Bonte v. Bonte , 136 N.H. 286 ( 1992 )

Thayer, J.

The sole question presented for our review is whether a child born alive can maintain a cause of action in tort against his or her mother for the mother’s tortious conduct that caused prenatal injury. The plaintiffs appeal from a motion to dismiss granted by the Superior Court (Dalianis, J.) on the ground that the pleadings failed to state a cause of action. For the reasons that follow, we reverse the trial court’s order and remand.

The defendant, Sharon Bonte, when seven months pregnant, was struck by a car while crossing Elm Street in Manchester. She was taken to a local hospital emergency room where plaintiff Stephanie Bonte was delivered by emergency caesarean section the next day. Stephanie was born with catastrophic brain damage and has been diagnosed as having cerebral palsy. She is severely and permanently disabled and will require medical and supervisory care for the remainder of her life. Stephanie’s father, Andre Bonte, brought this action individually, and as next friend of Stephanie, against the defendant, alleging that the defendant was negligent in failing to use reasonable care in crossing the street and failing to use a designated crosswalk. The defendant is represented by counsel provided by her insurance company, American Global.

On appeal from a motion to dismiss, “[w]e will assume the truth of both the facts alleged in the plaintiff’s pleadings and all reasonable inferences therefrom as construed most favorably to the plaintiff.” Collectramatic, Inc. v. Kentucky Fried Chicken Corp., 127 N.H. 318, 320, 499 A.2d 999, 1000 (1985). The motion to dismiss should be denied “[i]f the facts as alleged would constitute a basis for legal relief.” Id.

Our first inquiry is whether a child born alive may maintain a cause of action for injuries sustained while the child was in útero. We held in Bennett v. Hymers, 101 N.H. 483, 486, 147 A.2d 108, 110 (1958), that “an infant born alive can maintain an action to recover for prenatal injuries inflicted upon it by the tort of another . . . .” We stated:

“In weighing the factors for and against allowing recovery we are impressed with the injustice of denying to a child born alive a right to recover for injuries which he might bear for the remainder of his life because of the tortious conduct of another. One cannot examine the cases in which a child, physically or mentally deformed for life as a result of prenatal injuries caused by the wrongful act of another, has been denied a right of recovery for such injuries, without being impressed by the harshness of such a result.”

Id. (quotation omitted). In Bennett we did not limit those against whom the child may bring suit for injuries sustained while in útero, and, in fact, we recognized that the injuries suffered by the child while in the womb are “distinct and independent” from any injuries suffered by the mother. Id. at 485, 147 A.2d at 110 (quotation omitted).

Having established that New Hampshire case law permits a child to maintain a cause of action for negligence resulting in prenatal injury, we must next determine whether that child may maintain an action against his or her mother. In New Hampshire, the court-created doctrine of parental immunity was established for the first time in Levesque v. Levesque, 99 N.H. 147, 106 A.2d 563 (1954). In Levesque, the plaintiff sued his father for negligence in operating an automobile, which resulted in injuries to the plaintiff. Id. at 147, 106 A.2d at 563. Relying upon the “peace of society” and “sound public policy, designed to subserve the repose of families and the best interests of society,” we held that an unemancipated minor could not maintain an action against his parent for bodily injury caused by the parent’s negligence. Id. at 148,106 A.2d at 564 (quotation omitted). Although we noted in Levesque that an argument against parental immunity was “the generally recognized fact” that most drivers carry liability insurance, we stated that the existence of insurance should not “create a right of action where none would otherwise exist.” Id. at 148-49, 106 A.2d at 564.

We later abandoned the parental immunity doctrine, at least in part, in Dean v. Smith, 106 N.H. 314, 211 A.2d 410 (1965). In Dean, we considered whether unemancipated minor children, injured while passengers in a car driven by their father, could bring suit against their deceased father’s estate for the father’s negligence in operating the vehicle. In holding that such a cause of action could be maintained by the minors, we noted that parental immunity did not exist at common law and found no justification for application of the court-created parental immunity doctrine in suits against a deceased parent’s estate. Id. at 316-17, 211 A.2d at 412-13. Although we recognized that the existence of insurance should not create a cause of action, we stated that “the effect of general insurance coverage by most motorists should be considered in determining whether the barrier preventing an unemancipated child from obtaining redress for the wrongs inflicted on him by the negligence of his parent should be removed.” Id. at 318, 211 A.2d at 413. We explained that the existence of insurance decreases the likelihood that the minor’s cause of action will disrupt family harmony or deplete the family exchequer, all arguments in favor of parental immunity. Id. at 317-18, 211 A.2d at 413.

The following year, we extended the Dean holding in Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966), and abolished the court-created parental immunity doctrine adopted in Levesque. The issue presented in Briere was whether unemancipated children could sue their father in tort for injuries sustained in an automobile accident. We examined arguments in favor of parental immunity including: preservation of parental authority and family harmony; depletion of the family exchequer; and the danger of fraud and collusion. Id. at 434-35, 224 A.2d at 590-91. While those considerations were admittedly valid, we determined that none were truly unique to a lawsuit between parent and child, nor did “[t]hey furnish . . . sufficient grounds for denying unemancipated minors as a class a right commonly enjoyed by other individuals.” Id. at 436, 224 A.2d at 591. We stated that “as a practical matter, the prevalence of insurance cannot be ignored in determining whether a court should continue to discriminate against a class of individuals by depriving them of a right enjoyed by all other individuals.” Id. at 435, 224 A.2d at 590. In abolishing the parental immunity doctrine for tort actions, we noted the inconsistency in allowing suits between a minor and his parent based upon contract or for the protection of property rights, but disallowing an action in tort. Id. at 435-36, 224 A.2d at 591.

Because our cases hold that a child born alive may maintain a cause of action against another for injuries sustained while in útero, and a child may sue his or her mother in tort for the mother’s negligence, it follows that a child born alive has a cause of action against his or her mother for the mother’s negligence that caused injury to the child when in útero.

The defendant urges us to immunize the mother from tort liability based upon public policy reasons grounded in the unique relationship of the pregnant woman to her fetus. While we recognize that the relationship between mother and fetus is unique, we are not persuaded that based upon this relationship, a mother’s duty to her fetus should not be legally recognized. If a child has a cause of action against his or her mother for negligence that occurred after birth and that caused injury to the child, it is neither logical, nor in accord with our precedent, to disallow that child’s claim against the mother for negligent conduct that caused injury to the child months, days, or mere hours before the child’s birth.

The defendant further argues that public policy dictates against the plaintiff’s cause of action because allowing this matter to proceed “deprives women of the right to control their lives during pregnancy ... [and] unfairly subjects them to unlimited liability for unintended and often unforeseen consequences of every day living.” We disagree that our decision today deprives a mother of her right to control her life during pregnancy; rather, she is required to act with the appropriate duty of care, as we have consistently held other persons are required to act, with respect to the fetus. The mother will be held to the same standard of care as that required of her once the child is born. Whether her actions are negligent is a determination for the finder of fact, considering the facts and circumstances of the particular case. Moreover, if a determination based upon public policy can be made denying a cause of action logically recognized by our case law, that determination should be made by the legislature.

Accordingly, we hold that a child born alive has a cause of action in tort against his or her mother for the mother’s negligent conduct that results in prenatal injury.

Reversed and remanded.

Johnson, J., concurred specially; Horton, J., concurred; Brock, C.J., and Batchelder, J., dissented.