Endresz v. Friedberg

OPINION BY: FULD

The principal question posed is whether there is a right of recovery under this State's wrongful death statute by the personal representative of a stillborn fetus which died as a result of injuries received while en ventre sa mere.

The plaintiff, Janice Endresz, seven months pregnant, was injured in an automobile accident in the winter of 1965 and two days later was delivered of stillborn twins, a male and a female. Four actions in negligence were brought against the persons assertedly responsible for the accident. In the first two actions -- one for the wrongful death of each child -- the plaintiff Steve Endresz, Janice's husband, suing as administrator, seeks damages of $ 100,000 by reason of the distributees' "loss of anticipated * * * care, comfort and support during the minority and majority" of each infant and for "medical, hospital and funeral expenses incurred by reason of the death" of the children. In the first cause of action in the third suit, the plaintiff Janice Endresz asks $ 500,000 damages for her injuries. In the second and third causes of action, she requests $ 50,000 for loss of the "care, comfort, companionship, future society, aid and comfort and services" of each of the two stillborn children, further claiming to have "been otherwise damaged" as a result of their deaths. In the fourth suit, Mr. Endresz seeks $ 100,000 in the first count by reason of the expenses of his wife's illness and the loss of her services and consortium. The second and third counts were the same as in Mrs. Endresz's suit except for an additional claim of damages for "medical, hospital and funeral expenses" resulting from the children's deaths.

On motion of the defendants, the court at Special Term, adhering to our determination in Matter of Logan, dismissed the first two suits for wrongful death. The court also dismissed the second and third causes of action in the parents' own suits on the ground that they did not have a "separate cause of action for the loss of care, comfort and companionship of said children"; Special Term did, however, give them leave to plead over and assert any causes of action which might be "had under the theory [announced] in Ferrara v. Galluchio." On appeal, the Appellate Division reversed so much of that order as granted the plaintiffs permission to plead over, otherwise affirming.

This court has already decided that a wrongful death action may not be maintained for the death of an unborn child. This view is held by the courts of a number of other jurisdictions and, although there is authority to the contrary, further study and thought confirm the justice and wisdom of our earlier decisions.

Section 5-4.1 of the EPTL, re-enacting, without substantive change, former section 130 of the Decedent Estate Law, declares, insofar as pertinent, that "The personal representative * * * of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued." Before there may be a "decedent", there must, perforce, be birth, a person born alive, and, although the statute, enacted in 1847, is silent on the subject, it is fairly certain that the Legislature did not intend to include an "unborn" foetus within the term "decedent". Indeed, it was not until 1951, more than 100 years later, that this court -- overruling a long-standing decision -- decided that "a child viable but in utero, if injured by tort, should, when born, be allowed to sue." If, before Woods, a child so injured had no right of action, still less was such an action intended to lie on behalf of one who, never seeing the light of day, was deprived of life while still in its mother's womb.

Our decision in the Woods case does not require us, as suggested, to reinterpret the wrongful death statute to provide compensation to the distributees of a stillborn foetus for "pecuniary injuries" resulting from its death apart from those sustained by the mother and father in their own right. The Woods decision, as the court recognized in Matter of Logan, simply brought the common law of this State into accord with the demand of natural justice which requires recognition of the legal right of every human being to begin life unimpaired by physical or mental defects resulting from the negligence of another. The considerations of justice which mandate the recovery of damages by an infant, injured in his mother's womb and born deformed through the wrong of a third party, are absent where the foetus, deprived of life while yet unborn, is never faced with the prospect of impaired mental or physical health.

In the latter case, moreover, proof of pecuniary injury and causation is immeasurably more vague than in suits for prenatal injuries. Manifestly, the Legislature did not intend to authorize the maintenance of a wrongful death action where there are "no elements whatever upon which a jury could base any conclusion that a pecuniary injury has been suffered by the plaintiff from the loss of the unborn child". As the Pennsylvania Supreme Court pointed out in the Carroll case, the fact that the injured child "is born alive tends to effectively permit a just result, and reduces materially the inherent complex problems incident to causation and the pecuniary loss suffered. * * * On the other hand, if the fetus is stillborn, speculation as to causation and particularly loss suffered is unreasonably increased"

Beyond that, since the mother may sue for any injury which she sustained in her own person, including her suffering as a result of the stillbirth, and the father for loss of her services and consortium, an additional award to the "distributees" of the foetus would give its parents an unmerited bounty and would constitute not compensation to the injured but punishment to the wrongdoer. A leading law review article on the subject has clearly pointed up the differences in the two situations:

"The hardship of many of the decisions denying relief [in prenatal injury cases] lay in the fact that they required an infant to go through life * * * bearing the seal of another's fault. There is no such justification in the wrongful death situation. * * *

"A fundamental basis of tort law is the provision for compensation of an innocent plaintiff for the loss he has suffered. Tort law is not, as a general rule, premised upon punishing the wrongdoer. It is not submitted that the tortious destroyer of a child in utero should be able to escape completely by killing instead of merely maiming. But it is submitted that to compensate the parents any further than they are entitled by well-settled principles of law and to give them a windfall through the estate of the fetus is blatant punishment."

It is urged that, since a child en ventre sa mere is considered in being or alive for purposes of taking property and, in addition, is to some extent protected by the criminal and public health laws, it should likewise be so regarded and treated when injured in utero and, indeed, deemed a "decedent" under section 5-4.1 of the EPTL even when stillborn. However, as the court observed in Matter of Roberts, the property and other laws referred to were made "solely for the protection of the child and not for the benefit of those who take through the child." In point of fact, although an unborn child has certain rights under property law, his enjoyment of those rights is contingent upon his being born alive. As the court wrote in Matter of Peabody -- where, relying upon Logan, we held that a child en ventre sa mere is not a person "beneficially interested" in an irrevocable trust within the meaning of section 23 of the Personal Property Law and hence his consent was not required for its revocation -- it is only if "the child [is] later born and able to take possession of the gift or inheritance" that such a child is "considered born and living.” In other words, even if, as science and theology teach, the child begins a separate "life" from the moment of conception, it is clear that, "except in so far as is necessary to protect the child's own rights," the law has never considered the unborn foetus as having a separate "juridical existence." Indeed, one court has noted that, although a child en ventre sa mere may inherit, a stillborn child may not pass his estate to heirs or next of kin and there is no way that next of kin may assert a right to share in the child's inchoate estate. Translated into tort law, this means that there is but a "conditional prospective liability * * * created when an unborn child * * * is injured" through the wrongful act of the defendant, and such liability attaches only upon fulfillment of the condition that the child be born alive.

It is argued that it is arbitrary and illogical to draw the line at birth, with the result that the distributees of an injured foetus which survives birth by a few minutes may have a recovery while those of a stillborn foetus may not. However, such difficulties are always present where a line must be drawn. To make viability rather than birth the test would not remove the difficulty but merely relocate it and increase a hundredfold the problems of causation and damages. Thus, one commentator aptly observed that "since any limitation will be arbitrary in nature, a tangible and concrete event would be the most acceptable and workable boundary. Birth, being a definite, observable and significant event, meets this requirement."

In light of all these considerations, then, we do not feel that, on balance and as a matter of public policy, a cause of action for pecuniary loss should accrue to the distributees of a foetus stillborn by reason of the negligence of another; the damages recoverable by the parents in their own right afford ample redress for the wrong done. Decidedly applicable here is the rule that "[liability] for damages caused by wrong ceases at a point dictated by public policy or common sense." . . .

[. . .]

The order appealed from should be affirmed, without costs.

Burke, J. (dissenting in part).

The question before us in these first two causes of action is whether a personal representative may recover for the death of a child which results from injuries received while en ventre sa mere. The majority has concluded that such recovery should be denied. In so doing, they have set forth four reasons supporting their position. Briefly stated, their reasons are these: it was never the intention of the Legislature to include an unborn child within the meaning of the term "decedent" when they enacted the wrongful death statute in 1847; considerations of justice are absent where a foetus is "deprived of life while yet unborn"; extreme difficulty is envisioned in proving damages and causation in an action of this type, and recognition of such a cause of action would create an "unmerited bounty" for the parents who have lost their child. I have studied each of these proffered reasons and have concluded on close analysis that -- whether considered individually or collectively -- they are inadequate grounds for the decision reached today. I, therefore, respectfully dissent.

[. . .]

The majority's proclamation that "there must, perforce, be birth" before the cause of action exists is merely a refinement of the ratio decidendi of Drobner where the court concluded that the defendant in that case "owed no duty of care to the unborn child." Such reasoning, rejected though it was in Woods because it was an outmoded, timeworn fiction, has nevertheless been exhumed to guide the court today. In truth, life, not birth, is the sole significant criteria. The cause of action arises, if at all, at the time of injury and it should not thereafter be cut off because of the child's death before birth. The illogicalness of the majority's position was aptly demonstrated by the Supreme Court of Wisconsin, in the analogous case of Kwaterski v. State Farm Mut. Auto. Ins. Co., in these terms: "If no right of action is allowed, there is a wrong inflicted for which there is no remedy. Denying a right of action for negligent acts which produce a stillbirth leads to very incongruous results. For example, a doctor or midwife whose negligent acts in delivering a baby produced the baby's death would be legally immune from a lawsuit. However, if they badly injured the child they would be exposed to liability. Such a rule would produce the absurd result that an unborn child who was badly injured by the tortious acts of another, but who was born alive, could recover while an unborn child, who was more severely injured and died as the result of the tortious acts of another, could recover nothing." I therefore find the majority's reliance upon the necessity of birth unconvincing. Moreover, I think the illustration presented in Kwaterski (supra) sufficiently demonstrates the error of the majority's second argument that "considerations of justice" are absent which would mandate that the action before us be sustained.

The majority next contends that the establishment of such an action would create tremendous difficulty in proving causation and damages. It is sufficient, I feel, to note that these same two arguments were unsuccessfully advanced in the Woods litigation. In disposing of them at that time, this court declared: "[These arguments have] 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 foetus, so carefully does nature insulate it. But such difficulty of proof or finding is not special to this particular kind of lawsuit (and it is beside the point, anyhow, in determining sufficiency of a pleading). Every day in all our trial courts * * * such issues are disposed of, and it is an inadmissible concept that uncertainty of proof can ever destroy a legal right." I perceive no valid reason for seizing upon these arguments as a means for sustaining the majority's position. Indeed, this portion of our decision in Woods was cited approvingly by a court of a sister State which refused to deny a wrongful death cause of action for a stillborn foetus merely because of the difficulty attached to proving damages. In like manner, the contention that the present action would create an "unmerited bounty" is both ill founded and, in light of Woods, jurisprudentially unsound.

In concluding, I would note that this is not the first time that a court has been asked to consider this question. Indeed, many jurisdictions have rendered decisions both for and against recovery. While the majority of these courts have sustained the cause of action -- as I would -- I do not contend that this alone is significant. However, having also reviewed the decisions in accord with the position the majority today adopts, I find them unimpressive for two reasons. To begin with, in a number of those same jurisdictions, the court would not extend a cause of action to a child that was merely injured while en ventre sa mere, thus rejecting our decision in Woods. Also, these courts have, in part, denied recovery because the damages are too difficult to prove. It is the reasoning employed by those jurisdictions -- rather than their status as a "minority view" -- which I find unacceptable.

In summary, I am of the opinion that it is both illogical and unreasonable to distinguish between injuries wrongfully inflicted upon a viable foetus which result in death just prior to the infant's separation from the mother and those which cause either permanent injuries or death itself, but at some short interval after birth has occurred. I, therefore, dissent from that portion of the majority opinion which affirms the dismissal of the wrongful death actions by the personal representatives of these stillborn foetus.