111 A.2d 14 | Conn. Super. Ct. | 1955
This is a negligence action arising out of an accident on September 8, 1953, at which time the plaintiff, an unborn child of about eight months' gestation, received injuries. The plaintiff was born on October 27, 1953, and brings this action through his parents as next friends.
Both defendants have demurred to the complaint on the ground that there is no right of action to a child when born for injuries done it before birth. The issue is whether the plaintiff can recover for injuries sustained by him prior to his birth and while a viable fetus. The unborn child "reaches that pre-natal age of viability when the destruction of the life of the mother does not necessarily end its existence also, and when, if separated prematurely and by artificial means from the mother, it would be so far a matured human being as that it would live and grow, mentally and physically...." Allaire v.St. Luke's Hospital,
"Viable ... Capable of living; physically fitted to live; of a fetus, having reached such a stage of development as to permit continued existence, under normal conditions, outside of the womb." New Century Dictionary. "A viable foetus has been defined as one sufficiently developed for extra-uterine survival, normally a foetus of seven months or older."Amann v. Faidy,
Courts in a majority of jurisdictions deny a recovery without regard to whether or not the fetus was viable, following the Massachusetts case ofDietrich v. Inhabitants of Northampton,
Arguments generally advanced in favor of allowing recovery, at least where the alleged injuries occurred when the child was viable, summarized briefly are as follows: (1) An unborn viable child is capable of independent existence, hence, should be regarded as a separate entity. Bonbrest v. Kotz,
In Woods v. Lancet,
In Jasinsky v. Potts,
In Tucker v. Howard L. Carmichael Sons, Inc.,
While the doctrine of the leading case, Dietrich v.Inhabitants of Northampton,
It is the opinion of the court that the Dietrich case should not be controlling in Connecticut. "When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course for the judge is to pass through them undeterred." Lord Atkin in United Australia, Ltd. v. Barclay'sBank, Ltd., [1941] A.C. 1, 29.
Where a viable fetus is injured en ventre sa mere through the negligence of the defendants, he has, when born, a cause of action against them.
The demurrer of each defendant is overruled.