(concurring and dissenting).
I must respectfully dissent from the majority opinion in this case. I disagree, not because I find any fault in the analysis of the governing law in Judge Keefe’s thoughtful and comprehensive opinion. I fully subscribe to his analysis of the concepts of duty and foreseeability. I only question the application of these principles to the facts of the case before us.
Let me start with my conclusions. I agree that a preconception tort is recognized in New Jersey. Next, I would determine that plaintiffs have alleged facts which a jury could determine sufficiently tie the negligent act to the infant plaintiff’s injuries, and which satisfy the concepts of duty and proximate cause with their included element of foreseeability. I would consequently, determine that the facts as presented permit, but do not require, a finding of legal responsibility.
The majority is correct that no New Jersey case has discussed preconception torts. Situations such as those arising in malpractice and drug product liability eases are evident, but the concept may have further application. But other situations are evident. A proposition often can be proven through hypotheticals. For example, if a motorist drives into the side of a building, severely weakening its structure, and ten months later a mother and her newborn child are injured when the building collapses on them, our law would permit the mother to make a valid claim against the motorist, and also should not preclude the child’s claim merely because the child had not been conceived when the motorist hit *57the building.1 Negligent acts often have consequences to individuals that occur some time after the event, and a potential and foreseeable victim may not have been born when the original act occurred.
Of course, one can see the similarity between the hypothetical and the case before us. The hypothetical presents a child who has been injured by a structure negligently damaged by a motorist prior to the child’s conception. If we then change the structure from a building to the mother’s pelvis, and the injury2 to the child was created by the in útero pressure of the mother’s deformed pelvic bones, caused by defendant’s negligence, we have translated the hypothetical to the matter which we now review.
One might say, as does the majority, that the eollapse of a damaged building is foreseeable, and that whoever occupies the building is a foreseeable plaintiff, and foreseeability is the distinguishing factor between the hypothetical and our case. But if a negligent act causes pelvic injuries to a woman of childbearing age, it is neither far-fetched nor lacking reasonable foreseeability to imagine that a later-conceived child gestating within the damaged structure of the mother’s pelvis might be injured. We do not require that the particular motorist know the exact consequence of his or her negligence, only that a reasonable person would understand that an injury could occur to a woman’s future child if the site of the child’s gestation is deformed. Just as I would find that the motorist is responsible to the child when the building collapses, a defendant motorist could be held responsible to a child injured by the pelvic anomaly caused by the defendant’s actions.
*58While I am not troubled by the question of duty or short-term foreseeability, I am somewhat disturbed generally by the extended liability that could be occasioned under the rule I espouse, and particularly by the attenuated nature of the claim in this case. An injury to a young girl or woman could potentially cause such injuries to a child at any time throughout her child-bearing years, which by dint of scientific advances, has been extended beyond what formerly would have been our wildest imagination. And then a claim might be brought by the child at any time within twenty years thereafter. But the tolling of the statute of limitations during an injured child’s minority is not a factor peculiar to this case or class of cases, nor is the extension of liability for a period partially measured by a woman’s child-bearing years unknown to the law. The DES cases cited by the majority present similar problems, and, as noted by Judge Keefe, have even been extended to a third generation, although this latter extension has been rejected by some courts. These difficulties have been addressed in the physician and pharmaceutical cases, and I see no reason why they could not similarly be surmounted in the ease before us.3
To return to my hypothetical, as the time between the injury to the structure and the resultant injury to the occupant extends, the plaintiffs claim becomes less appealing. The factors of the long delay itself and the probability of intervening causes will strain the requirement of proximate cause. But it is not the preconception tort that creates the problem. Rather, as a basic premise of negligence law, at some point, the span between the negligent act and the injury becomes too great for the proximate cause element necessary to establish liability.
With regard to the seven-year delay separating the negligent act and the child’s injuries in our case, the tort of negligence *59includes the requirement of damage to the victim, and therefore the tort is not completed until the injury occurs. If this delay is unacceptable there are three solutions. First, and primary, a jury can reject the claim on a proximate cause basis which incorporates the concepts of both foreseeability and intervening cause. Second, a judge can end the matter by finding that no reasonable jury could find proximate cause in such a setting. Third, the Legislature could enact a statute of limitations or statute of repose to require that the negligent act and resulting injury be separated by a defined and reasonable period of time. See, e.g., the ten-year statute of repose in N.J.S.A. 2A:14-1.1 available as a defense to certain members of the construction industry.
I therefore would reject both the analysis and result of the California court in Hegyes v. Unjian Enter., 234 Cal.App.3d 1103, 286 Cal.Rptr. 85 (1991), cited by the majority, and instead would adopt the reasoning of the Missouri court in Lough v. Rolla Women’s Clinic, Inc., 866 S.W.2d 851 (Mo.1993)4 (an Rh factor case). See Renslow v. Mennonite Hosp., 67 Ill.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250 (1977) (negligent blood transfusion by hospital and physicians); Walker v. Rinck, 604 N.E.2d 591 (Ind.1992) (physicians and medical laboratory’s failure to administer Rh antibodies). See also Bergstreser v. Mitchell, 577 F.2d 22 (8th Cir.1978), (negligently performed Caesarean section) as well as the DES cases cited by Judge Keefe.
The ultimate repudiation of preconception torts can be found in former Chief Judge Wachtler’s opinion in Albala v. City of New York, 54 N.Y.2d 269, 445 N.Y.S.2d 108, 109-10, 429 N.E.2d 786, 787-88 (1981), in which he rejected preconception torts, even in a medical setting. There, a doctor performed a faulty abortion, *60injuring the mother’s uterus which in turn caused injury to a later conceived child. The judge stated that a cause of action by the. child against the doctor “would require the extension of traditional tort concepts beyond manageable bounds____” Id. at 109, 429 N.E.2d at 787; see also id. at 109-10, 429 N.E.2d at 788 (further rejecting the application of foreseeability as the sole hallmark of legal duty). While I agree that foreseeability is not the sole determinate of proximate cause, I agree with the majority here that New Jersey would decline to follow both the result and reasoning of Albala, as well as a later New York case, following Albala, involving a mother’s exposure to ethylene oxide prior to conception. See Catherwood v. American Sterilizer Co., 130 Misc.2d 872, 498 N.Y.S.2d 703 (Sup.Ct.1986), aff'd o.b., 126 A.D.2d 978, 511 N.Y.S.2d 805 (1987).
I do not see a decision incorporating our collective view of preconception torts as opening any floodgate of litigation as claimed by defendant. The few eases on this subject throughout the country indicate that the claim is seldom made, perhaps because the circumstances are so unusual. Our tort law stands for the principle that, subject to a finding of proximate cause which incorporates the elements of foreseeability and intervening cause, a person is responsible for the injuries he or she negligently inflicts on others, and. since many of our acts have ramifications beyond their immediate effects, it certainly is foreseeable that a person who had not been conceived when the negligent act occurred might be among the injured.
If we accept the potential of preconception tort liability, I do not see the issue of foreseeability in this case as having been sufficiently developed before the trial court. The majority has both noted the attenuated time period and the unusual nature of the injury. Unlike the majority, I see the chain of foreseeable causation in this ease not to be as extended as that in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). On the other hand, I cannot say with any certainty that further exposition on this issue may not show it to be so, and thus render this ease *61properly subject to dismissal. This issue should be developed before the trial judge who in my opinion prematurely and mistakenly dismissed the matter on the theory that we cannot recognize preconception torts in a case such as this. Proofs can still be evaluated in limine to see if there is a sufficient factual issue for a jury. I would therefore not reverse and direct that the matter proceed to trial, but rather would remand the matter for reconsideration, with the trial judge to be guided by our unanimous view that New Jersey is amenable to preconception torts as a basis for liability in a negligence setting. I therefore concur with the court’s finding on preconception torts, but dissent from the portion of the decision determining the issue at this stage of the proceeding.
Of course, if the case then is to go to the jury on this point, the trial judge would be required to assess the impact of plaintiffs’ release on their derivative claim for medical expenses and their per quod claim for loss of their child’s services.
I would reverse and remand for further proceedings.
Another illustrative example might be an electrician who negligently wires an outlet in a house, and two years later a crawling nine-month-old is shocked and injured when he or she touches the outlet. The result should be no different than if a two-year-old performs the same act.
The deformity was discovered three years later by a physician while performing a minor operation on the child’s chin. A CAT scan revealed a premature closing of the cranial suture, with resultant deformity.
also have no problem with Judge Keefe's question relating to a woman blacking out years after an accident because of a negligently-inflicted, but undiscovered injury. This is a question of proximate cause, to be resolved by a jury, or by the court if reasonable jurors could not differ.
Although I have used the analogy of a collapsing structure, the Lough court posited a balcony, negligently constructed two years earlier, falling when a mother and a one-year-old child stepped onto it. The court stated: “It would be ludicrous to suggest that only the mother would have a cause of action against the builder but, because die infant was not conceived at the time of the negligent conduct, no duty of care existed toward the child.” 866 S.W.2d at 854.