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COURT OF APPEALS OF NEW YORK 1969.NY.41191 <>; 248 N.E.2d 901; 24 N.Y.2d 478 decided: April 17, 1969. STEVE L. ENDRESZ, AS ADMINISTRATOR OF THE ESTATE OF BABY BOY ENDRESZ, DECEASED, APPELLANT,v.FRED FRIEDBERG ET AL., RESPONDENTS. (ACTION NO. 1.); STEVE L. ENDRESZ, AS ADMINISTRATOR OF THE ESTATE OF BABY GIRL ENDRESZ, DECEASED, APPELLANT, V. FRED FRIEDBERG ET AL., RESPONDENTS. (ACTION NO. 2.); JANICE ENDRESZ, APPELLANT, V. FRED FRIEDBERG ET AL., RESPONDENTS. (ACTION NO. 3.); STEVE L. ENDRESZ, APPELLANT, V. FRED FRIEDBERG ET AL., RESPONDENTS. (ACTION NO. 4.) Endresz v. Friedberg, 28 A.D.2d 1085, affirmed. Counsel John E. Shaffer for appellants. David J. Martin and John F. Rafferty for Fred Friedberg and another, respondents. Counsel John F. Gates for Joanne Salotto and another, respondents. Judges Scileppi, Bergan, Breitel and Jasen concur with Chief Judge Fuld; Judge Burke dissents in part and votes to modify in an opinion in which Judge Keating concurs. Author: Fuld

Endresz v. Friedberg, 28 A.D.2d 1085, affirmed.

Judges Scileppi, Bergan, Breitel and Jasen concur with Chief Judge Fuld; Judge Burke dissents in part and votes to modify in an opinion in which Judge Keating concurs.

Author: Fuld

 The principal question posed is whether there is a right of recovery under this State's wrongful death statute (EPTL 5-4.1 [formerly Decedent Estate Law, ยง 130]) by the personal representative of a stillborn foetus 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 (3 N.Y.2d 800, affg. 2 A.D.2d 842, affg. 4 Misc. 2d 283), dismissed the first two suits for wrongful death. The court also dismissed the second and third causes of action in the parents' own suits (No. 3 and No. 4) 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 (5 N.Y.2d 16)." On appeal, the Appellate Division reversed so much of that order as granted the plaintiffs permission to plead over, otherwise affirming.

Actions 1 and 2

This court has already decided that a wrongful death action may not be maintained for the death of an unborn child. (See, e.g., Matter of Logan, 3 N.Y.2d 800, supra ; Matter of Peabody, 5 N.Y.2d 541, 547; see, also, Matter of Bradley, 50 Misc. 2d 72; Matter of Irizarry, 21 Misc. 2d 1099.) This view is held by the courts of a number of other jurisdictions*fn1 and, although there is authority to the contrary,*fn2 further study and thought confirm the justice and wisdom of our earlier decisions. Section 5-4.1 of the EPTL (L. 1966, ch. 952, eff. Sept. 1, 1967), 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 (L. 1847, ch. 450), 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 (Drobner v. Peters, 232 N. Y. 220 [1921]) -- decided that "a child viable but in utero, if injured by tort, should, when born, be allowed to sue." (Woods v. Lancet, 303 N. Y. 349, 353.) 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 (303 N. Y. 349, supra) 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 (3 N.Y.2d 800, supra), 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". (Butler v. Manhattan Ry. Co. 143 N. Y. 417, 421-422; see, also, Matter of Logan, 3 N.Y.2d 800, supra ; Carroll v. Skloff, 415 Pa. 47.) As the Pennsylvania Supreme Court pointed out in the Carroll case (415 Pa. 47, supra), 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" (p. 49).

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. (See, e.g., Matter of Logan, 4 Misc. 2d 283, 286, affd. 2 A.D.2d 842, affd. 3 N.Y.2d 800, supra ; Carroll v. Skloff, 415 Pa. 47, 49, supra ; Graf v. Taggert, 43 N. J. 303; Gay v. Thompson, 266 N. C. 394.) A leading law review article on the subject has clearly pointed up the differences in the two situations (Gordon, The Unborn Plaintiff, 63 Mich. L. Rev. 579, 594-595):

"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 (158 Misc. 698, 699), 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 (5 N.Y.2d 541, 547, supra) -- where, relying upon Logan (3 N.Y.2d 800, supra), 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" (p. 546). 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" (Matter of Roberts, 158 Misc. 698, 699, supra), the law has never considered the unborn foetus as having a separate "juridical existence" (Drabbels v. Skelly Oil Co., 155 Neb. 17, 22) or a legal personality or identity "until it sees the light of day." (Matter of Peabody, 5 N.Y.2d 541, 547, supra.) 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. (See, e.g., Hogan v. McDaniel, 204 Tenn. 235.) 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. (Keyes v. Construction Serv., 340 Mass. 633, 636.)

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 (Wenger, Developments in the Law of Prenatal Wrongful Death, 69 Dickinson L. Rev. 258, 268), "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." (Milks v. McIver, 264 N. Y. 267, 269.) The whole problem of recovery for ...

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