Monday, November 11, 2013

Remy v. MacDonald case brief

Remy v. MacDonald case brief summary
801 N.E.2d 260 (2004)

Plaintiff child sought review of the judgment of the Superior Court Department, Worcester (Massachusetts), granting summary judgment in favor of defendant mother in the child's action seeking to recover damages for the mother's alleged negligence in a car accident that occurred while the child was in utero.


Allegedly as a result of the child's premature birth due to the accident, the child suffered from respiratory problems.


The issue in the case was whether the mother, as a pregnant woman, owed a legal duty to the child, who was in utero, to refrain from negligent conduct that resulted in physical harm to the child.

The reviewing court determined that the mother owed the unborn child no duty of care.


  • No set of clear existing social values and customs existed, and no settled social policy could be identified, to justify imposing a duty upon the mother with regard to the unborn child. 
  • Treating the fetus as a separate person with rights hostile to and ascertainable against the mother would have been a legal fiction with profound social implications and far reaching unforeseen legal consequences. 
  • The child argued that the trial court should not have distinguished between the legal duty the mother owed to a child from the legal duty the mother owed to an unborn fetus. 
  • The reviewing court found that there were inherent and important differences between a fetus and a child that prohibited the tort liability of one who was still biologically joined to an injured fetus.


The judgment was affirmed.

Suggested Study Aids For Tort Law

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