6a2733d3-f42e-46de-b007-ce09673633ff.doc
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Endresz v. Friedberg, NY Court of Appeals, 1969
Issue
Can a wrongful death suit be maintained for the death of an unborn child?
Reasoning
The wrongful death statutes does not say anything about fetuses but pretty sure legislature did not intend for it to cover unborn children under the term “decedent”. This just recognizes the legal right of every human being to begin life unimpaired by physical or mental defects resulting from the negligence of another. If a child is unborn then he does not face the prospect of an impaired life. Mother and father can sue for their own reasons and losses… An additional award would be unmerited bounty – that would constitute not compensation for injuries but punishment to the wrongdoer. Fundamental basis of Tort law is compensation of an innocent ∏ for loss he has suffered – not punishing the wrongdoer. Must draw the line somewhere; might as well draw it where at a tangible and concrete event: birth.
Rule
Facts
The 7-months pregnant ∏ was injured in a car accident.
A child viable in utero, if injured by tort, should, when born, be allowed to sue.
2 days later she delivered still-born twins.
As a matter of public policy, a cause of action for pecuniary loss should not accrue to the distributes of a fetus stillborn by reason of negligence of another.
The ∏ father sued for loss of anticipated care, comfort and support. + medical and funeral expenses.
Law does not consider a fetus as having “juridicial existence” until born.
Dissenting: Danger in majority rule in that it a Dr. negligently delivers a still born baby, then he can not be liable but if he delivers a badly injured baby that he is liable. Illogical and unreasonable to distinguish between injuries wrongfully inflicted upon a viable fetus which result in death just prior to the infant’s separation from the mother and those which cause either permanent injuries or death itself.
Held Procedure P argues D argues
Affirmed. Suits dismissed. ∏ appeals