Oops. Just take out one of those "dissent"s in the second sentence.
-----Original Message----- From: Gregg Miller [mailto:[EMAIL PROTECTED] Sent: Friday, September 26, 2003 3:32 PM To: [EMAIL PROTECTED] Subject: Re: Does this case have bearing on abortion? I've looked at the case, which is at 2002 WL 43268886, and there could be an explanation that is substantially as you describe. However, I think the problem dissent raised by the dissent is valid; the person acting on behalf of the child who at the time of the representation was unborn, is her mother. The mother's own claim of fraud was barred. While it would be possible that the mother acting on her own behalf could not rely, while the mother acting on behalf of the child could rely, the court never made such a distinction clear. I think the court has a hard time with this because it also ruled that the fraud claim was barred because it arose from essentially the same facts as a clearly barred negligence claim. So, even if the mother was acting in two capacities, as herself and as representative of the child, the actual misrepresentation was made and relied upon by both parties at the same time. If the SOL barrs the one, it would seem to bar the other. I can foresee the posibility that someone will interpret this case to mean that a fetus has the capacity to "rely" (subject to tolling of the SOL), presumably a capacity attributable to a living functioning person, and as a recognition by the State of New York of just such a skill or trait in a fetus. -----Original Message----- From: Ilya Somin [mailto:[EMAIL PROTECTED] Sent: Friday, September 26, 2003 12:01 PM To: [EMAIL PROTECTED] Subject: Re: Does this case have bearing on abortion? This makes the case clearer, thanks. The inducement claim might not be inducement of the child per se, but of the child's guardian acting on his/her behalf. For example, if the employer's negligence had induced the trustee of an estate acting on behalf of the heirs, presumably the heirs could sue. On Thu, 25 Sep 2003, Gregg Miller wrote: > >From what I understand, mother told her employer she was pregnant, and the > employer told the mother that chemicals used at the workplace would not harm > the child. The child is now 22, and the mother's claims have been ruled > time-barred. The child has severe birth defects. This may not be that > different, as you say, except that I am thinking that misrepresentation as > requires scienter and reliance, while negligence does not, and here, the > mother's reliance is not at issue if her claim is barred. So it seems the > court has to at least recognize the possibility the defendant could intend > that an unborn child would be induced, and that the unborn child itself > could be induced to rely on the representations. > > -----Original Message----- > From: Ilya Somin [mailto:[EMAIL PROTECTED] > Sent: Thursday, September 25, 2003 2:54 PM > To: [EMAIL PROTECTED] > Subject: Re: Does this case have bearing on abortion? > > > Was the child not yet born at the time of the misrepresentations, or also > at the time of the lawsuit? If it's just the former, it's not much > different from the fairly common type of lawsuit where children sue > doctors for malpractice that occurred when the child was still a fetus in > the womb (I'm assuming, of course, that the employer's misrepresentations > related to matters material to the child's interests). > > > > On Thu, 25 Sep 2003, Gregg Miller wrote: > > > The NY Appellate division ruled a child not yet born can sue for > > misrepresentations made to her mother by her mother's employer. I wonder > if > > this is going to have an effect on the rights of the unborn. > > > > > http://www.law.com/jsp/printerfriendly.jsp?c=LawArticle&t=PrinterFriendlyArt > > icle&cid=1063212087448 > > > > Gregg P. Miller > > Academic Support Tutor > > Thomas Jefferson School of Law > > 2121 San DIego Avenue > > San DIego, CA 92110 > > (619) 297-9700 ext. 1408 > > >
