Lead Opinion
Thе 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, § 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 rеsponsible 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
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.
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,
Our decision in the Woods case (
‘ ‘ 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 tortiоus destroyer of a child in útero*485 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 útero 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 (
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 commеntator aptly observed that (Wenger, Developments in the Law of Prenatal Wrongful Death,, 69 Dickinson L. Eev. 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 “ [1] lability for damages caused by wrong ceases at a point dictated by public policy or common sense.” (Milks v. McIver,
“ Here, of course, the mother may recover for her injury including the miscarriage, and the only question is whether the estate of the unborn child may have a separate recovery. To allow it would recognize an interest in being born alive. And however great the spiritual and moral value of such an interest [in this connection, cf. Williams v. State of New York, 18 N Y 2d 481, concurring opn. of Keating, J., p. 485], its claim*487 to pecuniary compensation is far more tenuous and doubtful than that of the child who lives to bear the seal of defendant’s negligence with all the conscious suffering and economic loss it may entail. Few cases have allowed separate recovery where the child is not born alive, and perhaps this is the fairest and most practical place to draw the line. It, too, would make arbitrary distinctions— as between the child killed just before delivery and one who dies just after—but this sort of thing will be encountered wherever there must be а borderline.” (Emphasis supplied.)
Actions 3 and 4
We do not have before us the counts in these two actions which, upheld by Special Term, allege damage to the parents in their own right (the mother’s physical injuries and mental suffering, the father’s loss of her services and consortium). We are concerned only (1) with their claims for loss of the “ care, comfort, companionship, future society, aid * * * and services ” of the two unborn children and their right to compensation insofar as they have ‘ ‘ been оtherwise damaged ’ ’ and (2) with Mr. Endresz’s claim for medical, hospital and funeral expenses in connection with their deaths.
We may immediately eliminate the claim for loss of services, since ‘1 loss of services ’ ’ is included in the category of pecuniary loss (see, e.g., Graf v. Taggert, 43 N. J. 303, 308, supra) for which, as we have just seen, distributees of a stillborn foetus may not recover under the wrongful death statute. As indicated, however, the parents do not go completely unrecompensed. If the defendants herein were negligent, Mrs. Endresz may recover for the injuries she sustained, both physical and mental, including the emotional upset attending the stillbirths.
Neither party, however, may recover for thе loss of offspring, as such—that is, for the effect of the stillbirths in depriving them of children or of their companionship. (See, e.g., Berg v. New York Soc. for Relief of Ruptured & Crippled, 136 N. Y. S. 2d 528, revd. on other grounds
“ The plaintiff is entitled to recovery for the physical injury which she has sustained, and for the pain and suffering which she has endured and will endure as a result of the defendant’s negligence. So far as a miscarriage or the delayed delivery of a stillborn child augments the mother’s physical injury, pain or suffering, so far is it proper tobe considered on the question of damages; but its еffect in depriving the mother of offspring cannot be taken into account as an element of damage at all. In a husband’s suit for damages arising out of a personal injury to his wife, as a result of which she suffered a miscarriage, it has been expressly held that nothing can be recovered by the husband on , account of the loss of offspring. The injury is too remote and speculative. (Butler v. Manhattan R. Co.,143 N. Y. 417 .) ” (Emphasis supplied.)
Accordingly, the plaintiffs are not entitled to damages for the loss of their offspring and the second and third counts of Actions No. 3 and No. 4 were properly dismissed.
Stare decisis does not, of course, compel us to perpetuate an unjust rule “ out of tune with the life about us ”. (Bing v.
The order appealed from should be affirmed, without costs.
Notes
. See, e. g., Norman v. Murphy,
. Worgan.v. Greg go & Ferrara,
. Such damages are to be distinguished from those held recoverable in Ferrara V. Galluchio (5 N Y 2d 16) and Battalla v. State of New York (10 N Y 2d 237), based on fright or fear of physical harm. The Appellate Division, therefore, correctly reversed so much of the order of Special Term as gave the plaintiffs leave to plead over on the theory of those eases.
. This does not save the second and third counts of his action, however, for such claim is more properly made in his first cause of action for damages which is still before the trial court. His request, though, for medical and hospital expenses by reason of the prenatal deaths must be denied since they are duplicative of thosе sought and recoverable by his wife in the first cause of action in her suit.
Dissenting Opinion
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 сhild 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 11 unmerited bounty ’ ’ for the parents who have lost their child. I have studied each of these proffered reasons and have concluded on сlose analysis that— whether considered individually or collectively—they are inadequate grounds for the decision reached today. I, therefore, .respectfully dissent.
Former section 130 of the Decedent Estate Law, which created the cause of action for wrongful death, is the natural object of our inquiry since, if there exists a wrongful death action in behalf of a stillborn foetus, it can only be by virtue of this section. So far as here pertinent, section 130 (re-enacted without mоdification in EPTL 5-4.1 states: ‘‘ The * * * administrator * * * of a decedent who has left him * * * surviving * * * next of kin * * * may maintain an action to recover damages for a wrongful act, neglect or default,
favor of the decedent by reason thereof if death had not ensued.” (Emphasis supplied.) By precedent and practice, the interpretation of every statute requires an inquiry directed toward the ascertainment of what is traditionally referred to as ‘ ‘ legislative intent. ’ ’ It must be recognized that this сourt, in performing this ofttimes complicated judicial process, must attribute significant roles to both the language and dominant purpose of a particular statute. (See, e.g., Williams v. Williams, 23 N Y 2d 592.) Thus, a statute will be interpreted to effect evils or needs existent at the time of the legislation’s passage and all subsequently arising fact patterns which can be said to come within the genus of situations demarlced by the act. When a combination of circumstances, such as those before us now, nonexistent at the time of the act’s passage, confront a court, that body should respond by construing a word or phrase as in its judgment it deems lawmakers would have done had they acted with the present situation in mind. The major factor in this process is the dominant purpose of the legislation — the general object sought to be accomplished. This has been the recent practice of this court, as evidenced by the majority opinion in Williams (supra). (See, also, Vermilya-Brown Co. v. Connell,
The applicable language of sеction 130 has already been set forth; the purpose of the statute can be fairly stated in general terms. The wrongful death statute in,this State, as in others, represents the law’s recognition that pecuniary aid or assistance will be extended by next of kin one to another. In light of this recognition, the law has given that next of kin a cause of action for pecuniary damages suffered by the loss of the decedent. (See Butler v. Manhattan Ry. Co.,
Precisely because of this condition precedent, the present action would have been considered without merit prior to 1951. At that time, by virtue of Drobner v. Peters (
In 1951, however, this court laid to rest the Drobner doctrine in Woods v. Lancet (
In light of the act’s general purpose and in view of the construction heretofore placed upon it, it is indeed unreasonable to distinguish between an action in behalf of a deceased infant and one in behalf of a child en ventre sa mere. The majority, in making this distinction, has avoided a proper analysis of the Legislature’s intent, by merely concluding thаt “it is fairly certain that the Legislature did not intend to include an ‘ unborn ’ foetus within the term ‘ decedent ’.”
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 ” (
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 declаred (303 N. Y., supra, p. 356): “ [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. (Mitchell v. Couch, 285 S. W.
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.
In summary, I am of the opinion that it is bоth 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.
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.
Order affirmed.
. Gorke v. Le Clerc,