Employers May Be Sued Over Injury to Fetus, Court Says

By MAURA DOLAN

Oct. 31, 1997 12 AM PT

TIMES LEGAL AFFAIRS WRITER

SAN FRANCISCO — The California Supreme Court decided Thursday that children may sue their mother’s employer for fetal injuries caused by unsafe work conditions during the worker’s pregnancy.

The unanimous ruling overturned a nearly decade-old legal rule that barred such lawsuits under workers’ compensation laws. The rule held that a fetus is inseparable from the mother and only the mother could receive compensation for workplace injuries.

Now negligent employers could be vulnerable to jury awards when pregnant workers are exposed to conditions that hurt their fetuses. Although workers still cannot sue in such cases, the court’s ruling means their children can seek compensation for injuries in the womb.

Justice Kathryn Mickle Werdegar, writing for the Supreme Court, said a fetus can be injured independently of the mother and, if the child is born harmed, can sue for monetary damages.

“Biologically, fetal and maternal injury have no necessary relationship,” Werdegar wrote. “Whether a toxin or other agent will cause congenital defects on the developing embryo or fetus depends heavily not on whether the mother is herself injured, but on the exact stage of the embryo or fetus’ development at the time of exposure.”

In the case before the court, Naomi Snyder was several months pregnant while coordinating classes at a Michaels Stores outlet in Modesto. Michaels is a national chain of arts-and-crafts suppliers.

Snyder said the store hired a janitorial company in 1993 to buff the floors at night with a propane-powered machine, and that hazardous levels of carbon monoxide accumulated in the store one night because of inadequate ventilation.

The next day, 21 customers and employees, including Snyder, had to be taken to the hospital for nausea, headaches and breathing difficulties, according to the lawsuit filed on behalf of Snyder’s daughter. Snyder blamed toxic levels of the gas for impairing the ability of red blood cells to transport oxygen to the baby she was carrying.

As a result, she alleged, her daughter, Mikayla, now 3, suffered permanent damage to her brain and nervous system and was born with cerebral palsy and other disabilities. Michaels denied any responsibility for the child’s injuries.

A trial court bound by a 1989 ruling that barred such fetal injury suits threw out Mikayla’s lawsuit. But a Court of Appeal in Fresno reinstated the case in a ruling that conflicted with the law on the books. The California Supreme Court stepped in to resolve the competing decisions.

Paige Leslie Wickland, who represented the Snyders, said “the legal tide” was against them but they pursued the lawsuit because they felt the law was unjust.

Wickland noted that the Supreme Court had previously declined to review the old rule, and she attributed the turnabout to a change in the court’s composition in the past few years, particularly the influence of more female justices on the seven-member court.

“It is not unimportant that there are now three women on the court,’ Wickland said. “This may be an example of women having a different perspective on issues that concern children and the family.”

Wickland predicted that the decision “with any luck will lead to improving conditions for all workers because the workplace will simply have to be safer.”

But Robert Naeve, a lawyer for Michaels, said the ruling exposes California employers to potentially huge jury verdicts.

“The question remains how many cases like this are out there and could be filed,” Naeve said. “The concern that employers have is that because an increasing number of women are entering the work force, an increasing percentage of those will necessarily be pregnant and could be injured in ways similar to those alleged in this case.”

Naeve refused to discuss specific allegations by the Snyder family but stressed that Michaels disputes responsibility for the child’s disability. The case will now return to Superior Court in Modesto for trial.

The Employers Group, a Los Angeles-based organization that represents 5,000 state companies, had urged the court to rule in favor of the store. But Jeffrey Berman, a lawyer who heads the group’s legal committee, said lawsuits against employers alleging fetal injuries are not widespread.

“Because of state and federal protective laws, most pregnant women when they are in a vulnerable position are guaranteed the right to take leaves from work,” Berman said. “Yes, you occasionally have the pregnant woman who stays past the time they should be staying . . . but they are not legion compared to the types of cases that all of us defend every day.”

He noted that other third parties still cannot sue employers for harm suffered as a result of a worker’s on-the-job accident. He cited the example of a wife who lost her husband’s intimate companionship because of an injury at work. She still would be prevented from suing the company, Berman said.

If Thursday’s ruling poses significant problems for employers, “this is something the Legislature can address if it wants to,” Berman said.

Werdegar said Snyder’s daughter should have been blocked from suing if she were seeking compensation for injuries to her mother.

“Since Mikayla was not herself breathing at the time of the accident, that her exposure to carbon monoxide occurred through Naomi’s inhalation of the fumes and the toxic substance conveyed to her through the medium of her mother’s body can be conceded,” Werdegar wrote.

The associate justice said the decision should not spur a flood of personal injury lawsuits or greatly increase pressure to discriminate against women in employment.

Even in businesses that expose workers to chemicals that cause birth defects, she said, an employer who has warned pregnant workers of the risks could be protected by federal law that prevents businesses from discriminating against pregnant women.

“Liability could rest only on the employer’s actual negligence in exposing the pregnant employee’s unborn child to an unreasonable risk of injury,” Werdegar wrote.

Eugene Brodsky, another lawyer for Mikayla, called the ruling “wonderful.”

“It is protective of all pregnant women and their fetuses throughout the state of California,” he said.