersey law should recognize a preconception tort in the circumstances of this case. We, like anyone familiar with the facts of this case, are saddened by the injuries that James Taylor has suffered. Human emotion, being what it is, tempts us to create a remedy.

Before yielding to that impulse, however, we must remind ourselves that we cannot take into account our sympathies in reaching our decision. In order for the law to remain objective, we must base our decisions not on human emotion but on sound legal principles. Fairness to all the parties involved demands no less. Thus, a response to the question of whether defendants owe a duty to James requires a comprehensive analysis of this State's jurisprudence with respect to tort duty, and the extant case law in other jurisdictions with respect to preconception torts.

The origin of legal responsibility stems from the inherent interaction among individuals in a civilized society. In order to protect individuals from unwarranted invasions by others, our law, under certain circumstances, imposes a legal obligation on one person for the benefit of another. Prosser and Keeton on Torts 236 (5th ed. 1984)(hereinafter "Prosser "). Whether a legal obligation exists is a question of law that can only be decided through a careful balancing of interests. Ibid.

While New Jersey courts have generally followed common law tort principles, our courts have shown disfavor in determining legal responsibility based simply on the relationship among the parties. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438, 625 A.2d 1110 (1993)(explaining that "'common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty'")(citation omitted). Rejecting the notion that duties should be created based on an "amalgam of classifications most closely characterized [by] the relationship of the parties," the Court recognized that we must "carefully refrain[] from treating questions of duty in a conclusory fashion." Id. at 438-39.

Rather, in New Jersey our Supreme Court has recognized, "'the actual imposition of a duty of care and the formulation of the standards defining such a duty derive from considerations of public policy and fairness.'" Williamson v. Waldman, 150 N.J. 232, 245, 696 A.2d 14 (1997)(quoting Hopkins, (supra) , 132 N.J. at 439 and citing Carter Lincoln-Mercury v. EMAR Group, 135 N.J. 182, 194-95, 638 A.2d 1288 (1994)). The inquiry involves the identification, weighing and balancing of "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." Hopkins, (supra) , 132 N.J. at 439. In every case the inquiry is "both fact-specific and principled," and the result must "lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct." Ibid. As with all cases of determining legal responsibility, lines must be drawn to separate actions that are legally actionable from those that are not. We start with the principle that under our system it is simply not enough to ground liability in the fact that the defendant did not act with reasonable care and that his carelessness caused injury. Weinberg v. Dinger, 106 N.J. 469, 484-85, 524 A.2d 366 (1987); Kelly v. Gwinnell, 96 N.J. 538, 544, 476 A.2d 1219 (1984). To establish liability, the plaintiff must demonstrate that the defendant owes him a duty of care. Ibid. ; see also Leon Green, Duties, Risks, Causation Doctrines, 41 Tex. L. Rev. 42, 45 (1962).

Perhaps the most significant factor in determining the scope of a party's duty is the concept of foreseeability. In that regard, our Supreme Court recognized in Caputzal v. The Lindsay Co., 48 N.J. 69, 222 A.2d 513 (1966) that limitation on legal responsibility often hinges on a duty analysis or a proximate cause analysis, both of which require the determination of issues of foreseeability. In Caputzal the Court appeared to define duty and proximate cause similarly. The Court defined duty as "an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another." Id. at 75. According to the Court, an analysis of duty ultimately requires a consideration of "foreseeability in determining what the reasonable man should recognize as ...

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