Woods v. Lancet 303 N.Y. 349, 102 N.E.2d 691 (1951) Desmond, J. [ The case involves negligence and resulting injuries to a fetus during the ninth month of pregnancy. The injuries caused the baby to be born with permanent disabilities. Based on an earlier New York case, WV. Peters, decided in I 921, the trial court dismissed the child is lawsuit for \"failure to state a cause of action. " The Appellate Division (the intermediate appellate court) voted to airm, notwithstanding what one justice termed "the obvious injustice of the rule " MEL Another said that although he felt bound by the earlier cg he would allow the child to recover if it were an open issue in the state. Against this background, the highest court of New York proceeded to consider its earlier precedent. ] It will hardly be disputed that justice (not emotionalism or may: dictates the enforcement of such a cause of action. The trend in decisions of other courts, and the writings of learned commentators is strongly toward making such a recovery possible. The precise question for us On this appeal is: shall we follow graham; v. Peters, or shall we bring the common law of this State, on this question, into accord with justice? I think, as New York State's court of last resort, we should make the law conform to right. . . . There is no material distinction between [the 959%} case and the one we are passing on now. However, WV. Peters must be examined against a backgron of history and of the legal thought of its time and of the thirty years that have passed since it was handed down. [The court points out that 95913953 was the first case of its time and, hence, was decided without the benet of precedent. In addition, \"the practical di'iculties of proof\" and \"the theoretical lack of separate human existence of an infant in utero " were factors in the outcome of 13391313521} However, the opinion points out that since 1921 "numerous and impressive airmative precedents have been developed. " It cites cases in California, Ohio, Canada, and New Jersey, plus a law review article in England and the legal treatise, Prosser on Torts] What, then, stands in the way of a reversal here? Surely, as an original proposition, we would, today, be hard put to it to nd a sound reason for the old rule. Following 939mg; v. Peters would call for an afrmance, but the chief basis for that holding (lack of precedent) no longer exists. And it is not a very strong reason, anyhow, in a case like this. Negligence law is common law, and the common law has been molded and changed and brought m in many another case. Our court said, long ago, that it had not only the right, but the duty to reexamine a question where justice demands it. No reason appears why there should not be the same approach when traditional common-law rules of negligence result in injustice.... We act in the finest common- law tradition when we adapt and alter decisional law to produce common-sense justice. The same answer goes to the argument that the change we here propose should come from the Legislature, not the courts. Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule. Two other reasons for dismissal (besides lack of precedent) are given in Probner v. Peters.... The first of those, discussed in many of the other writings on the subject herein cited, has to do with the supposed difficulty of proving or disproving that certain injuries befell the unborn child, or that they produced the defects discovered at birth, or later. Such difficulties there are, of course, and, indeed, it seems to be commonly accepted that only a blow of tremendous force will ordinarily injure a fetus, so carefully does nature insulate it. But such difficulty of proof or finding is not special to this particular kind of lawsuit. ... Every day in all our trial courts (and before administrative tribunals, particularly the Workmen's Compensation Board), such issues are disposed of, and it is an inadmissible concept that uncertainty of proof can ever destroy a legal right. The questions of causation, reasonable certainty, etc., which will arise in these cases are no different, in kind, from the ones which have arisen in thousands of other negligence cases decided in this State, in the past. The other objection to recovery here is the purely theoretical one that a fetus in utero has not existence of its own separate from that of its mother.... We need not deal here with so large a subject. It is to be remembered that we are passing on the sufficiency of a complaint which alleges that this injury occurred during the ninth month of the mother's pregnancy, in other words, to a viable fetus, later born. Therefore, we confine our holding in this case to prepartum injuries to such viable children.. . . This child, when injured, was in fact, alive and capable of being delivered and of remaining alive, separate from its mother. We agree with the dissenting Justice below that "To deny the infant relief in this case is not only a harsh result, but its effect is to do reverence to an outmoded, timeworn fiction not founded on fact and within common knowledge untrue and unjustified." The judgments should be reversed, and the motion denied, with costs in all courts.Discussion Questions 1. What is the issue in this case? How was it decided? Do you agree with the result? 2. How is this case a good example of stare decisis? 3. Why does the court refer to cases in otherjurisdictions and even other countries? Are those cases relevant? 4. When is it appropriate for the court to let the legislature decide issues of rst impression, and when is it appropriate for the court to do so? What about the oft-heard complaint of "judge-made law"? 5. About 20 years after this decision. IheJL Supreme Court decided Roe v Wade. the landmark abortion case. 15408)st consistent or inconsistent with the Roe Mg; Why