Endresz v. Friedberg

New York Court of Appeals · 1969 · Torts

TortsWrongful deathPrenatal injurieswrongful deathstillborn fetusprenatal injurybirth as boundarypecuniary loss

Facts

Janice Endresz was seven months pregnant when she was injured in an automobile accident in the winter of 1965. Two days later she delivered stillborn twins, one male and one female. Her husband, as administrator, brought two wrongful death actions for the twins seeking pecuniary damages and expenses, and both parents also sought damages in their own suits for loss of the children's care, companionship, society, aid, comfort, and services. The father additionally sought medical, hospital, and funeral expenses connected to the children's deaths.

Issue

Does New York's wrongful death statute permit the personal representative of a stillborn fetus, allegedly fatally injured while en ventre sa mere, to recover for wrongful death? May the parents separately recover for loss of the children themselves, apart from damages for the mother's own injuries and the father's derivative claims?

Rule

Under EPTL 5-4.1, a wrongful death action requires a decedent, and for that purpose there must be birth alive; a stillborn fetus is not a decedent within the statute. Accordingly, distributees may not recover wrongful death damages for pecuniary loss from the death of a stillborn fetus, and parents may not recover for loss of offspring as such, though the mother may recover for her own physical and mental injuries from the stillbirth, the father may recover derivative damages for loss of her services and consortium, and funeral expenses flowing from her injuries are compensable.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Albany, Nora Patel was eight months pregnant when a delivery van owned by Hudson Crest Logistics struck her car. Surgeons delivered the fetus later that day, but there was no live birth, and Nora's spouse, Daniel Ortiz, was appointed administrator of the fetus's estate.

Under New York law as stated by the court, may Daniel maintain a wrongful death action on behalf of the fetus's estate for the distributees' pecuniary loss?

Explanation. The majority held that New York's wrongful death statute requires a decedent, and for that purpose there must be birth alive. A stillborn fetus has no separate juridical existence as a decedent under the statute, even if viable when injured. Therefore no wrongful death action may be maintained on behalf of the fetus's estate for distributees' pecuniary loss.