Citation. Endresz v. Friedberg, 24 N.Y.2d 478, 248 N.E.2d 901, 301 N.Y.S.2d 65
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Brief Fact Summary.
Mrs. Endresz was seven months pregnant when she was injured in an automobile accident with Friedberg, causing her twins to be delivered stillborn. The Plaintiffs, members of the Endresz family (Plaintiff), sued the Defendant, Friedberg (Defendant), for among other things, the wrongful death of each child.
Synopsis of Rule of Law.
New York does not allow a cause of action for the wrongful death of unborn children.
Janice Endresz was seven months pregnant when she was injured in an automobile accident. Two days later she delivered stillborn twins. Four actions in negligence were brought by the Plaintiffs against the Defendant, the first two for the wrongful death of each child. Plaintiffs claimed damages for loss of anticipated care, comfort and support during the minority and majority of each infant and medical, hospital, and funeral expenses for the children. The court at Special Term dismissed the first two suits for wrongful death.
May a wrongful death suit be brought in New York for causing the negligent death of a yet unborn child?
No. Judgment affirmed.
* This Court has already decided that wrongful death actions cannot be maintained for the death of an unborn child. Legislative Acts regarding wrongful death suits refer to decedents and one must have been born before they can be a decedent.
* This court’s decision in Woods v. Lancet, 303 N.Y. 349, 353, 102 N.E.2d 691, 693, 27 A.L.R.2d 1250 recognized a cause of action for a viable child in utero who is injured by a tort and later born with injury. This decision does not require the Court to reinterpret wrongful death to provide compensation for distributees of a stillborn fetus.
* In wrongful death suits for unborn children, the proof of pecuniary injury is extremely vague. To allow for such recovery would permit a windfall because the mother may sue for her suffering as a result of the stillbirth and the father may sue for loss of her services and consortium.
If no right of action is permitted, there is a wrong inflicted for which there is no remedy. Allowing a right of action when a fetus is injured and later born, but not allowing one when the injury leads to stillbirth, leads to incongruous results.
Concurrence. Justice Keating concurred.
Today a majority of states allow a civil claim for the wrongful death of an unborn child.