130 Misc. 2d 872 | N.Y. Sup. Ct. | 1986
OPINION OF THE COURT
In response to plaintiffs’ motion to add Donna Patterson as
The parties agree that the issue presented herein, i.e., the existence of a cause of action for preconception tort
The determination in Albala (supra) was purely one of policy. As the majority as well as dissent notes, the alleged injuries to the plaintiff therein were foreseeable, causally related and resulted in ascertainable damages. (Cf. Becker v Schwartz, 46 NY2d 401 [1978].) The decision was the exercise of the court’s duty to limit liability where policy so demanded. (Tobin v Grossman, 24 NY2d 609 [1969].) Thus, determination of the issue presented herein entails a determination of whether policy considerations mandate limitation of liability.
The footnote indicates that there may not be policy reasons to limit liability in cases like Jorgensen (supra) involving "strict liability without fault” (Albala v City of New York, supra, p 274, n). Defendants urge that New York’s version of strict products liability is not strict liability without fault as contrasted with Oklahoma’s law under which Jorgensen was decided. This court is unpersuaded by such a distinction. It seems clear that in citing Codling v Paglia (32 NY2d 330) in that portion of the footnote in which the court distinguished policy in negligence cases from policy in cases involving "strict liability without fault”, the court gave a clear indication that what was meant by "strict liability without fault” in that context was the species of strict liability established in Codling v Paglia (supra). (Cf. Rosado v Proctor & Schwartz, 66 NY2d 21.)
The lack of need for limitation on liability in most strict products liability cases may be inferred from not only the court’s footnote in Albala but from other policy discussions in decisions of the court with respect to the extension of that
Furthermore, it seems incongruous to allow an action for preconception tort in an exposure case while applying a Statute of Limitations which accrues on date of last exposure. If the cause of action accrues long before conception, how can a plaintiff not in being at date of accrual have a cause of action? This is the result urged by plaintiff. It is untenable.
Finally, the court has carefully avoided opening the doors to litigation by plaintiffs claiming injury due to acts of defendants before their birth. Since Woods v Lancet (303 NY 349 [1951]) first allowed recovery due to postconception prenatal injury, extension of such rights of recovery has been limited. (See, Tebbutt v Virostek, 65 NY2d 931; Vaccaro v Squibb Corp., 52 NY2d 809 [1980]; Albala v City of New York, 54 NY2d 269, supra; Becker v Schwartz, 46 NY2d 401, supra [1978].) Extension of Woods to allow actions for preconception torts would not be consistent with the policy evidenced by the Court of Appeals decision therein. In order to allow a cause of action for preconception tort there requires the finding of a duty to the unconceived. Such a duty can only be couched in terms of a duty to protect the potentiality of life. (Robertson, Toward Rational Boundaries of Tort Liability For Injury To The Unborn: Prenatal Injuries, Preconception Injuries And Wrongful Life, 1978 Duke LJ 1401.) New York has not recognized any such duty. (See, Endresz v Friedberg, 24 NY2d 478 [1969]; see also, Hahn v Taefi, 115 AD2d 946, wherein the court refused to recognize any right to recovery for the plaintiffs sterility.)
On the basis of the foregoing, the proposed plaintiff fails to state a cause of action and amendment so as to add this party as a plaintiff is denied. Defendants’ motion to dismiss is
The term "preconception tort” is used herein as a generic term for the proposed causes of action regardless of whether the underlying theory is one of tort or contract.