AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
CASSONDRA HEGYES, a Minor, etc., Plaintiff and Appellant,
v.
UNJIAN ENTERPRISES, INC., Defendant and Respondent.
Court of Appeals of California, Second District, Division Seven.
*1107 COUNSEL
David M. Harney and Thomas Kallay for Plaintiff and Appellant.
Haight, Brown & Bonesteel, Michael J. Bonesteel, Robert L. Kaufman and Rebecca D. Wynn for Defendant and Respondent.
OPINION
WOODS (Fred), J.
Appeal from a judgment of the Los Angeles County Superior Court, the Honorable Robert P. Schifferman, judge presiding, dismissing the action of plaintiff/appellant following the sustaining of a demurrer to the complaint without leave to amend. We affirm.
*1108 I.
INTRODUCTION
Minor plaintiff, Cassondra Hegyes, appeals from a judgment entered after the court below sustained defendant's demurrer to her complaint for preconception negligence. In 1985, plaintiff's mother and guardian ad litem, Lynn O'Hare Hegyes, was involved in a car accident with a vehicle driven by defendant's employee. She sued defendant for injuries she sustained as a result of that accident and settled that action. Two years later she became pregnant and, subsequently, gave birth to plaintiff, who was born prematurely and allegedly suffers from injuries relating to premature birth.
Plaintiff now claims that the negligent conduct of employees of defendant caused her injuries and seeks damages therefor. Defendant demurred on the ground that no legal duty existed under the alleged facts. The trial court agreed, finding that recognition of plaintiff's claim would constitute an unwarranted extension of the duty of care. Accordingly, defendant's demurrer was sustained without leave to amend, and a judgment of dismissal was entered. It is from that judgment that plaintiff appeals.
II.
STATEMENT OF FACTS
A. The Complaint
On January 24, 1989, plaintiff Cassondra Hegyes (hereinafter Hegyes or plaintiff) filed her complaint and commenced this negligence action against defendants Donald Wayne George, Office Supply Company, and Unjian Enterprises, Inc. In that complaint, she alleged that the corporate defendant, Unjian Enterprises, Inc., doing business as Office Supply Company (hereinafter defendant), was the owner of a passenger vehicle involved in an automobile accident on July 4, 1985, while it was being operated by defendant's employee, Donald George.[1] Lynn O'Hare Hegyes (hereinafter O'Hare) was allegedly injured in that accident. It is claimed that, as a result of that accident, O'Hare was fitted with a lumbo-peritoneal shunt.
In 1987, O'Hare became pregnant with plaintiff. During that pregnancy, the fetus compressed the lumbo-peritoneal shunt and, in order to avoid further injury to O'Hare,[2] plaintiff was delivered 51 days premature, by *1109 Cesarean section on October 31, 1987. Plaintiff alleged that the personal injuries she sustained were a proximate result of the negligence of defendants.
B. The Demurrer
On or about November 1, 1989, defendant served its demurrer to plaintiff's complaint. That demurrer included a request that the court take judicial notice of the complaint (case No. NCC029844B) that O'Hare had filed on June 6, 1986, in Los Angeles Superior Court, pertaining to the same automobile accident that is the subject of plaintiff's complaint in the instant action. According to defendant, O'Hare's suit was settled before plaintiff's case was filed, and defendant was released from liability for the injuries to O'Hare allegedly now giving rise to plaintiff's lawsuit (i.e., the placement of the lumbo-peritoneal shunt).
Defendant's demurrer challenged the sufficiency of plaintiff's complaint on several grounds, one of which was the absence of any legal duty of care. Defendant contended that no legal duty was owed by defendant to plaintiff under the facts presented since claims for preconception negligence involve a special "physician-patient" relationship which gives rise to a duty to the subsequently conceived "foreseeable" fetus. In the absence of such a special relationship, defendant contended that a legal duty had never been found under California law.
Defendant also claimed that plaintiff's injuries were not reasonably foreseeable.
Finally, defendant asserted that the complaint failed to state facts sufficient to constitute a cause of action for negligence or negligence per se. Defendant noted that the word "duty" appeared nowhere in plaintiff's complaint and that no facts establishing a legal duty were alleged. Defendant further argued that plaintiff was not in the class of persons sought to be protected through enactment of the Vehicle Code.
On November 22, 1989, plaintiff filed her opposition to defendant's demurrer. In that opposition, plaintiff contended that "a cause of action may be maintained by [plaintiff] as against [defendants]."
The opposition raised briefly the issue of foreseeability, and argued that a minor plaintiff may maintain an action for preconception negligence, but did *1110 not address the absence of authority for such preconception negligence actions against third parties who did not bear a "special relationship" to plaintiff. Plaintiff did not attempt to join issue on the question of defendant's duty or lack thereof.
On or about November 28, 1990, defendant served its response to plaintiff's opposition. In that response, defendant noted plaintiff's failure to distinguish the present case from those for preconception professional negligence or product liability, where there existed a "special relationship" between the parties. Defendant emphasized that, absent such relationships, courts had not found the existence of a legal duty owed by a defendant to a later conceived plaintiff.
C. The Trial Court's Ruling
On December 1, 1989, defendant's demurrer was heard. The court read and considered the opposition, which had conceded that "this is a case of first impression."
While plaintiff requested leave to amend, no new or different "facts" or allegations were cited by plaintiff in response to the court's specific inquiry regarding how or in what fashion plaintiff would amend the complaint.
After considering the arguments of counsel, the trial court sustained the demurrer without leave to amend on the ground that recognition of such a cause of action would "be an unwarranted extension of a duty of care."
D. The Judgment and Appeal
On December 19, 1989, the notice of entry of judgment was filed. Plaintiff filed a timely notice of appeal.
III.
ISSUE ON APPEAL
This appeal presents a single issue, which may be framed as follows: Does a negligent motorist owe a legal duty of care to the subsequently conceived child of a woman who is injured in an automobile accident?
*1111 IV.
DISCUSSION
A. The trial court correctly denied plaintiff leave to amend since it was evident as a matter of law that defendant owed plaintiff no legal duty of care.
(1) The function of a demurrer is to test the legal sufficiency of a pleading. (Beauchene v. Synanon Foundation, Inc. (1979) 88 Cal. App.3d 342, 344 [151 Cal. Rptr. 796].) In a case such as this one, where a demurrer has been sustained without leave to amend, the function of the appellate court is to determine whether there was clear error or abuse of discretion by the trial court. As stated in Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App.3d 1324, 1330 [231 Cal. Rptr. 355]: "`[A]ll intendments weigh in favor of the regularity of the trial court proceedings and the correctness of the judgment. Unless clear error of abuse of discretion is demonstrated, the trial court's judgment of dismissal following the sustaining of the defendants' demurrer will be affirmed on appeal.'" The party asserting that there was an abuse of discretion has the burden of proof. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331 [703 P.2d 58].)
(2a) Plaintiff in this case seeks damages for defendant's alleged preconception negligence. However, she has failed to allege or demonstrate that defendant owed her any duty of care and that her injuries were reasonably foreseeable. More telling, is that she has failed to show how any amendment would cure the defects in her pleading.
(3) A complaint which lacks allegations of fact to show that a legal duty of care was owed is fatally defective. (Jones v. Grewe (1987) 189 Cal. App.3d 950, 954 [234 Cal. Rptr. 717].) (4) The existence of such a duty is properly challenged by demurrer and is a question of law for the court. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App.3d 792, 798-799 [223 Cal. Rptr. 206]; Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6 [224 Cal. Rptr. 664, 715 P.2d 624].)
(2b) Here, the trial court correctly held that no legal duty of care existed. Plaintiff urges this court to recognize a novel approach to the tort of negligence, which abandons the concept of duty and works backwards from causation. We note that plaintiff did not raise a causation issue in the trial court. Even though plaintiff raises a causation issue for the first time on appeal, we are compelled to point out that the law is clearly to the contrary in that the existence or nonexistence of "duty" is the initial obstacle which must be mastered before any liability for negligence is legally permissible.
*1112 In the alternative, plaintiff argues in her opening brief on appeal that the trial court's decision may have been derailed by describing this case as a "wrongful life" case. We do not find such description to be totally without merit. "Wrongful life," as a judicially and statutorily recognized cause of action in this state, is the most analytically similar established cause of action to plaintiff's claim and, as such, was properly so examined by the trial court. Moreover, even if this be error, which we do not so declare, plaintiff invited the error and may not now try to benefit therefrom. Several times in the trial court, plaintiff, herself, analogized her case to those which seek damages for "wrongful life."
(5) Generally speaking, a "wrongful life" case is brought by a genetically impaired child against a physician or other health care provider for preconception negligence in rendering medical counseling or testing. (Turpin v. Sortini (1982) 31 Cal.3d 220.) In a "wrongful life" case, the child does not assert that the negligence of the defendant caused the inherited or congenital abnormalities. The essence of the child's claim is that the medical professional's breach of the applicable standard of care resulted in that child being born to experience the pain and suffering attributable to his or her affliction. (2c) In effect, the only true difference between the present case and the one for "wrongful life" lies in the damages sought, a discussion irrelevant to the issue of duty.
Admittedly, there have been localized and often inconsistent definitions of critical terms in preconception tort cases, leading to widespread confusion among legal commentators and the judiciary with respect to the classification of these claims. For example, plaintiff cites Prosser and Keeton, The Law of Torts (5th ed. 1984), section 55, page 367, which defines varying types of preconception tort claims. In particular, that treatise identifies "wrongful life" and "pre-conception" negligence resulting in prenatal injuries as two separate and distinct variations of preconception negligence. There is no support for application of that theory in California where our Supreme Court has opined that "wrongful life" is an appropriate and sufficient title to be attached to claims brought by infants for negligence occurring prior to their conception. (Turpin v. Sortini, supra, 31 Cal.3d at p. 225.)
In Turpin, the Supreme Court stated with respect to the multiple authorities attaching various titles to preconception tort claims: "While courts and commentators have not always been consistent in their terminology, `wrongful life' has generally referred to actions brought on behalf of children, and `wrongful birth' to actions brought by parents. Some authorities have broken these categories down further [citation], but in this opinion we will follow the general usage: `wrongful life' for all actions brought by *1113 children and `wrongful birth' for all actions brought by parents." (Id., at p. 225, fn. 4.)
To the extent it is unclear, it is unimportant whether this case should be called one for "wrongful life" or another of the various classifications given that claim by innumerable commentators, as the title of plaintiff's claim was not the basis for the trial court's ruling. (6) It is well established that the subject matter of, and issues in, an action are determined from the facts alleged, rather than from the title of the pleading. (Buxbom v. Smith (1944) 23 Cal.2d 535, 542 [145 P.2d 305].) The doctrine of "theory of pleading" has been repudiated in this state for over half a century. (California W.S.L. Ins. Co. v. Tucker (1940) 15 Cal.2d 69, 71 [98 P.2d 511].) (7) (See fn. 3.) Moreover, as both sides obviously agree that plaintiff's claim sounds in negligence, the basic elements for such an action must be satisfied regardless of the title associated with plaintiff's theory of liability.[3]
(2d) Regardless of the title attached to plaintiff's theory of liability, the trial court correctly identified this as a negligence case and found there was no authority in this or any jurisdiction for imposing upon defendant a legal duty to plaintiff under the facts presented. Such a duty has never been found, nor has liability been imposed, in a preconception negligence case where defendant was not a medical professional or product liability manufacturer.[4] The finding of a legal duty in those instances has been said to be consistent with express state and public policy interests in preventing foreseeable injuries to fetuses conceived pursuant to a "special relationship." No similar interests can be validly asserted under the present facts.
B. Absent professional negligence or product liability, no legal duty is imposed upon parties to protect subsequently conceived fetuses from injury.
Plaintiff contends that a logical extension of the trial court's decision would preclude any and all children from recovering damages for preconception negligence. Appellant erroneously claims that, under the trial court's ruling, "`defendant could owe no duty of conduct to a person who was not in existence at the time of his action.'" However, the record reflects that the *1114 trial court appropriately ruled that only when a legal duty to the subsequently conceived child is found to exist and to have been violated may liability for preconception negligence be imposed. Applying that proposition to the facts of this case, we conclude that the trial court properly found that defendant owed no legal duty to plaintiff.
In a preconception tort case, as in any negligence case, there is an overwhelming need to keep liability within reasonable bounds and to limit the areas of actionable causation by applying the concept of duty. In a nonmedical preconception negligence case where there is no alleged "special relationship," it becomes more difficult to find a legal duty owed to the minor child and, hence, liability on the part of defendant. It cannot be said that, under the facts presented, defendant motorist owed a legal duty to plaintiff.
California has an illustrative history regarding preconception tort claims. Although terming them claims for "wrongful life," California does recognize the existence of a cause of action for damages sustained as a result of a defendant's preconception negligence. However, case law imposes liability only when there is a "special relationship" between the defendant and the mother giving rise to a duty to the minor plaintiff. The defendant's conduct in those cases is inextricably related to the inevitable future pregnancy, a key element missing from the present facts.
For example, the earliest California case in this area, Custodio v. Bauer (1967) 251 Cal. App.2d 303 [59 Cal. Rptr. 463, 27 A.L.R.3d 884], involved an action brought solely by the parents against a physician whose negligence in performing a sterilization operation failed to prevent the plaintiff's pregnancy and the birth of a healthy child, the family's tenth. The Custodio court, finding defendant doctors breached their duty of care, rejected defendants' contentions that "pregnancy, the ensuing birth of a child, and the costs and expenses of the delivery and rearing of a child, are not legally cognizable injuries" and held that ordinary tort principles of compensation for "`all the detriment proximately'" caused should govern. (Id. at pp. 310, 325.) The decision left unresolved the issue of whether the healthy, albeit unplanned, child could successfully maintain a preconception negligence claim in her own right.
Similarly, in Stills v. Gratton (1976) 55 Cal. App.3d 698 [127 Cal. Rptr. 652], a judgment of nonsuit was held improper in an action based upon the negligent performance of a therapeutic abortion which led to the birth of an unwanted, but healthy child. As in Custodio, it was held that the mere fact that the child had been born healthy did not preclude the mother from recovering the usual damages which are recoverable under established tort *1115 principles in the event the trier of fact found in her favor on liability. (Id., at pp. 703-705, 709.) Notably, however, the court observed that the normal child born as a result of the failed abortion caused by defendant physician's negligence, had no independent cause of action for malpractice, as he sustained no cognizable damage in simply being born. (Id., at pp. 705-706.) The issue of whether the defendant doctor owed the minor an independent legal duty of care was not addressed.
The following year, the appellate court decided Dujardin v. Ventura County General Hospital (1977) 69 Cal. App.3d 350 [138 Cal. Rptr. 20], wherein plaintiff became pregnant shortly after being prescribed an IUD, resulting in the premature birth of a handicapped child. The merits of plaintiffs' claims were not addressed since the issue on appeal involved the sustaining of a demurrer to plaintiff's complaint on grounds of failure to comply with the procedural requirements of the Tort Claims Act. The appellate court reversed, ruling that a belated discovery tolled the statutory time period within which to file a claim.
California then gained nationwide attention by the decision in Curlender v. Bio-Science Laboratories (1980) 106 Cal. App.3d 811 [165 Cal. Rptr. 477], wherein for the first time the court was faced with a genetically impaired child suing for preconception negligence. In California's first true "wrongful life" case, minor plaintiff suffered from Tay Sachs disease. It was alleged that the plaintiff's parents had specifically retained defendant, Bio-Science Laboratories, to administer certain tests in order to determine whether the parents were carriers of the Tay Sachs genes. In the complaint, it was alleged that these tests were performed negligently by defendant Bio-Science and that, as a direct result of that negligence, inaccurate and incorrect information was disseminated to plaintiff's parents concerning their status as carriers and specifically influenced them to conceive the plaintiff.
The Curlender court had no difficulty finding a duty owed to the minor plaintiff and that a cause of action for "wrongful life" was stated against defendant. It specifically recognized that society has an interest in ensuring that genetic testing is properly performed. (106 Cal. App.3d at p. 826.) The court cited with acceptance the following language form the Yale Law Journal: "The writer concluded that the law indeed has an appropriate function in encouraging adequate and careful medical practice in the field of genetic counseling, observing that `[t]ort law, a well-recognized means of regulating the practice of medicine, can be used both to establish and to limit the duty of physicians to fulfill this [genetic counseling] function.'" (Ibid.)
The court went on to state: "We have no difficulty in ascertaining and finding the existence of a duty owed by medical laboratories engaged in *1116 genetic testing to parents and their as yet unborn children to use ordinary care in administration of available tests for the purpose of providing information concerning potential genetic defects in the unborn. The public policy considerations with respect to the individuals involved and to society as a whole dictate recognition of such a duty, and it is of significance that in no decision that has come to our attention which has dealt with the `wrongful-life' concept has it been suggested that public policy considerations negate the existence of such a duty." (106 Cal. App.3d at p. 828.)
The court concluded that the afflicted child could maintain an action for "wrongful life." (106 Cal. App.3d at pp. 830-831.) Unlike Stills, wherein defendant's negligence led to the birth of a healthy, albeit unplanned, child who could not maintain an action for preconception negligence since he suffered no legally cognizable injury, in Curlender the minor plaintiff was afflicted with a genetic defect that defendant laboratories negligently failed to detect. Clearly, a legal duty was owed to the genetically impaired child foreseeably conceived as a direct result of defendant's negligence.
Subsequently, in Turpin v. Sortini, supra, 31 Cal.3d 220, the Supreme Court echoed the notion that a "wrongful life" cause of action could be maintained in California where a duty to a minor plaintiff was owed who was born totally deaf as a result of a genetic defect. It was alleged that defendant doctors had negligently failed to diagnose this genetic defect in her older sister and to advise the minor's parents of the probability of the hereditary condition, depriving them of the opportunity to choose not to conceive a child. According to the complaint, the nature of the condition was such that there was a "reasonable degree of medical probability" that the hearing defect could be inherited by any offspring of plaintiff's parents.
The Supreme Court in Turpin cited Budd v. Nixen (1971) 6 Cal.3d 195 [98 Cal. Rptr. 849, 491 P.2d 433] which summarized the basic elements of a professional malpractice action, which were to be applied in evaluating plaintiff's claim for "wrongful life" against the defendant physicians. Of those elements, duty, breach, and proximate cause were not disputed by the Turpin defendants. The court, therefore, focused on the existence and propriety of any "legally cognizable injury" resulting from the alleged negligence (consistent with the prior decisions of Stills and Curlender). (Turpin v. Sortini, supra, 31 Cal.3d at pp. 230-237.)
In subsequent cases, the Turpin decision has been strictly interpreted as defining the elements necessary to maintain a preconception negligence case. For instance, the Court of Appeal in Foy v. Greenblott (1983) 141 Cal. App.3d 1 [190 Cal. Rptr. 84], relied upon Turpin in denying a minor plaintiff's claim for "wrongful life" where all elements of a negligence cause *1117 of action were not satisfied. (Id., at pp. 14-15.) In Foy, plaintiff's mother, an incompetent person, became pregnant while detained in a mental health care facility and gave birth to the minor plaintiff, a normal healthy boy. Both filed lawsuits on the basis of negligent failure to supervise.
In Foy, the trial court sustained demurrers without leave to amend as to all causes of action. The Court of Appeal reversed only as to the mother's cause of action. Consistent with Stills, in which the court was unwilling to expand recognition of preconception torts where a critical element was lacking, the Foy court affirmed as to the child's cause of action, since he failed to allege any legally cognizable injury. (141 Cal. App.3d at pp. 14-15.) Moreover, inasmuch as precedent in California "wrongful life" cases recognized claims against health care providers for negligent preconception genetic counseling, the Foy court found they provided little guidance in determining the scope of the duty owed to minor plaintiff by defendant under the facts presented.
Just as the Foy court denied plaintiff's claim due to an absence of actual injury, the court in Simmons v. West Covina Medical Clinic (1989) 212 Cal. App.3d 696, 699 [260 Cal. Rptr. 772], refused to permit plaintiff's "wrongful life" case to proceed in the absence of proximate cause. Simmons involved a claim by a mother and her son for "wrongful birth" and "wrongful life" resulting from the son's affliction with Down's Syndrome. The complaint alleged that defendants negligently failed to provide Mrs. Simmons with appropriate genetic testing, thus denying her the opportunity to discover the genetic defect in her unborn child and to terminate the pregnancy. The appellate court affirmed the granting of defendant's motion for summary judgment on the issue of proximate cause, since the genetic test provided only a 20 percent probability of detecting the risk of Down's Syndrome, as distinguished from the "reasonable degree of medical certainty" established in Curlender. (Ibid.)
The Simmons court recited the commonly accepted elements of a negligence action (including duty and its violation), pointing out that the sole element in dispute was that of proximate cause. (212 Cal. App.3d at p. 702.) So stating, it refused to "expand the circle of liability by abandoning established tort law principles of causation where there is only a mere possibility of detecting the genetic defect." (Id., at p. 706.) The court held: "Under the facts of this case, we decline to establish a more lenient standard of causation. To do so would be contrary to sound logic, legal precedent, and public policy.... [¶] ... We do not wish to intrude upon the Legislature's task of weighing such matters of public policy, and leave to it the function of deciding whether to provide a remedy for those genetically defective children and their parents who are unable to prove to a reasonable medical *1118 certainty that medical negligence deprived the mother of the chance to terminate her pregnancy." (Id., at pp. 705-706.)
Both Simmons and Foy make clear that a claim for preconception negligence will fail, unless it satisfies all elements of an ordinary negligence cause of action. A similar result was reached in Munro v. Regents of University of California (1989) 215 Cal. App.3d 977 [263 Cal. Rptr. 878], where this court held a doctor did not owe a legal duty to recommend Tay Sachs testing when no risk was indicated, and thereupon dismissed plaintiff's claim for preconception negligence. Plaintiffs, a married couple and their son (born with Tay Sachs disease), sued defendant for medical malpractice and infliction of emotional distress as a result of defendant's failure to recommend the genetic testing. In its decision, this court affirmed the trial court's entry of summary judgment in favor of defendant on various medical grounds, including the fact that neither of the Munro's had indicated they were of Jewish heritage and, therefore, appeared to pose no foreseeable risk. (Id., at p. 989.)
In each of the above cases, the prevailing principle is clear. A special relationship between physician and patient may, in certain circumstances where the conduct is directly related to the resulting pregnancy and birth, give rise to a duty to the subsequently conceived child. Unlike in the present case, the defendants held liable in those cases were health care providers who were retained to provide genetic counseling to the respective parents. Understandably, their negligence in performing that function led the courts to recognize a duty owed to the foreseeably impaired children. Those defendants were specifically consulted for conception and pregnancy related purposes, and the parents relied on the doctors' advice in deciding whether to conceive a child or to terminate a pregnancy.
Whereas in California medical malpractice is a tort which arises out of the special physician/patient relationship (see, Harding v. Liberty Hospital Corp. (1918) 177 Cal. 520, 522-524 [171 P. 98]), no such relationship exists between motorists. (8) The physician/patient relationship generally, though not necessarily, arises out of an express contract which gives rise to a "definite" legal duty sounding in tort. (Ibid.) By this contract, the doctor impliedly warrants competency by undertaking to act as the physician, and render medical care and advice. Where that advice and care is directly related to the delivery of a healthy child, that child is tantamount to a foreseeable third party beneficiary of that contract to whom the courts have found that a duty of care is owed.
Arguably, it would ignore the realities of modern obstetrical practice to deny an infant, as the intended "beneficiary" of that contractual relationship, *1119 independent protection against that same incompetent medical advice. Generally speaking, a woman who wishes to conceive and keep her child engages a physician to advise and guide her through pregnancy and, so far as humanly possible, to ensure the birth of a healthy infant. The latter consideration is uppermost in the minds of both a woman and her doctor. Thus, as the failure to properly diagnose, test, or disclose the alternatives and reasonably foreseeable risks and benefits of treatment will usually result in physical injury to the fetus alone, as opposed to the mother, it is reasonable that a cause of action belong to the infant, born alive. (See, e.g., Hughson v. St. Francis Hosp. of Port Jervis (1983) 92 A.D.2d 131 [459 N.Y.S.2d 814].)
(2e) On the other hand, there is no "special relationship" between motorists. The ordinary principles of negligence apply. Those principles cannot be validly extended to encompass a duty owed to a child conceived several years after her mother was involved in an automobile accident. If plaintiff has more children who sustain injuries as a result of plaintiff's alleged condition, shall defendant once again be hailed into court? The implications associated with finding a duty under the present facts are indeed staggering, and the trial court properly refused to find one.
California precedent absolutely requires a preliminary finding of duty in order for this case to proceed. "Duty" encompasses the question of whether a defendant is under any obligation to the plaintiff to avoid negligent conduct. Here, there was no relationship between this defendant and this plaintiff which gave rise to any legal obligation on defendant's part for the benefit of plaintiff. The trial court's dismissal of plaintiff's claim for want of a legal duty was proper. In examining precedents on this issue on a national level, we conclude that an initial finding of duty is likewise a requirement.
1. Liability for preconception negligence in other jurisdictions appropriately hinges on the existence of duty.
Plaintiff's statement that "no American court has any difficulty these days with finding a duty owed by the tortfeasor to the unborn child" does not bear close scrutiny. (9) In California alone, a tortfeasor owes no duty to an unborn child, unless that child is later born alive. (Justus v. Atchison (1977) 19 Cal.3d 564 [565 P.2d 122].) We are able to locate only six leading cases that have addressed the issue of whether a child can recover for injuries (other than birth) sustained as a result of alleged preconception negligence. We find no California courts that have ruled on the issue. Unlike the aforereferenced California cases wherein it was alleged that the negligence of the defendant medical care provider directly caused the conception and/or birth of the handicapped child, in the six cases from foreign jurisdictions, it *1120 is alleged that the defendant's negligence actually caused the child's handicap.
One of the six decisions, Renslow v. Mennonite Hospital (1977) 67 Ill.2d 348 [367 N.E.2d 1250, 91 A.L.R.3d 291], was written by a sharply divided Illinois Supreme Court. The four-to-three decision found all three dissenting justices filing separate opinions. In Jorgensen v. Meade Johnson Laboratories, Inc. (10th Cir.1973) 483 F.2d 237 and Bergstreser v. Mitchell (8th Cir.1978) 577 F.2d 22, both courts speculated as to how the respective state courts might have decided the issue. Moreover, Renslow and Bergstreser courts were influenced by Park v. Chessin (1976) 88 Mis.2d 222 [387 N.Y.S.2d 204], a lower court decision subsequently overruled by the New York Court of Appeals in Becker v. Schwartz (1978) 46 N.Y.2d 401, 413 [413 N.Y.S.2d 895, 386 N.E.2d 807, 814]. (Bergstreser v. Mitchell, supra, 577 F.2d at p. 25; Renslow v. Mennonite Hospital, supra, 367 N.E.2d at p. 1256.) Plaintiff relies heavily on each of the above cases, but we have to question the factual and legal applicability of those decisions to the present case. Although contending