Remy v. McDonald

Massachusetts Superior Court · Torts

14 Mass. L. Rptr. 483 (2002)

Updated July 19, 2026

TortsNegligencePrenatal injuriesDutyParent-child immunityprenatal injuryin uteroviable fetus

Facts

Andre Remy, through her parent and next friend, sued her mother, Christine MacDonald, and Anna and Dennis Ellis for negligence arising from a January 7, 1999 automobile collision. At the time of the accident, MacDonald was thirty-two weeks pregnant, and Remy alleged that MacDonald's negligence, along with Anna Ellis's negligence, caused premature birth and later respiratory and related ailments. Remy claimed she was born two months early, hospitalized for twenty-three days, had breathing trouble, and developed several respiratory conditions. The claim against MacDonald sought recovery for injuries allegedly inflicted on Remy while she was en ventre sa mere.

Issue

Can a child who was a viable fetus at the time of an accident sue her mother after birth for negligence based on injuries allegedly caused in utero by the mother's conduct? More specifically, does Massachusetts recognize a legal duty owed by a pregnant woman to her unborn child in these circumstances?

Rule

In Massachusetts, absent recognition by the Legislature or the Supreme Judicial Court, a court will not create a legal duty running from a pregnant woman to her unborn child that would permit an after-born child to sue the mother in negligence for prenatal injuries allegedly caused by the mother's conduct. Whether a duty exists is a question of law, and no liability can exist without a legal duty.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Springfield, Massachusetts, Nora Keane was eight months pregnant when she allegedly ran a red light and struck a delivery van. Her daughter, Maya, was later born alive and, through a guardian, sued Nora for negligence, alleging the collision caused premature birth and lasting lung problems.

How should a Massachusetts trial court rule on Nora's motion for summary judgment on Maya's negligence claim?

Explanation. The majority opinion treats duty as a question of law and holds that, absent recognition by the Legislature or the Supreme Judicial Court, Massachusetts courts should not create a legal duty running from a pregnant woman to her unborn child that would support an after-born child's negligence suit for in utero injuries. Viability, live birth, and the automobile setting do not change that result.